MLD 2004 Judgments - Pakistan Legal Archive

Courts in this Volume

Bar Council Nwfp
Election Tribunal Nwfp
Election Tribunal Punjab
Election Tribunal Sindh
Federal Shariat Court
Karachi High Court Sindh
Lahore High Court Lahore
Pakistan Bar Council
Peshawar High Court
Quetta High Court Balochistan
Supreme Court Azad Kashmir

Dates of heating: 26th, April, 31st May and 20th September, 2003.

Election Tribunal Nwfp

MLD 2004 ELECTION TRIBUNAL NWFP 244 #

2004 M L D 244

[Election Tribunal N.‑W.F.P.]

Before Justice Dost Muhammad Khan, Election Tribunal

Hafiz ABDUR RAUF JAN‑‑‑Petitioner

Versus

BASHIR BILOUR and 6 others‑‑‑Respondents

Election Petition No.72 of 2002 with Criminal Miscellaneous No. 13 of 2003, decided on 29th September, 2003.

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

‑‑‑‑Ss.55(3), 61 & 63‑‑‑Civil Procedure Code (V of 1908), O. VI, R.15‑‑‑ Election petition‑‑‑Maintainability‑‑‑Maintainability of election petition filed by unsuccessful candidate was objected to by the returned candidate on two grounds; firstly that election petition was not verified in the laid down manner; and secondly that none of the documents annexed to the election petition was signed by petitioner nor it was verified by him in the prescribed manner‑‑‑Validity‑‑‑Election petition was duly verified on oath and was signed not only by the petitioner, but by‑his counsel also, though form of verification was not exactly the same which had been prescribed for verification of pleadings by provisions of O.VI, R.15, C.P.C.‑‑‑Requirements .of S.55 of Representation of the People Act, 1976, had thus been fulfilled‑‑‑Total absence of verification on election petition could be fatal and would attract mischief contained in provisions of S.63 of Representation of the People Act, 1976, but any defect of form in the verification would riot be so fatal because it would become a matter of technicality which could not be made a device for killing an election petition in its infancy‑‑‑Even otherwise technicalities had to be avoided for doing substantial justice and same should not be used as a device to defeat substantive right‑‑‑Election petition thus could not be dismissed on such ground‑‑‑Documents annexed with election petition were nothing but the result of counts of vides polled issued by Competent Authority and copies of said documents were duly certified and authenticated by Authorities concerned and object behind the same was to use the same as piece of evidence in support of contention taken in the election petition‑‑‑Such document, in circumstances, did not fall within definition of annexures' andschedule' and did not require signature or verification by the petitioner‑‑‑Preliminary objections to maintainability of election petition being not sustainable, were rejected.

PLD 1985 Central Statutes 677 ref.

(b) Words and phrases‑‑‑

Annex' andschedule'‑‑‑Connotation.

Fida Gul Khan for Petitioner.

M. Sarda; Khan for Respondent No. 1.

Election Tribunal Punjab

MLD 2004 ELECTION TRIBUNAL PUNJAB 777 #

2004 M L D 777

[Election Tribunal Punjab]

Before Justice Mian Hamid Farooq, Election Tribunal

Rana MUHAMMAD HAYAT----‑Petitioner

Versus

Sardar TALIB HUSSAIN NAKAI‑‑‑Respondent

Election Petition No. 3 of 2003, decided on 17th December, 2003.

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

‑‑‑‑Ss. 55(3) & 63‑‑‑Civil Procedure Code (V of 1908), O.VI, Rr.15 & 17‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.114‑‑‑Non‑verification of election petition and its annexes‑‑‑Non‑raising of objection in written statement with reference to Ss.55(3) and 63 of Representation of the People Act, 1976‑‑‑Application for amendment of election petition to remove such defect‑‑‑Validity‑‑‑Election petition was neither dated nor showing as to which of its paragraphs had been verified upon information received and believed by petitioner to be true‑‑‑Election petition was not verified or attested by Oath Commissioner or any other person duly authorized to administer oath‑‑‑Provisions of S.55(3) of Representation of the People Act, 1976 were mandatory and its violation/non‑compliance would entail penal consequences of dismissal of election petition‑‑‑Respondent by not raising such objection in written statement had acquiesced over the matter, thus, principle of estoppel would operate against him‑‑‑High Court accepted application and permitted petitioner to amend election petition and its annexes respecting verification and attestation from Oath Commissioner.

Sheikh Mushtaq Ali v. Khalid Anwar and others 1998 CLC 1138; Asif Nawaz Fatiana v. Walayat Shah 2003 CLC 1896; Raja Abid Hussain and others v. Sardar Muhammad Rana and 12 others 2002 YLR 3148 and S.M. Ayub v. Syed Yousaf Shah and others PLD 1967 SC 486 ref.

Engineer Iqbal Zafar Jhagra and others v. Khalil‑ur‑Rehman and 4 others 2000 SCMR 250 and Sh. Alla‑ud‑Din v. Shahid Qayyum Election Petition No. 105 of 2002 fol.

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

‑‑‑‑Ss.63(3) & 64‑‑‑Civil Procedure Code (V of 1908), O. VI, R.17‑‑Amendment of election petition‑‑‑Scope‑‑‑Election Tribunal having all powers of Civil Court trying a suit under C.P.C., could allow parties to amend pleadings at any stage of proceedings, if same was necessary for ensuring fair and effective trial and determination of real question in controversy.

‑‑‑‑O. VIII, R.2 & O. VI, Rr.1, 7‑‑‑Plea not raised in written statement‑‑Effect‑‑‑Such plea could not be agitated and proved in subsequent proceedings‑‑‑Defendant could not be allowed to improve and prove his case other than that made out in written statement.

Sh. Alla‑ud‑Din v. Shahid Qayyum Election Petition No.105 of 2002 fol.

Rana Muhammad Arif for Petitioner.

Ali Zafar for Respondent No.1.

MLD 2004 ELECTION TRIBUNAL PUNJAB 1089 #

2004 M L D 1089

[Election Tribunal Punjab]

Before Justice Mian Hamid Farooq, Election Tribunal

Haji LIAQAT ALI ‑‑‑Petitioner

Versus

Ch. MUHAMMAD AFZAL SAHI and 7 others‑‑‑Respondents

Election Petition No.62 of 2002, decided on 18th March, 2004.

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

‑‑‑‑Ss. 55 & 63‑‑‑Civil Procedure Code (V of 1908), O.VI, R. 17‑‑‑Election petition‑‑‑Amendment of pleadings‑‑‑Election Tribunal, powers of‑‑-Application filed by one of the respondents before the Election Tribunal to seek permission to amend his written reply to the petition, on the ground that due to inadvertence in the written statement, objections regarding non‑compliance of provisions of S.55 read with S.63 of Representation of People Act, 1976 could not be taken‑‑‑Validity‑‑‑The Election Tribunal had ample powers to allow the parties to amend their pleadings, if the same was for ensuring a fair and effective trial in the election petition and for determining the real questions in controversy between the parties.

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

‑‑‑‑Ss. 55, 63‑‑‑Civil Procedure Code (V of 1908), O. VI, R. 17‑‑Election petition‑‑‑Amendment of pleadings‑‑‑Application was filed by one of the respondents before the Election Tribunal to seek permission to amend his written reply to the petition, on the ground that due to inadvertence in the written statement, objections regarding noncompliance of provisions of S.55 read with S.63 of Representation of People Act, 1976 could not be taken‑‑‑Validity‑‑‑Inadvertence was not sufficient ground to seek amendment in pleadings‑‑‑Inadvertence, meaning of‑‑‑Word `inadvertence' was neither defined in the C.P.C. or in the Representation of People Act, 1976, thus for the meaning of the same, dictionaries were to be referred‑‑‑Meaning of the word "inadvertence" under the dictionaries was lack of care, inattentive and carelessness, accordingly, the applicant was careless or inattentive or he showed lack of intention, by not taking the said objections in his reply, therefore, this could not be held as a valid and sufficient ground to allow the sought amendments.

Black's Law Dictionary; K.G. Aiyer's Judicial Dictionary and Webster Dictionary Encyclopedia Edn. Vol. 1 ref.

‑‑‑‑If the words were not defined in statutes, dictionary can be referred to for determining meaning of such words.

Ghulam Murtaza v. Muhammad Ilyas and 3 others (PLD 1980 Lah. 495) ref.

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

‑‑‑‑S.62‑‑‑Civil Procedure Code (V of 1908), O. VI, R.17‑‑‑Election petition‑‑‑Amendment of pleadings‑‑‑Application was filed by one of the respondents before the Election Tribunal to seek permission to amend his written reply to the petition, on the ground that due to inadvertence in the written statement, certain objections could not be taken‑‑‑Validity‑-Powers under O. VI, R. 17, C.P.C. in order to allow amendments could be exercised in circumstances when it may be necessary for the purpose of determining the real questions in controversy between the parties, additionally, under S.62 of Representation of People Act, 1976, Tribunal may allow amendments, if in its opinion, it was necessary for ensuring the fair and effective trial and for determining the real questions in issue‑‑‑Said ingredients to allow amendments were neither pleaded nor urged by the respondent moreover, if the proposed amendments were allowed, it would change the complexion of the written reply and would amount to setting up altogether different cause of action‑‑‑Application of the respondent, in circumstances, was found devoid of merit, and was dismissed.

Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345) and Syed Akhlaque Hussain and another v. Water and Power Development Authority, Lahore 1997 SCMR 284 ref.

Zafar Iqbal Chohan for Petitioner.

Ch. Riasat Ali for Respondents.

Date of hearing: 18th March, 2004.

Election Tribunal Sindh

MLD 2004 ELECTION TRIBUNAL SINDH 25 #

2004 M L D 25

[Election Tribunal Sindh]

Before Justice Amir Hani Muslim, Election Tribunal

Dr. MUHAMMAD ALI BROHI‑‑‑Petitioner

Versus

AJMAL KHAN and others‑-‑Respondents

Election Petition No 145 of 2002 decided on 9th June, 2003.

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

‑‑‑‑Ss.8, 52 & 70 ‑‑‑Delimitation of Constituencies Act (XXXIV of 1974), Ss.8. 9, 10 & 10‑A‑‑‑Conduct of General Election Order [Chief Executive's Order No.7 of 2002], Arts. 4, 5 & 6‑‑‑‑Election petition‑‑Delimitation proceedings‑‑‑Unsuccessful candidate in his election petition had challenged Notifications issued under S.9 of Delimitation of Constituencies Act, 1974 by Election Commission alleging that certain Polling Stations which previously fell within limits of his constituency were inadvertently included within other constituency which act was violative of mandatory provisions of S.8 of Representation of the People Act, 1976 read with paras. 12 & 13 of Guidelines issued by Election Commission of Pakistan as per Manual of Instructions‑‑Petitioner/unsuccessful candidate did not object to impugned notifications issued by Election Commission from the date of their issuance till the elections were conducted‑‑‑Provisions of S.8 of the Representation of the People Act, 1976 had clearly provided that finalization of list of Polling Stations by Returning Officers was subject to the directions of Election Commission‑‑‑Article 6 of Conduct of General Election Order, 2002 had fully authorized Election Commission to take note of irregularities if were committed by Returning Officers and to issue appropriate directions‑‑‑Contention that petitioner did not have any remedy after issuance of impugned notifications, was not correct because Election Commission could always come forward to redress grievance of aggrieved party if party would approach the Election Commission for rectification‑‑‑Census delimitation did not debar Election Commission and Returning Officer to exercise powers conferred under Ss. 8, 9, 10 & 10‑‑A of Delimitation of Constituencies Act, 1974 or under Representation of the People Act, 1976 respectively ‑‑.‑Provisions in regard to census were covered by Census Ordinance, 1959 under which Government from time to time, in order to obtain certain information with respect to the population and housing conditions, had promulgated law authorising its different functionaries to collect data for said purposes‑‑‑Such legislation in no way could restrict exercise of power of Election Authorities and of Returning Officer‑‑‑Petitioner who participated in election without objecting to Notifications, could not file election petition without first exhausting remedy by making representation/appeal to the Election Commission against delimitation‑‑Election Tribunal would not sit in appeal to review said Notifications as it was the responsibility of petitioner to approach appropriate forum at the relevant time.

Vashist Narain v. Dev Chandra AIR 1954 SC 317; Tazuddin Ahmed v. Dhani Ram AIR 1959 Assam 128 and Mian Zulfiqar Ali Shah v. Ghulam Hyder PLD 1974 Note 92 at page 142 ref.

Fazl‑e‑Ghani Khan for Petitioner.

Shoa‑un‑Nabi for Respondent No. 15.

Date of hearing: 9th June, 2003.

MLD 2004 ELECTION TRIBUNAL SINDH 36 #

2004 M L D 36

[Election Tribunal Sindh]

Before Justice Ghulam Rabbani, Election Tribunal

Syed ABDUL LATIF SHAH‑‑‑Petitioner

Versus

ALI MUHAMMAD KHAN and others‑‑‑Respondents

Election Petition No. 131 of 2002, decided on 25th August, 2003.

(a) Words and phrases‑‑‑

‑‑‑‑ Words 'bachelor', 'degree', 'possess', 'possession' and 'rank', explained.

(b) Administration of justice‑‑‑

‑‑‑‑Pronouncing judgment‑‑‑Not safe to pronounce judgment on provision of one Act with reference to decision dealing with other Acts which were not pari materia.

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994 SCMR 1299 ref.

‑‑‑Ss.14, 52, 78, 82 & 99‑‑‑Conduct of General Election Order [Chief Executive's Order No.7 of 2002], Art.8A‑‑‑Election petition‑‑‑Election of returned candidate was challenged alleging that returned candidate on the day of, filing nomination papers was not Graduate possessing Bachelor Degree and that he was guilty of corrupt practice by making false declaration in respect of his educational qualifications, and by submitting, during course of scrutiny, a false affidavit and false certificates/documents in respect of his educational qualification before the Returning Officer‑‑‑Evidence on record had fully proved that returned candidate was Graduate at the time of filing nomination papers and nothing was on the record to rebut that position‑‑‑Allegations of illegal or corrupt practice were to be proved as a charge in a criminal trial‑‑‑Petitioner/objector had levelled allegations against the returned candidate which must be proved with such standard as was required for proving a charge in a criminal trial, but he had failed to do that‑‑‑If any doubt arises out of material placed on record, its benefit must go to the returned candidate‑‑‑Election petition filed by petitioner/objector against returned candidate being without merits, was dismissed.

Pachiripalli Satyanarayana AIR 1953 Mad. 534; Saifullah v. Selection Committee Admissions through Chairman, Public Service Commission, Quetta and 4 others 2001 YLR 2014; Intizar Hussain v. Akhtar Hussain and 4 others 2003 SCMR 204; Amirzada Khan v. Chief Election Commissioner and 2 others PLD 1974 SC 236; Balach Khan v. Mohabat Khan Mari PLD 2003 Quetta 42 and Saved Muhammad Ali v. Returning Officer, PS‑89, District Court, Karachi and 11 others 1999 CLC 2039 ref.

Abdul Latif Channa for Petitioner.

Rasheed A. Akhund for Respondent No. 1.

Ahmed Pirzada, Addl. A.‑G., Sindh (on Court's Notice).

Dates of hearing: 30th June; 11th July and 4th August, 2003.

Federal Shariat Court

MLD 2004 FEDERAL SHARIAT COURT 970 #

2004 M L D 970

[Federal Shariat Court]

Before Zafar Pasha Chaudhry, J

AFZAL MASIH alias NOORI MASIH and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeals Nos.200/I and 245/I of 2002, decided on 19th April, 2004.

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

‑‑‑‑Ss. 4, 10, 16‑‑-Appreciation of evidence‑‑‑Medico Legal Report or report of Chemical Examiner, would not be of any importance because both accused had admitted that they lived as husband and wife after getting themselves married by entering into Nikah under Islamic Law‑‑Accused had claimed that previously they were Christians, but subsequently they embraced Islam and both got married each other with mutual consent‑‑‑To decide whether offence of Zina was made out or not, the status and position of respective parties had to be seen at the time of alleged commission of Zina‑‑‑Both accused after embracing Islam, had adopted Islamic names and had entered into Nikah as Muslims‑‑‑Accused who were adult and entered into a valid Nikah after embracing Islam, if had committed sexual intercourse, their case did not fall within purview of S.4 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑‑‑In order to determine whether marriage between accused was valid, their status at the time of alleged offence had to be seen‑‑‑Both accused were Muslims and they got married; their Marriage could not be held invalid.

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

‑‑‑‑Ss.4, 10, 16‑‑‑Appreciation of evidence‑‑‑Determination of offence of Zina‑‑‑To determine guilt of an accused, especially offence of commission of Zina position of accused at the time of commission of the offence, would be relevant and not his previous history‑‑‑Would be enough to examine that any person who claimed to be a Muslim, believed in oneness of Allah and Prophet‑hood of Muhammad (S.A.W.) as the Last Prophet, would be accepted as Muslim‑‑‑Position and previous history of accused prior to time of commission of alleged offence, would not be relevant to determine his guilt‑‑‑Merely because some time before commission of offence, accused were not Muslims or had they continued to remain Christians, they could not have married to each other, same would be beyond the scope and parameters of criminal appeals preferred before High Court‑‑‑Said matter could be relevant if there was any question to determine the legal status or the position of their previous relations or bonds.

‑‑‑‑To decide a criminal appeal, the purpose and scope was limited only to determine the guilt or innocence of a person‑‑‑Penal provisions of any law had always to be strictly construed and the Court always would lean towards accused.

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

‑‑‑‑Ss.2, 4, 10, 16‑‑‑Offence of Zina‑‑‑Determination of‑‑‑Appreciation of evidence‑‑‑Definition of the crime and ingredients of offence of Zina as laid down in penal sections 2 and 4 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, had to be seen and kept in view and if ingredients were riot fulfilled, then no conviction could be recorded under said sections‑‑‑Both accused in present case were Muslims and their marriage was duly registered under prevalent law‑‑‑Would be inappropriate and unjust to treat marriage of accused persons as invalid at least to determine their guilt which was fact in issue in appeal‑‑Accused could not be held guilty of commission of Zina as per provisions of Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑‑‑Conviction of both accused recorded by Trial Court being not sustainable in law, was set aside.

Muhammad Ramzan v. The State PLD 1984 FSC 93 and Mst. Naziran alias Khalida Parveen v. The State PLD 1988 SC 713 ref.

Chaudhry Rafaqat Ali for Appellants.

Syed Muzahir Hussain Naqvi for the State.

Date of hearing: 29th March, 2004.

MLD 2004 FEDERAL SHARIAT COURT 995 #

2004 M L D 995

[Federal Shariat Court]

Before Fazal Ilahi Khan, C.J.

MUHAMMAD HASSAN ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No.83‑Q of 1999, decided on 31st May, 2001.

Penal Code (XLV of 1860)‑--

‑‑‑‑S.392‑‑‑Appreciation of evidence‑‑‑Prosecution witnesses were thoroughly cross‑examined, but nothing substantial was brought on record to discredit their credibility‑‑‑Excepting bare denial, accused did not utter a single word about reason of his involvement in the case‑‑‑No exception, in circumstances, could be taken to the finding of Trial Judge holding that prosecution was successful in proving its case against accused beyond any reasonable doubt‑‑‑Sentence of co‑accused having been reduced by High Court, while maintaining conviction of accused under S.392, P.P.C. and dismissing appeal filed by accused, his sentence of imprisonment was reduced accordingly.

M. Saliheen Mughal for Appellant.

Qari Abdur Rashid for the State.

Date of hearing: 31st May, 2001.

MLD 2004 FEDERAL SHARIAT COURT 1062 #

2004 M L D 1062

[Federal Shariat Court]

Before Sardar Muhammad Dogar, J

MUHAMMAD INAYAT alias INAYATOO‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No.78‑I of 2001, decided on 2nd November, 2001.

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

‑‑‑S.12‑‑‑Penal Code (XLV of 1860), S.377‑‑‑Appreciation of evidence ‑‑‑F.I.R. was lodged with all promptitude‑‑‑Victim although was the only witness who deposed about commission of sodomy with him, but nothing was brought on record to show that any enmity existed between the complainant and accused or between the victim and accused or between their families‑‑‑No reason was to doubt the statements of complainant, victim and prosecution witness‑‑‑Suggestion put to the victim that in fact sodomy had been committed with him by someone else and accused was involved on account of fact that he was present there, though was denied emphatically, but even otherwise, it would . not advance the case of defence as due to that suggestion presence of accused at the time of commission of offence with the victim, stood proved‑‑Statement of victim found corroboration from medical evidence and report of Chemical Examiner‑‑‑No proof was on record to the effect that accused was ill or suffering from any disease during the days in which occurrence had taken place‑‑‑Prosecution, in circumstances had been able to prove case against accused beyond any reasonable doubt‑‑‑Victim himself was a young man aged 18/19 years‑‑‑He had gone with accused to a distant place and had remained roaming there‑‑‑Only after that as stated by victim himself, that he was brought to place of occurrence and subjected to sodomy‑‑‑No injury was found on any part of body of victim‑‑‑Was not believable that a boy of such nature age who was physically strong and fit would not have received injuries, if he had resisted the commission of sodomy with him‑‑‑Inference could be drawn that ultimate commission of forcible sodomy, was of a lesser degree‑‑Sentence of R.I. for 4 years, plus fine, would meet ends of justice.

Saleheen Mughal for Appellant.

M. Aslam Uns for the State.

Date of hearing: 2nd November, 2001.

Faisal Arab for Respondents.

Date of hearing: 5th May, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 61 #

2004 M L D 61

[Karachi]

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

ARSHAD, HUSSAIN ‑‑‑ Petitioner

Versus

NIHAR HUSSAIN and others‑‑‑Respondents

Constitutional Petitions Nos. 2008, 2009 and 2010 of 2002, decided on 28th May, 2003.

Customs Act (IV of 1969)‑‑‑‑

‑‑‑‑Ss.156(1), (8),(14), (47) 77(1), (86), (89), (90)‑‑‑Criminal Procedure Code (V of 1898), Ss.154 & 156‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Allegation against accused was that he with connivance of his companions had caused loss to the Government of its legitimate revenue i.e., Customs Duty, Sales Tax etc. by misdeclaration/non‑declaration as well' as by tampering with the description and .quality of imported goods‑‑‑F.I.R. had been sought to be quashed on grounds that same was registered against accused mala fide; that Authorities had registered 21 more F.I.Rs. against accused containing similar allegations; that adjudication proceedings being also pending before concerned Authorities, investigation could not be conducted by Authorities on the, basis of F.I.R. and that cases against accused related to misdeclaration and not to non‑declaration‑‑Validity‑‑‑Investigation could commence after registration of F.I.R. and object of investigation was collection of evidence‑‑‑High Court had no power to interfere with police investigation and assume the role of investigator nor it had power of supervision or control over Investigating Agencies which power was vested in Courts subordinate to it‑‑‑Conduct and manner of investigation normally was not to be scrutinized under Constitutional jurisdiction which might amount to interference in police investigation as same could not be substituted by Court‑‑‑Question with regard to alleged mala fides on the part of Investigating Agency required factual investigation which could not be undertaken by High Court in exercise of its Constitutional jurisdiction‑‑‑Contention that as adjudication proceedings were pending before concerned Authorities, investigation could not be conducted, was not tenable in law‑‑‑Quashing of F.I.R. in circumstances, would tantamount to throttling the investigation which was not permissible in law‑‑‑Petition for quashing F.I.R. being misconceived, stood dismissed, in circumstances.

Rana Muhammad Farooque v. Aftab Hussain PLD 2003 Kar. 309; Shahnaz Begum v. Hon'ble Judges of High Court of Sindh and Balochistan PLD 1971 SC 677; Shoukat Ali Dogar and others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281; Brig. (Retd.) Imtiaz Ahmed v. Government of Pakistan and others 1994 SCMR 2142; Ahmed Saleem v. Muhammad Amin 199,8 PCr.LJ 170; Muhammad Saeed Azhar v. Martial Law Administrator, Punjab and others 1979 SMR 484 arid Adam v. Collector of Customs PLD 1969 SC 446 ref.

Mian Abdul Ghaffar and Mrs. Naveen Merchant for Petitioner.

Zaki Ahmed, Deputy Attorney‑General for the, Federal Government.

Akhtar Hussain for Respondents.

MLD 2004 KARACHI HIGH COURT SINDH 67 #

2004 M L D 67

[Karachi]

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

EX‑ASSISTANT WARRANT OFFICER MUHAMMAD YOUSUF‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN and another‑‑‑Respondents

Constitutional Petition No.D‑302 of 2003, decided on 28th May, 2003.

Pakistan Air Force Act (VI of 1953)‑‑-

‑‑‑‑Ss.4(xix‑a), 73 & 108, [as amended by . Pakistan Air Force (Amendment) Ordinance (XXXVIII of 1984)]‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑‑Competency of Court Martial to try cases under Hudood. Laws‑‑‑Accused had contended that `Court Martial' was not competent to try a person who was serving in Pakistan Air Force under Hudood Laws‑‑‑Validity‑‑Accused who was serving as Assistant Warrant Officer in Pakistan Air Force was subject to Pakistan Air Force Act, 1953‑‑‑By Pakistan Air Force (Amendment) Ordinance, 1984, amendments were introduced in the Pakistan Air Force Act; 1953 whereby powers were conferred upon the Court Martial to try the cases under Hudood Laws and the right of appeal and revision was provided to accused to, prefer the same before Authorities specified in the said Act‑‑‑No other Authority, Tribunal or Court had jurisdiction to vary, modify, alter, annul set aside, revise or review any order passed by any Officer of the Force authorized under Pakistan Air Force Act, 1953.

Shafi Muhammadi for Petitioner.

Date of hearing: 16th May, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 77 #

2004 M L D 77

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Mujeebullah Siddiqui, JJ

IQBAL AHMED TURABI and 2 others‑‑‑Appellants

Versus

THE STATE and others‑‑‑Respondents

Criminal Accountability Appeals Nos.46 and 48 of 2002, decided on 29th August, 2003.

(a) Interpretation of statutes‑‑‑

‑‑‑‑ Principles‑‑‑Criminal and penal statute must be strictly construed, i.e., it cannot be enlarged or extended by intendment, implication or by any equitable considerations‑‑‑Language of such statute cannot be enlarged beyond the ordinary meaning of its terms in order to carry into effect the general purpose for which the statute was enacted.

Hakim Ali Zardari v. The State PLD 2002 Lah. 369 ref.

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

‑‑‑‑Ss.9(a)(v) & 14(c)‑-‑Corruption and corrupt practices‑‑‑Presumption against accused‑‑‑In respect of the offence of corruption and corrupt practices defined in S.9(a)(v) and the presumption in law as contained in S.14(c) of the National Accountability Ordinance, 1999 prosecution is initially required to establish the possession of properties or pecuniary resources disproportionate to known sources of income of accused‑‑Once this fact is established by production of evidence or with the admission of accused persons, the onus, shifts to the accused to prove the contrary and give satisfactory account of holding/possessing the properties or pecuniary resources, failing which the Court shall be legitimately justified in presuming the accused persons to be guilty of offence of corruption and/or corrupt practices and awarding the conviction provided by law‑‑‑Mere disclosure of a source for acquiring an asset would riot be deemed sufficient to discharge the onus laid on an accused under the Ordinance‑‑‑Source disclosed by the accused should be reasonable, logical, satisfactory and known, meaning thereby that not merely the immediate source should be disclosed but the ultimate source 'from where the funds emanated shall also be disclosed.

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

‑‑‑‑Ss.10 & 31‑A‑‑‑Appreciation of evidence‑‑‑Notwithstanding two trials necessitated because of acts and omissions of two accused, there was one case only against all the accused persons‑‑‑Trial Court had not committed any illegality or even irregularity in disposing of tote entire case by single judgment, whereby neither any mandatory provision of law was violated nor, any prejudice had been caused to any of the accused persons‑‑‑On the contrary Trial Court had acted in the most appropriate manner, as rendering of two separate judgments was likely to cause confusion which had been rightly avoided‑‑‑Details furnished by the main accused showed that in his desperate attempt to furnish the source of acquiring the properties he had presented a cock and bull story only‑‑‑Either' no sources of acquiring the properties had been furnished or the resources disclosed were unsubstantiated and imaginary‑‑‑Accused had amassed huge wealth disproportionate to his known sources of income and acquired movable and immovable properties in his name and in the names of his co‑accused including his wife who had abetted the commission of the offence by facilitating the main accused in acquiring the assets in their names‑‑‑Finding of Trial Court regarding abscondence of two accused had gone unchallenged‑‑‑Convictions and sentences of imprisonments awarded to accused were upheld in circumstances‑‑However, Trial Court taking the deposits/investments at much higher figure than actual deposits/investments, had imposed huge fine on the accused which appeared to be on higher side and the same was substantially reduced.

Ghulam Hussain v. The State 1996 PCr.LJ 514; Noor Ellahi v. The State PLD 1966 SC 708; Misbahuddin Farid v. The State 2002 MLD 480; The State v. Misbahuddin Farid 2003 SCMR 150; Khan Asfandyar Wali v. Federation of Pakistan, PLD 2001 SC 607; Ahmed v. The State PLD 1962 SC 849; Muhammad Hayat v. The State PLD 2002 Pesh. 118; Abdul Aziz Memon v. The State 2003 YLR 617; Hakim Ali Zardari v. The State PLD 2002 Lah. 369; Siraj v. The Crown PLD 1956 FC 123; Hurjee Mull v. Imam Ali Sircar 8 C.W.N. 278; Mujibur Rehman v. The State PLD 1964 Dacca 330 and Imtiaz Ahmed v. The State PLD 1997 SC 545 ref.

Azizullah K. Shaikh for Appellants.

Anwar Tariq, DPGA, NAB for the State.

Dates of hearing: 23rd to 27th, 30th, June and 2nd July, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 152 #

2004 M L D 152

[Karachi]

Before Sarmad Jalal Osmany and Rahmat Hussain Jafferi, JJ

THE STATE through Advocate‑General‑‑‑Petitioner

Versus

NAWAB KHAN SARHADI‑‑‑Respondent

Special ATA No.85 of 2002, decided on 6th June, 2003.

Anti‑Terrorism Act (XXVII of 1997)‑‑‑

‑‑‑‑Ss.8(d) & 25‑‑‑Appeal against acquittal‑‑‑Allegation against accused was that after their search, audio cassettes and books were secured from each of them which contained abusive and insulting material to certain sect of Islam and by such material sectarian hatred was likely to stir up‑‑‑Trial Court, after considering material available on record, acquitted the accused‑‑‑Validity‑‑‑Mere possession of audio‑cassettes and books, was not enough to constitute offence under provisions of S. 8(d) of Anti‑Terrorism Act, 1997‑‑‑Double intention had been provided to attract ingredients of provisions of S.8(a) of Anti‑Terrorism Act, 1997; first being that person from whose possession material was secured intended to display or publish the same and secondly said display and publication was made with intent to stir up sectarian hatred or which was likely to do so‑‑‑Prosecution in the present case, had only shown that certain audiocassettes and books were secured, but required said two intentions had not been proved as no evidence had been led by the prosecution in that behalf nor such inference could be drawn from the evidence brought on record by the prosecution‑‑‑Main ingredients of S.8(d) of Anti‑Terrorism Act, 1997 having not been proved, Trial Court had rightly acquitted the accused‑‑‑In absence of any illegality or irregularity in order of Trial Court, said order could not be interfered with.

Habib Ahmed, Addl. A.‑G. Sindh.

Date of hearing: 29th April, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 180 #

2004 M L D 180

[Karachi]

Before Sarmad Jalal Osmany and Rahmat Hussain Jafferi, JJ

AJAB alia RAJAB and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Special Anti‑Terrorism Appeal No.64 and Confirmation Case No.9 of 2001; decided on 16th July, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.365‑A, 392 & 342‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑B‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑E‑‑‑Qanun‑eShahadat (10 of 1984), Arts. 21 & 40‑‑‑General Clauses Act (X of 1897), S.26‑‑‑Appreciation of. evidence‑‑‑Witnesses including the abductee had supported the prosecution version who had no enmity or motive for false implication of accused in the case‑‑‑Ocular testimony inspired confidence‑‑‑Eye‑witnesses had identified the accused in the identification test before the Magistrate‑‑‑Abductee and the Jeep had been recovered on the pointation of accused from the places exclusively in their knowledge‑‑‑One accused had made a judicial confession involving himself and his co‑accused in the occurrence of robbery as well as of abduction‑‑‑Arrest of accused from the telephone booth while demanding ransom amount from the family of the abductee had further supported the prosecution story‑‑‑Disclosure 'made by accused in police custody leading to the incriminating recoveries amounted to their conduct which fell within the scope of Art. 21 of the Qanun‑e‑Shahadat, 1984, and was admissible in evidence‑‑‑Delay per se in recording the confessional statement of accused was no ground to discard the same which had been voluntarily made and was corroborated on material points by other evidence available on record‑‑‑Prosecution, thus, had established its case against the accused beyond any doubt‑‑‑Offences under S.392, P.P.C. and S.7‑B of the Anti‑Terrorism Act, 1997, being one and the same could, no doubt, be tried together, but by virtue of S.26 of the General Clauses Act only one sentence could be awarded‑‑Conviction of accused under S.392, P.P.C. was consequently set aside being the General law as against the Special law of the Anti‑Terrorism Act, 1997‑‑‑Conviction of accused under S.342, P.P.C. having been merged in S.365‑A, P.P.C. was also set aside‑‑‑Conviction of accused under S.365‑A, P.P.C. was, however, maintained but sentence of death awarded to them thereunder being harsh was altered to imprisonment for life each with forfeiture of property‑‑Rest of the conviction and sentences were upheld in circumstances.

Khalid Mehmood v. State 2000 PCr.LJ 1036; Khadim Hussain v. State 1985 SCMR 721; Jehandad v. State PLD 1994 Pesh. 279; Javed Iqbal v. State PLD 1975 Pesh. 230; Dhani Bux v. State 1974 SCMR 271; Said Anwar v. State PLD 1977 Pesh. 64; Gulab Khan v. State PLD 1971 Kar. 299; Amir Ali v. State PLD 1960 (W.P.) Kar. 753; Faqira v. Emperor AIR 1929 Lah. 661; Rafiquddin Ahmed v. Emperor AIR 1935 Cal. 184; Khalas Khan v. State 1975 PCr.LJ 172; Rekatulla v. State PLD 1962 Dacca 261; Abdul Ghani v. State 1976 PCr.LJ 1462; State v. Nazir Ahmad 1999 SCMR 610; Yaqoob Khan v. State PLD 1996 SC 97; Solat Ali Khan v. State 2002 SCMR 820; Naseem Akhtar v. State 1999 SCMR 1744; Khan Muhammad v. State 1999 SCMR 1818; Gul Jamal and another v. The State 1980 SCMR 654; Naseem Akhtar v. State 1999 SCMR 1477; Sadaf v. State 2002 SCMR 611; Abdul Kaleem v. State 1992 PCr.LJ 1314; Naeem Akhtar v. State 1993 PCr.LJ 769; Monir's Commentary on the Law of Evidence, 1974 Edn., p.62; Emperor v. Nanua AIR 1941 All. 145 and Ganu Chandra Kashid v. Emperor 33 Cr.LJ 396 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.40‑‑‑Recovery‑‑‑Joint pointing and joint recoveries are admissible in evidence under Art. 40 of the Qanun‑e‑Shahadat 1984.

Abdul Kaleem v. State 1992 PCr.LJ 1314; Naeem Akhtar v. State 1993 PCr.LJ 769; Gul Jamal and another v. The State 1980 SCMR 654 and Naseem Akhtar v. State 1999 SCMR 1744 ref.

‑‑‑‑Art.21‑‑‑Conduct of accused‑‑‑Disclosure made by accused while in police custody leading to the incriminating recovery in his conduct which comes within the scope of Art. 21 of the Qanun‑e‑Shahadat, 1984 and therefore, it is admissible in evidence.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.22‑‑‑Identification parade‑‑‑Prosecution witness failing to give role of accused at the time of identification parade is not precluded from giving such evidence in the Court when evidence is given and the same can be relied upon.

Yaqoob Khan v State PLD 1996 SC 97 and Solat Ali Khan v. State 2002 SCMR 820 ref.

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

‑‑‑‑S.164‑‑Confession, belated recording of‑‑‑Delay in recording confession by itself cannot render the' confession nugatory if is proved on record to have been voluntarily made.

Khan Muhammad v. State 1999 SCMR 1818 ref.

M.A. Kazi for Appellants.

Habib Ahmed for the State.

Dates of hearing: 2nd, 8th and 14th May, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 227 #

2004 M L D 227

[Karachi]

Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ

Mrs. HALIMA TAHIR and 5 others‑‑‑Appellants

Versus

NAHEED and others‑‑‑Respondents

High Court Appeals Nos.78 and 79 of 2002, decided on 6th June; 2003.

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

‑‑‑‑S.42‑‑‑Suit for declaration‑‑‑Locus standi‑‑‑Any person entitled to any right as to any property can file such suit against any person denying or interested to deny his such title or right.

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

‑---Ss.39 & 42‑‑‑Civil Procedure Code (V of 1908), O.II, R.2(2) & O. V II, &.11‑‑‑Suit for cancellation of power of attorney followed by suit for cancellation .of sale‑deed executed on basis of 'such power ,of attorney‑‑‑Omission to sue for cancellation of sale‑deed in earlier suit for cancellation of power of attorney‑‑‑Bar contained in O.II, R.2(2), C.P.C.‑‑‑Applicability‑‑‑Plaintiff claiming to be owner of suit property filed earlier suit after coming to know about use of her bogus power of attorney by defendant to get possession of her property from tenant‑‑‑plaintiff at the time of filing earlier suit had no knowledge that defendant had fraudulently conveyed her property to the other defendants‑‑‑ Held, plaintiff had stated facts giving rise to separate causes of action and had filed two separate suits claiming different relief‑‑‑Such facts as stated in two suits would not warrant rejection of plaints under any principle of law‑‑‑Both suits were, thus, maintainable under Ss.39 & 42 of Specific Relief Act, 1877‑‑‑Principles.

‑‑‑‑S.5‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Order secured by practicing fraud. or misrepresentation upon Rent Controller ‑‑‑Remedy‑‑Rent Controller had power to set aside such order‑‑‑Rent Controller in such proceedings would only decide question of validity of order passed by him and nothing more.

Ismail v. Subedar Gul Inayat Shah PLD 1991 SC 997 fol.

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

‑‑‑‑O.VII, R.11‑‑‑Rejection of plaint, application for‑‑‑Duty of Court‑‑While examining merits of such application, Court is required to see only the averments made in the plaint.

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

‑‑‑‑O.XLI, Rr.33 & 35(3)‑‑‑Appeal frivolous and vexatious to the knowledge of appe118nt‑‑‑High Court dismissed such appeal by awarding compensatory costs of Rs.5,000 to contesting respondent.

Hafiz Abdul Baqi for Appellants.

Khawaja Naveed Ahmed for Respondent No. 1.

Date of hearing: 7th March, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 235 #

2004 M L D 235

[Karachi]

Before Rahmat Hussain Jafferi, J

ZULFIQAR ALI ‑‑‑Applicant

Versus

AZIZULLAH and another‑‑‑Respondents

Criminal Miscellaneous No.75 and Criminal Bail Cancellation Application No. 17 of 2003, decided on 30th July, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), Ss.302/114/342/201/34‑‑Cancellation of bail‑‑‑Threats issued by the accused after his release on bail to the complainant were supported not only by the affidavits but also by the station diary of the police station‑‑‑Accused had not challenged the said affidavits by calling the complainant and other witnesses for cross‑examination to deny the allegations, nor he had controverted the same by filing a counter‑affidavit‑‑‑Allegations levelled against the accused in the affidavits, thus, had gone unchallenged and were established‑‑‑Accused had misused the concession of bail in circumstances and the same was cancelled accordingly.

State v. Muhammad Hassan PLD 1997 Kar. 554; Mst. Saira Bibi v. Allah Bux and others NLR 1997 Criminal 358; Bashir Hussain v. Sadique Hussain 1976 PCr.LJ 609; Ghulam v. The State PLD 1975 Lah. 301; Barkhurdar v. Kafayat Ali 1997 SCMR 30 and Tanveer Ahmed v. Muhammad Sadique PLD 1994 SC 88 ref.

Abdul Hakeem Brohi for Applicant/Complainant.

Asif Ali Abdul Razzaq Soomro for Respondent No. 1.

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

MLD 2004 KARACHI HIGH COURT SINDH 241 #

2004 M L D 241

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

MUHAMMAD IQBAL‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 648 of 2003, decided on 3rd September, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑penal Code (XLV of 1860); Ss.409/420/468/471/109‑‑‑Bail, grant of‑‑‑Accused, Chief Cashier of the Bank, had allegedly misappropriated an amount of Rs.15,30,000 fraudulently from the cash safe during the period from 15‑4‑2002 to 5‑11‑2002‑‑‑Bank Officer had admitted in the Court that on the closing at the end of the month of June every aspect of the banking transaction was thoroughly examined, checked, verified and noted‑‑‑Prosecution had not denied that the closing shown on 30th June of every year carried vital importance and the entries whatsoever recorded and consolidated thereby, could not be ignored‑‑‑Nothing could be explained as to what were the reasons that the missing of the aforesaid cash was not detected .or noted on June 30‑‑Report of the Chief Manager also showed that although the offence had allegedly started from 15‑4‑2002, yet everything was O.K. up to 30‑10‑2002‑‑‑What was at the bottom could only be clarified at the trial on recording the evidence of the material witnesses‑‑‑For the time being a case for bail was made out in favour of accused‑‑‑Bail was allowed to accused accordingly.

Mehmood A.H. Baloch for Applicant.

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

Date of hearing: 3rd September, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 251 #

2004 M L D 251

[Karachi]

Before Wahid Bux Brohi, J

MUHAMMAD ISHAQUE‑‑‑Applicant

Versus

AZIZUDDIN and others‑‑‑Respondents

Revision Application No. 123 of 1995, decided on 25th June, 2003.

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

‑‑‑‑S.27(b)‑‑‑Specific performance of agreement to sell‑‑‑Defendant who all along projected his case on the basis of registered sale‑deed in respect of suit property had claimed that he was the transferee of suit property in good faith without notice of previous agreement of sale allegedly executed earlier in favour of plaintiff on the basis of which plaintiff had founded his case‑‑‑Specific performance of contract could be enforced under S.27(b), Specific Relief Act, 1877 against any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who had paid money in good faith and without notice of original contract‑‑‑Specific performance could not be enforced against defendant if he demonstrated that he was a transferee in good faith without notice of the original contract, allegedly executed in favour of plaintiff earlier‑‑‑Burden to prove such fact, heavily lay on the defendant.

Mukhtar Ahmed v. Bashir Ahmed PLD 1994 SC 674 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.79‑‑‑Execution of agreement‑‑‑Proof‑‑‑Agreement in question was allegedly executed in 1979 whereas Qanun‑e‑Shahadat, 1984 came into force in 1984‑‑‑Execution of said agreement was to be proved within the relevant provisions of Evidence Act, 1872 and not under Qanun‑e-Shahadat, 1984.

Noor Muhammad v. Nazir Muhammad 2002 SCMR 1301; Din Muhammad v. Fateh Muhammad 2001 PSC 117 and Muhammad Anwar v. Muhammad Ismail 1992 MLD 860 ref.

‑‑‑‑O.XLI, R.31‑‑‑Judgment of Appellate Court‑‑‑Question regarding substantial compliance of O.XLI, R.31, C.P.C., in each case would depend on nature of judgment which was under appeal and even if the judgment of Appellate Court was not satisfactory and strict compliance of said rule had not been made, it was still acceptable if findings were based on proper and legal evidence‑‑‑No fixed rule existed regarding the form in which findings should be stated‑‑‑Appellate Court was not always bound to agree with the view taken by Trial Court on evidence, either to restate the effect of evidence or to reiterate the reason given by the Trial Court‑‑‑Technically, though strict compliance of O.XLI, R.31, C.P.C. was apparently lacking in the judgment of Appellate Court in the present case but in order to render substantial justice, irregularity could be condoned since the entire evidence had been taken into consideration by the Appellate Court‑‑‑No exception, in circumstances, could be taken to the judgment of Appellate Court on score of that drawback alone in view of settled norms that technicalities would not defeat the ends of justice.

Roshi v. Fateh 1982 SCMR 542; Abdul Kabeer v. Abdul Wahid 1968 SCMR 464; Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568; Khursheed Ahmed v. Muhammad Akram Khan 2000 CLC 125; Abdul Hameed v. Muhammad Zaki 1990 MLD 1129; Ali Muhammad v. Muhammad Abad PLD 1999 Kar. 354; Hasana Bano v. Faiz Muhammad Magsi 2000 CLC 709; 2002 SCMR 667; Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568 and Girijanandini v. Bijendra Narain AIR 1967 SC 1124 ref.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.84‑‑‑Appreciation of evidence‑‑‑Comparing signature of executant of agreement‑‑‑Powers of Trial Court‑‑‑Trial Court had appreciated evidence and other documents with regard to alleged agreement of sale‑‑Trial Court had also compared signatures of deceased executant of said agreement with other documents‑‑‑Trial Court was empowered to undertake said exercise within meaning of Art.84 of Qanun‑e‑Shahadat, 1984.

Ali Ahmed v. State PLD 1962 SC 102; Muhammad Din v. Liaqat Ali 1991 MLD 1970; Jawed Iqbal v, Nazeran Begum 2001 MLD 416 and Chitta Ranjan Sutar v. Secretary, Judicial Department PLD 1967 Dacca 445 ref.

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

‑‑‑‑S.115‑‑‑Specific Relief Act (I of 1877), S.27(b)‑‑‑Revisional jurisdiction, exercise of‑‑‑Trial Court having taken into consideration all circumstances and admitted facts had rightly come to the conclusion that alleged agreement to sell was not executed and that documents purporting to such agreement were not genuine‑‑‑Appellate Court had also endorsed the said view‑‑‑Concurrent findings of fact rendered by two Courts below founded on sound reasoning and proper appraisal .of evidence on record were not open to exception and could not be discarded.

M.A. Qadri for Applicant.

Syed Ishtiaq Ali and Shaikh Liaquat Hussain for Respondents.

MLD 2004 KARACHI HIGH COURT SINDH 278 #

2004 M L D 278

[Karachi]

Before Rahmat Hussain Jafferi, J

MUHAMMAD JUMAN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Revision Application No.39 of 2003, decided on 14th July, 2003.

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

‑‑‑‑S.514‑‑‑Offences Against Property (Enforcement of Hudood) 'Ordinance (VI of 1979), S.17(3)‑‑‑Constitution of Pakistan (1973), Arts.203‑DD & 203‑G‑‑‑Forfeiture of surety bond‑‑‑Revision petition before High Court‑‑‑Maintainability‑‑‑Petitioner had stood surety for the accused released on bail who had subsequently absconded and did not appear before the Trial Court‑‑‑By means of the impugned order Trial Court had forfeited the surety bond of the petitioner which .had been challenged in the High Court through the present criminal revision petition‑‑‑Case pertained to an offence punishable under the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, wherein the right of the surety had been finally decided‑‑‑Impugned order, therefore, fell within the ambit of the "case decided" as mentioned in Art. 203‑DD of the Constitution‑‑‑Federal Shariat Court as such had jurisdiction in the matter and the jurisdiction of the High Court was barred by virtue of Art. 203‑G of the Constitution‑‑‑Revision petition being not maintainable was consequently returned to the petitioner for presenting the same before the Federal Shariat Court.

Amanaullah v. The State 1997 PCr.LJ 1927; Muhammad Shah v. The State 1994 PCr.LJ 2316; State v. InayatulLah and others PLD 1983 FSC 244; Asghar Ali v. Abdul Ghafoor Abdul Rehman 1992 SCMR 244; Muhammad Hanif and others v. Mst. Shama Mai 1986 PCr.LJ 746; Khan Badshah v. The State 1985 PCr.LJ 2609; Jaffer Khan and another v. The State 1985 PCr.LJ 2611; Liaquat Ali v. The State PLD 1989 Kar. 481 and Muhammad Ilyas v. The State 1986 PCr.LJ 344 ref.

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

‑‑‑‑Art.203‑DD‑‑‑Revisional and other jurisdiction of the Federal Shariat Court‑‑‑"Case decided"‑‑‑Connotation‑‑‑Decision on any substantial question in controversy between the parties affecting their rights even though through an interlocutory order deciding such question finally, would come within the ambit of "case decided".

State v. Inayatullah and others PLD 1983 FSC 244; Asghar Ali v. Abdul Ghafoor Abdul Rehman 1992 SCMR 244 and Muhammad Hanif and others v. Mst. Shama Mai 1986 PCr.LJ 746 ref.

Ahsan Ahmed Qureshi for Applicant.

Ali Azher Tunio, A.A.‑G.

MLD 2004 KARACHI HIGH COURT SINDH 285 #

2004 M L D 285

[Karachi]

Before Muhammad Ashraf Leghari, J

Syed ZAFAR ALI SHAH‑‑‑Appellant

Versus

ASIF JATOI‑‑‑Respondent

Senate Appeal, decided on 3rd February, 2003.

Senate (Election) Act (LI of 1975)‑‑‑

‑‑‑‑S.13‑‑‑Conduct of General Elections Order (Chief Executive's Order No.7 of 2002), Arts.8A & 11(2)(e)‑‑‑Senate election‑‑‑Acceptance of nomination papers‑‑‑Respondent candidate alongwith his nomination form had produced his academic qualification letter issued by the Director, School of Communication from the University of Southern California, U.S.A.‑‑‑Said letter was sent for verification to the University Grant Commission of Pakistan and the Commission by its letter simply stated that University of Southern California was accreted University of U.S.A. ‑‑‑Returning Officer, after receiving said verification accepted nomination form of the candidate‑‑ Validity‑‑‑Requirement of the law was that the candidate for the Senate should not be qualified to be elected unless he was at least a Graduate possessing a Bachelor Degree in any discipline or any degree recognized equivalent by University Grant Commission under the University Grant Commission Act, 1974‑‑‑Candidate had not produced foreign degree either alongwith nomination papers or before University Grant Commission‑‑Qualification letter appended by the candidate alongwith nomination form, nowhere mentioned that the candidate had cleared his graduation and was possessing Degree of Bachelor in any subject‑‑‑Candidate, who had failed to prove that he possessed Degree of Graduation as required under law, was disqualified under Art.8A of General Election Order, 2002 to contest .Senate election‑‑Order passed by Returning Officer whereby he accepted nomination form of the candidate was rejected.

Ejaz Ahmed Shaffi v. Federation of Pakistan and others C.P. No. 1615 of 2002; Zafarullah Khan Domki v. Saleem Jan Khan Mazari and others C.P.S. No. 1658 of 2002; Syed Ali Bux Shah v. The Election Tribunal and others C. P. No. 1626 of 2002; Abubakar Shekhani v. The Election Tribunal and others C. P. No. 1673 of 2002; Ghulam Akbar Lasi and others v Returning Officer for NA‑270 Awaran‑cum‑Lasbella at Uthal and another PLD 2003 Quetta 1 and Waqas Akram v. Dr. Muhammad Tahirul Qadri and others, 2003 SCMR 145 ref.

S. Zafar Ali Shah for Appellant.

Agha Faisal for Respondent No. 1.

S. Zaki Ahmed, D.A.‑G.

Date of hearing: 3rd February, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 296 #

2004 M L D 296

[Karachi]

Before Shabbir Ahmed and Gulzar Ahmed, JJ

MUHAMMAD SHAHID ‑‑‑Appellant

Versus

SAJIDA KHATOON and others‑‑‑Respondents

High Court Appeal No.258 of 2002, decided on 29th August, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXI, R.58‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑Execution of decree for foreclosure of mortgaged property‑‑‑High Court appeal‑‑‑Holder of decree for foreclosure of mortgaged property filed execution applications for sale of said property‑‑‑Objector filed application under O.XXI, R.58, C.P.C. for recall of the attachment on the ground that he was purchaser of said property‑‑‑Said application having been dismissed by the High Court, objector had filed High Court appeal‑‑‑Rule 58 of O.XXI, C.P.C. pre‑supposed existence of an attachment while plea of objector was that property was not liable to attachment‑‑‑Validity‑‑‑No attachment at all being in execution, objection under O.XXI, R.58, C.P.C. was incompetent against the sale in mortgage decree‑‑‑If objector/appellant intended to redeem the mortgage, he could do by depositing the decretal amount within specified period.

Nallaperumal Chetti v. Valliyappa Chetti and others AIR 1930 Mad. 721; Balijepalli Ramakoti Suryanarayana Tanodar and another v. Kampalli Ramchanndrudu and others AIR 1932 Mad. 716 and Hafiz Muhammad Ibrahim v. Bhagwan Das AIR 1935 All. 897 ref.

Hasan Inamullah for Appellant.

Muhammad Jameel for Respondent No.2.

Date of hearing: 29th August, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 310 #

2004 M L D 310

[Karachi]

Before Wahid Bux Brohi, J

KAMRAN PATHAN and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.327 of 2003, decided on 30th July, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12‑‑‑Penal Code (XLV of 1860), Ss.377/511‑‑‑Bail‑‑‑Statement of the complainant was prima facie supported by two independent witnesses and it was premature to discard the same at such stage‑‑Accused according to the prosecution story had taken the complainant with them right from the very beginning by deceitful means for the intended offence to subject him to unnatural lust and the provisions of S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, were apparently attracted in the case‑‑‑Cover of darkness, prima facie, was enough to counteract the contention that the offence could not be committed in the car at the road side of the super highway‑‑‑No implicit reliance could be placed on extraneous material and documentary evidence at bail stage regarding alleged enmity of the mother of the complainant with certain persons in the absence of the persons involved therein‑‑‑Bail was declined to accused in circumstances.

Muhammad Tufail v. State PLD 1984 FSC 23; Muhammad Akhtar v. Muhammad Shafique 1986 SCMR 533; Shafaullah v. State 1984 PCr.LJ 3195; Abdul Ghaffar v. State 1988 PCr.LJ 1446; Muhammad Saleem v. State 1985 PCr.LJ 240; Abdul Qayum v. State 1985 MLD 1319 and Tariq Bashir v. State PLD 1995 SC 34 ref.

Shamas Saeed Ahmed Khan v. Shafaullah 1985 SCMR 1822 distinguished.

Rasool Bux Palejo for Applicants

Anwar H. Ansari for the State.

MLD 2004 KARACHI HIGH COURT SINDH 319 #

2004 M L D 319

[Karachi]

Before Zahid Kurban Alvi, J

Messrs UNITED BANK LTD. ‑‑‑Applicant

Versus

Messrs NEPHEW AND NEPHEW LTD. CO. ‑‑‑Respondent

Execution No.42 of 1999, decided on 1st January, 2003.

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

‑‑‑‑Ss.47 & 151‑‑‑Execution of decree‑‑‑Auction of mortgaged property‑‑‑ Liability to pay utility bills‑‑‑Applicant/auction‑purchaser had prayed that certain utility bills were due against the mortgaged/auctioned property prior to purchase of the same by him in auction‑‑‑Applicant stated that he had purchased the property free from all encumbrances and that it was liability of the decree‑holder to clear the said bills‑‑Applicant/auction‑purchaser requested the decree‑holder to make payment of outstanding bills, but decree‑holder did not comply‑‑Validity‑‑‑Decree‑holder was expected to pay all the utility charges and dues against the property‑‑‑Expression "free from all encumbrances" would mean that "when purchaser purchased the commodity then he expected that it would be given to him without there being any liability attached to the same"‑‑‑Decree‑holder was obliged to clear all liabilities in circumstances.

I.D.B.P. v. Messrs Maida Limited 1989 CLC 1431; UBL v. Messrs Akbar Cotton Mills Limited and another 1993 CLC 1560 and 1994 SCMR 2248 ref.

(b) Words and phrases‑‑‑‑

‑‑‑‑ Expression "Free from all encumbrances "‑‑‑Meaning and import.

I.D.B.P. v. Messrs Maida Limited 1989 CLC 1431; UBL v. Messrs Akbar Cotton Mills Limited and another 1993 CLC 150 and 1994 SCMR 2248 ref.

Abdul Haleem Siddiqui for Applicant

Amanullah Khan and Jaffer Siyal for the Respondent

Date of hearing: 19th December, 2002.

MLD 2004 KARACHI HIGH COURT SINDH 328 #

2004 M L D 328

[Karachi]

Before Muhammad Ashraf Leghari, J

MUHAMMAD YAMIN and others‑‑‑Petitioners

Versus

SARA BAI and others‑‑‑Respondents

Constitutional Petition No.611 of 2002, decided on 1st October, 2003.

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

‑‑‑‑S.15(2)(ii)(a)‑‑‑Sub‑letting‑‑‑Original tenant against whom charge of Sub‑letting of premises was made, should have appeared himself to give evidence to dislodge such charge‑‑‑Non‑appearance of original tenant was a factor of great significance which would make the case of tenant dubious‑‑‑Allegation of sub‑letting was a kind of charge against the original tenant which was to be denied through direct evidence of tenant or at least some strong reason had to be given for his non‑appearance and for examining another person on his behalf‑‑‑Power of attorney of another person produced at later stage had shown that alleged attorney had all the powers to dispose of leasehold rights in the premises in dispute‑‑‑Such type of terms and conditions in General Power of Attorney, would not fulfil the requirement of an attorney‑‑‑Finding of two Courts below to the effect that possession of premises in dispute was with the original tenant and (alleged sub‑tenant) was attorney of original tenant, ‑was not sustainable‑‑‑Sub‑letting of premises was proved, in circumstances.

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

‑‑‑‑Ss.10 & 15(2)(ii)‑-‑Default in payment of rent of premises‑‑Tendering of rent, mode of‑‑‑Original tenant despite receipt of notice failed to pay rent of premises to landlord directly and instead some stranger claiming to be attorney of original tenant deposited rent in M.R.C. in the Court of Rent Controller after expiry of 65 days from receipt of notice by original tenant‑‑‑Said act of stranger, even if he was accepted to be attorney of original tenant, had proved default in payment of rent‑‑‑Such type of tender of rent being not valid, tenant was proved to be defaulter in payment of rent.

Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Abdul Majeed Iftikhar Ahmed and 5 others 2002 CLC 1206; Ghulam Samdani v, Abdul Hameed 1992 SCMR 1170; Muhammad Yousuf v. Mehraj ud Din 1986 SCMR 751; Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24; Saeeda Begum v. Shameem Ahmed 1994 SCMR 791; Arbab Jamshed Ahmed and another v. Ghazan Khan and others 1995 CLC 695 and Muhammad Said Khan and 32 others v Abdul Qayyum Khan 2001 3253 ref.

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Scope‑‑‑Grant of relief under Constitutional jurisdiction of High Court was intended to foster the administration of justice and turn down orders which were manifestly, arbitrary, capricious and suffering from misreading of the record‑‑‑ High Court under Constitutional jurisdiction, had to protect the rights of the parties which had been denied to the petitioner by two Courts below who had not used their discretion for fostering justice.

Badar Alam for Petitioners.

Ali Gohar Masroof for Respondent.

Date of hearing: 9th September, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 353 #

2004 M L D 353

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

FAISAL RIAZ‑‑‑Petitioner

Versus

ABDUL WAHAB and others‑‑‑Respondents

Constitutional Petition No.592 of 2003, decided on 22nd May, 2003.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑`Licence and licensee‑‑‑Permission to hold 'Bachat Bazar' on open plot‑‑‑'Bachat Bazar' was being held by petitioner on the open plot belonging to Town Committee and "No Objection Certificate" was granted to petitioner by Deputy Commissioner and District Magistrate in that respect to run 'Bachat Bazar' upon certain specified terms and conditions‑‑‑Deputy Town Officer informed the petitioner by a letter that petitioner could run 'Bachat Bazar' up to the specified date and thereafter permission in that respect would stand cancelled‑‑‑Validity‑‑‑Deputy Commissioner or District Magistrate had no legal right to transfer or create any interest, in any property owned by Government‑‑‑Permission was issued to petitioner by Deputy Commissioner specifying condition relating to prevention of nuisance and compliance with other laws‑‑‑Even if presumed that petitioner was inducted as a tenant by real owner, he would not enjoy the protection of Sindh Rented Premises Ordinance, 1979 as terms of said Ordinance did not apply to open plot‑‑‑Even otherwise nothing was on record to show that exclusive possession of said plot was given to the petitioner so as to create a right in plot itself‑‑‑At the best permission to use plot on one day during a week could be treated as a mere licence and no serious objection could be taken by the petitioner as a licensee to its termination after three weeks' notice.

Khawaja Naveed Ahmad for Petitioner.

Ahmad Pirzada A.A.‑G. for Respondent No.4

Date of hearing: 22nd May, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 361 #

2004 M L D 361

[Karachi]

Before Sabihuddin Ahmed and Amir Hani Muslim, JJ

EHTESHAMUDDIN QURESHI‑‑‑Appellant

Versus

PAKISTAN STEEL MILLS CORPORATION LTD. and another‑‑‑Respondents

High Court Appeal No. 159 of 2000 Re: Suit No.795 of 1989, decided on 29th October, 2003.

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

‑‑‑‑S.1‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Fatal accident‑‑Suit for compensation‑‑‑Determination of amount of compensation‑‑High Court appeal‑‑‑Doctrine of 'res ipsa loquitor'‑‑‑Applicability‑‑‑Suit filed by father of deceased who died in the accident due to negligent and rash driving of bus by defendant, was dismissed by (Single Judge) of the High Court holding that plaintiff had failed to prove that death of the deceased was caused due to negligent and rash driving of defendant‑‑Findings of High Court that it was an un-witnessed accident was not justified because plaintiff had produced witness who saw the accident‑‑Even if it was accepted that it was un-witnessed accident, then too, the doctrine of res ipsa loquitor' would apply in the case which meant that `the things speak for themselves'‑‑‑Applicability of said doctrine in the cases of negligence to the effect that once the factum of accident' was established by the plaintiff, the burden to show absence of negligence would shift on the defendant ‑‑‑Factum of accident in the present case was not in dispute as not only same was proved by the plaintiff by producing all relevant documents, but defendant had also admitted that bus driven by him did meet with an accident by which deceased who was riding the motorcycle was hit‑‑‑Defendant only had disputed the factum of rash and negligent driving by him‑‑‑Doctrine of res ipsa loquitor, was fully attracted, in circumstances‑‑‑Plaintiff who had proved his case by leading‑‑documentary, as well as oral evidence was entitled to relief of damages/compensation sought by him‑‑‑Judgment of (Single Judge) of High Court not based on material on record and being erroneous, was set aside and suit filed by plaintiff was decreed accordingly.

Pakistan Steel Mill Corporation Limited and another v. Malik Abdul Hameed 1993 SCMR 848; Karachi Water and Sewerage Board v. Mirajuddin 2000 SCMR 725 and 2000 MLD 112 ref.

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

‑‑‑‑O.VI, R.1‑‑‑Pleadings‑‑‑Party could neither be allowed to lead evidence contrary to its pleadings, nor could it be permitted to lake a plea different than the plea which it had taken in the written statement‑‑Any part of evidence which was beyond the pleadings had to be overlooked, as such improvement being afterthought was impermissible in law.

Nasir Maqsood for Appellants.

Akhlaq Ahmed Siddiqui for Respondents.

Date of hearing: 21st October, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 376 #

2004 M L D 376

[Karachi]

Before Anwar Zaheer Jamali, J

DEPUTY ADMINISTRATOR, EVACUEE TRUST PROPERTY BOARD‑‑‑Applicant

Versus

Mst. HUMA BAI and others‑‑‑Respondents

Revision Applications Nos.89 to 103 of 1998, decided on 3rd September, 2003.

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

‑‑‑Ss.8, 10, 14 & 17‑‑‑Determining status of evacuee property as Evacuee Trust Property or otherwise‑‑‑Jurisdiction of Chairman, Evacuee Trust Property Board‑‑‑Scope‑‑‑When any question would arise as to whether an evacuee property was attached to charitable, religious or educational trust or institution or not, only the Chairman, Evacuee Trust Property Board would hold the jurisdiction to decide such question, which would be final and could not be called in question in any Court‑‑‑Chairman of the Board had further been conferred with powers under S.8(3) of Evacuee Trust Properties (Management and Disposal) Act, 1975 to pass an order cancelling the allotment or alienation in respect of such properties and to take possession and assume administrative control, management and maintenance thereof‑‑‑Civil Court, under S.14 of Evacuee Trust Properties (Management and Disposal) Act, 1975 would have no jurisdiction in respect of any matter in which Federal Government or any other officer appointed under the Act was empowered to determine‑‑‑No injunction, process or order would be granted/issued by any Court or other Authority in respect of any action taken or to be taken in exercise of any power conferred by or under the Evacuee Trust Properties (Management and Disposal) Act, 1975‑‑‑Chairman, Evacuee Trust Property Board had been vested with the jurisdiction of validation of certain transfers subject to fulfilment of conditions as provided under S.10(1)(a)(b) of Evacuee Trust Properties (Management and Disposal) Act, 1975‑‑‑Decision of Chairman of the Board in that regard would be final and could not be called in question in any Court‑‑‑Such decision of Chairman, however, was subject to revisional jurisdiction of Federal Government or any officer notified by the Government in that regard and such powers could be exercised after passing of order of the Chairman either on application of any aggrieved person or suo motu.

Mst. Hafeez Begum v. Assistant Administrator, Evacuee Trust Property PLD 1983 Kar. 374; Evacuee Trust Property Board v. Mst. Zakia Begum 1992 SCMR 1313; Rashida Begum v. Ameer Yousuf Ali 1995 SCMR 183; Federal Government of Pakistan v. Khursheed Zaman Khan 1999 SCMR 1007; Federation of Pakistan v. Mufti Iftikharuddin 2000 SCMR 1 and Muhammad Ibrahim v. Secretary to the Government of Pakistan and 4 others PLD 1993 Kar. 483 ref.

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

‑‑‑‑Ss.8, 10, 14 & 17‑‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss.4(2)/10‑‑‑Evacuee Trust Property, transfer of‑‑‑Chairman, Evacuee Trust Property Board on application of transferee of property validated the PTD issued in favour of transferee thereof, but Secretary, Ministry of Religious Affairs, exercising its revisional powers under S.17 of Evacuee Trust Properties (Management and Disposal) Act, 1975, set aside order of the Chairman validating the PTD of transferee and restored status of Property as Evacuee Trust Property‑‑‑Original transferee and subsequent vendees of said property filed civil suits against order passed in revision by Secretary which were concurrently decreed by Trial Court and Appellate Court below‑‑‑Validity‑‑‑Concurrent findings of Courts below, were fallacious and lacked application of mind as both the Courts had failed to take note of the fact that by Notification the suit property was declared as Evacuee Trust Property‑‑‑Suit property by virtue of S.4(2) of Displaced. Persons (Compensation and Rehabilitation) Act, 1958 did not form part of compensation pool so as to be available for transfer under any Scheme framed for transfer of evacuee properties‑‑‑Suit property all along having remained as evacuee trust property, Civil Court had no jurisdiction to entertain suit instituted by transferee and subsequent vendees of said property or to grant plaintiffs any relief in respect of matter in which duly notified officer had exercised its jurisdiction‑‑Subsequent vendees who acquired title in suit property on basis of registered conveyance executed in their favour during pendency of proceeding before Secretary, Religious Affairs, could not claim any better title in their favour than that of their predecessor nor they could claim themselves to be bona fide purchasers of suit property.

‑‑‑‑Ss.8, 10 & 17‑‑‑Suo Motu, revisional jurisdiction, exercise of‑‑‑Limitation‑‑‑Contention with reference to exercise of suo Motu powers by Secretary of the Federal Government being Revisional Authority while entertaining time‑barred revision petition, was repelled as the Secretary was not denuded of his suo motu powers to set aside order passed by the Chairman, Evacuee Trust Property Board‑‑‑Exercise of power in such circumstances was upheld/approved by the Supreme Court in case reported as 1997 SCMR 1007‑‑‑Order passed in revision by Secretary of the Federal Government was unexceptionable.

Secretary, Evacuee Trust Property Board v. Allah Rakha and 7 others PLD 1975 Kar. 854 and Federal Government of Pakistan v. Khurshid Zaman Khan and others 1999 SCMR 1007 ref.

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

‑‑‑‑S.115‑‑‑Revisional jurisdiction, exercise of‑‑‑Concurrent judgments of two Courts‑below not only suffered from misreading of evidence and jurisdictional defect, but also were perverse‑‑‑High Court, in circumstances would be justified in interfering with such judgments in exercise of its revisional power under S.115, C. P. C.

1994 CLC 34; Kanwal Nain and 3 others v. Fatah Khan and others PLD 1983 SC 53; Industrial Development Bank of Pakistan v. Saadi Asmatullah and others 1999 SCMR 2874; 1983 SCMR 1199 and Muhammad Ibrahim v. Secretary to the Government of Pakistan PLD 1993 Kar. 478 ref.

Aashiq Ali Anwar Rana for Applicant.

Latif A. Shakoor for Respondents.

Dates of hearing: 7th and 21st April and 11th August, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 413 #

2004 M L D 413

[Karachi]

Before Zahid Kurban Alvi, J

ABDUL HAMEED SOOMRO‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.575 of 2003, decided on 10th October, 2003.

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.170/171/468/471‑‑‑Bail‑‑‑Five unknown persons on the show of force of weapons had allegedly snatched a pick‑up‑‑‑Complainant had identified the accused in the identification test held after nine days of his arrest, which according to counsel for the accused on account of such delay could not form the basis of attribution of the crime to him‑‑Sessions. Court, while dismissing the bail application, had observed that the accused had been arrested on suspicion, but had been identified in the identification parade although there were no independent witnesses‑‑Case against accused required further inquiry in circumstances and he was admitted to bail accordingly.

Muhammad Ayaz Soomro for Applicant.

Ghulam Shabbeer Shar for the State.

MLD 2004 KARACHI HIGH COURT SINDH 420 #

2004 M L D 420

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

Mrs. SHAISTA QAISER‑‑‑Applicant

Versus

MIR HASSAN alias MIRO and 2 others‑‑‑Respondents

Criminal Miscellaneous Application No.366 of 2002, decided on 11th December, 2003.

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

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), Ss.392/394/34‑‑‑Application for cancellation of bail‑‑‑Competence to file‑‑‑Applicant, who had sustained five injuries at the hands of the accused at the time of incident was competent to file the application for cancellation‑ of bail granted to accused by the Sessions Court‑‑‑Prosecution witnesses had seen the injured lady with her hands and mouth tied with cloth‑‑‑Occurrence was incorporated in the F.I.R. with specific role attributed to the accused‑‑Robbed pistol, golden ornaments and other articles were recovered from the accused during investigation‑‑‑Merits of the case were not put before the Sessions Court at the time of hearing of bail application and the bail had been granted to accused only on the ground of non‑submission of challan within the stipulated period‑‑‑Bail allowed to accused was cancelled in circumstances.

Talib Hussain and others v. The State 1988 SCMR 613; Dur Muhammad v. Bashir and 2 others 1983 PCr.LJ 2053; Mst. Rambail Bibi and others v. Mir Alam and others NLR 1998 Cr. 321; Razi Khan v. Muhammad Mushtaq and another 1996 SCMR 984(b); Aftab Ahmed v. Muhammad Shoaib and 2 others PLD 1999 Kar. 455; Behlal v. The State 2000 SD 407 and Akmal Masih v. Salmat Masih and 4 others 1988 SCMR 918 ref.

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

‑‑‑‑S.497(5)‑‑‑Cancellation of bail‑‑‑Person entitled to move for cancellation of bail‑‑‑Person allegedly injured by the accused, though not a complainant in the case, but being vitally interested therein was competent to file application for cancellation of bail of accused under S.497(5), Cr.P.C.

Umer Farooq Khan for Applicant.

Muhammad Khan Burior and Mubashir Ahmed for Respondents Nos. 1 and 2.

Jalil Zubedi for the State.

MLD 2004 KARACHI HIGH COURT SINDH 430 #

2004 M L D 430

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

Syed KARIM ‑‑‑Applicant

Versus

THE STATE ‑‑‑ Respondent

Criminal Bail Application No.730 of 2003, decided on 5th September, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9(c)‑‑‑Bail, grant of‑‑‑Accused being a fugitive from law, no doubt, was not entitled to some of his normal rights, but he was in custody for a period of over two years in the case after his arrest‑‑‑Only evidence against the accused was the version of co‑accused given to police during investigation which being inadmissible had no value‑‑Co‑accused in the case had been released on bail by the trial Court on the same premises and the accused on the rule of consistency also deserved bail‑‑‑Accused was admitted to bail in circumstances.

State v. Abdul Qayum 2001 SCMR 14; M. Sadiq v. Sadiq PLD 1985 SC 182 and David Dufaur v. State SBLR 2001 SC 132 ref.

Ilamdin Khatak for Applicant

Shoeb M. Ashraf, Special Prosecutor, ANF for the State.

Date of hearing: 5th September, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 435 #

2004 M L D 435

[Karachi]

Before Muhammad Roshan Essani, J

SHAFQUAT ALI alias GAGOO‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.275 of 2003, decided on 4th August, 2003.

Criminal Procedure Code (V of 1898)---

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860); Ss.342/354/337‑F(i)/337‑A(i)‑‑Bail, refusal of‑‑‑Accused had allegedly abducted a minor girl aged about seven years and after causing grievous and simple injuries to her had attempted to molest her‑‑‑Injuries on the person of the girl were supported by Medical Certificate‑‑‑Record did not show that the case was the outcome of any enmity‑‑‑Delay in lodging the F.I.R. or in recording the statements of prosecution witnesses under S.161, Cr.P.C. was not sufficient for grant of bail, nor the ground of the case falling outside the prohibitory clause of S.497(1), Cr.P.C. could be made a basis for grant of bail in each, and every case‑‑‑Bail was refused to accused in circumstances.

Abdul Malik v. State PLD 1968 SC 349; Muhammad Khan v. Maula Bakhsh 1998 SCMR 570; Taja v. State 1975 PCr.LJ 1265; Gul Muhammad v. State 1974 PCr.LJ 400 and Imtiaz Ahmed and another v The State PLD 1997 SC 547 ref.

Muhammad Ibrahim Soomro for Applicant.

Nisar Ahmed Unar for the Complainant.

Riazuddin Siddiqi, State Counsel.

MLD 2004 KARACHI HIGH COURT SINDH 448 #

2004 M L D 448

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

SADAR alias SADROO and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos.S‑399 and S‑428 of 2003, decided on 29th September, 2003.

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), S.324‑‑Bail, grant of‑‑‑One accused though allegedly armed with a hatchet did not cause any injury to anybody, nor did he rob any property from the complainant party‑‑‑Other accused armed with a gun had allegedly caused injuries to a prosecution witness with the butt of the gun which had been defined as Shajjah‑e‑Khafifa‑‑‑ Enmity between the parties was admitted in the F.I.R.‑‑‑Counter‑F.I.R. had already been made by the accused against the complainant party and possibility of false implication of accused could not be ruled out‑‑‑Was yet to be determined whether the accused had shared the common intention while appearing at the scene of occurrence alongwith other co‑accused‑‑‑‑Gun, according to the F.I.R., was snatched by the co‑accused from the prosecution witness‑‑‑Accused were granted bail in circumstances.

Muhammad Ayaz Soomro and Muhammad Ismail Bhutto for Applicants.

Muhammad Bachal Tonyo, Addl. A.‑G. for Respondent.

2004 M L D 477

[Karachi]

Before Zia Perwaz, J

Messrs AGRIMPEX TRADING COMPANY LIMITED‑‑‑Plaintiff

Versus

TRADING CORPORATION OF PAKISTAN (PVT.) LIMITED‑‑‑Defendant

Suit No.215 of 1999, decided on 20th October, 2003.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss.14 & 30‑‑‑Making award rule of Court‑‑‑Defendant sought setting aside of award on basis of letter written by him to plaintiff after passing of award to settle dispute out of Court‑‑‑Validity‑‑‑No settlement was arrived at between parties, thus, letter was withdrawn subsequently‑‑‑Mere writing of such letter in anticipation of settlement would not deprive plaintiff from following up ensuing proceedings‑‑‑Steps taken out of Court towards settlement would not confer any right upon defendant or create an estoppel against plaintiff under such circumstances‑‑‑‑Application filed by defendant was dismissed.

Haji Muhammad Yunus v. Haji Muhammad Ismail PLD 1959 Kar. 755 and Ali Hussain v. Ali Ahmed Khan Warsi 1982 CLC 2616 ref.

(b) Arbitration Act (X of 1946)‑‑‑

‑‑‑‑Ss.14 & 30‑‑‑Setting aside of award‑‑‑Liquidated damages for breach of contract awarded by arbitrator‑‑‑Defendant's 'objection was that in absence of any clause in contract providing for such damages, plaintiff was not entitled to the damages‑‑‑Validity‑‑‑Defendant had neither pleaded such point before arbitrator nor any issue thereon had been framed‑‑‑Such objection was dismissed and award was made rule of Court.

Aslant Saeed & Company v. Trading Corporation of Pakistan PLD 1985 SC 69 ref.

‑‑‑‑Ss.30‑‑‑Specific Relief Act (I of 1877), Ss.12 & 21‑‑‑Breach of contract for supply of rice‑‑‑Arbitrator in award ordered specific performance of such contract‑‑‑Validity‑‑‑Subject commodity was freely traded in open market‑‑‑No bar existed in granting such relief in suit by Court, which might be extended to exercise of power by arbitrator‑‑Such objection was dismissed and award' was made rule of Court.

Muhammad Azam Muhammad Fazil & Co. v. N.A. Industries, Karachi PLD 1977 Kar. 21 ref.

(d) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S.118‑‑‑Agent's authority‑‑‑Extent‑‑‑Agent, cannot act beyond authority conferred upon him.

Muhammad Mehrban v. Sadrud Din and another 1995 CLC 1541 ref.

(e) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.30‑‑‑Setting aside of award‑‑‑Plea raised in Court by defendant was neither pleaded nor was in issue before arbitrator‑‑‑Held, plea was an afterthought resulting in, blowing hot and cold in same breath‑‑‑Such plea could not be allowed.

(f) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.30‑‑‑Setting aside of award‑‑‑Objection raised to award being a question of fact, same was neither pleaded nor raised before arbitrator‑‑Held, such objection could not be made ground for setting aside the award.

Balagamwalla Cotton Ginning and Pressing Factory, Karachi v. Lalchand PLD 1961 Kar. 1 ref.

(g) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss.14 & 30‑‑‑Setting aside of award‑‑‑Breach of contract by short supply of rice‑‑‑Award allowing claim of loss suffered by e plaintiff‑‑‑Validity‑‑‑Rice was a commodity traded internationally‑‑Difference of market price had been brought on record through authority letter attested by Pakistan Consul‑‑‑Finding of arbitrator was supported by sufficient material‑‑‑Award was made rule of Court.

Messrs Kaysons v. Ahmed Juvenile Industries PLD 1963 Kar.766; Asfirafi (Pvt.) Limited v. Abdul Majeed Rawani 1991 MLD 1101 and Geomin SA Trading Company v. Trading Corporation of Pakistan Suit No. 1587 of 1999 ref.

Liaqat Merchant for Plaintiffs.

Samiuddin Sami for Defendant.

Date of hearing: 13th October, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 491 #

2004 M L D 491

[Karachi]

Before Maqbool Baqar, J

AIJAZ and 6 others‑‑‑Plaintiffs

Versus

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

Suit No. 1210 of 1991, decided on 17th November, 2003.

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

‑‑‑‑S.1‑‑‑Death caused by rash and negligent driving‑‑‑Recovery of damages‑‑‑Doctrine of res ipsa loquitur'‑‑‑Applicability‑‑‑Onus to prove accident‑‑‑Failure to produce driver of the bus‑‑‑Effect‑‑‑Where defendants failed to produce driver of the bus involved in the accident, adverse presumption would be drawn against them‑‑‑Once factum of fatal accident was proved, the burden of plaintiff was discharged and presumption of negligence arose and it was for the defendants to prove the absence of negligence and rashness on their part‑‑‑Doctrine ofres ipsa loquitur' was applicable in circumstances.

Mst. Zaibun Nisa v. Muhammad and others PLD 1965 Kar.127; Chaman Baig v. Karachi Transport Corporation 1995 CLC 1714; Qazi Arifuddin and another v. Government of Sindh PLD 1991 Kar.291; Pakistan Steel Mill Corporation v. Malik Abdul Hameed and another 1973 SCMR 848; Kandan v. Al Hayat Service (Pvt.) Ltd. 1988 CLC 525; Al Hayat Services (Pvt.) Ltd. v. Kandan 1989 CLC 2153; Bhurmal and Mitra Motor Association v. Raghunath Bansilal Kassat AIR 1963 Bom. 144; Barkway v. South Wales Transport Co. Ltd. (1950) 1 All ER 392; Halsbury's Laws of England; Mst. Shamim Akhtar v. Javedan Cement 1997 CLC 955 amd Mst. Sakina and 3 others' case 1995 CLC 633 ref.

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

‑‑‑‑S.1‑‑‑Recovery of damages‑‑‑Liability to pay damages‑‑‑Death due to rash and negligent driving‑‑‑Onus to prove‑‑‑Plaintiffs established that the death was caused by accident involving the bus owned by one of the defendants and driven by the other‑‑‑Effect‑‑‑Upon proving the occurrence by plaintiffs, the defendants were to prove that the accident had not occurred as a result of negligence and rashness on the part of defendants‑‑‑Plaintiffs had not only proved the occurrence of fatal accident but had fully established through their witnesses that the same had occurred on account of rash and negligent driving by the defendant whereas nothing was brought on record by the defendants so as to establish that the accident was not caused due to rashness and negligence on the part of driver‑‑‑Rash and negligent act of the bus driver resulted in the death of the deceased and that the deceased had not contributed chiefly or otherwise to the occurrence of the event‑‑‑Driver was employee of one of the defendants and tile bus was owned by the employee who had assumed the liabilities of the accident, therefore; defendants were liable to compensate the plaintiffs‑‑‑Judgment and decree were passed against the defendants jointly and severally‑‑‑Suit was decreed accordingly.

Inam Naqshbandi v. Haji Shaikh Ijaz Ahmed PLD 1995 SC 314; Khursheeda v. Haji Qudruttllah 1988 CLC 1062; Syed Afzal Hussain v. Karachi Transport Corporation and another PLD 1997 Kar. 253; General Manager Banglore Transport Service v. Narasima Haiah and others AIR 1977 Karnataka 6 and Qudsia Begum v. Younus Khan PLD 1973 Kar. 636 ref.

‑‑‑‑S.1‑‑‑Recovery of damages‑‑‑Acquittal by Criminal Court‑‑‑Death due to rash and negligent driving‑‑‑Effect‑‑‑Finding in a criminal case was not conclusive proof of absence of negligence‑‑‑In a criminal case it was the duty of prosecution to prove the offence beyond reasonable doubt whereas in suit under Fatal Accidents Act, 1855, onus to prove absence of negligence was upon the defendants‑‑‑Acquittal in criminal case had no relevance in circumstances.

Nisar Ahmed v. Messrs Hospital Supply Corporation 1999 MLD 13; Chaman Baig v. Karachi Transport Corporation 1995 CLC 1714; Nimi Francee and other v. Mohammad Saeed Qureshi 1982 CLC 1703 and Mst. Qudsia Begum v. Younus Khan and four others PLD 1973 Kar. 636 ref.

Nasir Maqsood, for Plaintiffs.

Tabasum Gazanfer Assistant Advocate‑General for the Defendant No3.

Date of hearing: 7th November, 2002.

MLD 2004 KARACHI HIGH COURT SINDH 518 #

2004 M L D 518

[Karachi]

Before Maqbool Baqar, J

NAJMA PERVEEN and another‑‑‑Plaintiffs

Versus

KARACHI TRANSPORT CORPORATION through Chairman and 2 others‑‑‑ Defendants

Suit No.472 of 1991, decided on 17th November, 2003.

Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S.1‑‑‑Death due to rash and negligent driving‑‑‑Recovery of damages‑‑‑Liability to pay damages‑‑‑Factum of accident had not been denied by the witness of the defendants‑‑‑Eye‑witness of the incident who had given a detailed account of the accident imputed negligence and rashness on the part of the driver‑‑‑Eye‑witness was not contradicted in material details by the defendants‑‑‑Effect‑‑‑Deceased had died as a result of injuries received by him in the accident caused by the driver while driving the bus owned by the other defendant in a reckless and negligent manner‑‑‑‑Owner of the bus having assumed the liabilities of the driver was liable to compensate the plaintiffs under Fatal Accidents Act, 1855‑‑‑Judgment and decree were passed against the defendants jointly and severally‑‑‑Suit was decreed accordingly.

Nasir Maqsood for Plaintiffs.

Nemo for Defendants.

Date of hearing: 25th October, 2002.

MLD 2004 KARACHI HIGH COURT SINDH 528 #

2004 M L D 528

[Karachi]

Before Saleem Akhtar, J

BAKHTAWAR SHAH ‑‑‑Plaintiff

Versus

KARACHI TRANSPORT CORPORATION through Chairman ‑‑‑Defendant

Suit No. 879 of 1986, heard on 27th October, 1987.

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

‑‑‑‑Ss.1 & 2‑‑‑Death due to rash and negligent driving‑‑‑Limitation Act (IX of 1908), S.6 & Art.21‑‑‑Suit for damages‑‑‑Limitation‑‑‑Minor plaintiff‑‑‑Benefit of S.6 of Limitation Act, 1908‑‑‑Applicability‑‑‑Father of plaintiff died on 27‑4‑1983, due to rash and negligent driving of defendant and the suit was filed on 30‑11‑1986‑‑‑Plaintiff was three years old at the time of accident and did not file the suit within one year of the accident‑‑‑Plea raised by the defendant was that under Art.21 of Limitation Act, 1908, the limitation was one year, thus the suit was time barred‑‑‑Validity‑‑‑Where plaintiff was minor, in view of S.2 of Fatal Accidents Act, 1855, the benefit of S.6 of Limitation Act, 1908, could be given to him‑‑Suit was not time‑barred in circumstances.

Iftikhar Hussain v. K. E. S. C. Ltd. PLD 1957 Kar. 552 fol.

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

‑‑‑‑S.1‑‑‑Death due to rash and negligent driving‑‑‑Recovery of damages‑‑‑Liability to pay damages‑‑‑Rash and negligent driving‑‑Father of plaintiff died due to rash and negligent driving of defendant who was driving at such a high speed that the bus swerved on its right side, collided with another bus and fell in the river bed‑‑‑Effect‑‑Accident was due to negligence of the driver‑‑‑Neither there was any contributory negligence by the deceased nor the accident occurred due to reasons beyond control of the driver‑‑‑Driver was driving the bus during the course of his employment and due to his negligent act if anybody had suffered any injury, the employer was liable to compensate the loss‑‑Judgment and decree were passed against the driver and the employer‑‑Suit was decreed accordingly.

M. Maqsood for Plaintiff.

Mir Raza Hussain for Defendant.

Date of hearing; 27th October, 1987.

MLD 2004 KARACHI HIGH COURT SINDH 542 #

2004 M L D 542

[Karachi]

Before Ghulam Rabbani and Rahmat Hussain Jafferi JJ

JAMIL KHAN AFRIDI‑‑‑Appellant

Versus

THE STATE‑--Respondent

Criminal Appeal No.122 of 2002, decided on 9th September, 2003.

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

‑‑‑‑S.9(c)‑‑‑Anti‑Narcotics Force Act (III of 1997), S.14‑‑‑Criminal Procedure Code (V of 1898), S.516‑A‑‑‑Appreciation of evidence‑‑‑Fact that ten slabs of "Charas", according to prosecution, were sent to Chemical Analyser was not supported or corroborated by his report which had created a doubt with regard to the sample as to whether it was the same property which was taken as sample at the place of incident or not and such doubt had to be resolved in favour of accused‑‑‑Deputy Director (Law) Anti‑Narcotics Force, Karachi who had moved an application before the Trial Court for destruction of the case property viz. 2000 kilograms of "Charas" was not empowered under S.14 of the Anti‑Narcotics Force Act, 1997, to do so‑‑‑Even otherwise, the said application had been granted without notice to the accused or hearing him‑‑‑Officials of the Anti‑Narcotics Force had also not compiled with the order of the Trial Court in letter and spirit as the samples were neither taken nor sealed in the presence of the Court, nor the remaining property was destroyed in its presence‑‑‑Court as such could not issue the required certificate as provided under S.516‑A, Cr.P.C.‑‑‑ Anti-Narcotics Force Authorities had not only violated the order of the Trial Court but had disobeyed the directions of the law as contained in S.516‑A, Cr.P.C. with the result that a valuable piece of evidence was destroyed which had ultimately benefited the accused and he had been saved' from the clutches of law‑‑‑Benefit of doubt was extended to the accused in circumstances and he was acquitted accordingly.

Sardar Pervez Akhtar v. The State Criminal Appeal No. 157 of 2001; Black's Law Dictionary; American Heritage Talking Dictionary; Chamber's 21st Century Dictionary; Judicial Dictionary, 13th Edn. by K.J. Aiyar and Concise Oxford Dictionary, 9th Edn. ref.

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

‑‑‑‑S.516‑A, second and third provisos‑‑‑Disposal of property pending trial‑‑‑Generally entire property secured or, seized by the Investigation Agencies is required to be produced in the Court but the second and third provisos to S.516‑A, Cr.P.C. are exceptions to the general rule‑‑Discretion vested to the Court under the second proviso, thus, is to be exercised judicially by giving notice and after taking into consideration the points raised by the patties and safeguarding their valuable rights.

Abdul Sattar v. Crown PLD 1953 FC 145 ref.

----Procedural requirements‑‑‑Purpose end philosophy of law---Procedural requirements of the criminal law are not mere formalities‑‑Underlying the rules of procedures is an all pervading care to ensure the liberty of the subject and the due dispensation of justice.

Abdul Sattar v. Crown PLD 1953 FC 145 ref.

(d) Administration of justice‑‑‑

‑‑‑‑Principles‑‑‑If a particular thing is required to be done in a particular manner then it should be done in that manner or it should not be done at all.

Shoukat H. Zubedi for Petitioner.

Shoaib M. Ashraf, Special Prosecutor, A.N.F. for Respondent.

Date of hearing: 6th August, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 558 #

2004 M L D 558

[Karachi]

Before Ghulam Nabi Soomro and Azizullah M. Memon, JJ

AMEER BUX‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Special Anti‑Terrorism Appeal No. 187 and Confirmation Case No.99 of 1999, decided on 31st July, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302 & 302(c) ‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(1)(a)‑‑Appreciation of evidence‑‑‑Record did not show that the accused was a proclaimed offender/absconder or any warrant of arrest had been issued against him‑‑‑Prosecution witnesses had consistently stated that the fire shots of the accused had injured the deceased in the room which at the time of occurrence was inhabited only by the accused‑‑‑Bullet secured from the dead body of the deceased had matched with the rifle of the accused‑‑‑Defence evidence that the police had taken away the rifle from the house of the accused on the same night appeared to be false and a set up one‑‑‑Incident, however, had occurred inside the room in complete darkness .and the medical evidence did not fully fit in the ocular version‑‑‑Offence against accused did not constitute a case of terrorism‑‑Police party admittedly had no warrant of arrest or search which might have given a reasonable presumption to accused that they would not be the police party and instead might be some decoits and caused a reasonable alarm for himself so as to defend his own life, benefit of which aspect was necessarily to go to the accused‑‑‑Conviction of accused under S.302, P.P.C. was consequently altered to one under S.302(c), P.P.C. and his sentence of death was reduced to seven years' R.I., in circumstances.

1996 PCr.LJ 181; 1993 PCr.LJ 91; 1999 SCMR 944; PLD 1998 SC 1445; Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274; Gul Hassan's case PLD 1989 SC 633; Kitab‑ul‑Fiqah by Abdul Rehman Al‑Khariry translated by Manzoor Ahsan Abbasi, Vol. V, p.528 and The State v. Muhammad Hanif and 5 others 1992 SCMR 2047 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(c)‑‑‑Punishment of Qatl‑i‑Amd‑‑‑ Scope‑‑‑Cases covered by the Exceptions to the old S.300, P.P.C. read with the old S.304 thereof, are intended to be dealt with under cl. (c) of the new S.302, P.P.C.

Gul Hassan's case PLD 1989 SC 633; Kitab‑ul‑Fiqah by Abdul Rehman Al‑Khariry translated by Manzoor Ahsan Abbasi, Vol. V, p.528 and The State v. Muhammad Hanif and 5 others 1992 SCMR 2047 ref.

Mir Muhammad Shaikh for Appellant.

Habib Ahmed, A.A.‑G and Javed Akhtar for the State.

Date of hearing: 31st July. 2003.

MLD 2004 KARACHI HIGH COURT SINDH 568 #

2004 M L D 568

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

ABDUL MAJEED and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Special Appeal No. 170 of 2002, decided on 17th November, 2003.

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

‑‑‑‑‑S.9(c)‑‑‑Appreciation of evidence‑‑‑Recovery witnesses had not only contradicted each other on material particulars but had also contradicted the contents of the Chemical Examiner's report‑‑‑Case property sealed in the gunny bag was not produced in the Court for verification and in support of oral evidence, as such not only the Court was deprived of examining a valuable piece' of evidence, but the accused were also deprived of their, valuable right to defend themselves in the Court who were misled in their defence which had occasioned a failure of justice‑‑Report of the Chemical Examiner in view of the above facts could not be safely relied upon as a doubt had been created as to whether the material examined by him was the same which was sealed at the place of incident‑‑‑Defence taken by accused was proved on record and their false implication in the case could not be ruled out‑‑Accused were acquitted on benefit of doubt in circumstances.

Jamal Shah v. State 1997 SCMR 1494; Ashique Hussain v. State PLD 1994 SC 879; Mst. Nargis v. State 1997 PCr.LJ 1093; Ali Hassan v. State PLD 2001 Kar. 369; Hakim Ali v. State 2001 PCr.LJ 1865; Tariq Pervez v. State 1995 SCMR 1345 and Muhammad Asghar alias Papu v. Sarfaraz Khan 1999 PCr.LJ 1575 ref.

Rashid A. Rizvi and Mehmood A. Qureshi for Appellants.

Jawaid Akhtar for the State.

Date of hearing: 13th November, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 587 #

2004 M L D 587

[Karachi]

Before Sabihuddin Ahmed, J

RAEES AHMED PASHA---Petitioner

KAMALUDDIN and others---Respondents

Constitutional Petition No. S-486 of 2002, decided on 7th October, 2002.

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

----S.15(2)(vii)---Bona fide personal need of landlord---Statutory right of landlord to eject tenant on ground of personal need ---Pagri---Effect---No agreement purporting to abdicate the statutory right of a landlord ,in consideration for a `Pagri' was legally enforceable and would not disentitle him to seek ejectment of tenant on ground of his personal need.

Zehra Begum v. Pakistan Burma Shell 1984 SC 38 and Azizur Rehman v. Pervez Shah 1997 SCMR 1819 ref.

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

----S.15(2)(vii)---Bona fide personal need of landlord---Proof---Mere statement of landlord to the effect that he needed premises in question for his personal need, would be sufficient proof of personal need of landlord.

Noorun Nisa v. Qamar-ul-Huda 1988 CLC 1822 and Saira Bai v. Syed Anisur Rehman 1989 SCMR 1366 ref.

----S.15(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Order of ejectment of tenant passed by Tribunals below founded upon sound reasons, could not be interfered with in Constitutional jurisdiction of High Court.

S.M. Aamir Naqvi for Petitioner.

Anwar Hussain for Respondents No. 1.

MLD 2004 KARACHI HIGH COURT SINDH 599 #

2004 M L D 599

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

FAKHARUDDIN---Petitioner

versus

Mst. SALMA and others---Respondents

Constitutional Petition No.591 of 2002, decided on 4th November, 2002.

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

----S.15(2)(vii)---Bona fide personal need of landlord---Proof---Bona fide personal need of landlord had to be based on concept of good faith, which would involve the element of honesty of purpose and reasonableness---Mere letting out of other premises by a landlord, either before or after institution for ejectment proceedings on ground of personal need, in itself, was not always enough to non-suit landlord--Landlord in such circumstances, had a complete option to choose from one of his several tenements occupied by tenant to avail for his personal requirement.

Jehangir Rustam Kakalia through Legal Heirs v. M.S. Hashwani Sales and Services (Pvt.) Limited 2002 SCMR 241; Abdul Salam v. Banaras Khan 1989 SCMR 98 and S.M. Nooruddin and 9 others v. Saga Printers 1998 SCMR 2119 ref.

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

----S.15(2)(vii)---Bona fide personal need of landlord---Plea of-- Landlord had pleaded that premises in question was required for his personal use---Said plea should be accepted until and unless it was otherwise proved that premises was not required for his personal bona fide need---Landlady who was owner of premises in question was living in a rented house and it would not be justified if she was not allowed to live in her own house.

----S.15(2)(vii)---Constitution of Pakistan (1973), Art. 199--Constitutionai petition--- Bona fide personal need of landlord ---Ejectment application by' landlord on ground of his personal bona fide need was allowed by Rent Controller and order of Rent Controller was maintained in appeal by Appellate Authority---Concurrent judgments of both Tribunals below were well-reasoned and well-discussed and same had been passed after appreciation of evidence---Concurrent judgments of Tribunals below not suffering from any legal infirmity or jurisdictional defect, could not be interfered with by High Court in exercise of its Constitutional jurisdiction.

Syed Wirasat Hussain Rizvi for Petitioner.

Muhammad Muzaffarul Haque for Respondents.

Date of hearing: 30th October, 2002.

MLD 2004 KARACHI HIGH COURT SINDH 626 #

2004 M L D 626

[Karachi]

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

KARACHI WATER AND SEWERAGE BOARD---Appellant

versus

AQEELA BANG and others---Respondents

High Court Appeal No.224 of 2002, decided on 26th August, 2003.

Fatal Accidents Act (I of 1855)---

----S.1---Death of Pump Driver caused during his attempt to rescue Kundiman at directions of superior officers---Decree in suit for compensation filed by heirs of deceased ---Validity---Deceased was not a professional Kundiman and he had no special knowledge about danger of manhole---Deceased had gone inside the manhole at the directions of officer without providing him necessary safety measures---Duty of officer present at the site was to either stop deceased or provide him sufficient protection---Employer was, liable to compensate the minor legal heirs of the deceased---High Court dismissed appeal while deprecating conduct of the government functionaries in filing appeal instead of providing reasonable compensation awarded to family members of the deceased.

Karachi Transport Corporation v. Latifur Rehman 1993 SCMR 1149; State of Rajasthan v. Rameshwar Lal and Munni Bai 1986 ACC 281 rel.

Abdul Karim Khan for Appellant.

MLD 2004 KARACHI HIGH COURT SINDH 631 #

2004 M L D 631

[Karachi]

Before Muhammad Afzal Soomro, J

MEHRAB---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 10 of 2004, decided on 22nd January, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), 5.324---Bail, grant of---Nobody was stated to be injured by the shot allegedly fired by the accused and it was a case of ineffective firing---Pistol 'recovered from the accused had allegedly been surrendered by him before the guard before entering in the Court and thereafter on return the unhappy incident had taken place--Accused was in jail for the last more then seven months and the trial was not likely to commence soon-State counsel had not opposed the grant of bail to accused---Bail was allowed to accused in circumstances.

Shafi Muhammad Memon for Applicant.

Anwar H. Ansari for the State.

MLD 2004 KARACHI HIGH COURT SINDH 648 #

2004 M L D 648

[Karachi]

Before Muhammad Roshan Essani, J

MUHAMMAD MAQSOOD---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 1398 of 2003, decided on 25th November, 2003.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.457/382/34---Bail, grant of---Accused was not nominated in the F.I.R.---No identification test was held by the prosecution in .the case---Recovery of the stolen property from the godown on rent with the accused was the only evidence against him, which allegation if accepted to be true, even then his case would fall under S.411, P.P.C. which was not hit by the prohibitory clause of S.497(1), Cr.P.C.---Case against accused required further probe as contemplated under S.497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Tariq Bashir v. The State PLD 1995 SC 34 ref.

Abdul Naeem Memon for Applicant.

Abdul Jalil Zubedi for the State.

MLD 2004 KARACHI HIGH COURT SINDH 659 #

2004 M L D 659

[Karachi]

Before Muhammad Roshan Essani and Amir Hami Muslim, JJ

KIRAR --- Petitioner

versus

THE STATE-Respondent

Criminal Bail Application No.221 of 2003, decided on 27th August, 2003.

Criminal Procedure Code (V of 1898) --

----S.497---Penal Code (XLV of 1860), Ss.395/342---Bail, grant of--Name of accused, who alongwith his companions formed an unlawful assembly, duly armed with deadly weapons barged in the house of complainant and committed robbery of valuable articles at gun-point, was transpired in F.I.R.---Nothing had been placed on record from which it could be deduced that complainant or any of the prosecution witnesses was biased against accused---Recovery of some robbed property was made from possession of accused---Merely because co-accused whose name transpired in F. I. R. had been let off by the police during course of investigation, was no ground for grant of bail to accused as he could be joined at any stage of the case if any incriminating- evidence would come on record---Delay in lodging report had been explained in F.I.R.---Delay in lodging of F.I.R., however, was no ground for grant of bail in each and every case---Case of co- accused, who was granted bail, was distinguishable from the facts and circumstances of the case of the accused---Bail application of accused, was dismissed, in circumstances.

Haji Gul Khan v. Gul Daraz Khan and another 1995 SCMR 1765 ref.

Muhammad Younus Behan for Applicant.

Rasheed Ahmed Qureshi Assistant A.-G, for the State

Date of hearing: 27th August, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 662 #

2004 M L D 662

[Karachi]

Before Gulzar Ahmed, J

Chaudhry MEHTAB AHMAD and another---Plaintiffs

versus

Mir SHAKEEL-UR-REHMAN and 4 others--Defendants

Suit No. 1258 of 2000, decided on 20th October, 2003.

Contract Act (IX of 1872)---

----S.28---Civil Procedure Code (V of 1908), S.20 & O.VII, R.10--Territorial jurisdiction of Court---Suit between principal and agent instituted at place "K"---Agency agreement between parties was made at place "R", which was also place of their business---Parties through such agreement had agreed that in case of any dispute, only Court at place "R° would have jurisdiction to deal with same---Parties were required to abide by terms of their agreement and submit their dispute to Courts at place "R"---Plaint was returned for its presentation before the proper Court.

State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393; Messrs E.F. U. General Insurance Limited v. Fahimul Haq 1997 CLC 1441; Masroor Asif v. United Bank Limited 2001 CLC 479; Bankers Equity Limited v. Merssrs Bentonite Pakistan Ltd. 2003 CLC 931 and Mehboob Ali Soomro v. Sindh Road Transport Corporation 1999 CLC 1722 ref.

Messrs Qadir Mators (Regd) Rawalpindi v. Messrs. National Motors, Karachi 1992 SCMR 1174 fol.

Faisal Kamal Advocate for Plaintiffs.

Muhammad Ali Mazhar for Defendants Nos. l to 4.

Date of hearing: 20th October, 2003.

2004 M L D 720

[Karachi]

Before Sabihuddin Ahmad and S. Ali Aslam Jafri, JJ

MUHAMMAD AYUB KHAN---Petitioner

versus

CITY DISTRICT GOVERNMENT (DEFUNCT KMC) and others---Respondents

Constitutional Petition No.D-136 of 2003, decided on 6th February 2003.

(al Constitution of Pakistan (1973)--

----Art.199---Constitutional petition during pendency of suit--Maintainability---Party once having chosen to seek redress from forum under ordinary law, could not normally seek relief under Art. 199 of the Constitution ---Principles.

The opening words of Art.199 of the Constitution show that this extraordinary jurisdiction can only be availed of when no alternate remedy is provided by law. This bar would be attracted not in every case, but only where ordinary remedy is equally efficacious. In very exceptional cases, the Courts have entertained petitions even during pendency of suits. However, no principle exists requiring the Court to exercise this jurisdiction merely because in its opinion the time required for disposal of a suit may be a little more than that in which a Constitutional petition can be decided.

Once a party chooses to seek redress from fora under the ordinary law, it cannot normally turn around and seek relief under Art. 199 of the Constitution.

Salahuddin and others v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai and 10 others PLD 1975 SC 244 ref.

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

----Art.1.99---Specific Relief Act (I of 1877), Ss.42 & 54---Constitutional during pendency of suit in High Court on original side--Maintainability---Question involved was, whether respondent had power to demolish construction raised on plot in possession of petitioner--Court trying suit had directed parties to maintain status quo and facilitated them to produce evidence on commission for its disposal--Interim relief sought by petitioner to restrain from recording evidence on commission would amount to suspend such order passed by High Court in original jurisdiction- --Petitioner was not satisfied with order of Trial Court preserving corpus of dispute for benefit of parties, but wanted to raise construction even before controversy .raised iii suit was resolved---Such conduct of petitioner lacked bona fides---Petitioner could not be allowed to subvert ordinary process of law---High Court dismissed Constitutional petition in limine with costs of Rs.5,000.

Salahuddin and others v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai and 10 others PLD 1975 SC 244 ref.

Muhammad Ashraf Bhatii for Petitioner.

Manzoor Ahmad for Respondent No. 1.

MLD 2004 KARACHI HIGH COURT SINDH 735 #

2004 M L D 735

[Karachi]

Before Khilji Arif Hussain, J

MUHAMMAD YOUSUF---Plaintiff

versus

GUL ZAMAN---Defendant

Suit No. 837 of 1999, decided on 25th September, 2003.

(a) Arbitration Act (X of 1940)---

----S.17---Judgment in terms of award---Court was duty bound 'to examine and see whether any reason existed for modifying the award notwithstanding that any affected party had failed to file: objection to the award.

(b) Arbitration Act (X of 1940)---

----S.26-A---Award to set out reasons---Arbitrator or umpire would state the reasons for the award in sufficient detail to enable the Court to consider any question of law arising out of the award---Where award did not state the reason in sufficient detail then Court would remit the award to arbitrator or umpire and fix the time within which Arbitrator or Umpire would submit award together with reasons in sufficient details and in case Arbitrator failed to give the reason within the time fixed by the Court, the award would become void.

Messrs Waseem Construction Co. v. Province of Sindh 1999 CLC 1081; Messrs Hafeez Construction Co. v. Messrs Javedan Cement Ltd. 1989 CLC 885; Messrs Maqbool Associates Ltd. v. Messrs Sindh Sugar Corporation Ltd. 1990 CLC 55; Messrs Awan Industries Ltd, v. The Executive Engineer, Line Channel Division and another 1992 SCMR 65 and Mst. Afroz Jehan v. Mst. Noor Jehan and others 1998 CLC 1318 ref.

----"Reason" defined and explained.

Abdul Wajid Wyne for Plaintiff.

Nemo for Defendant.

Date of hearing: 29th September, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 741 #

2004 M L D 741

[Karachi]

Before Ghulam Nabi Soomro, J

NISAR AHMED-- -Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-311 of 2003, decided on 24th November, 2003.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.380/409/34/120-B---Bail, grant of---Rule of consistency---Case of the accused and that of the six co-accused already released on bail, as per F.I.R. and the police record, fell in the same line and appeared to be identical---Accused was admitted to bail accordingly.

Muhammad Ayaz Soomro and Khalid Hussain Shahani for Applicant.

Muhammad Ismail Bhutto for the State.

Date of hearing: 24th November, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 745 #

2004 M L D 745

[Karachi]

Before Wahid Bux Brohi and Rehmat Hussain Jafferi, JJ

HAKIM ALI alias ALI and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No. 104 and Criminal Revision No. 107 of 1999, decided on 13th August, 2003.

Penal Code (XLV of 1860)-

----Ss.302(b)/149---Qanun-e-Shahadat (10 of 1984), Art.46---Dying declaration-, --Appreciation of evidence---Deceased while in injured condition had given the details of the incident assigning specific roles to the accused before the police officer in the Hospital when he according to the Doctor was conscious and able to speak---Said F.I.R. could be treated as dying declaration which was fully corroborated by other prosecution evidence including the medical evidence---Accused were caught red handed at the spot just after the incident---Pistol had been recovered from the possession of accused---Conviction of accused was upheld in circumstances---Sentence of imprisonment for life awarded to accused was also maintained, but the quantum of sentence was to be calculated as 25 years within the meaning of section 57, P.P.C. and not as 14 years as incorrectly recorded in the impugned judgment.

Niamat Ali v. State 1981 SCMR 61; Mst. Shamim Akhtar v. Faiz Akhtar PLD 1992 SC 211 and Ghulam Zehra v. Malik Muhammad Sadiq 1997 SCMR 449 ref.

Mehmood A. Qureshi and Shaukat M. Zuberi for Appellants (in Criminal Revision No. 107 of 1999).

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

Date of hearing: 13th August, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 754 #

2004 M L D 754

[Karachi]

Before Rahmat Hussain Jafferi, J

SHAHZADO JAFFERI and 6 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.89 of 2002, decided on 29th July, 2003.

(a) Penal Code (XLV of 1860)---

-----Ss.302/149 & 148---Appreciation of evidence---Facts and circumstances of the case being distinguishable from those of Nur Elahi's case reported as PLD 1966 SC 708, partial or complete deviation from the rule laid down therein could be made in order to do the complete justice, as the said rule did not amount to a declaration of law-- Complainant had not complained against the procedure adopted by the Trial Court for the trial of the State case and the-Complaint case, but he had rather supported the said procedure---Procedure adopted by the Trial Court in the peculiar circumstances of the case, thus had not caused any prejudice to any party acid the trial had been conducted in a proper manner---Trial Court had given the facts of each case separately and then decided the State case and the Complaint case on the evidence and the findings arrived at on the points of determination through the common judgment---However, this could be termed as merely an irregularity, which was curable under S. 537, Cr.P.C.---Eye witnesses were not only closely related to the deceased, but they were also hostile and inimical towards the accused having a motive to falsely implicate them in the case and their evidence required strong and independent corroboration which was lacking in the case---Ocular evidence was in conflict with medical evidence---Complainant had not examined the S.H.O., his own witness, giving rise to the legal presumption that had he been examined in the Court he would not have supported his case---Inordinate delay of four months in filing the complaint was not explained by the complainant---Complainant had failed to prove the case against the accused---Accused were acquitted in circumstances.

Nur Elahi v. The State PLD 1966 SC 708 and Ghulam v. The State 2003 SBLR 845; distinguished.

Zulfiqar Ail Bhutto v. The State PLD 1979 SC 53; Raja Khushbakhtur Rehman v. The State 1985 SCMR 1314; Karim Bux v. 7ulfiqar 1997 SCMR 3334; Muhammad Gulzar v. Muhammad Ashraf 1981 SCMR 435; Bagh Ali v. The State PLD 1973 321; Mst. Fatima Bibi v. Jan Muhammad 1991 SCMR 1031; Mardan Ali v. Gulistan 1980 SCMR 889 and Modi's Medical Jurisprudence and Toxicology 20th Edition page 227 ref.

(b) Penal Code (XLV of 1860)---

----Ss.302/149 & 148---Appreciation of evidence---Hostile and interested witness ---Principles---Courts before relying upon hostile and interested witnesses should look for strong and independent corroboration of their evidence.

Asif Ali Abdul Razzak Soomro and Mazhar Ali Siddiqui for Appellants.

Ali Murad Abro and Ali Nawaz Ghanghro for the Complainant.

Ali Azhar Tunio learned Assistant A.-G. for the State.

Date, of hearing: 29th July, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 1008 #

2004 M L D 1008

[Karachi]

Before Amir Hani Muslim, J

Messrs ILYAS MARINE AND ASSOCIATES‑‑‑Applicant

Versus

AMIN LASANIA and another‑‑‑Respondents

J.M. No. 6 of 2003 in Suit No.447 of 1989, heard on 27th January, 2004.

Civil Procedure Code (V of 1908)‑‑‑

----S.12(2)‑‑‑Dismissal of suit on merits‑‑‑Filing application under S.12(2). C.P.C., instead of appeal against order dismissing suit‑‑Maintainability of application‑‑‑Suit filed by plaintiff/applicant was dismissed on merits and Court in its judgment discussed entire evidence issue‑wise in detail‑‑‑Such judgment was not appealed against by plaintiff/ applicant, but instead an application under S.12(2). C.P.C. was filed by him almost after two years of passing o: judgment of Trial Court‑‑‑Validity‑‑‑Ground urged in said application travelled beyond the scope of S.12(2), 1C.P.C.‑‑‑Application under S.12(2), C.P.C. only lay if judgment/decree was obtained by a party either by fraud or by misrepresentation‑‑‑In present case both said ingredients were missing‑‑‑Section 12(2), C. P. C. was not substitute of appeal and could only be invoked if it was shown that judgment/decree had been obtained behind the back of party by playing fraud on the Court‑‑‑Wisdom behind legislating the provisions of S.12(2), C.P.C. was to avoid multitude of proceedings‑‑‑Applicant having failed to cite any case‑law in support of contention that a person who failed to prefer an appeal, could claim relief by invoking provisions of S.12(2), C.P.C., his application was dismissed.

Muhammad Muzaffarul Haque for Applicant.

Muhammad Shafi Siddiqui for Respondents.

MLD 2004 KARACHI HIGH COURT SINDH 1022 #

2004 M L D 1022

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

TAJUDDIN and others‑‑‑Petitioners

Versus

INSPECTOR OF EXPLOSIVE and others‑‑‑Respondents

Constitutional Petition No.D‑496 of 2003, heard on 3rd September, 2003.

Constitution of Pakistan (1973)‑‑‑

--‑Art.199‑‑‑Licence and Licensee‑‑‑Permission to store petroleum in residential area‑‑‑Grant of‑‑‑Constitutional petition‑‑‑On filing constitutional petition, Inspector of Explosive, in his parawise comments lead contended that permission to store petroleum was granted to respondent No.3 on basis of report of District Authorities‑‑‑Law conferred a duty upon Chief Inspector of Explosive or an Inspector nominated by him to grant Licence and Licensing Authority was required to apply its mind independently to all facts and circumstances and not to act mechanically in granting such licences‑‑‑Report of District Authority as a pre‑condition for grant of licence, was required to enable Licensing Authorities to know the ground realities in every area and such Authorities were required to act independently on basis of existing facts instead of merely following earlier reports‑‑‑Petitioners had not been able to refer to any provision of law contemplating that no licence for storage of petroleum would be granted in a residential area‑‑‑Could not be held, in circumstances that grant of licence to store petroleum in favour of respondent No.1, was illegal‑‑‑Respondent No.3 was using a building for storage of petroleum which was constructed without an approved plan and had put it to use without an occupancy certificate in flagrant violation of law‑‑‑Respondent No.3 was allowed three months time to remove oil from said building.

Nazar Akbar for Petitioner.

Nadeem Azher Siddiqui, D.A.G. alongwith Muhammad Hussain Channa Inspector of Explosive for the Respondent No. 1.

Messrs Shahid Jamiluddin Khan and Anwer Ali Shah for Respondent No.2.

M.H. Burney for Respondent No.3.

Arif Bilal Sherwani for Respondent No.4.

Manzoor Ahmed for Respondent No.5.

Date of hearing: 3rd September, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 1081 #

2004 M L D 1081

[Karachi]

Before Zia Perwaz, J

Messrs YOUNUS TEXTILE MILLS‑‑‑Plaintiff

Versus

MUHAMMAD FAZAL TAYYAB‑‑‑Defendant

Suit No.808 of 2001, decided on 10th July, 2003.

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

‑‑‑‑S.153, O.XXXIX, Rr. 1, 2 & 4‑‑‑Recalling of interim order‑‑‑When interim order was not a speaking order, party could approach the Court for order to be varied under O.XXXIX, R.4, C.P.C.‑‑Powers to re‑call an order was also available under S.153, C.P.C. where the Court in exercise of power could set aside earlier order.

Chiragh Din v. Mushtaq Muhammad and another PLD 1975 Kar. 1025; Estate Officer, Karachi v. Akhund Abdul Latiff and others 1976 SCMR 173; BNS Air Services (Pvt.) Ltd. v. Anwar Ali and another 1987 MLD 3009; Nooruddin Hussain and another v. Biamond Vacuum Bottle Manufacturing Co. Ltd. PLD 1981 Kar. 720; Sindh Madrasaiul Islam Board Society v. Shamim 1982 CLC 2242; Kar. Development Authority v. Haji Taj Muhammad and 3 others PLD 1977 Kar. 101; Engineering Products (Pvt.) Ltd. v. S.‑I.T.E. PLD 1997 Kar. 258; Pakistan Engineering Consultants v. Pakistan International Airlines Corp. & BCCI and others 1993 CLC 882; Abrar Ahmad Khan Tareen v. Munawar Saeed 1994 SCMR 1764; Islamic Republic of Pakistan and others v. Muhammad Zaman Khan and others 1997 SCMR 1508; Muhammad Inam v. Dr. Muhammad Safdar 1988 CLC 230; Messrs Volkervam (Pakistan) Ltd. and others v. Syed Hamid Hussain 1988 MLD 2067; Pakistan International Airlines Corporation and 5 others v. Muhammad Izharul Ahsan Qureshi PLD 1.979 Kar. 640; Quality Builders Ltd., Kar. v. Messrs J.P. Brockhoven. v. Dredging Contractors, Karachi and 9 others PLD 1979 Kar. 668; Haji Abdul Ghaffar v. Haji Rauf 1991 CLC 734; Messrs Qasimabad Enterprises v. Province of Sindh 1998 CLC 441; Messrs Nasir Metal Crafts (Pvt.) Ltd, through Chief Executive v. Zasha through Chief Executive, and 2 others 1997 MLD 1910; Hop Growers, Limited v. Dering 1928) 2 KB 174; The Brahmaputra Tea Co.; Ltd. v. E. Scarth 11 Cal. 545; Mineral Water Bottle Exchange and Trade Protection Society v. Booth 36 Ch. D 465 and E.M.D Cohen v. Allan Wilkle 16 CWN 534 ref.

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

‑‑‑‑O.XXXIX, Rr.1, 2 & 4‑‑‑Refusal of interim relief in cases involving service of personal nature‑‑‑Merely by obtaining an order in the absence of a party, when defendant in fact consented to be continued employment of the plaintiff over a long period, the significance of any information was admittedly effected by efflux of time.

‑‑.‑‑S.151 & O. VII, R.11‑‑‑Rejection of plaint‑‑‑Suit was for injunction as well as for recovery of amount of damages which was to be considered in evidence‑‑‑Plaint could not be rejected in piecemeal even if out of several prayers, one could not be granted‑‑‑No case for rejection of plaint under O.VII, R.II, C.P.C. having been made out; application for rejection of plaint was dismissed.

Abid S. Zuberi for Plaintiff.

Yawar Faruqui for Defendant.

Date of hearing: 24th April, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 1113 #

2004 M L D 1113

[Karachi]

Before Muhammad Sadiq Leghari, J

TARIQ MEHMOOD and others‑‑‑Petitioners

Versus

THE STATE and others‑‑‑Respondents

Criminal Miscellaneous No. 50 of 2003, decided on 11th August, 2003.

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

‑‑‑‑S.56(e)‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Civil and criminal proceedings‑‑‑Staying proceedings in criminal matter‑‑‑Civil suit and criminal case both had to be decided on their individual merits and evidence recorded in one of them could not be used in the other nor the judgment in the civil suit would be binding in criminal case‑‑‑Two proceedings were to be governed by different laws‑‑‑Court dealing with civil suit was barred from staying the proceedings in any criminal matter and Provisions of S.56(e) of Specific Relief Act, 1877, had put an absolute embargo in that respect.

Abdul Hayee v. The State and another 1972 SCMR 473 ref.

(b) Administration of justice‑‑‑

‑‑‑‑Civil and criminal proceedings‑‑‑Stay of criminal proceedings‑‑‑No provision of law governing criminal proceedings, either barred the Court or required it to stay criminal proceedings till decision of civil suit relating to same subject‑matter‑‑‑Normally criminal proceedings should not be postponed pending the disposal of civil litigation connected with the same subject‑matter, but the Court of criminal jurisdiction could stay the proceedings, only in the cases where it was clear that criminal liability was dependant upon the result of civil litigation or was so connected with it that there was danger of grave injustice being done in the case if there would be a conflict of decisions between‑Civil Court and Criminal Court‑‑‑For knowing as to whether criminal liability depended upon the result of civil litigation, the test was as to whether commission of criminal act/offence could be proved irrespective of the decision in the civil suit or that decision would affect and change the character of that act‑‑‑Only in the later case the decision in criminal case could be dependent upon civil litigation‑‑‑In such cases, conflicting decisions could cause injustice‑‑‑Otherwise, even if same act amounted to be a penal offence and an. act giving rise to a cause of action for civil suit, criminal liability could not be said to be dependent upon the result of civil suit‑‑‑Mere on possibility of conflicting decisions in the civil and criminal proceedings the proceedings in criminal case would not be stayed.

Muhammad Akbar v. The State and another PLD 1968 SC 281 ref.

Muhammad Waseem Samo for Applicant.

Ibbad‑ul‑Hussnain for Respondent No.2.

Mumtaz Ali Khan Deshmukh for the State.

Date of hearing: 11th August, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 1120 #

2004 M L D 1120

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

CHIBHAR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision Application No.31 of 2003, decided on 6th October, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 514, 87 & 88‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Forfeiture of surety bond‑‑‑Accused for whom petitioner stood surety, remained absent and did not appear before Court‑‑‑Accused was declared proclaimed offender and surety bond furnished by petitioner was cancelled and amount of surety was ordered to be forfeited‑‑‑Accused being police constable and bodyguard of D.S.P. had misused concession of bail and petitioner/surety, despite seeking‑ several dates of hearing, had failed to produce accused in Court who was absconding and was declared as proclaimed offender‑‑‑Amount of surety was rightly forfeited‑‑‑Petition filed by applicant/surety against forfeiture order, was dismissed in circumstances.

Zeeshan Kazimi v. The State PLD 1997 SC 406; Abdul Bari v. The State PLD 1998 SC 50; Muhammad Safeer v. Fakeer Khan and 2 others 2000 SCMR 312 and Jamroz Khan v. The State (1990 SCMR 1313 ref.

Mazhar Ali Siddiqui for Applicant:

Mushtaque Ahmed Kourejo for the State.

Date of hearing: 6th October, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 1140 #

2004 M L D 1140

[Karachi]

Before Gulzar Ahmed, J

ENCYCLOPAEDIA BRITANNICA, INC. ‑‑‑Plaintiff

Versus

PAK AMERICAN COMMERCIAL (PVT LTD‑‑‑Defendant

Suit No.812 of 1994, heard on 9th January, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.151, O.IX, R.8 & O.XVII, R.3‑-‑Adjournments‑‑‑Failure of plaintiff to produce evidence‑‑‑Closing the side of plaintiff‑‑‑Application for recalling order closing the side of plaintiff‑‑‑Plaintiff, despite obtaining several adjournments, failed to produce evidence on one pretext or other‑‑‑Finally matter was adjourned as a last chance and on last date fixed for hearing, counsel for plaintiff made a statement in Court that in spite of repeated reminders he had not received any instruction from plaintiff and even cost earlier imposed in plaintiff for non‑appearing and non‑producing witnesses, had not been deposited‑‑‑No witness was present on said date from the side of plaintiff‑‑‑Court in circumstances closed side of plaintiff and matter was put off for hearing of arguments‑‑‑Plaintiff who filed application under S.151, C.P.C. for recalling order closing his side alongwith his affidavit, could not state reasons for non‑producing witness and non‑depositing amount of costs‑‑Statement of counsel of plaintiff that no instructions were being received by him from plaintiff, would amount to pleading of no instructions and its consequence would be that of dismissal of suit‑‑‑Application filed by plaintiff for recalling order whereby his side was closed, being misconceived, and not maintainable, was dismissed.

Giorgio Beverly Hills Inc. v. Colgate Palmolive Pakistan Ltd. 1999 MLD 3173; Lithuanian Airlines v. Bhoja Airlines (Pvt.) Ltd. 2004 CLC 544; Messrs Adamjee Construction Company Ltd. v. Government of Punjab 1999 MLD 2202 and Abdul Latif v. Muhammad Yousaf PLD f 996 Kar. 365 ref.

Naseemuddin Shaikh for Plaintiff.

Muhammad Amin Lakhani for Defendant.

Date of hearing: 9th January, 2004.

MLD 2004 KARACHI HIGH COURT SINDH 1156 #

2004 M L D 1156

[Karachi]

Before Gulzar Ahmed, J

MUHAMMAD URIS‑‑‑Applicant

Versus

STATION HOUSE OFFICER, POLICE STATION DOKRI and 2 others‑‑‑Respondents

Criminal Miscellaneous Application No.S‑37 of 2004, decided on 28th April, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 154, 561‑A & 439‑‑‑Application for registration of F.I.R.‑‑Applicant whose son was allegedly kidnapped, went to Police Station for registration of F.I.R. against a person about whom applicant had information and knowledge that he had kidnapped his son but police officials did not record his F.I.R. and instead recorded F.I.R. on their own in which mere suspicion of kidnapping had been made out without naming any person‑‑‑Trial Court refused to name in F.I.R. the person about whom applicant had knowledge and information that he had kidnapped his son‑‑‑Applicant had stated that second F.I.R. of the incident could be recorded in circumstances‑‑‑Validity‑‑‑No restriction on recording of second F.I.R. in respect of same offence‑‑‑High Court accepting revision application, directed Police Authorities to record statement of applicant and if cognizable offence was made out, F.I.R. could be recorded.

Mrs. Ghunwa Bhutto v. Government of Sindh PLD 1997 Karachi 119 ref.

Muhammad Saleem Jesar for Applicant.

Muhammad Bachal Tonyo Additional Advocate‑General.

MLD 2004 KARACHI HIGH COURT SINDH 1179 #

2004 M L D 1179

[Karachi]

Before Wahid Bux Brohi and Maqbool Baqar, JJ

GHULAM QADIR and 5 others‑‑‑Applicants

Versus

MAZARI and another‑‑‑Respondents

Criminal Miscellaneous Application No.D‑71 of 2003; decided on 15th January, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.561‑A‑‑‑Inherent jurisdiction of High Court‑‑‑Order of Additional Sessions Judge if suffered from irregularity, incorrectness or impropriety, it could be set aside by High Court and not by Sessions Court‑‑‑Legal infirmity arising out of administrative order passed by Magistrate could be challenged or assailed in High Court under S.561‑A, Cr.P.C., if abuse of process of Court was established.

Arif Khan v. State 1993 SCMR 187; Hussain Ahmed v. Irshad Bibi 1997 SCMR 1503; Abdul Qadir v. State 2000 PCr.LJ 520 and Muhammad Sharif v. State 1997 SCMR 304 ref.

Abdul Rahman Bhutto for Applicants

Ali Nawaz Ghanghro and Abdul Khalique Bhutto for Respondents.

Muhammad Ismail Bhutto for the State.

Date of hearing: 15th January, 2004.

MLD 2004 KARACHI HIGH COURT SINDH 1209 #

2004 M L D 1209

[Karachi]

Before Ghulam Nabi Soomro, J

TAHIR MEHMOOD‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.S‑345 of 1999, decided on 19th November, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

-----S.426‑‑‑Penal Code (XLV of 1860), S.324‑‑‑Suspension of sentence ‑‑‑Accused had suffered equal damage, if not more compared to the injuries suffered by injured on prosecution side‑‑‑While injured on prosecution side suffered a single stab wound which was described as `Ghair‑e‑Jaffa', accused had also sustained equally serious injuries on his head which were described by Doctor as scalp deep, on left parietal region of skull‑‑‑Accused had examined himself on oath and had also examined a defence witness, but Trial Court had totally failed to discuss entire defence plea and evidence brought on record‑‑‑Trial Court while discussing the defence had only observed that "defence had failed to shake version of prosecution"‑‑‑No further examination or discussion was undertaken by Trial Court on case of defence‑‑‑Such treatment was not a proper appraisal of defence evidence‑‑‑Sentence of accused was suspended, in circumstances.

Ghulam Mustafa Memon for Appellant.

Nemo for the State.

Date of hearing: 19th November, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 1233 #

2004 M L D 1233

[Karachi]

Before Ghulam Nabi Soormo, J

BASHIR AHMED ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application Nos.S‑601 of 2003, decided on 30th December, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/34‑‑‑Bail, grant of‑‑Accused was in custody for the last more than four years and Trial Court had not made any progress in the case‑‑‑Case diaries for the last about one year had shown that bailable warrants were ordered to be issued to remaining prosecution witnesses repeatedly, but no witness could be examined‑‑‑Was not ascertainable as to when case would come to its conclusion‑‑‑Bail was granted to accused, in circumstances.

Sooban v. The State 2003 PCr.R 1055; Ali Murad and others v. The State 2003 P.Cr.R. 1659 ref.

Muhammad Ayaz Soomro for Applicant.

Muhammad Bachal Tonyo A.A.‑G. for Respondent.

Date of hearing: 30th December, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 1253 #

2004 M L D 1253

[Karachi]

Before S. Ali Aslam Jafri and Syed Zawwar Hussain Jaffery, JJ

ABDUL REHMAN PATHAN ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Jail Appeal No.D‑86 of 2000, decided on 30th October, 2003.

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

‑‑‑‑S.9(c)‑‑‑Appreciation of evidence‑‑‑Case property .was sent to Chemical Analyser with a delay of more than two months and no plausible explanation of such delay had come from Investigating Officer‑‑‑Nothing was on record to show that during said period case property remained in safe custody‑‑‑No entry was found in Movement Register of Police to show that actually at relevant time Excise Police party had left Police Station for patrolling alongwith members as shown in F.I.R. and Mashirnama‑‑‑Non‑production of copy of Station Diary, had created seriou4 doubts in relation to genuineness of prosecution story ‑‑‑Registration number of wagon from which accused was allegedly arrested, had not been mentioned in Mashirnama of arrest‑ ‑‑Alleged recovery was in violation of S.103, Cr.P.C. as no private and independent person had been associated as Mashir of arrest and recovery‑‑‑Case of prosecution, in circumstances was not free from doubts and benefit of doubt always would go to accused‑‑‑Even one circumstance creating doubt, could be considered to be sufficient to extend such benefit‑‑‑Sentence and conviction awarded to accused by Trial Court, were set aside and accused was released.

Javed Akhtar v. State PLJ 1997 Cr.C. Lah. 1310; Hamza v. State 2000 PCr.LJ 1360; Qalandro alias Nazro v. State 1997 MLD 1632; Gul Nawaz v. State 1998 PCr.LJ 12 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

(b) Criminal Trial‑‑‑

‑‑‑‑ Appreciation of evidence‑‑‑Non‑association of a private person to act as Mashir of recovery and arrest would not be fatal to prosecution case in view of fact that people usually hesitate to act as witness and Mashir in order to save them from attending the Courts after leaving all their personal affairs and returning back without being examined from time to time‑‑‑Even some people hesitate to act as Mashir or witness lest they should face annoyance and enmity of accused persons‑‑‑Judicial notice could be taken of such fact.

Abdul Baqi Jan Kakar for Appellant.

Muhammad Ismail Bhutto Additional Advocate‑General for the State.

Date of hearing: 30th October, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 1259 #

2004 M L D 1259

[Karachi]

Before Muhammad Sadiq Leghari, J

GUL AKBAR‑‑‑Petitioner

Versus

THE STATE and others‑‑‑Respondents

Criminal Revision No.86 of 2003, decided on 29th August, 2003.

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

‑‑‑‑Ss.516‑A & 517‑‑‑Superdari‑‑‑Provisions of S.516‑A, Cr.P.C. empowered. the Court to deliver on Superdari, to any person during pendency of trial, any property regarding which any offence appeared to have been committed, but it would not require the Court to do so essentially and in each case‑‑‑Said power was discretionary and was to be used judiciously taking care of the rights and interests of the claimants‑‑Property was not necessarily to be given on Superdari to a person from whose possession it was recovered‑‑‑Law required the delivery of property to the person entitled to its possession‑‑‑If Trial Court considered it proper not to hand‑over vehicle in question to any party on Superdari and kept it in Court's custody till the conclusion of trial expressing clearly that conduct of applicant was not satisfactory and the delivery of vehicle to him on Superdari would create complications, it could not be said to have acted without jurisdiction or illegally‑‑‑Order in respect of the custody of vehicle would be passed by the Court under S.517, Cr.P.C. in favour of a person/party found entitled to its possession.

(b) Administration of justice‑‑‑

‑‑‑‑ Civil and criminal proceedings‑‑‑Civil and criminal proceedings were to be decided on their individual merits in the light of evidence produced by the parties‑‑‑Evidence recorded in one case could not be used in the other nor the judgment in one case would have binding force upon the other‑‑‑Criminal proceedings normally should not be postponed pending the disposal of civil litigation connected with the subject‑matter except in the case where it was clear that criminal liability was dependant upon the result of civil litigation or it was so closely connected with it that there was danger of grave injustice being done in the case if conflicting decisions were given by the Civil Court and Criminal Court.

Muhammad Akbar v. The State PLD 1968 SC 281 and in Manik Jee v. Fakhur Iqbal and another 1968 SCMR 198 ref.

Janan Khattak for Applicant.

Agha Manzoor Ahmed for the State/Respondent No. 1.

Umer Farooq Khan for Respondent No.2.

Date of hearing: 29th August, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 1276 #

2004 M L D 1276

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

MISROO‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 119 of 2002, decided on 5th November, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑‑Motive as alleged by prosecution had been proved by three prosecution witnesses who were cross‑examined, but nothing had come on record to shake their evidence on the point‑‑‑Confidence inspiring ocular testimony furnished by natural and reliable eye‑witnesses could not be discredited when presence of said witnesses at the spot at relevant time had fully been proved‑‑‑Said eye‑witnesses had not been proved having any enmity with accused‑‑Medical evidence had corroborated. eye‑witnesses‑‑‑Prosecution, in circumstances had proved its case by ocular testimony‑‑‑Plea of alibi taken by accused, was not proved‑‑‑For accepting plea of alibi, accused were required to prove that at particular time of incident they were available at some other place‑‑‑General statement of accused and defence witnesses that accused at relevant time were available at other place, could not be accepted in presence of positive evidence of three eyewitnesses of incident who had specifically stated that they found accused present at the scene of incident committing murder of deceased‑‑‑Was very unsafe, in circumstances to rely upon such type of plea of alibi‑‑Prosecution having proved its case beyond any reasonable doubt, accused were rightly convicted by Trial Court‑‑‑Trial Court; while convicting accused under S.302, P.P.C., should have also mentioned its clause, but same having not been done, needed correction‑‑‑Trial Court also had awarded sentence of fine, which was not provided under any clause of S.302, P.P.C.‑‑‑Conviction of accused was maintained for an offence punishable under S.302(b), P.P.C. and amount of fine was converted to compensation under S.544‑A, Cr.P.C. to be paid to heirs of deceased.

(b) Criminal Trial‑‑‑

‑‑‑‑Appreciation of evidence‑‑‑Relationship of witnesses with deceased‑‑Mere relationship between witnesses and deceased, was no ground to discard evidence of witnesses unless witnesses had some motive or cause to falsely implicate accused.

‑‑‑‑S.302(b)‑‑‑Site plan‑‑‑Site plan by itself was not a substantive piece of evidence so that it could contradict ocular account‑‑‑Site plan could not be used to discard evidence of witness unless he was confronted with site plan.

Mst. Shamim Akhtar v. Faiz Akhtar PLD 1992 SC 211 and Sardar Khan v. State 1998 SCMR 1823 ref.

(d) Criminal Trial‑‑‑

‑‑‑‑ Alibi, plea of‑‑‑Alibi evidence was to be scrutinized very carefully for it was very easy to set up alibi, but not always easy to prove the same‑‑‑Alibi must be proved in order to rebut the case made out by prosecution‑‑‑Person raising plea of alibi must discharge the burden of proving same.

Ammenullah v. State PLD 1976 SC 629 and Khushi Muhammad v. State 1983 SCMR 697 ref.

Raja Qureshi for Appellant.

Javed Akhtar for the State.

Date of hearing: 5th November, 2003.

MLD 2004 KARACHI HIGH COURT SINDH 1399 #

2004 M L D 1399

[Karachi]

Before Amanullah Abbasi, J

KARIM DAD and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Cr. Bail Application No.589 of 1999, decided on 12th November, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Bail, grant of‑‑‑Counter cases between parties and both parties had suffered injuries‑‑‑Accused were granted bail, in circumstances.

1996 SCMR 1845; Fazal Muhammad v. Ali Ahmed 1976 SCMR 391 and Mst. Shafiqan v. Hashim Ali and others 1972 SCMR 682 ref.

Syed Madad Ali Shah for Applicants

Anwar Ansari for the State.

MLD 2004 KARACHI HIGH COURT SINDH 1418 #

2004 M L D 1418

[Karachi]

Before Amanullah Abbasi and Zahid Kurban Alvi, JJ

HASSAN and 2 others ‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Cr. Bail Application No.354 of 1999, heard on 14th September, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Proviso IV Penal Code (XLV of 1860), Ss.302/324/427/429/114/147/148/149‑‑‑Bail, grant. of‑‑‑Further inquiry‑‑‑Accused were in custody for the last more than 5 years, but their case had not been concluded as fresh trial had been ordered‑‑‑Some accused had absconded and some had already been acquitted by Trial Court‑‑‑Excepting present incident, no other crime was mentioned involving accused and no other case was against them‑‑‑Whether case of accused was covered by IVth Proviso of S.497. Cr.P.C., required further inquiry arid benefit of such a situation could be given to accused at bail stage as they had already remained in jail for more than 5 years and case against them was to commence again‑‑‑Bail was granted to accused, in circumstances.

1998 PCr.LJ 1470; 1997 PCr.LJ 1729:1996 PCr.LJ 748; 1993 SCMR 525; 1986 PCr.LJ 2947; 1992 PCr.LJ 2325; and PLD 1995 SC 49 ref.

Madad Ali Shah for Appellants Aga Khuda Bux for the State.

Date of hearing: 14th September, 1999.

MLD 2004 KARACHI HIGH COURT SINDH 1423 #

2004 M L D 1423

[Karachi]

Before Mushir Alam, J

ESSO and 2 others‑‑‑Appellants

Versus

THE STATE‑‑Respondent

M.A. No. 379 of 2000 in Cr. Appeal No. 181 of 1999 decided on 17th October, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.426‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Suspension of sentence‑‑‑Application for‑‑‑Evidence of complainant and witnesses required evaluation as there appeared to be some discrepancy as to presence of applicants/accused‑‑‑None of the witnesses apparently had made any allegation against applicants/accused for causing hatchet injury or even use of hatchet in commission of crime‑‑‑Such fact also found support from medical evidence which did not mention the use of hatchet` or any hatchet injury on the body of deceased‑‑‑Accused persons no doubt were alleged to be armed with hatchets, but use of hatchets was not attributed to them‑‑‑Accused all along had been enjoying benefit of bail before Trial Court till they were convicted‑‑‑Sentence was suspended, in circumstances.

Muhammad Nawaz v. Muhammad Nawaz 1997 SCMR 1521; and Ishaque Khan v. The State 2000 SCMR 1336 and Lateef Bibi v. Abdul Ghafoor 1994 SCMR 1727 ref.

Madad Ali Shah for Appellant.

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

MLD 2004 KARACHI HIGH COURT SINDH 1468 #

2004 M L D 1468

[Karachi]

Before Muhammad Roshan Essani, J

GHULAM MUSTAFA‑‑‑Appellant

versus

THE STATE‑Respondent

Cr. Appeals Nos.321 and 322 of 1996, decided on 1st June, 1998.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.193‑‑‑Criminal Procedure Code (V of 1898), Ss.241‑A, 265‑C & 243‑‑‑ Appreciation of evidence‑‑‑Trial Court had not complied with mandatory provisions of Ss.241‑A, 265‑C and 243, Cr.P.C. as neither copies as required under Ss.241‑A and 265‑C, Cr.P.C. were supplied to accused before framing charge nor plea of guilt of accused was recorded in his actual words nor show‑cause notices, as required under S.243, Cr.P.C. were issued to accused as to why they should not be convicted on the plea of guilt‑‑‑Conviction of accused, in circumstances, was not sustainable ,in law‑‑‑Conviction and sentence awarded to accused by Trial Court, were set aside and cases were remanded for retrial after compliance of mandatory provisions of S.241‑A or 265‑C, Cr.P.C.

Tariq Alias Baboo v. The State 1992 PCr.L1 1575; Mubarik Ali v. The State 1990 PCr.LJ 1685; Dadan alias Dadoo v. The State PLD 1996 Kar. 391: Umubyeyi Christine v. The State 1993 PCr.LI 1606; Sharif Khan v. The State 1991 PCr.LJ 1761 and Ajeet Singh v. Tile State PLD 1982 Lah. 10 ref.

Syed Madad Ali Shah for Appellants (in C.As. Nos.321 and 322 of 1996).

Ali Azher Tunio for the State.

Date of hearing: 25th May,. 1998.

2004 M L D 1545

[Karachi]

Before Shabbir Ahmed, J

Syed YASIR ALI SHAH alias NOMI---Applicant

Versus

THE STATE---Respondent

Cr. B.A. No.54 of 1999, decided on 4th February, 1999.

Criminal Procedure Code (V of 1898)-

----S.497(2)---Penal Code (XLV of 1860), Ss.302/34---Bail, grant of--- Further inquiry---Last seen evidence had been furnished by prosecution witnesses by identifying accused in a joint identification parade whereir only thirteen dummies were mixed-Ratio of dummies so mixed in a joint parade was against the rule laid down by Superior Courts-Recovery of dagger was on pointation of both accused which was not blood-stained--Clothes secured from the Wardat had not been noticed or mentioned in the report lodged earlier though on the same day---No reasonable ground existed to believe that accused had committed offence---Case of accused, in circumstances required further inquiry under provisions of subsection (2) of S.497, Cr.P.C.---Bail was granted to accused.

Syed Madad Ali Shah for Applicant.

MLD 2004 KARACHI HIGH COURT SINDH 1560 #

2004 M L D 1560

[Karachi]

Before Maqbool Baqar, J

Mirza MUHAMMAD SIDDIQ BAIG---Applicant

Versus

CITY DISTRICT GOVERNMENT, KARACHI and others--Respondents

C.M.A. No 4173 of 2003 (in suit No.788 of 2003), decided on 27th July, 2003.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Coures interim order---Violation of---Police in violation of Court's interim order, blocked venue of Mela by fixing Screen/Qunnat and posted police force there---Traffic Police, Officer and S.H.O. had submitted that alleged action was not ordered by them---In view of such denial, it was necessary to record evidence of the parties to find out as to which of the police, officers was responsible for such violation---Case was adjourned for recording evidence of parties and police Authorities were warned not to violate Court's order in future--- Plaintiff was also warned that absolutely no illegal or illicit activity should take place under the umbrella of Mela or else appropriate adverse order would be passed against him.

Syed Sarfraz Ahmed for Applicant.

Manzoor Ahmed for Respondents Nos.3 and 4.

2004 M L D 1642

[Karachi]

Before Sabihuddin Ahmad and S. Ali Aslam Jafri, JJ

Malik MUHAMMAD ARSHAD and others---Petitioners

Versus

GOVERNMENT OF SINDH and others---Respondents

Petition No.D-363 of 2002, decided on 13th August, 2003.

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

----S. 45(4)---Sindh Local Councils (Land) Rules, 1975, R. 8---Dispoi of commercial plot---Commercial plot could not be disposed of exc through public auction in terms of S. 45(4) of Sindh Local Governm Ordinance, 1975 and R. 8 of Sindh Local Councils (Land) Rules, 197.

(b) Title---

----Ignorance of law was never a ground of taking advantage of illegalities and a person not acquiring valid legal such title, could not pass on such title to another.

Fahim Riaz Siddiqui for Petitioners.

Dr, Qazi Khalid Ali, A.-G. for Respondent No.l.

MLD 2004 KARACHI HIGH COURT SINDH 1659 #

2004 M L D 1659

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

SADIQ ALI---Petitioner

Versus

CITY DISTRICT GOVERNMENT and others---Respondents

Const. Petitions Nos.D-861 and D-1029 of 2003, decided on 27th August, 2003.

(a) Approbate and reprobate---

---Party could not approbate and reprobate at the same time.

(b) Advocate---

---Status and function of---Advocates being officers of the Court are required to act with a greater amount of responsibility and to take consistent position instead of unnecessary wasting Court's time---Stricter adherence to etiquette at the bar, was required by advocates.

----Ss. 2 & 6---Sindh Katchi Abadies Act (II of 1987), S. 35---Raising constructioi in Katchi Abadies---Applicability of provisions of Sindh Buildings Control Ordinance, 1979---In absence of a notification under S. 35 of Sindh Katchi Abadies Act, 1987, provisions of Sindh Buildings Control Ordinance, 1979 were applicable to lands located within Katchi Abadies.

M.M. Tariq for Petitioner (in C.P. No.861 of 2003) and for Respondent No.3 (in C.P. No.1029 of 2003).

Mazhar Ali B. Chohan for Petitioner (in C.P. No.1029 of 2003) and for Respondent No.3 (in C.P. and 861 of 2003).

Manzoor Ahmed for Respondents Nos.1 and 4 (in both Petitions).

MLD 2004 KARACHI HIGH COURT SINDH 1675 #

2004 M L D 1675

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

ISLAMIC REPUBLIC OF PAKISTAN through Post Master General (Metropolitan Circle), Karachi and another---Appellants

Versus

ROSHAN JAN and 4 others---Respondents

H.C.A. No.175 of 1994, C.M.As. Nos.1280 and 1281 of 2002, decided on 22nd December, 2003.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Limitation Act (IX of 1908), S. 5 & Art. 168---High Court appeal---Dismissal for non-prosecution---Restoration---Delay, condonation of---Application for re-admission of appeal could be filed within 30 days of date of its dismissal, under Article 168 of the Limitation Act, 1908, but in the present case application was filed after a lapse of more than 4 months---Validity---In absence of plausible explanation, the delay could not be condoned---Applicant though was Federal Government, but Government could not be treated differently from any other party---Application for condonation of delay was dismissed.

Lahore High Court v. Nazar Muhammad Fatiana 1998 SCMR 2376; Province of East Pakistan v. Abdul Hamid 1970 SCMR 558 and PLD 2001 SC 340 ref.

Ziauddin Nasir Standing Counsel for appellants (absent).

MLD 2004 KARACHI HIGH COURT SINDH 1696 #

2004 M L D 1696

[Karachi]

Before Sabihuddin Ahmed and Muhammad Afzal Soomro, JJ

KARACHI ELECTRIC SUPPLY CORPORATION LIMITED through Secretary---Appellant

Versus

Syed IQBAL HUSSAIN JAFFERY through Attorney-Respondent

High Court Appeal No.25 of 1994, decided on 28th April, 2004.

Fatal Accidents Act (XIII of 1855)---

--S. 1---Law Reforms Ordinance (XII of 1972), S:3---High Court appeal---Fatal accident-Suit for compensation---Determination of amount of compensation---Appellate Court would not interfere with quantum of damages awarded by Trial Court to plaintiffs/legal heirs of deceased, unless it could be shown that Trial Court had applied a wrong principle of law in assessing damages or damages were assessed unreasonably---Neither of the said two conditions appeared to exists in the case, appeal was dismissed.

Qazi Arifuddin v. Government of Sindh PLD 1991 Kar. 291; Pakistan Steel Mills v. Abdul Habib 1993 SCMR 848; Bibi Surat Jan v. Mir Azam Khan PLD 1993 Kar. 168; Rafiq Jabir v. Superintendent Police 1993 CLC 1751; Muhammad Ilyas v. Pakistan Steel Mills Corporation 1994 MLD 2485; Umeruddin v. Sher Gul Khan Niazi 1995 CLC 1164; Mst. Mima v. Mukadam Wali 1993 MLD 610; Bibi Khalida v. Government of Sindh 2000 CLC 381; Dost Muhammad v. Pakistan Steel Mills 1996 CLC 530 and Karachi Road Transport Corporation v. Latifur Rehman 1992 SCMR 1149 ref.

Muhammad Muzaffar ul Haq for Appellant.

MLD 2004 KARACHI HIGH COURT SINDH 1708 #

2004 M L D 1708

[Karachi]

Before Muhammad Sadi4 Leghari, J

PEOPLES STEEL MILLS (PVT.) LTD., KARACHI---Petitioner

Versus

Messrs ASIAN CONSUL ENGINEERS (PVT.) LTD., KARACHI ---Respondent

R.A. No.243 of 2003, decided on 17th February, 2004.

(a) Arbitration Act (X of 1940)-

----S--Award, filing of---Jurisdiction of Court---Scope---Award is to be filed in a Court having jurisdiction in the matter to wch the reference relates--All questions regarding the arbitration agreement the conduct of arbitration proceedings and the validity, effect or existence of award are to be brought before and decided by the same Court.

(b) Arbitration Act (X of 1940)---

----S.31(4)---Civil Procedure Code (V of 1908), S.115---Words 'shall be made in that Court and in no other Court' in S.31(4), Arbitration Act, 1940---Applicability-Increase in pecuniary jurisdiction---Transfer of objection application---Effect-Award was filed before High Court in its original civil jurisdiction and the same was made rule of the Court-- when objection application was filed against the award, pecuniary jurisdiction of Civil Courts was enhanced and the application was transferred to Civil Court for its decision---Civil Court after assuming the jurisdiction dismissed the objection application and maintained the award---Plea raised by the objector was that the objection application was to be decided by the same Court, i.e. High Court and not by any other Court---Validity---If at the time of filing of award and any of the applications relating to its validity or effect one Court had a jurisdiction in the matter and during pendency of such applications the Court had been replaced by another Court then the successor Court was considered as the same Court and not a different one---Principal question to be kept in view was the jurisdiction and not the Court by itself---After rise in pecuniary limits of the jurisdiction, Civil Court took the place of High Court and had become its successor to the extent of that limit, therefore, Civil Court was the same Court within the meaning of S.31 of Arbitration Act, 1940---Proceedings on objection application by Civil Court were not without jurisdiction---High Court disapproved the practice of assailing the solitary question of jurisdiction in revision application, as such question should have been decided in appeal against the decision of objection application---Revision was dismissed in circumstances.

Umer Khan's case 2002 CLC 492 ref.

Zahid Hamid for Petitioner.

Aftab Ali Khan for Respondent.

MLD 2004 KARACHI HIGH COURT SINDH 1717 #

2004 M L D 1717

[Karachi]

Before Sabihuddin Ahmad and S. Ali Aslam Jafri, JJ

Mst. AKHTARUNISA-Petitioner

Versus

KARACHI METROPOLITAN CORPORATION and others---Respondents

C.M.As.Nos.4552 of 2000 and 4991 of 2001 (in Constitutional Petition No.186 of 1990), decided on 8th March, 2003.

Constitution of Pakistan (1973)---

MLD 2004 KARACHI HIGH COURT SINDH 1722 #

2004 M L D 1722

[Karachi]

Before Shabbir Ahmed, Ghulam Rabbani and Khilji Arif Hussain, JJ

WAHEED AHMED KHAN and others---Petitioners

Versus

PRINCIPAL SINDH MEDICAL COLLEGE and others---Respondents

C.Ps. Nos. D-161 to 162, 188, 219, 241, 279, 301, 307, 470, 473, 482 and 606 of 2003, decided on 18th May, 2004.

Sindh Medical Colleges Act (V of 1987)---

----S.3---General Clauses Act (X of 1897), S.21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Educational institution---Admission in medical college---Locus poenitentiae, principle . of---Applicability---Constitutional jurisdiction of High Court---Scope--Grievance of the candidates was that they had been given admission and were attending their classes, paying their dues regularly and were taking examinations when college authorities issued notices for cancellation of their admissions---Candidates claimed admission against merit seats, their Intermediate marks were short of closing marks of the session of admission---Some of the candidates did not appear in the entry test and neither their names appeared in the list of candidates who applied for admission in the relevant academic session nor they were amongst the successful candidates in the list issued by the Selection Board for admission in Sindh Medical College---Plea raised by the candidates was that once they had been granted admission, the same could not be withdrawn on the basis of principle of locus poenitentiae ---Validity--- Where admission was claimed defecto, the principle of locus poenitentiae could not be applied---Mere on the basis of examination forms forwarded With connivance of the staff of the college a vested right could not be pleaded particularly when the candidates failed to demonstrate their eligibility for admission from their own statement either they were short of closing marks and or were domiciled in other Province---Jurisdiction of High Court under Art.199 of the Constitution was discretionary in nature and High Court declined to exercise such jurisdiction in cases where such exercise of jurisdiction would work in aid of injustice or would protect some ill-gotten gain of a party---High Court directed the Provincial Government to modify rules with regards to the reserved seats by deleting all quotas under the reserved seats except those approved by Supreme Court in case titled Atiya Bibi v. Federation of Pakistan and others, reported as 2001 SCMR 1161---Petition was dismissed in circumstances.

Hina Jawed v. Government of N.-W.F.P. and others 1998 _SCMR 1469; Sheerin Munir v. Government of Punjab PLD 1990 SC 295; Chairman Selection Committee/Principal King Edward Medical College Lahore v. Wasif Zamir 1997 SCMR 15; Shahan Aurangzeb v. Principle Liaquat Medical College 1999 CLC 509; Asif Majeed and others v. ADC(C) Lahore 2000 SCMR 998; Secretary to Government of Punjab v. Ghulam Nabi PLD 2001 SC 415; Lahore Cantonment Cooperative Housing Society v. Dr. Nasratullah PLD 2000 SC 1068; Pardeep Kumar v. Province of Sindh and others PLD 1998 Kar. 433; Atiya Bibi v. Federation of Pakistan 2001 SCMR 1161; State of U.P. v. Anupam Gupta AIR 1992 SC 932; Asif Hameed v. State of AJ&K AIR 1989 SC 1899; Indu Kant v. State of U.P. AIR 1993 SC 1225; Zameer Ahmed v. Bushir Ahmed 1998 SCMR 516; Export Promotion Bureau v. Qaiser Saifullah 1994 SCMR 859; Province of Punjab v. S.M. Zaheer PLD 1997 SC 351 and Miss Rizwana Andleeb v. Principal Chandka Medical College, Larkana, 2003 SCMR 1944 ref.

Raja Qureshi, Muhammad Nawaz, Muhammad Aqil and Muhammad Hanif for Petitioners.

Abbas Ali, Addl.A.-G. and M. Shoaib Ashraf for Respondents.

MLD 2004 KARACHI HIGH COURT SINDH 1808 #

2004 M L D 1808

[Karachi]

Before Zahid Kurban Alvi and Zia Pervez, JJ

Messrs OUTDOOR ADVERTISING WELFARE ASSOCIATION---Petitioner

Versus

CITY DISTRICT GOVERNMENT, KARACHI and others---Respondents

Constitutional Petition No.2894 of 2003, decided on 29th May, 2003.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Application for renewal of licence by advertising companies on payment of registration fee---High Court with consent of parties, disposed of Constitutional petition observing that till the Special Committee constituted by City Nazim/District Government, came to a conclusion and announce its final decision, no adverse action would be taken against those Advertising Companies which had applied for renewal of their licences after payment of registration fee---Said order would not apply to those hoardings which, due to the inclement weather, might be needed to be pulled down.

Fazle Ghani Khan for Petitioner.

Manzoor Ahmed for Respondent No.l.

MLD 2004 KARACHI HIGH COURT SINDH 1825 #

2004 M L D 1825

[Karachi]

Before Sabihuddin Ahmad and S. Ali Aslam Jafri, JJ

MUHAMMAD AKRAM---Appellant

Versus

Mst. MUNEERA BEGUM and others---Respondents

High Court Appeal No.175 of 2002, decided on 10th September, 2002.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. XL, R. 1---Law Reforms Ordinance (XII of 1972), S. 3---Suit for declaration, injunction, partition and administration etc.---Appointment of receiver---High Court appeal-Dispute was between legal heirs of the deceased---Suit was filed by plaintiffs (legal heirs of deceased) against their mother to the effect that she being not exclusive owner of the property, had no authority to enter into an agreement for sale with defendant or to have conveyed/sold property in dispute to the said defendant---Defendant had asserted that he was not tenant of premises and was inducted as tenant in property in dispute by the deceased/predecessor of plaintiffs-Receiver was appointed by High Court which was challenged by defendant--- Validity---Discretion exercised by High Court in appointing Receiver was in conformity with well-settled principles of law and equity in such type of cases, particularly where the interest of minors was involved. High Court appeal was dismissed.

Attaullah Khan for Appellant.

Respondents in person.

MLD 2004 KARACHI HIGH COURT SINDH 1837 #

2004 M L D 1837

[Karachi]

Before Sabihuddin Ahmad and S. Ali Aslam Jafri, JJ

ANJUMAN ITTAHAD-E-MILLAT---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

Constitutional Petition No.1065 of 2002, decided on 27th March, 2003.

Constitution of Pakistan (1973)-

---Art.199---Constitutional petition---Lease---Lease of Katchi Abadi---Cancellation of lease---Lease of Katchi Abadi acquired by lessee could not be cancelled without giving him hearing and in accordance with law---Authorities concerned could resolve question of validity of lease either through proceedings pending in suit or otherwise as might be permissible under law---Lessee was restrained from raising any construction or creating any third party interest in property in dispute till decision of question of validity of lease.

Mahmood.A. H. Baloch for Petitioner.

Suleman Habibullah, Addl. Advocate-General Sindh for respondent No.1 .

Muhammad Yaseen Kiyani for Respondent No.2.

MLD 2004 KARACHI HIGH COURT SINDH 1856 #

2004 M L D 1856

[Karachi]

Before Muhammad Afzal Soomro, J

ALI KHAN---Applicant

Versus

THE STATE---Respondent

Cr1. Bail Appln. No.343 of 2001, decided on 6th July, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/337-A0); F(i)/114/147/148---Bail, grant of---F.I.R., showed that accused Was armed with hatchet and was alleged to have caused hatchet injuries to the daughter of complainant, whereas Medical evidence had shown tha injured lady had sustained three injuries caused by means of hard Wu substance-Two of the injuries on person of injured had been certified as 'Shajjah-I-Khafifa' whereas third injury was certified as 'Jurh Ghayr Jaifa Damiyah'---Punishment provided in respect of said two injuries was two years whereas regarding the other injury it was punishable upto one year-Ochlar version was at variance on kind of weapon used in occurrence---Ocular version was also not in line with medical evidence on number of injuries---Hatchet recovered from accused was not stained with human blood-Dispute was of domestic affair which would be settled down with passage of time---State counsel raised no objection if bail was granted to accused---Accused having been able to make out a case for bail, he was granted bail.

Jai Jai Veshno for Applicant.

Mushtaque Ahmed Kourejo for the State.

MLD 2004 KARACHI HIGH COURT SINDH 1875 #

2004 M L D 1875

[Karachi]

Before Muhammad Afzal Soomro, J

MURTAZA---Applicant

Versus

THE STATE---Respondent

Crl. Bail Appln. No.182 of 2002, decided on 2nd April, 2002.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 337-A(i)(ii)/34/504---Bail before arrest, grant of---Accused had sought bail in anticipation of arrest, contending that; he had been falsely implicated in background of enmity as disclosed in F.I.R.; that accused being respectable person of locality apprehended an irreparable injury to his honour and reputation due to his mala fide arrest by police in collusion with complainant party; that involvement of accused in false case of such nature was due to mala fides on the part of police and was motivated with ulterior motives--- F.I.R. showed that accused was alleged to be armed witji brick and was said to have caused brick blow from a piece of brick which hit on head of injured and same was certified by Medical Officer as 'Shajah-eMudiha' being punishable for five years, was out of prohibitory clause' contained in S. 497(1), Cr.P.C.---State Counsel who had conceded to legal position of the case, had raised no objection if accused was enlarged on bail in ,anticipation of his arrest---Accused having been able to make out a case for confirmation of bail, same was confirmed on same terms and conditions.

Master Dur Muhammad and 2 others v. The State' 1994 PCr.LJ 1769; Liaqat Ali Mugher and others v. The State 1999 PCr.LJ 65 and Abdul Hayee Siddiqui and 2 others v. The State 1993 PCr.LJ 446 ref.

Jai Jai Veshnu for Applicant.

Mushtaque Ahmed Korejo for the State.

MLD 2004 KARACHI HIGH COURT SINDH 1892 #

2004 M L D 1892

[Karachi]

Before Zahid Kurban Alvi, J

ATTAR---Petitioner

Versus

THE STATE---Respondent

Crl. B.A. No.759 of 2002, decided on 13th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302134---Bail, grant of---Further inquiry---Several persons on both sides had altercation and firing took place from both sides which resulted in causing fatal injuries on both sides and counter F.I.Rs. were got registered by both sides--- Accused had been named in F.I.R. and he was though allegedly armed with G-III rifle, but he had not been attributed with direct firing on persons who eventually died---Case against accused being of further inquiry, he was granted bail.

Jai Jai Veshno Mange Ram for Applicant.

MLD 2004 KARACHI HIGH COURT SINDH 1900 #

2004 M L D 1900

[Karachi]

Before Wahix Bux Brohi and Rahmat Hussain Jafferi, JJ

GHULAM ABBAS---Petitioner

Versus

M. SADIQ and others---Respondents

Cr1. Acq. A. No.18 of 1998, decided on 22nd October, 2003.

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

----S. 417---Penal Code (XLV of 1860), S. 302134---Appeal against acquittal---Ocular evidence furnished by prosecution witnesses, was not corroborated by medical evidence and conflict exited between medical evidence and oral evidence of prosecution witnesses---One of prosecution witnesses was a chance witness who was passing from the place of incident and other witness was a relative of deceased---Deceased before his death had recorded enmity with accused---Statements of said both witnesses reqthred independent and strong corroboration which was lacking in the case---One female witness was examined by the Trial Court twice, firstly as a prosecution witness and then as defence witness---Trial Court by examining witness twice, as prosecution and defence witness had committed material illegality in adopting said novel procedure which had no backing of law---Prosecution had failed to prove ocular testimony---Two dying declarations were made, one at the place of incident and other in hospital---Said declarations if examined in the light of evidence available on record would show that same were in conflict with each other---Ocular testimony in respect of part of causing dagger injuries to the deceased had assigned to accused persons---Dying declaration was not supported or corroborated by ocular testimony---None of the witnesses deposed that deceased made any dying declaration at the scene of incident---None of the eye-witnesses disclosed as to whether deceased was in conscious or unconscious condition at the place of incident---Evidence of witness on question of dying declaration was untrustworthy---Prosecution having failed to prove case against accused, Trial Court was justified in acquitting them---Judgment of Trial Court acquitting accused not requiring any interference, appeal against acquittal was dismissed.

Ubaida v. Abrar Ahmed 1986 PCr.LJ 539; Saleem Ahmed Naseer v. State 1985 PCr.LJ. 1078; Saifullah v. State 1994 PCr.LJ 1499; Abdul Hamid v. State 1969 SCMR 302; Sharif v. State 1973 SCMR 83; Allah Bakhsh v. Shammi PLD 1980 SC 225; State v. Rab Nawaz PLD 1974 SC 87; Muhammad Javed v. State 1993 SCMR 1619 and Mumtazuddin v. State PLD 1978 SC 114 ref.

(b) Criminal trial---

----Witness---Witness could either be. a prosecution witness or a defence witness, but he could not be a prosecution and defence witness at the same time in the same Trial.

Choudhari Iftikhar for Petitioner.

Badar Munir for Respondents Nos.1 and 2.

Jawaid Akhtar, State Counsel for Respondent No.3.

MLD 2004 KARACHI HIGH COURT SINDH 1936 #

2004 M L D 1936

[Karachi]

Before Shabbir Ahmed and Khilji Arif Hussain, JJ

GHULAM HUSSAIN-Petitioner

Versus

GOVERNMENT OF SINDH through Secretary Local Government at Sindh Secretariat Karachi and 4 others---Respondents

Constitutional Petition No.D-1682 of 2002, decided on 13th April, 2004.

Cantonments Act (II of 1924)---

----S.192---Easements Act (V of 1882), S.4---Penal Code (XLV of 1860), S.283---Constitution of Pakistan (1973), Art.199---Constitutional petition-Right in rem-Easement- right-Closure of road---Disputed road led to a graveyard and Defence Housing Authority closed the same for the use of general public---Validity---Easement right had been created in favour of general public to use roads and streets constructed by local bodies, societies etc. for the general convenience of the inhabitants of the city and no one had authority to take away such right of enjoyment and to deprive general public permanently from convenience except in, accordance with law---Authorities were expected to act in the interest of general public by providing amenities as light, education, health and road facilities and not to take away such rights---Right of way and right to use roads and streets being a right in rem was available against the whole world and it was attached with lands and could be described as a right against land itself irrespective of the person to whom the land belonged---High Court directed Defence Housing Authority to remove the structure which they had raised on the road---Petition was allowed accordingly.

State of U.P. v. Ata Muhammad AIR 1980 SC 1785; Ranjit. Singh and others v. Ram Nath Singh and others AIR 1976 All. 417 and Abdullah and another v. Ahmad Khan and 10 others 1988 CLC 1301 rel.

Nemo for Petitioner.

Ch. Muhammad Jamil for Respondents Nos.2 and 3.

Muhammad Sarwar Khan, Addl. A.-G.

Syed Zaki Muhammad, D.A.-G.

MLD 2004 KARACHI HIGH COURT SINDH 1942 #

2004 M L D 1942

[Karachi]

Before Wahid Bux Brohi, J

SHAH NAWAZ and 2 others---Applicants

Versus

THE STATE-Respondent

Criminal Bail Application No.541 of 2003, decided on 19th January, 2004.

(a) 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.324/337-H(ii)/353---Bail, refusal of---Both counsel for accused and State counsel did no press bail plea on behalf of one of coaccused---Application of said co-accused for grant of bail was dismissed.

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

---S. 497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)---Penal Code (XLV of 1860), Ss. 324/337-H(ii)/353---Bail, grant of---State counsel had no objection to grant of bail to accused persons in view of un explained delay in holding identification test---Accused persons were kept in police station

concerned for 8 days and identification test was held thereafter---Case against accused requiring further inquiry, they were admitted to bail.

Jai Jai Veshno for Applicants.

Mushtaque Ahmed Kourejo for the State.

MLD 2004 KARACHI HIGH COURT SINDH 1949 #

2004 M L D 1949

[Karachi]

Before Sabihuddin Ahmed and Muhammad Afzal Soomro, JJ

TCS (PRIVATE) LIMITED---Petitioner

Versus

PAKISTAN POST OFFICE through Director-General and another-Respondent

Constitutional Petitions D-Nos.1215, D-1508, D-1509, D-1558 and 1683 of 2002, decided on 1st July, 2004.

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

----S.115---Revisional jurisdiction of High Court---Nature of---Such jurisdiction is discretionary---Revision is a right, but not privilege-- "Right" and "privilege"---Distinction.

The exercise of revisional jurisdiction by High Court is discretionary, but that does not mean that a revision is a not a right, but only a privilege. A privilege is some particular benefit or advantage conferred on a person or a class of persons, which other citizens do not enjoy, while a right is some benefit conferred on a person by law.

Karamat Hussain v. Muhammad Zaman PLD 1987 SC 139 fol.

(b) Words and phrases----

---"Right" and "privilege"---Distinction.

Karamat Hussain v. Muhammad Zaman PLD 1987 SC 139 fol.

---Ss.2(i), 4, 5, 58 & 59---Constitution of Pakistan (1973), Arts. 18, 143 & 199---Stamp Act (II of 1899), First Sched. Art.53(d)--- Constitutional petition---Conveying letters by private courier companies---Validity---Notice issued by Pakistan Post Office warning the public utilizing services of any agency including courier transport companies other than Post Office for dispatch of communication categorized as a letter mail would attract penal provisions of Ss.58 & 59 of Post Office Act, 1898---Private Courier Company already carrying on such service/business alleged such notice to be violative of Art.18 of the Constitution---Validity---Levy of 5% stamp duty on receipt issued by courier service engaged in business of transmitting letters etc., would prima facie suggest that even letters could be carried through such agencies---Relevant provisions of Stamp Act, 1899 being a provincial legislation could not override Post Office Act, 1898 in view of mandate of Art.143 of the Constitution---Right of business guaranteed to citizens under Art.18 of the Constitution would not extend in areas, where exclusive power to conduct a business had been conferred upon Government or -a Corporation owned or controlled by Government---Federal Government had exclusive statutory right to carry on such service/business, which was confined only to letters and not to all forms of postal articles---Petitioner was not covered by expression "messenger on purpose" as used in S.4(1)(b) of the Stamp Act, 1898---Expression "letter" was not defined in the Stamp Act, 1898, thus, resort would be made to its ordinary dictionary meaning---If every institution engaged in profession of accepting letters from sender and delivering them to receivers was treated as "messenger on purpose", then provision conferring exclusive privilege upon, Federal Government would be destroyed---Such notice held was, not objectionable.

Sir Edward Snelson v. The Judges of the High Court of West Pakistan Lahore and another PLD 1961 SC 237; Shehla Zia v. WAPDA PLD 1994 SC 673; Black's Law Dictionary and Chamber's 21st Century Dictionary ref.

(d) Administration of justice---

----Courts are bound to ensure that all persons including agencies of Government must act strictly in accordance with law.

(e) Interpretation of statutes---

----Repeal of statute---Courts always disapproved inferring repeal by implication save in very exceptional circumstances i.e. where same was absolutely impossible to allow two statutes to, stand together.

Harlow v. Minister of France Court 1951 2KB 98 ref.

(f) Post Office Act (VI of 1898)---

---Ss.2(i) & 4---Expression "Postal Article" as defined in S.2(i) of Postal Office Act, 1898---Connotation---Ambit of such definition was much wider, which would include not merely letters, but also newspapers, books, packets, parcels and every thing transmissible by post---Expression "letter" not. defined in Act, 1898, which, according to ordinary dictionary, means a written or printed message normally sent in an envelope by post.

Black's Law Dictionary and Chamber's 21st Century Dictionary ref.

(g) Interpretation of statutes---

---Exception to the rules has to be strictly construed and cannot in any manner be so interpreted as to destroy the rule itself.

(h) Practice and procedure---

---Any permission granted by the executive must invariably conform to the requirements of law---Such permission would not have effect of overriding an operative statute.

(i) Constitution of Pakistan (1973)-

---Art.18---Right to carry on a business---Scope---Such fundamental right was confined only to carrying on a lawful business, which would include right to enter into lawful contracts---Where a valid law prohibited carrying on such business, by a particular class of people, then no reliance could be placed on such Constitutional guarantee.

(j) Post Office Act (VI of 1898)---

----S.20 [as omitted by Post Office (Amendment) Act (?? of 1996)- Constitution of Pakistan (1973), Art.199---Constitutional petition---Notice issued by Pakistan Post Office calling meeting of private courier agencies for regulating their policies or laying down conditions for licensing---Validity---In absence of any provisions of law, Pakistan Post Office had no jurisdiction to regulate activities of such agencies---High Court declared such notice to be without lawful authority and of no legal effect.

Naim-ur-Rehman and Khursheed Javed for Petitioners (in C. P. No. D-1215 of 2002).

Qadir H. Saeed for Petitioners (in C.P.No.D-1508 of 2002).

Kazim Hassan for Petitioners (in C.P.D.No.1509 of 2002).

Abdul Sattar Pinger for Petitioner (in C.P.No.D-1558 of 2002).

Mazhar Jaferi for Petitioners (in C.P.No.D-1683 of 2002).

Sahibzada Ahmed Raza Kasuri for Respondents.

Nadeern Azhar Siddiqui D.A.-G.

MLD 2004 KARACHI HIGH COURT SINDH 1971 #

2004 M L D 1971

[Karachi]

Before Wahid Bux Brohi, J

SHAMSUDDIN---Applicant

Versus

THE STATE---Respondent

Cr1. B.A. No.98 of 2003, decided on 20th January, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/3371337-F(i)/ 114/147/148---Bail, grant of---Further inquiry---Accused was in custody for the last over three years, but no prospects were in sight of trial to commence as even the charge had not been framed in the case---Role assigned to accused was of instigation and thereafter only a butt blow was attributed to him---Other accused in case had been granted bail by High Court---Incident had taken place within family and in the house of accused who allegedly was armed with pistol, but nothing appeared from record as to what prevented him from making a fire if his intention was " to kill---Apparently intention to kill was lacking---Case, in circumstances would call for further enquiry---Delay in commencing trial, could not be overlooked---Accused was released on bail, in circumstances.

Jai Jai Veshno for Applicant.

Muhammad Ismail Bhutto for the State.

MLD 2004 KARACHI HIGH COURT SINDH 1974 #

2004 M L D 1974

[Karachi]

Before Muhammad Afzal Soomro, J

LIAQUAT ALI---Petitioner

Versus

MAQSOOD AHMAD and others---Respondents

Constitution Petition No.490 and C.M.A. No.1957 of 2003, decided on 5th November, 2003.

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

----S.15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Bona fide personal need of landlord---Wilful default---Proof---Ejectment petition and appeal were dismissed by Rent Controller and Appellate Court on the ground that the landlord had rented out the other shops in the same vicinity during the pendency of ejectment petition---Both the Courts below also found that the tenant did not default in payment of monthly rent---Landlord did not cross-examine the witnesses produced by tenant and sought remand of the case on such ground---Validity---Landlord filed application before Rent Controller for permission to cross-examine the witnesses but the application was dismissed and no appeal was filed against the orders thus the order had attained finality---Appellate Court had rightly dismissed the appeal of landlord as none of the grounds urged by him were proved---Judgment passed by Appellate Court did not suffer from any infirmity, illegality or material irregularity which was the basic requirement for deciding the matter by High Court in exercise of Constitutional jurisdiction---Petition was dismissed in circumstances.

Abdul Majid v. Ibrahim PLD 1979 Kar. 238 ref.

K.A. Wahab for Petitioner.

Zaibul Nisa for Respondent No. 1.

MLD 2004 KARACHI HIGH COURT SINDH 1992 #

2004 M L D 1992

[Karachi]

Before Mushir Alam and Syed Zawwar Hussain Jafferi, JJ

MOATBAR and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.D-333 of 2003, decided on 19th September, 2003.

Criminal Procedure Code (V of 1898)-

---S. 497(2)---Penal Code (XLV of 1860), Ss. 324/353/1481149-West Pakistan Arms Ordinance (XX of 1965), S. 13---Anti-Terrorism Act (XXVII of 1997), S. 7---Bail, grant of---Further inquiry---Alleged abductees had implicated accused in offences in their statements made under S. 161, Cr.P.C.---Anti-Terrorism Court had recorded acquittal of accused on ground that prosecution witnesses had exonerated accused from commission of crime---Reliance on statement made by alleged abductees under S. 161, Cr.P.C., in circumstances was uncalled for because case of further inquiry was made out---Accused were admitted to bail, in circumstances.

Jai Jail Veshno Mange Ram for Applicants.

S. Mehboob Ali Shah for the State.

MLD 2004 KARACHI HIGH COURT SINDH 1993 #

2004 M L D 1993

[Karachi]

Before Khilji Arif Hussain, J

NAEEM AHMED JALBANI---Appellant

Versus

SARDAR ZAHIR KHAN---Respondent

F.R.A. No.13 of 2004, decided on 29th July, 2004.

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

----Ss.17(8), 17(9) & 24---Appeal---Striking off defence---Tentative rent order, non-compliance of---Plausible explanation---Scope---Eviction order was passed against the tenant on the ground that he failed to deposit tentative rent assessed by Rent Controller---Validity---Tenant was not only required to give plausible explanation for non-compliance of tentative rent order showing that due to unavoidable circumstances for particular period of time he could not comply the order passed by Rent Controller, but also to show that he acted bonafidely and immediately thereafter had deposited the rent in terms of order passed by Rent Controller---In absence of any satisfactory explanation for non-compliance of his order and that the tenant had not acted negligently, the Rent Controller had to pass order for striking off defence of the tenant--- High Court declined to interfere with the eviction order passed by Rent Controller---Appeal was dismissed in limine.

Col. Mirza Dawood Ahmad v. Dr. Afsar Aijaz and others 1991 CLC 1566; Dr. Abdul Hafeez v. Province of Punjab through the Secretary Education Lahore and others PLD 1991 SC 165; Mst. Anwar, Begum and 7 others v. Syed Muhammad Siddique and another 1991 MLD 1182 and Begum Mumtaz Riaz v. Masood Siddiqui and others 1988 CLC 311 distinguished.

MLD 2004 KARACHI HIGH COURT SINDH 2010 #

2004 M L D 2010

[Karachi]

Before Anwar Zaheer Jamali and S. Ali Aslam Jafri, JJ

MUHAMMAD SHAHID ALAM-Petitioner

Versus

THE PROVINCIAL LOCAL GOVERNMENT COMMISSION and others--Respondents

C.P. No. D-627 of 2003, decided on 27th February, 2004.

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

----Preamble, Ss.4, 128 & 129---Involvement of Government in affairs of Local Government---Object, scope and extent stated.

Sindh Local Government Ordinance, 2001 has been enacted with the object to devolve political power and decentralize administrative and financial authority to accountable Local Government for good governance, effective delivery of services and transparent decision-making through institutionalized participation of the people at grass-root level. To achieve object of this Ordinance, Schemes have been made to provide independent administrative machineries at different levels, free from the control of the Government, except within the parameters and the manner defined by the Ordinance itself. Local Governments are required to function within the Provincial framework and adhere to the Federal and Provincial Laws. In performance of their functions, Local Governments are required not to impede or prejudice the exercise of executive authority of the Government. For smooth functioning of the Local Governments, different administrative set-ups have been provided at different levels. At District Government level, such set-up is headed by Zila Nazim, who performs his functions in terms of section 18 of the Ordinance. Another administrative set-up has been provided at Taluka/Town level, which is headed by Taluka Nazim/Town Nazim, who performs his functions in terms of section 54 of the Ordinance. Intention of the Legislature is to minimize involvement of Provincial Government in the affairs of Local Government under section 128(1) of the Ordinance, Chief Executive of the Province or any Officer specifically authorized by him can only issue directions to District Government through concerned Zila Nazim for (a) preventing any grave threat to public peace and order; (b) handling emergencies and providing relief therefor and (c) protection and security of the people and the security and integrity of the State or any part thereof. Section 128(2) provides that on failure of Zila Nazim to make compliance with the directions in terms of subsection (1) issued by the Chief Executive and where the situation demands immediate action, the Chief Executive may require the Chief Secretary to direct the Inspector-General of Police and the District Coordination Officer concerned to take such action as the situation may necessitate. Further under section 129, the Chief Executive has authority to suspend the Zila Nazim, if in his opinion, he is deliberately avoiding or failing to comply with the directions given by Chief Executive. Such suspension is_-again subject to ratification by Provincial Assembly within thirty days according to procedure prescribed under S.129(3)(5). No such parallel powers have been conferred on Chief FLxecutive for any direct action against Town Nazim. In other words, the Legislature did not intend to see any involvement of Chief Executive at such level.

Fazlul Qadir Chowdhary v. Muhammad Abdul Haq PLD 1963 SC 486 rel.

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

----Ss.23, 62, 63 & 197---Suspension of Town Nazim by Chief Executive of the Province on charges of misconduct, negligence or corruption--Validity---Action for external recall of Town Nazim on such charges could be taken by Zila Nazim---Chief Executive had no direct role to play in external recall or any similar action against Town Nazim--Provisions of S.197 of Sindh Local Government Ordinance, 2001 could not be manoeuvered, stretched or interpreted in a manner to empower Chief Executive to take action at his end in a way to bypass course provided in Ordinance, 2001 for external or internal recall of Town Nazim and destroy whole fibre and scheme of the Ordinance---Chief Executive could not take any direct action against Town Nazim---Where Sindh Local Government Ordinance, 2001 did not permit actions of such nature against Town Nazim, then seriousness of allegations would not warrant or give legal cover to such action of the Chief Executive.

Fazlul Qadir Chowdhary v. Muhammad Abdul Haq PLD 1963 SC 486 ref.

Kamal Azfar for Petitioner.

MLD 2004 KARACHI HIGH COURT SINDH 2033 #

2004 M L D 2033

[Karachi]

Before Khilji Arif Hussain and Shabbir Ahmed, J

MUHAMMAD BASHIR through Attorney---Petitioner

Versus

ISLAMIC REPUBLIC OF PAKISTAN through Secretary Ministry of Religious Affairs, Zakat, Usher and Minorities Affairs, Islamabad and 4 others---Respondents

Constitution Petition No.D-1977 of 1998, decided on 6th April, 2004.

Evacuee Property (Management & Disposal) Act (XII of 1975)---

----Ss.8 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Trust property, status of---Determination---Property in dispute which was transferred by Settlement Department by issuing PTO and PTD which subsequently was sold to petitioner by transferee thereof-- Authorities claimed that property in dispute which was owned by a Charitable Trust known as `Panchayat Punjabi Daras' was a Trust Property and same had been wrongly transferred by Settlement Department as evacuee property---Petitioner/Vendee had challenged claim of Authorities on the ground that no material evidence was oh record to establish that property in dispute was owned by said Charitable Trust--Petitioner had further contended that in absence of Trust Deed, it could not be said that property belonged to Charitable Trust before Partition---Record of rights maintained by city survey, had clearly shown that "Panchayat Punjabi Daras of Karachi" was owner of .property in dispute and same was owned by Charitable Trust prior to Partition---Trust Deed though was not produced, but from finding of facts recorded by Authorities of Evacuee Trust Properties as well as from record of rights it was established that property in dispute was trust property owned by "Punchayat Punjabi Daras of Karachi" and same was 'rent free property'---Petitioner having failed to point out from the record any evidence to dislodge finding of fact recorded by competent Authorities, petition filed against said finding, was dismissed.

Government of Pakistan v. Nizamuddin through Legal Heirs and another 1994 SCMR 1908; Divisional Evacuee Trust Committee, Karachi v. Abdullah and 2 others 1970 SCMR 503; Muhammad Yaqub v. Additional Secretary 1999 MLD 2068; Qazi Akbar Jan and others v. The Chairman, District Evacuee Trust Committee Peshawar and others 1991 SCMR 2206 and Secretary, District Evacuee Trust Property v. Qazi Habibullab and 2 others PLD 1991 SC 586 ref.

Muhammad Ali Jan for Petitioner.

Anwar Hussain for Respondents.

MLD 2004 KARACHI HIGH COURT SINDH 2039 #

2004 M L D 2039

[Karachi]

Before Sabihuddin Ahmad and Muhammad Afzal Soomro, JJ

AKHTAR ALI MAHOTO and another---Petitioners

2004 M L D 8

[Lahore]

Before Nazir Ahmad Siddiqui, J

AURANGZEB‑‑‑Petitioner

Versus

JUDGE FAMILY COURT, KHANEWAL and others‑‑‑Respondents

Writ Petition No.3765 of 1992, decided on 18th January, 2002.

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

‑‑‑‑S.5 & Sched‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Suit for recovery of maintenance amount‑‑‑Both Family Court and Appellate Court had concurrently decreed suit filed by wife and minor children of defendant and granted maintenance to minors at the rate of Rs.500 each per month till they attained the age of majority and to plaintiff wife till the expiry of her 'Iddat' period‑‑‑Concurrent judgments of Courts below passed on a due appreciation of law and, fact, could not be interfered with by High Court in exercise of its Constitutional jurisdiction.

Abdul Fateh Moulvi v. Zabunnessa Khatun ILR 6 Cal. 631; Mst. Maryam Bibi and others v. Muhammad Iqbal and others PLD 1976 Azad J&K 9; Mst. Ghulam Fatima v. Sh. Muhammad Bashir PLD 1958 (W.P.) Lah. 596; Mst. Hamida Begum v. Syed Mashaf Hussain Shah PLD 1958 SC (Pak.) 284; Mst. Rehmat Bibi v. Muhammad Ali PLD 1971 Lah. 151; Muhammad Aslam v. Family Judge and 2 others 1987 CLC 247; Muhammad Akhtar v. Mst. Shazia and others 1992 MLD 134; Muhammad Nawaz v. Mst. Khurshid Begum and others PLD 1972 SC 302; Sardar Muhammad v. Mst. Naseeman Bibi and others PLD 1966 (W.P.) Lah. 703 an4 Bashir Ahmad v. Mst. Abida Bibi 1982 CLC 1295 ref.

Abdul Qadir Hasham for Petitioner.

Abdul Aziz Khan Niazi for Respondents Nos.3 to 6.

Dates of hearing: 15 and 18th January, 2002.

MLD 2004 LAHORE HIGH COURT LAHORE 11 #

2004 M L D 11

[Lahore]

Before M. Naeemullah Khan Sherwani, J

NAZISH ABBAS ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3840-B of 2003, decided op 15th July, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/34/109‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Accused who was ‑a teenager/below sixteen years of age, was not named in F.I.R.; but he was implicated subsequently by prosecution witnesses through their statements‑‑‑Accused was not carrying any weapon at the relevant time and no injury was attributed to him and he simply was shown to be present at relevant time of occurrence‑‑‑No recovery was made from accused and he had no reason to join hands with his co‑accused in taking life of the deceased‑‑‑Accused 'being below sixteen years, his case, otherwise was covered under proviso to subsection (1) of S.497, Cr.P.C.‑‑‑Allegation brought against accused calling for further probe, he was admitted to bail, in circumstances.

Muhammad Kazim Khan for Petitioner.

Khalid Butt for the State.

Date of hearing: 15th July, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 21 #

2004 M L D 21

[Lahore]

Before Muhammad Akhtar Shabbir, J

PUBLIC HEALTH CONTRACTORS WELFARE ASSOCIATION‑‑‑Petitioner

Versus

PROVINCE OF PUNJAB, and others‑‑‑Respondents

Writ Petition Nu.3740 of 2002/BWP, decided on 16th October, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑ ‑Contract, awarding of‑‑‑Pre-qualification of contractors‑‑‑Petitioner‑Corporation had sought issuance of direction to the Authority allowing the petitioner to participate in tenders invited through advertisement for different projects and a further direction to the Authority for not pre‑qualifying contractors and issuance of tender form without imposing any condition‑ ‑‑Authority had contended that it was not going to pre‑qualify the contractors and that pre‑qualification was not a pre‑condition to participate in the tender and that no impediment/clog had been put on contractors to participate in the tenders‑‑‑Letter issued by Public Health Engineering Department had provided that all previous registered Contractors of Public Health Engineering Department be allowed to participate in tenders floated by District Government and their new registration was not required and it had also provided that new contractors could get themselves registered with District Government‑‑Authority, however, was authorized to determine financial position and experience of contractors‑‑‑If contractors were asked by Authority to submit relevant documents like enlistment/renewal letter, Engineering Council Certificate, details of Technical Administrative Staff and machinery, Bank Certificate and Performance Certificate, it had not violated any provision of law‑‑Petitioner was free to compete tenders‑‑‑Authority, however, was directed by the High Court to act strictly in accordance with said letter issued by Punjab Public Health Engineering Department if the same had not been rescinded or modified.

M. Shamshir Iqbal Chughtai for Petitioner.

Respondents Nos.2 and 3 in person.

MLD 2004 LAHORE HIGH COURT LAHORE 23 #

2004 M L D 23

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD MUSHTAQ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2997‑B of 2003, decided on 25th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑‑Penal Code (XLV of 1860), S.324‑‑‑Bail, grant of‑‑Accused was also injured to occurrence and his medico‑legal report placed on record had shown one injury on his head while other was chip fracture of one finger‑‑‑Both parties had suppressed injuries of each other‑‑‑Police had also challaned the complainant party and case had become of two versions, ‑‑Accused was admitted to bail, in circumstances.

Ch. Muhammad Hussain Chhachar for Petitioner.

Sardar Mohabat Ali Dogar for the Complainant.

Abdul Qayyum Anjum for the State.

Date of hearing: 25th June. 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 33 #

2004 M L D 33

[Lahore]

Before Asif Saeed Khan Khosa, J

GHULAM QADAR alias MUMMA‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1701‑B of 2003, decided on 14th April, 2003.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Bail, grant of‑‑‑Further inquiry ‑‑‑F.I.R. in the case had been lodged with a delay of seven days and accused had been shown to be armed with a rifle in the F.I.R., but he had not caused any injury to any person during the incident‑‑‑Accused according to F.I.R. was alleged to have raised a Lalkara and then indulged in ineffective firing‑‑‑Question regarding sharing of common object by accused with his co‑accused as also regarding his vicarious liability for the offences allegedly committed by his co‑accused, in circumstances would be gone into by Trial Court at the time of trial and said questions called for further probe‑‑‑Challan in the case having already been submitted after completion of investigation, continued custody of accused in jail was not likely to serve any beneficial purpose‑‑‑Case against accused calling for further inquiry into his guilt within purview of subsection (2) of S.497, Cr.P.C., accused was admitted to bail.

Ch. Muhammad Hussain Chhachhar for Petitioner

Muhammad Hafeez Rafique for the State.

Date of hearing: 14th April, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 34 #

2004 M L D 34

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD ASLAM‑‑‑Petitioner

Versus

THE STATE--‑Respondent

Criminal Miscellaneous No. 1328‑B of 2003, decided on 24th March, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Pre‑arrest bail, grant of‑‑‑Accused had not been named in the F.I.R. as one of perpetrators of alleged offence and his name had surfaced in the case for the first time through a supplementary statement made, by complainant after about seventeen days of the alleged occurrence‑‑‑Complainant in his supplementary statement had disclosed that he had come to know through two witnesses regarding involvement of accused in the case as accused had allegedly made extra‑judicial confession before said witnesses---Investigating Officer had categorically stated that said witnesses had not appeared before him nor they had joined investigation so far‑‑Investigating Officer had further stated that no recovery was to be effected from possession of accused and that accused had also joined investigation whereas complainant party had failed to join the same‑‑Investigating Officer had maintained that , he did not need physical custody of accused for purpose of investigation of case‑‑‑Assertion of accused regarding his mala fide implication in the case, could not be without any foundation in view of said stand taken by Investigating Officer‑‑‑Ad interim pre‑arrest bail already allowed to accused, was confirmed in circumstances.

Asghar Ali for Petitioner.

Muhammad Ali Dogar for the State.

Date of hearing: 24th March, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 52 #

2004 M L D 52

[Lahore]

Before Ali Nawaz Chowhan, J

MOIN‑UD-DIN ‑‑‑ Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1452‑B of 2003, decided on 7th April, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/109/148/149‑‑‑Bail, grant of‑‑‑Accused had been exonerated by police and had been placed in Column No.2 of the challan on basis of evidence collected by Investigating Officer‑‑‑Witnesses produced by accused had unanimously stated that accused at the relevant time was present in a mosque for offering prayer alongwith witnesses of plea of alibi‑‑‑Accused though was nominated in the F.I.R., but it was yet to be seen whether he actually had committed the offence as had been reported in F.I.R.‑‑Accused was admitted to bail, in circumstances.

Ch. Muhammad Hussain Chhachar for Petitioner.

M. Shahid Rana for the Complainant.

Ashfaq Ahmad Chaudhry for the State.

Date of hearing: 7th April, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 54 #

2004 M L D 54

[Lahore]

Before Raja Muhammad Sabir and M. Naeemullah Khan Sherwani, JJ

ABDUL QAYYUM ‑‑‑ Appellant

Versus

RAEES WAZIR AHMAD and others‑‑‑Respondents

Election Appeal No. 149‑A of 2002, decided on 11th September, 2002.

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

‑‑‑‑Ss.14 & 99‑‑‑Acceptance of nomination papers‑‑‑Appellant an opposing candidate filed appeal against acceptance of nomination papers contending that he had not filed declaration of his assets and liabilities in accordance with law; that he was not present before Returning Officer at the time of filing or scrutiny of nomination papers and that the nomination papers were forwarded by respondent 'through FAX from abroad which mode was not recognized by law‑‑‑Grounds urged by appellant for rejection of nomination papers were not raised earlier by appellant by filing written objection before the Returning Officer‑‑‑No oral objection was even raised by him though nomination papers of parties were accepted on the same day‑‑‑In absence of any objection by appellant before Returning Officer, Appellate Court could not hold enquiry in respect of grounds urged by appellant because Appellate Court in summary proceedings could consider qualification and disqualification of a candidate as incorporated under S.99 of Representation of the People Act, 1976‑‑‑Respondent had submitted that he authorized his proposer to file nomination papers on his behalf and same were duly submitted before the Returning Officer, signed by the respondent‑‑‑Objection of appellant that nomination papers of respondent were received through FAX and not presented through proposer could not, be accepted because no material had been placed on record to substantiate that Returning Officer had received nomination papers through FAX and that same were not signed by the respondent‑‑‑Minor discrepancies which did not affect substantially nomination papers, could not be taken into consideration to oust a candidate‑‑‑Such being only a technical objection, Returning Officer was justified to accept nomination papers of respondent as no objection was filed before him by any candidate or voter‑‑‑Order accepting nomination papers of .respondent being in conformity with law, was not open to interference.

Farooq Amjad Mir for Appellant.

Rana Muhammad Zahid, Addl. A.‑G.

Sajjad Hussain Shah and Masood Ahmad Khan for Respondent No. 1.

MLD 2004 LAHORE HIGH COURT LAHORE 65 #

2004 M L D 65

[Lahore]

Before Mian Muhammad Jahangir, J

KAZIM and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3287‑B of 2003, decided on 24th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/364/201‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Trial Court had recorded statements of prosecution witnesses and in their statements they had not supported prosecution case‑‑‑Absence of any material on record connecting accused with commission of offence and when the prosecution witnesses were also not supporting prosecution case, it would be a case of further inquiry‑‑Accused, were admitted to bail, in circumstances.

Syed Faizul Hassan for Petitioner

Mrs. Siddiqa Altaf for the State.

Date of hearing: 24th June, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 72 #

2004 M L D 72

[Lahore]

Before M. Naeemullah Khan Sherwani, J

SHAUKAT ALI and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos.2281‑B and 2187‑B of 2003, decided on 16th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Bail, grant of‑‑‑Occurrence being of day time and both sides being fully acquainted with each other, complainant and witnesses had no doubt about the identity of accused‑‑‑Manner and mode of commission of crime had indicated that it was a pre‑planned and pre‑concerted violent attack on the complainant party‑‑‑Three real sons of complainant had laid their lives due to injuries sustained at the hands of their assailants‑‑‑Excessive number of injuries on deceased persons had fully corroborated prosecution version and statements of three other injured witnesses including complainant had also lent support to the prosecution version‑‑Number of injuries commensurated with number of assailants‑‑‑Not only complainant, but all other witnesses had fully supported prosecution story during course `of investigation‑‑‑Plea of alibi raised by two accused persons, had to be weighed and assessed by Trial Court after recording statements of defence witnesses as final power to judge guilt or innocence of accused rested with Trial Court‑‑‑Father of three deceased persons could not afford to spire actual killers of his sons‑‑‑Complainant and witnesses did not appear to have a motive to wrongly implicate accused persons in a case of such nature‑‑‑Statements of defence witnesses were not sufficient to rebut allegations against accused persons‑‑‑Opinion of police regarding innocence of accused could not be considered as legal evidence in the case‑‑‑High Court had ample power to disagree with police and refuse bail to accused‑‑‑Accused whose name was placed in Column No.2 of challan would remain an accused for the purpose of trial until he was discharged by the Court‑‑‑Whether opinion of police should be accepted or not, would be considered as attending to facts and circumstances of the case‑‑‑Three defenceless innocent young sons of the complainant had brutally been murdered, in the present case, whereas three others also had received fire‑arm injuries at the hands of accused‑‑‑Bail application of accused was accordingly dismissed.

Haji Inayat‑ul‑Haq v. Said Muhammad Khan and others 1988 SCMR 1743; Riasat Ali v. The State and another PLD 1993 Lah. 105 and Liaqat Ali v. The State PLD 1994 SC 172 ref.

Ch. Abdul Rashid for Petitioner No. 1.

Munir Ahmad Bhatti for Petitioner No.2.

Muhammad Inayatullah Cheema for Petitioner (in Criminal Miscellaneous No.2187‑B of 2003).

Sadaqat Mahmood Butt for the Complainant.

Asif Khalil for the State.

Date of hearing: 16th June, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 131 #

2004 M L D 131

[Lahore]

Before Khawaja Muhammad Sharif, J

SHEHZAD MASIH and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.787 of 1997 and Criminal Appeal No.30 of 1998, decided on 14th May, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.392/457‑‑-Appreciation of evidence‑‑‑Occurrence had taken place inside the ‑house of complainant where accused by extending threats, looted the household articles lying in the house which were recovered after their arrest and were identified by the complainant party‑‑‑Both eye‑witnesses being inmates of house were natural witnesses‑‑‑No previous background of enmity existed between the parties, nor question of false implication of accused arose‑‑‑Delay in lodging in F.I.R. could take place due to the fact that some time police did not register case and some time people were reluctant to go to Police Station because they were not meted out proper treatment at the hands of police‑‑‑Both accused were identified during identification parade held eight days after the occurrence‑‑‑Such type of heinous offences being on peak and people even while sleeping in their houses not feeling safe, were to be curbed with iron hands‑‑Prosecution having been successful in proving its case against accused to its hilt, conviction and sentence recorded against them by Trial Court, were maintained and benefit of S.382‑B, Cr.P.C. would remain available to accused.

Ch. Sadaqat Ali for Appellants.

M. Jahangir Wahla, A.A.‑G. for the State.

Mirza Abdullah Baig for the Complainant.

Date of hearing: 14th May, 2002.

MLD 2004 LAHORE HIGH COURT LAHORE 138 #

2004 M L D 138

[Lahore]

Before Ch. Iftikhar Hussain, J

BASHIR AHMED and 2 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.493‑B of 2003, decided on 26th March 2003.

Criminal Procedure Code (V of 1898)‑‑‑

----S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.420/467/468/471‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Bail, grant of‑‑Further inquiry‑‑‑Allegation against accused was that they in collusion with Patwari and Tehsildar concerned got transferred four Kanals of land of complainant in their favour by presenting another person in his place‑‑‑Accused were real nephews of complainant and one of them was his son‑in‑law‑‑‑Patwari who was co‑accused in the case had been allowed bail as complainant had sworn affidavit in his favour that he was innocent‑‑‑Case of accused person was identical to the case of Patwari/co‑accused as he had entered mutation in names of accused persons which was attested by the Tehsildar‑‑‑Case against accused persons too had become one of further inquiry into their guilt as envisaged under S.497(2), Cr.P.C.‑‑‑Accused being behind the bars for the last more than two months and previous non‑convicts, were admitted to bail.

Tariq Zulfiqar Ahmed Chaudhry for Petitioners.

Ch. Ghulam Muhammad for the State.

Date of hearing: 26th March, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 144 #

2004 M L D 144

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD ANAR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos.334‑B and 374‑B of 2003, decided on 10th March, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Bail, grant of‑‑‑Gun though was recovered from accused, but, he had not caused any injury to deceased or any prosecution witness‑‑‑Trial though had commenced, but as per allegations both accused persons neither had any motive nor they had been attributed any active role‑‑‑Mere commencement of trial was no ground to refuse bail‑‑‑Accused were admitted to bail, in circumstances.

Muhammad Ahsan Bhoon and Ch. Muhammad Aslam Sandhu for Petitioners.

Maqbool Qureshi for the State.

Date of hearing: 10th March, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 150 #

2004 M L D 150

[Lahore]

Before Asif Saeed Khan Khosa, J

AMER KHAN‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No.639 of 2003, decided on 30th June 2003.

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

‑‑‑‑S.7(b)(c)‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.14‑A‑‑Criminal Procedure Code (V of 1898), Ss.190, 435 & 439‑‑‑Jurisdiction of Court to try case‑‑‑Determination of‑‑‑Case registered against accused on 11‑7‑2002 under S.7(b)(c) of Surrender of Illicit Arms Act, 1991 having been entrusted to Additional Sessions Judge for holding trial, accused submitted application before that Court seeking transfer of case against him to Magistrate for holding trial‑‑‑Said application having been dismissed, accused filed revision before High Court‑‑‑First Information Report showed that alleged recovery of illicit weapons .from possession of accused had taken place on 11‑7‑2002 and prosecution was not, possessed of any material whatsoever to even seriously allege that said weapons were also in possession of accused on or before 20‑6‑2001 which was the target date fixed under provisions of Surrender of Illicit Arms Act, 1991‑‑‑Accused, in circumstances, could not be prosecuted under Surrender of Illicit Arms Act, 1991 for possession of illegal weapons allegedly recovered from him on 11‑7‑2002, but could only be tried for relevant offence under West Pakistan Arms Ordinance, 1965 and case under said Ordinance was triable by a Magistrate as provided under S.14‑A of West Pakistan Arms Ordinance, 1965‑‑‑High Court directed Additional Sessions Judge to transfer record of case to Magistrate competent to try alleged offence., against accused.

Muhammad Ishfaque alias Pappu v The State PLD 2002 Lah.

Syed Mazhar Ali Akbar for Petitioner.

Najeeb Faisal Chaudhry, Addl. A.‑G. for Respondents.

Date of hearing: 30th June, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 155 #

2004 M L D 155

[Lahore]

Before Raja Muhammad Sabir, J

FARHAN alias PINKI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.492‑B of 2003, decided on 10th March, 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‑‑‑Alleged abductee in her statement recorded under S. 161, Cr.P.C. had not made any allegation of commission of Zina against the accused‑‑‑Accused was found innocent during investigation and was placed in Column No.2 of challan‑‑‑Trial of case against accused had not commenced‑‑‑Involvement of accused in view of police investigation prima facie, being doubtful, case against accused was of further inquiry‑‑‑Accused was admitted to bail, in circumstances.

Zafar Iqbal Chohan for Petitioner.

Abdur Rehman Masood for the State

Date of hearing: 10th March, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 163 #

2004 M L D 163

[Lahore]

Before Shaikh Abdur Razzaq, J

MOHYUDDIN and another‑‑‑Petitioners

Versus

SUPERINTENDENT, NEW CENTRAL JAIL, BAHAWALPUR‑‑‑Respondent

Writ Petition No.3823 of 2000, decided on 14th November, 2000.

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

‑‑‑‑S.10(3)(4)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Remission in sentence granted through Presidential Order‑‑Entitlement to‑‑‑Accused who were convicted and sentenced under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and were undergoing the sentence applied for remission granted through Presidential Order, but their request was declined by the Superintendent Jail‑‑‑Validity‑‑‑Accused were challaned under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and at that time offence under S.10(4) of said Ordinance was not in existence, but was subsequently added and even after introduction of subsection (4) of S.10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, accused were not charged under said added subsection (4) nor they were finally convicted by the Trial Court thereunder‑‑‑Even Appellate Court had not varied or modified conviction of accused from S.10(3) to S.10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑‑‑Accused having never been tried and convicted under S.10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, objection of the Authority for not extending benefit of remission to accused, was without any force‑‑‑Accused, in circumstances, were entitled to remission granted to them through Presidential Orders issued from time to time‑‑Authority was directed to extend benefit of remission to accused by the High Court.

Tariq Mahmood Khan for Petitioners.

M.A. Farazi (on Court's call) for the State.

Date of hearing: 14th November, 2000.

MLD 2004 LAHORE HIGH COURT LAHORE 172 #

2004 M L D 172

[Lahore]

Before Tassaduq Hussain Jilani and Muhammad Khalid Alvi, JJ

KHIZAR HAYAT and another‑‑‑Appellants

Versus

THE STATE‑-‑Respondent

Criminal Appeals Nos.435 and 442 of 1998 and Murder Reference No.463 of 1998, heard on 7th August, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b)/34/109‑‑‑Appreciation of evidence‑‑‑Motive part of prosecution story had fully been established by statements of eye-witnesses‑‑‑F.I.R. was lodged by son of the deceased whose enmity against accused stood established‑‑‑Statement of complainant, in the present case, had to be seen with caution as his conduct during the occurrence did not correspond with natural human behaviour‑‑‑Question whether complainant was present at the place of occurrence, was not free from doubt‑‑‑Prosecution witness, however, was not related to complainant and had no enmity against the accused and his statement on all material particulars i.e., time of occurrence, manner of attack and the locale of injuries was consistent with the story as given in F.I.R.‑‑‑Such witness was a natural witness of the occurrence and he resided at a distance of one square from the place of occurrence‑‑‑Statement of said, prosecution witness stood corroborated by medical evidence inasmuch as the injuries which he attributed to the accused persons, corresponded to description of injuries given in the medical evidence‑‑‑Testimony of prosecution witness was further fortified by evidence of recovery of blood‑stained daggers‑‑‑Prosecution witness who attested memo. Of recovery of daggers from accused, was resident of the locality and was neither inimical to accused nor was related to the complainant party‑‑Police official who was a witness of recovery of dagger from co‑accused was subjected to lengthy cross‑examination, but nothing was brought on record to warrant an inference that he was either motivated by malice to depose falsely or his testimony was not worthy of credence‑‑‑No conflict existed between medical evidence and ocular account so far as specific injuries attributed to accused persons were concerned‑‑‑Delay in lodging F.I.R. had fully been explained‑‑‑Prosecution case against accused, in circumstances, stood proved beyond reasonable doubt to sustain conviction of accused on a capital charge‑‑‑Death sentence awarded to accused was confirmed.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b)/34/109‑‑‑Appreciation of evidence‑‑‑Police officer, in absence of any enmity with the accused, was worthy of same credence as a public witness.

Nur Hassan v. The State 1993 SCMR 1608 and Muhammad Naeem alias Naeema v. The State 1992 SCMR 1617 ref.

‑‑‑‑Ss.302(b)/34/109‑‑‑Appreciation, of evidence‑‑‑Not the quantity but quality of evidence would weigh with the Court‑‑‑Intrinsic worth, credence of the deposition and the independence of the witnesses alone would weigh with the Court while appreciating the evidence‑‑‑Statement of a solitary independent witness, who had no animus with the accused and which stood corroborated by‑other circumstantial evidence on record i.e. the motive, medical and recovery evidence, was enough to sustain conviction on a capital charge.

Muhammad Siddique v. The State 1971 SCMR 659; Shah Wali v. The Crown 1971 SCMR 273; Allah Bakhsh v. Shammi and others PLD 1980 SC 225 and Bacha Said v. The State PLD 1978 SC 102 ref.

Mian Arshad Latif for Appellants.

Abdul Aziz Khan Niazi for the Complainant.

Atta Ullah Khan Tareen for the State.

Date of hearing: 7th August, 2001.

2004 M L D 216

[Lahore]

Before M.A. Shahid Siddiqui, J

MUHAMMAD FAROOQ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos. 1354‑B and 1355‑B of 2003, decided on 24th July, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.324‑‑‑Bail, grant of‑‑‑All accused nominated in both cases had been enlarged on bail‑‑‑Accused was alleged to have hurled a brick at the injured person causing a fracture of his nasal bone‑‑‑Said injury could be the result of reckless act of accused, but he could not be said to have caused same intentionally‑‑Facts of case did not show that accused and his companions had the intention to commit murder‑‑‑Accused was enlarged on bail, in circumstances.

Muhammad Rehman Khokhar for Petitioner.

Rana Tahir Mahmood for the State.

Date of hearing: 24th July, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 221 #

2004 M L D 221

[Lahore]

Before Mian Muhammad Jahangir, J

MUHAMMAD ILYAS‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2164‑B of 2003, decided on 5th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑Penal Code (XLV of 1864), Ss.302/34/109‑‑‑Bail, grant of‑‑‑ Further inquiry‑‑‑Accused was not named in F.I.R.; but was nominated in supplementary statement which was recorded after one month of the occurrence‑‑‑No weapon had been recovered from the accused‑‑‑Case of accused was at par with his co‑accused who had been allowed bail by the Court‑‑‑Bail was refused to accused by Trial/ Court simply on the ground that he remained fugitive from law for about one year‑‑‑Fact of abscondence at the stage of bail and also at the trial, could have force to believe that accused involved in the alleged, occurrences had slipped away out of fear of police and complainant party‑‑‑Matter, in circumstances, required further probe and inquiry‑‑‑Mere fact of abscondence was not sufficient to refuse bail to accused‑‑‑Accused was 'admitted to bail, in circumstances.

Ch. Shafqat Ali Sulehria for Petitioner.

Abdul Majid Chishti for the State.

Date of hearing: 5th June, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 225 #

2004 M L D 225

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD SHAFI and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1273‑B of 2003, decided on 19th June, 2003.

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

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.379/337‑J/109/411‑‑‑Bail, grant of‑‑‑Further inquiry ‑‑‑F.I.R. in respect of incident stood registered against one person and accused persons in investigation had been found innocent and report of their discharge from the case was prepared, but Illaqa Magistrate did not agree with that report‑‑‑Accused having been declared innocent by police and report for their discharge from case was prepared, person against whom F.I.R. was registered, had been arrested in the case, and amount involved having been recovered from said persons, case of accused had become one of further inquiry into their guilt covering under subsection (2) of S.49'7, Cr.P.C.‑‑‑Accused were previous, non‑convicts‑‑‑Bail, was granted to accused, in circumstances.

Rana Muhammad Asif Saeed for Petitioners.

Syed Muhammad Asad Abbas Shah for the State.

Date of hearing: 19th June, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 239 #

2004 M L D 239

[Lahore]

Before Rustam Ali Malik, J

LUQMAN AKHTAR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3263‑B of 2002, decided on 27th June, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.354, 451 & 452‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/18‑‑‑Bail, grant of ‑‑‑Earlier, bail was granted to the accused and case was fixed for prosecution evidence‑‑‑Accused filed an application on the date of hearing that his counsel was not ready to cross‑examine prosecution witnesses who were present on that date and sought an adjournment‑‑Trial Court in his order observed that accused had changed four counsel and had been prolonging case on different pretexts and that in that way had misused the concession of bail‑‑‑Trial Court cancelled the bail granted to accused observing that accused by using delaying tactics having‑abused the process of law, had lost his entitlement to bail‑‑Accused had assured, that in case he was admitted to bail, his counsel would be regularly appearing before the Trial Court and would not seek any adjournment during trial on any pretext‑‑‑Since absence of defence counsel could not be attributed to the accused, it would not be proper to punish him on that account by withdrawing concession of bail‑‑‑On basis of assurance given by accused that his counsel would regularly appear before Trial Court, it was expected that, counsel for accused would appear before Trial Court in future regularly on all dates fixed by Trial Court‑‑‑Accused was admitted to bail, in circumstances.

Zafar Iqbal Chohan for Petitioner.

Maqbool Mazhar for the State.

Date of hearing: 23rd May, 2002.

MLD 2004 LAHORE HIGH COURT LAHORE 261 #

2004 M L D 261

[Lahore]

Before Ch. Ijaz Ahmad, J

CHAIRMAN, PAKISTAN TELECOMMUNICATION LTD., ISLAMABAD and 4 others‑‑‑Petitioners

Versus

S.A. HAMEED ADVOCATE, DISTRICT COURTS, GUJRANWALA‑‑ Respondent

Civil Revision No.733 of 2003, decided on 29th October, 2003.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.115‑‑‑Constitution of Pakistan (1973), Art.4‑‑‑Revision‑‑Concurrent findings of facts by the Courts below‑‑‑Conduct of Government officials in pursuing the cases on behalf of Government‑‑Suit for damages filed by the plaintiff was concurrently decreed in his favour by both the Courts below‑‑‑Plea raised by the defendants/public functionaries was that the Courts below had misread and non‑read the evidence on record‑‑‑Validity‑‑‑Defendants being public functionaries were duty bound to act in accordance with law as envisaged by Art. 4 of the Constitution‑‑‑Act of the defendants was not in accordance with law against which the plaintiff had sought damages‑‑‑Cases against Government Departments/Semi‑Government Departments are generally decided against them as public functionaries do not bring on record true facts by producing oral as well as documentary evidence‑‑‑Defendants neither brought on record any document to dislodge the claim of the plaintiff nor pointed out any evidence which was non‑read or misread by the Courts below‑‑‑Judgments and decrees passed by both the Courts below not suffering from any infirmity and illegality, revision was dismissed.

N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1949 PC 26 and Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood 1985 CLC 657 rel.

Mirza Nadeem Baig for Petitioners.

MLD 2004 LAHORE HIGH COURT LAHORE 270 #

2004 M L D 270

[Lahore]

Before Muhammad Muzammal Khan, J

Syed HUMAYUN ASIF BUKHARI and 2 others‑‑‑Petitioners

Versus

SAEED AHMAD and 2 others‑‑‑Respondents

Civil Revision No.2325 of 2000, decided on 7th November, 2003.

(a) Limitation‑‑‑

‑‑‑‑ Law providing limitation for maintaining lis‑‑‑Mandatory‑‑‑Delay in filing any matter must be explained by giving cause for each day's delay‑‑‑Principles.

Laws governing and providing certain limitation for maintaining some lis have always been treated as mandatory and are strictly construed. Delay in filing any matter after .the prescribed period of limitation has to be judiciously explained by giving cause for each day's delay.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑S.30‑‑‑Pre‑emption suit‑‑‑Sale through registered sale‑deed‑‑‑Starting point of limitation would be from its registration.

Muhammad Ramzan v. Lal Khan 1995 SCMR 1510 fol.

‑‑‑‑Ss.30 & 31‑‑‑Registration Act (XVI of 1908), S.60‑‑‑Pre‑emption suit‑‑‑Sale through registered sale‑deed‑‑‑Limitation‑‑‑Provision of S.30 of Punjab Pre‑emption Act, 1991 is mandatory, while provision of S.31 thereof is directory‑‑‑Sale effected through registered sale‑deed would have effect of a public notice‑‑‑Failure to give notice under S.31 of the Punjab Pre‑emption Act, 1991 would not enlarge period of limitation provided under S.30 thereof‑‑‑Principles.

Limitation provided by, section 30 of the Punjab Pre‑emption Act, 1991 is mandatory in nature and can by no stretch of imagination be extended, even if notice envisaged by section 31 of Punjab Pre‑emption Act, 1991 is not given. Latter provision though created an obligation for Registration Officer in case of registered sale‑deed and for an Attesting Officer in case it is effected through a mutation, to give a public notice in the manner prescribed by it, but in case of failure of the Registration or Attesting Officer to discharge their obligations, no consequence has been provided in the Act, hence it remains directory. It is also not provided by the Act that if such notice is not given, the limitation would start from the date of knowledge of pre‑emptor of the sale. If effect of those provisions is given in such manner, then it would amount to nullify the mandatory provisions of section 30 of the Act, and it would amount to giving an unbridled discretion to the pre‑emptor to file a suit even after five years of time with an assertion that the Registration or Attesting Officer did not issue a public notice in terms of section 31 of the Act. Legislature never intended to create such a situation. In the present case, sale was effected through a registered sale‑deed, which under the provisions of Registration Act, 1908 had the effect of a public notice and section 34 of the Punjab Pre‑emption Act, 1991 only created an additional means of knowledge for pre‑emptor. Failure to give such notice would not enlarge period of limitation and consequently the suit of pre‑emptor filed after nine months and seven days from date of registration of sale‑deed fell within clause (a) of section 30 of Punjab. Pre‑emption Act, 1991 and for this limitation being four months, same was patently barred by time.

Mian Asif Islam v. Mian Muhammad Asif PLD 2001 SC 499; Dr. Muhammad Ayub Khan v. Haji Noor Muhammad 2002 SCMR 219 and Maulana Noor‑ul‑Haq v. Ibrahim Khalil 2000 SCMR 1305 ref.

(d) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss.30 & 31‑‑‑Limitation Act (IX of 1908), S.3‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11 & O.XXIII, R.1‑‑‑Pre‑emption suit‑‑Limitation‑-Application under O.VII, R.11(d), C.P.C., seeking rejection of plaint for being time‑barred‑‑‑Withdrawal of such application before, its decision on merits‑‑‑Filing of similar application for second time in contravention of provisions of, O.XXIII, R.1(3), C.P.C.‑‑Validity‑‑‑Section 30 of Punjab Pre‑emption Act, 1991 was mandatory in nature and its S.31 did not have effect of extending period of limitation‑‑‑Question of limitation touching S.31 of Punjab Pre‑emption Act, 1991, would not remain a mixed question of law and fact, rather same being a pure question of law, could be decided without recording of evidence‑‑Duty of Court to advert to point of limitation even though no objection, was raised by either side and no finding was given on earlier application‑‑‑Court was under obligation to see, whether plaint was filed within the limitation provided.

Mian Asif Islam v. Mian Muhammad Asif PLD 2001 SC 499; Dr. Muhammad Ayub Khan v. Haji Noor Muhammad 2002 SCMR 219 and Maulana Noor‑ul‑Haq v. Ibrahim Khalil 2000 SCMR 1305 ref.

Alamgir for Petitioners.

Muhammad Yasin Bhatti‑I for Respondents.

Date of hearing: 23rd, October, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 283 #

2004 M L D 283

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ASGHAR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5789‑B of 2002, decided on 10th September, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.406/420/468/471/109/409‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Prima facie though it was established that accused was a member of Committee which was made Incharge of Water Supply Scheme by Public Health Department, but prosecution had failed to collect any evidence to connect accused with alleged misappropriation of amount‑‑‑No statement of any person had been recorded who could blame the accused of receiving any money from the villagers and even no evidence had been collected to show that co‑accused had been paying any money to the accused and other members of Committee as a share of misappropriated money‑‑‑Accused, on account of only being a member of Committee would not mean that he was involved in alleged misappropriation‑‑‑Accused could only be said guilty if some reasonable evidence was collected by the prosecution directly or indirectly involving accused in the crime‑‑‑Prosecution had no sufficient evidence in its possession to connect accused with alleged offence‑‑‑Case against accused being of further inquiry same was covered under subsection (2) of S.497, Cr.P.C.‑‑‑Accused was released on bail.

Zafar Iqbal Chohan for Petitioner.

Raja Akhtar Zaman for the State.

Date of hearing: 10th September, 2002.

MLD 2004 LAHORE HIGH COURT LAHORE 306 #

2004 M L D 306

[Lahore]

Before Tanvir Bashir Ansari, J

SAEEDA ALIA‑‑‑Petitioner

Versus

Syed GHULAM MURSALIN NAQVI and another‑‑‑Respondents

Writ Petition No. 1020 of 2003, decided on 29th October, 2003.

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

‑‑‑‑S.14(2)(b) & (c)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Maintainability‑‑‑Alternate adequate remedy of appeal, availability of‑‑‑Pecuniary jurisdiction of District Judge‑‑‑Family Court fixed the maintenance of minor children at the rate of Rs.1,000 per child per month while nit for recovery of dowry articles was decreed to the extent of Rs.10,000‑‑‑Wife being dissatisfied with the quantum of amount, assailed both the judgments and decrees before High Court in exercise of Constitutional jurisdiction‑‑‑Contention of the husband was that as right of appeal was available to the wife, therefore, Constitutional petition was not maintainable‑‑‑Plea raised by the wife was that due to bar contained in S.14(2)(b) & (c) of West Pakistan Family Courts Act, 1964, value of decretal amounts was less and appeals before Appellate Court were not maintainable‑‑‑Validity‑‑‑Abridgement of the right of appeal as contained in S.14(2)(b) & (c) of West Pakistan Family Courts Act, 1964, would apply to the judgment‑debtor and not to decree‑holder as the Legislature had thought it fit not to provide an appeal against a decree for relatively small amount both in case of claim for dower or dowry articles‑‑‑Held, right of appeal in both cases was available to the wife before appropriate appellate forum under the provisions of West Pakistan Family Courts Act, 1964‑‑‑Constitutional petition was dismissed in circumstances.

Mussarat Khatoon v. Zafar Ali 2002 MLD 1526; Muhammad Shareef v. Judge Family Court 2002 CLC 270; M. Javed Iqbal v. Tahira Naveed 2002 CLC 1748; Mst. Neelam Nosheen v. Raja Muhammad Khakan 2002 MLD 784 and Noor Muhammad v. Muhammad Farooq 1999 MLD 3437 ref.

Khawaj Muhammad v. District Judge, Mansehra 1999 MLD 2723 fol.

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

‑‑‑‑S.14‑‑‑Limitation Act (IX of 1908), S.14‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Appeal‑‑‑Condonation of delay‑‑‑Exclusion of time of proceedings bona fide in Court without jurisdiction‑‑‑Petitioners under misconception of law instead of filing appeal before Appellate Court approached the High Court in exercise of Constitutional jurisdiction‑‑‑Effect‑‑‑High Court directed the Appellate Court to consider the question of limitation favourably, if approached by the petitioners, as the petitioner acted bona fide in filing the Constitutional petitions.

Malik Shahzad Ahmed Khan for Petitioner.

Muhammad Sher Bahadur for Respondent No. 1.

MLD 2004 LAHORE HIGH COURT LAHORE 321 #

2004 M L D 321

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD OMER ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3023‑B of 2002, decided on 22nd May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/324/34‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑When deceased was taken to hospital she was found conscious and it had been mentioned in the column of the history of patient that it was suicide attempt by putting kerosene oil on her body‑‑‑Same history of the complainant continued in other hospital and it was mentioned that patient was in her usual state of health 2 hours before when after a fight with her husband she put kerosene oil over her clothes and burnt herself‑‑‑Certificate of Doctor revealed that patient was not found fit for making statement, but after 2 hours same certificate had been issued to police officer by finding patient/deceased fit to make statement‑‑‑Case against accused in circumstances was of further inquiry to determine whether deceased had committed suicide or she was murdered by her husband/accused‑‑‑Case, being covered under subsection (2) of S.497, Cr.P.C., accused was admitted, to bail, in circumstances.

Zafar Iqbal Chohan for Petitioner.

Muhammad Ishtiaq Chaudhry for the Complainant.

Mushtaq Ahmad Bhatti for the State.

Date of hearing: 22nd May, 2002.

MLD 2004 LAHORE HIGH COURT LAHORE 337 #

2004 M L D 337

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

Mst. SIRAJ ZAMANI‑‑‑Petitioner

Versus

Kh. AZHAR IQBAL and 9 others‑‑‑Respondents

Civil Revision No.947 of 1992, heard on 3rd November, 2003.

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

‑‑‑‑O.VII, R.11(a)‑‑‑Rejection of plaint‑‑‑Cause of action, absence of‑‑ Determination‑‑‑Court in order to invoke applicability of O. VII, R.11(a), C.P.,C. has to look into the contents of plaint only and should examine the plaint on its face value.

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

‑‑‑O.VII, R.11 ‑‑‑Plaint, rejection of‑‑‑Object and scope‑‑‑If plaint by itself indicates any infirmity enumerated in cls. (a) to (d) of O.VII, R.11, C.P.C. then the Court should order the rejection of plaint‑‑‑Fruitless litigation required to be buried at its inception to avoid wastage of time of Courts and unnecessary harassment to the opposite party.

Haji Allah Bukhsh v. Abdul Rehman and others 1995 SCMR 459 rel.

‑‑‑O.VII, R.11‑‑‑Print, rejection of‑‑‑Documents to be looked into by Trial Court‑‑Defence set up and documents annexed with the written statement were relied upon by the Trial Court and the plaint was rejected‑‑‑Judgment passed by the Trial Court was maintained by Appellate Court‑‑‑Validity‑‑‑Defence set up and documents annexed with the written statement could not be looked into for rejection of plaint‑‑Judgments passed by both the Courts were set aside and the case was remanded to Trial Court for decision afresh.

Mushtaq Ahmad Khan and another v. Mercantile Cooperative Finance Corporation Limited and another PLD 1989 Lah. 320 rel.

Zafar Iqbal Chaudhry for Petitioner.

Muhammad Nawaz for Respondents.

Date of hearing: 3rd November, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 355 #

2004 M L D 355

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD JAMEEL‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.4511‑B of 2002, decided on 1st August, 2002.

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

‑‑‑‑‑S.497‑‑‑Immigration Ordinance (XVIII of 1979), Ss. 17, 18 & 22‑‑Bail, grant of‑‑‑Name of‑ accused was not mentioned in the original statement made by deportees though the names of other accused who had sent them abroad had been mentioned‑‑‑Case of accused was at par with the case of co‑accused who had been granted bail‑‑Accused, in circumstances, was also entitled to same treatment which had been given to said co‑accused.

Zafar Iqbal Chohan for Petitioner.

Sheikh Javed Sarfraz, Standing Counsel.

Date of hearing: 1st August, 2002.

MLD 2004 LAHORE HIGH COURT LAHORE 368 #

2004 M L D 368

[Lahore]

Before Muhammad Sair Ali, J

NAWAB‑‑‑Petitioner

Versus

MUSHTAQ AHMAD and 2 others‑‑‑Respondents

Civil Revision No.2085‑D of 1996, decided on 14th November, 2003.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S.10‑‑‑Notification No.1622‑71/205/CLI, dated 24‑4‑1971‑‑‑Word 'person' as used in Condition No.3 of Notification No.1622‑71/205/CLI, dated 24‑4‑1971‑‑‑Object and scope‑‑‑Persons in employment are excluded from the benefit of the Notification No.1622‑71/205/CLI, dated 24‑4‑1971‑‑‑Validity‑‑‑Word "person" as used in the said Notification has not been used in a restrictive sense and it brings any person within the permissive and wider scope of the Notification which does not define or prescribe any particular category of persons entitled to apply for lease‑‑‑No embargo is placed on persons employed with any sector or organization to obtain lease under the Notification‑‑‑Persons in employment who are otherwise entitled to the grant of lease are not excluded from‑the benefit of the Notification‑‑‑Imposition of such restrictions, elimination, deprivation and limitation cannot be read in Notification No. 1622‑71/205/CLI, dated 24‑4‑1971, as the same is not so intended or mandated‑‑‑Persons in employment cannot be considered to cultivate personally even if they are so entered in the Revenue Record and can exercise personal control and cultivation over the lease land.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S.36‑‑‑Notification No. 1622‑71/205/CLI, dated 24‑4‑1971‑‑‑Specific Relief Act (I of 1877), Ss.8 & 54‑‑‑Grant of lease ‑‑‑Cancellation‑‑Jurisdiction of Civil Court‑‑‑Plaintiff‑was school teacher and was granted lease of suit‑land in the year 1971‑‑‑Authorities passed an order for resumption of land, invalidated the basic allotment of lease and granted the lease of the suit‑land to the defendant‑‑‑Suit filed by the plaintiff was dismissed by the Trial Court but Appellate Court allowed the appeal and decreed the suit‑‑‑Plea raised by the defendant was that in the present matter the jurisdiction of Civil Court was barred and the suit could not be tried by the civil Court‑‑‑Validity‑‑‑Authorities or the defendants had neither alleged nor proved through evidence that land owned by the plaintiff was 'cultivable land'‑‑‑Authorities, after grant of lease to plaintiff as back as in year 1971, were under a heavy duty to prove that a fraud or misrepresentation had been committed by the plaintiff in obtaining the lease‑‑‑Neither fraud nor misrepresentation was seriously urged, particularized or proved to entitle Authorities to invoke the resumption conditions‑‑‑Mere employment of plaintiff as a teacher was not an impediment in his self and personal cultivation of the suit‑land when he was duly and properly entered in the relevant Revenue Record and Khasra Girdawari as a self‑cultivator‑‑‑Civil Court, under S.36 of Colonization of Government Lands (Punjab) Act, 1912 was held to be divested of the jurisdiction if the powers were exercised by the Departmental Authorities in accordance with the provisions of Colonization of Government Lands (Punjab) Act, 1912‑‑‑Civil Court was vested with the jurisdiction to entertain and try the present suit as the Authorities had acted without jurisdiction and had exercised powers not vesting in them under the provisions of Colonization of Government Lands (Punjab) Act, 1912, and in Notification No. 1622‑71/205/CLI, dated 24‑4‑1971‑‑‑Plaintiff was not disentitled to the grant of lease by the Colonization Authorities under Notification No. 1622‑71/205/CLI, dated 24‑4‑1971 under which lease was neither invalid nor unlawful‑‑‑Order of resumption of the leased land and allotment of suit‑land to the defendant was without jurisdiction‑‑‑Judgment and decreed passed by the Appellate Court was valid and properly passed.

‑‑‑‑S.39‑‑‑Registered owner of land‑‑‑Status‑‑‑Registered owner of the land for all intents and purposes is the real owner of such land, unless otherwise proved.

Alam Sher and others v. Muhammad Sharif and others 1998 SCMR 468; Muhammad Ishaq v. Abdul Ghani 2000 CLC 159; Abdul Aziz v. Syed Arif Ali and 6 others PLD 1978 Lah. 441; Muhammad Khan and others v. Province of Punjab C.P. No. 400‑L of 2000; Abdul Rab v. Wali Muhammad and others 1980 SCMR 139; Jawana v. Mst. Sahbi PLD 1954 Lah. 253 and Muhammad Amin v. Raheem Bakhsh 1998 MLD 413 ref.

Sh. Naveed Shahryar for Petitioner

Ch. Muhammad Ashraf for Respondents.

Date of hearing: 12th September, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 402 #

2004 M L D 402

[Lahore]

Before Abdul Shakoor Paracha, J

Ch. GULZAR KHAN and 3 others‑‑‑Petitioners

Versus

SAGHIR AHMED and 7 others‑‑‑Respondents

Writ Petition No.617 of 1998, heard on 28th October, 2003.

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

‑‑‑‑O.XXI, R.32‑‑‑Execution‑‑‑Executing Court is not a Court of civil jurisdiction.

Thakur Prasad v. Fakirulla (1895) 17 All. 106 ref.

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

‑‑‑‑O.XXI, R.32 & O.XXVI, Rr.9 & 10‑‑‑Execution proceedings under O.XXI, R.32‑‑‑Local Commission, appointment of‑‑‑Scope‑‑‑Executing Court had no jurisdiction to appoint local commission in execution proceedings under O.XXI, R.32, C.P.C.

‑‑‑‑S.54‑‑Civil Procedure Code (V of 1908), O.XXI, R.32 & O.XXVI, Rr.9, 10‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Execution proceedings‑‑‑Appointment of local commission‑‑Although the suit for permanent injunction was dismissed by the Trial Court on the basis of statement made by the defendant, yet the Trial Court directed the defendant to abide by his statement‑‑‑Grievance of plaintiff was that the defendant had violated the statement made in the Court and was encroaching upon his land‑‑‑Executing Court in, exercise of jurisdiction under O.XXI, R.32, C.P.C. appointed local commission for demarcation of the disputed land‑‑‑Defendant assailed the order of appointment of local commission but Appellate Court in exercise of revisional jurisdiction maintained the order of Trial Court‑‑‑Plea raised by the defendant was that as no decree had been passed by the Trial Court, therefore, local commission could not be appointed‑‑‑Validity‑‑Neither a decree for specific performance nor for mandatory injunction in favour of the plaintiff existed, therefore, provisions of O.XXI, R.32(5), C.P.C. were not applicable‑‑‑Trial Court had appointed local commission without lawful authority‑‑‑Statement of defendant in the suit tantamounted to stay order, violation of the same was cognizable under O.XXI, R.32, C.P.C.‑‑‑Executing Court had jurisdiction to pass any order for committing the contemner in prison by exercising jurisdiction under O.XXI, R.32(1) & (2), C.P.C. by restoring possession if it was proved that the order had been violated‑‑‑Order for appointment of local commission was set aside and Constitutional petition was disposed of accordingly.

Noor Muhammad Khan v. Sarwar Khan and 2 others PLD 1985 SC 131; Muhammad Ashiq alias Ashiq Ali v. Razia Begum and others PLD 1982 Lah. 459; Muhammad Khan and 6 others v. Mst. Ghulam Fatima and others 1991 SCMR 970; Hassan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65; Ayanampudi Venkayya v. Lanka Rattayya AIR 1939 Mad. 578; Thakur Prasad v. Fakirulla (1895) 17 All. 106; Burhanuddin Ahmad and others v. Veda Brata Chakraborti and others PLD 1964 Dacca 661; Birgis Jahan Bajiga Malik v. Muhammad Hasan and others PLD 1964 Dacca 202; Muhammad Ameer Qasmi v. Ch. Muhammad Azhar 1990 CLC 1514; Muhammad Hussain and others v. Muhammad Aslant 1998 SCMR 151 and Bashir Ahmad Khan v. Qaiser. Ali Khan and 2 others PLD 1973 SC 507 ref.

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

‑‑‑S.115‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Order passed by Lower Appellate Court in exercise of. revisional jurisdiction under S.115, C.P.C.‑‑‑Effect‑‑‑Where the order of the Courts below were without jurisdiction and coram non judice, the same could be interfered with by the High Court in exercise of jurisdiction under Art. 199 of the Constitution.

Ibadur Rehman Lodhi for Petitioners.

Malik Qamar Afzal for Respondents.

Date of hearing: 28th October, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 410 #

2004 M L D 410

[Lahore]

Before Maulvi Anwarul Haq, J

ATTAULLAH and 3 others‑‑‑Petitioners

Versus

ZARDAD KHAN and 8 others‑‑‑Respondents

Civil Revision No.37/D of 1999, heard on 5th November, 2003.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Suit for declaration‑‑‑Plaintiff had claimed that he was owner of the suit‑land and was in continuous possession as owner thereof, but defendants got a mutation attested purporting to be the sale of suit‑land in their favour whereas land was never sold by the plaintiff in favour of defendants and mutation in that respect was never got attested by him‑‑Both Trial Court and Appellate Court concurrently dismissed the suit‑‑Validity‑‑Plaintiff had denied having made any sale or having got any mutation attested‑‑‑Defendants had taken plea that there was a valid sale and a valid mutation in their favour‑‑‑Defendants had to prove valid transaction of sale in their favour‑‑‑Defendants had not produced original mutation and Revenue Officer who attested mutations in their favour was also not produced by them‑‑‑Even Lamberdar who allegedly identified the plaintiff was not produced and no evidence was available with regard to the payment of consideration‑‑‑Case of defendants thus was of no evidence‑‑‑Concurrent judgments and decrees of Courts below were set aside, suit filed by plaintiff would be deemed to be pending before the Trial Court which would give an opportunity to the defendants to prove sale allegedly made in their favour by the plaintiff‑‑‑Trial Court, after recording evidence would decide whether plaintiff had validly sold suit-land to defendants.

Muhammad and others v. Sardul PLD 1965 Lah. 472 and Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 ref.

Mrs. Zahida Ameen for Petitioners.

Sardar M. Ali Khan for Respondents.

Date of hearing: 5th November, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 414 #

2004 M L D 414

[Lahore]

Before Syed Zahid Hussain, J

SAOOD AHMAD‑‑‑Petitioner

Versus

TANVIR AHMAD‑‑‑Respondent

Civil Revision No.2066 of 2003, heard on 3rd December, 2003.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXXVII, Rr.2, 3 & O.VIII, R.10 ‑‑‑Suit for recovery of amount on basis of promissory note‑‑‑Non‑filing of written statement‑‑‑Closing of defence of defendant‑‑‑Leave to appear and defend suit was granted to defendant subject to furnishing surety bond, but, defendant, despite various adjournments, failed to comply with the order of Court and also failed to file written statement‑‑‑Effect‑‑‑Defendant neither complied with the conditional order granting leave to appear and defend the suit nor order for the payment of costs subject to which ex parte proceedings were recalled by the Court‑‑‑Even written statement was not filed despite' direction contained in the final order‑‑‑Such indolence and laxity on part of defendant would hardly entitle him to any further indulgence in the matter, especially when suit was of a summary nature envisaging special procedure for expeditious disposal thereof‑‑‑Defence of defendant, in circumstances was rightly closed for non‑compliance of order of Court and for non‑filing of written statement despite obtaining several adjournments‑‑‑Order of court below could not be interfered with by High Court in exercise of its revisional jurisdiction.

Col. (Retd.) Ayub Ali Rana v. Dr. Carlite Pune and another PLD 2002 SC 630; Zahoor Ahmad v. Mehra through Legal Heirs and others 1999 SCMR 105; Haji Rais Ahmed v. Aslam 1991 CLC 602 and Haji Muhammad Siddique v. Rana Muhammad Sarwar 2003 CLD 1003 ref.

Abdul Wahid Ch. for Petitioner

Mian Muhammad Javed Munawar for Respondent.

Date of hearing: 3rd December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 417 #

2004 M L D 417

[Lahore]

Before Muhammad Akhtar Shabbir, J

NOOR AHMAD‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, PATTOKI, DISTRICT KASUR and 6 others‑‑‑Respondents

Writ Petition No.8107 of 2003, heard on 12th November, 2003.

Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S.24‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑ Pre‑emption suit‑‑‑Deposit of Zar‑e‑Soem‑‑‑-Extension of time‑‑‑Trial Court granted 30 days' time for the deposit of Zar‑e‑Soem at the time of filing of suit ‑‑‑Pre‑emptor failed to deposit the same within the due time and Trial Court on the application of the pre‑emptor extended the time‑‑‑Appellate Court, in exercise of revisional jurisdiction set aside the order passed by the Trial Court‑‑‑Validity‑‑‑Time for deposit of one‑third of pre‑emption money could not be extended by the Court‑‑‑Restriction was imposed on such power of the Court by the Legislature‑‑‑Trial Court had wrongly extended time for deposit of one-third pre‑emption money and exceeded its jurisdiction‑‑‑Appellate Court had rightly interfered with the order passed by the Trial Court which called for no interference.

Abdul Wahid v. Sardar Ali 2000 SCMR 650; Ch. Muhammad Yaqub v. Nazim Hussain 1995 CLC 1271; Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore NLR 1993 Revenue Cases 145 ref.

Awal Noor v. District Judge, Karak 1992 SCMR 746 and Muhammad Ismaeel's case 1995 MLD 1011 fol.

Ch. Muhammad Afzal Wahla for Petitioner.

Shaukat Haroon for Respondents Nos.2 to 7.

Date of hearing: 12th November, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 424 #

2004 M L D 424

[Lahore]

Before M. Naeemullah Khan Sherwani, J

SALEEM and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2464‑B of 2003, decided on 26th September, 2003.

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

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑Further inquiry‑‑‑Excessive and unwarranted delay of one year in filing complaint without adequate explanation, was sufficient to presume that said time was consumed in deliberation, consultation and conference with all concerned to build up a befitting story to involve as many innocent persons as possible‑‑‑Such activity on the part of the complainant side could not be considered noble as law aimed at discouraging pursuit of evil doing and promoting virtues‑‑‑Factum of delay in bringing the complaint against accused had to be considered by Trial Court on merits‑‑‑Trial Court, despite taking cognizance of the matter, did not frame charge so far‑‑‑Every thing happened, in the present case, spontaneously on having found deceased persons in a compromising position‑‑‑Three essential ingredients of grave and sudden provocation were by all means available in the case; viz. that the very obnoxious act of provocation; loss of self‑control by becoming full of bile and spontaneous reaction to the situation reasonably proportionate to the provocation‑‑‑In such‑like cases, meagre punishments were awarded‑‑Prosecution case taken to its extreme not entailing maximum punishment, case would automatically go out of prohibition contained in S.497, Cr.P.C. and Court should exercise discretion in granting or refusing bail to the‑accused ‑‑‑Opinion of the medical officers in respect of duration of time of death of deceased was not substantiated by any data‑‑‑Occurrence of alleged incident involved two versions and as to which version was correct was a question to be determined by Trial Court after recording of some material evidence‑‑‑Complainant having passed away, prosecution had been deprived of potential evidence; even on that score case of accused called for further probe‑‑‑One of co‑accused was found innocent by police‑‑‑Accused were behind the bars for the last about one and a half years and trial was likely to take a pretty long time because of long list of prosecution witnesses and. Court witnesses‑‑‑Accused were released on bail, in circumstances.

Muhammad Rafi v. The State 1992 PCr.LJ 2399 ref.

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

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑Further inquiry‑‑ Opinion of medical officers in respect of duration of time of death, was not substantiated by any data‑‑‑Whenever opinion of expert witnesses were not supported by sound reasons, no reliance could be placed on the same‑‑‑Case of accused squarely falling within the ambit of further inquiry, accused was granted bail.

Raja Muhammad Anwar assisted by Raja Muhammad Arif for Petitioners.

Ch. Jamshed Hussain, A.A.‑G. assisted by Muhammad Aslam Malik for the State.

Masood Mirza for the Complainant.

Date of hearing: 26th September, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 432 #

2004 M L D 432

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

SARFRAZ HUSSAIN KHERA‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos.602‑B and 701‑B of 2003, decided on 2nd July, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.392/395/412/34‑‑‑Bail, grant of‑‑‑Bank Manager got registered case against the accused about Bank dacoity during which accused had taken away Rs.21,80,314 and rifle of the gunman‑‑‑During investigation huge amount, kalashnikov, motorcycle and jeep were recovered at the instance of accused‑‑‑Incident was a daylight occurrence‑‑‑Complainant/Bank Manager had no enmity with the accused‑‑‑Contention raised by accused in his defence was that no case under Ss.392/412, P.P.C. was made out against him and that he being a practising lawyer and not a previous convict offence against him did not fall within prohibitory clause of S.497, Cr.P.C., required deeper appreciation of evidence which was not possible at bail stage‑‑‑Challan had already been submitted in the Court ‑‑‑Co‑accused was also employee of the Bank concerned and at the relevant time he was posted in Branch of Bank where occurrence had taken place ‑‑‑Rs.2,50,000 were recovered from the co‑accused and his jeep was also used during the occurrence‑‑Allegation against accused was that he brought the co‑accused on a jeep‑‑‑Vehicles and weapons were used during the occurrence‑‑‑Case was not fit for grant of bail to accused‑‑‑Bail application was dismissed accordingly.

Muhammad Asif Chohan for Petitioner (in Miscellaneous No.701‑B of 2003).

Mumtaz Hussain Bazmi for Petitioner (in Miscellaneous No.602‑B of 2003).

Muhammad Basit Babar Chughtai for the Complainant.

Mian Muhammad Mohsin Rasheed for the State.

Date of hearing: 22nd July, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 438 #

2004 M L D 438

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

MUHAMMAD AMIN ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1254‑B of 2002, decided on 18th March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.395‑‑‑Bail, grant of‑‑‑Accused was arrested after 24 days from registration of F.I.R. and was sent to judicial lock‑up after completion of investigation‑‑‑Copy of order‑sheet had shown that delay was not attributable to accused‑‑‑Co‑accused had not been arrested‑‑‑Accused was previously non‑convict‑‑‑Bail could not be withheld as a punishment.

Zafar Iqbal Chohan for Petitioner.

Malik Mubarak for the State.

Date of hearing: 18th March, 2002.

MLD 2004 LAHORE HIGH COURT LAHORE 439 #

2004 M L D 439

[Lahore]

Before M.A. Shahid Siddiqui, J

MUHAMMAD ILYAS‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1035‑B of 2002, decided on 4th April, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860); S.392‑‑‑Bail, grant of‑‑Complainant was not asked to identify accused‑‑‑Identification made by prosecution witness without specifying the role of the accused, was of no consequence‑‑‑No other evidence was to connect accused with alleged occurrence‑‑‑Nothing was on record to show any previous involvement of accused in any other criminal case‑‑-Accused was admitted to bail, in circumstances.

Zafar Iqbal Chohan for Petitioner.

Fahim Bashir for the State.

Date of hearing: 4th April, 2002.

MLD 2004 LAHORE HIGH COURT LAHORE 441 #

2004 M L D 441

[Lahore]

Before Muhammad Muzammal Khan, J

PROVINCE OF PUNJAB through Collector and 4 others‑‑‑Petitioners

Versus

Haji WALI MUHAMMAD and 4 others‑‑‑Respondents

Civil Revision No. 1703 of 1998, heard on 12th December, 2003.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S.30(2)‑‑‑Cancellation of allotment‑‑‑Notice of hearing, provision of‑‑‑Principles of natural justice, violation of‑‑‑No notice of hearing served on the respondents under S.30(2) of Punjab Colonization of Government Lands .(Punjab) Act, 1912 before cancellation of allotment‑‑‑Effect‑‑‑Provision of notice of hearing before cancellation was a statutory provision and respondent being a lawful transferee was entitled to notice as well as hearing, thus, the order was bad in law.

Mian Bashir Ahmad v. The Government of Sindh through Chief Secretary, Sindh Secretariat, Karachi and 3 others 1997 MLD 1847 ref.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss.16 & 30(2)‑‑‑Scope of Ss. 16 & 30(2), Colonization of Government Lands (Punjab) Act, 1912‑‑‑Board of Revenue can proceed against fraudulent transfers of tenancy rights obtained through misrepresentation under Ss. 16 & 30(2) of Colonization of Government Lands (Punjab) Act 1912, but not with regard to land permanently settled on the allottees‑‑Where the respondents had paid the entire price of land, had deposited all the other incidental charges and had taken over the possession of the land, in such circumstances, their allotment could not be cancelled‑‑Board of Revenue was not equipped with any authority even to cancel allotment in favour of the respondent, after receipt of price and execution of sale‑deed.

Government of the Punjab Province v. Malik Harbhagwan and another 1940 PLR 529 and Anjuman Talim‑ul‑Islam (Regd.), Sheikhupura v. Province of West Pakistan, Punjab Province and 2 others PLD 1983 Lah. 294 ref.

‑‑‑‑S.30(2)‑‑‑Delegation of powers by the Board of Revenue‑‑‑Validity‑‑Ultra vires act‑‑‑Absence of fraud or misrepresentation‑‑‑Power under S.30(2) of Colonization of Government Lands (Punjab) Act, 1912 given to the Board of Revenue could not have been delegated by it, but instead without holding any inquiry and after passing the order of cancellation against the respondent it remitted the case to its subordinates‑‑‑Course adopted by the Board of Revenue was not permissible under the law and, in the absence of proof of fraud or misrepresentation, the order of cancellation was void, contrary and ultra wires of the provisions of S.30(2) of Colonization of Government Lands (Punjab) Act, 1912.

Province of Punjab through Deputy Commissioner/Collector, Sargodha, District Sargodha v. Muhammad Akram PLD 1993 Lah. 114 and Muhammad Liaqat and 5 others v. Member, Board of Revenue (Colonies), Punjab, Lahore and 3 others 2000 CLC 953 ref.

(d) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss.16 & 30(2)‑‑‑Statutory notifications, validity of‑‑‑Locus poenitentiae, principle of‑‑‑Order of Board of Revenue based on the notification relating to the fact that the allotment to the respondents fell within the prohibitory zone of the Municipal limits was not a good ground to cancel the allotment because once land was made available for allotment and was transferred and settled on the respondents, it would supersede all the notifications imposing prohibitions‑‑‑Presumption in law is that acts done by the statutory functionaries are done in good faith and in lawful manner, according to law applicable at that time‑‑‑Under the principles of locus poenitentiae the Authorities were thus not justified in cancelling land of the respondents through subsequent notifications.

Mian Muhammad Athar for Petitioners.

Ch. Imdad Ali Khan for Respondents.

Date of hearing: 12th December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 460 #

2004 M L D 460

[Lahore]

Before Ch. Ijaz Ahmad, J

NIAZ ALI and others‑‑‑Petitioners

Versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Writ Petitions Nos. 15699, 8688, 9226, 9227, 9230, 9233, 9234, 9763, 9766 to 9768 and 13478 of 2003, decided on 11th December, 2003.

(a) Establishment of Office of Wafaqi Mohtasib (Ombudsman) (Amendment) Ordinance (LXXII of 2002)‑‑‑

‑‑‑‑Preamble‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Vires of Establishment of Office of Wafaqi Mohtasib (Ombudsman) (Amendment) Ordinance, 2002‑‑‑Conferment of power of review to the Wafaqi Mohtasib by Amending Ordinance, 2002 on the plea of legislative incompetence‑‑‑Validity‑‑‑Held, vires of law could not be challenged on the ground of legislative incompetence or violation of any provision of the Constitution in view of the Provisional Constitution Order, 1999 and various Orders issued by the Chief Executive of Pakistan‑‑‑Provisions of the Constitution would be deemed to have been altered as even the power to amend the Constitution by the Chief Executive had been recognized by the Supreme Court of Pakistan.

Islamia University, Bahawalpur v. Dr. Muhammad Khan Malik PLD 1993 Lah. 141; Messrs Huffaz Seamless Pipe v. Sui Northern Gas Pipelines 1998 CLC 1890; M.H. Abidi v. State Life Insurance Company 1990 MLD 563 and Sharif Khan Bros. v. Chief Controller 2001 YLR 2211 distinguished.

Muzaffar Hussain's case 2002 PLC (C.S.) 442 fol.

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

‑‑‑‑Arts. 189 & 190‑‑‑Judgment of Supreme Court is binding on each of every organ of the State by virtue of Arts. 189 & 190 of the Constitution.

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Constitutional petition is not maintainable against the show‑cause notice.

Shagufta Begum v. Income Tax Officer PLD 1989 SC 360 fol.

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

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑During the pendency of review petition before the Competent Authority, Constitutional petition is not maintainable.

Chaudhry Tanbir Ahmad Siddiki v. Province of East Pakistan PLD 1968 SC 185 fol.

(e) Administration of justice‑‑‑

‑‑‑‑ Each and every case is to be decided on its own peculiar circumstances and facts.

Liaqat Ali Butt for Petitioners.

Sher Zaman Khan, Deputy Attorney‑General and Dr. Danishwar Malik, Deputy Attorney‑General for Respondents Nos. 1 and 2.

Jahanzeb Khan Bharwana for Respondents Nos.3 and 4.

MLD 2004 LAHORE HIGH COURT LAHORE 472 #

2003 M L D 472

[Lahore]

Before Muhammad Muzammal Khan, J

ALLAH DITTA through Legal Heirs and 15 others‑‑‑Petitioners

Versus

Mst. FATIMA BIBI and 15 others‑‑‑Respondents

Civil Revision No. 390 of 1995, heard on 2nd December, 2003.

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

‑‑‑‑S.67‑‑‑Limitation Act (IX of 1908), S.28; Arts. 147 & 148‑‑‑Failure to redeem or recover possession of mortgaged land within sixty years by mortgagors‑‑‑Effect‑‑‑Oral and documentary evidence showed that mortgagees were in continuous undisturbed possession of land since sanctioning of mutation of mortgage, which was more than sixty years‑‑Right to redeem mortgaged land after sixty years stood extinguished and mortgagors could not claim ownership or redemption thereof‑‑Possession of mortgagees was not illegal as they had not claimed any adverse possession against mortgagors‑‑‑Articles 147 & 148 of Limitation Act, 1908 still existed on statute book and had their impact for not having been repealed or adjudged as repugnant to Injunctions of Islam by competent Court‑‑‑Effect of such mutation duly incorporated in Revenue Record and having become part of successive Jamanbandis for more than sixty years could not be wiped out by mere alleging same to be fraudulent‑‑‑Mortgagees had been rightly declared to be owners of such land‑‑‑High Court dismissed revision petition filed by mortgagors.

Maqbool Ahmed v Government of Pakistan 1991 SCMR 2063 and Kata Mir and others v. Mst. SHO Begum and others 2003 SCMR 589 ref.

Ismail and 22 others v. Rehmat Ali and 15 others 1993 SCMR 92 fol.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Arts.147 & 148‑‑‑Provisions of Arts. 147 & 148‑‑‑Such provisions were neither repealed nor adjudged repugnant to Injunctions of Islam by competent Court‑‑‑Such provisions still existing on statute book would have their impact.

Maqbool Ahmed v Government of Pakistan 1991 SCMR 2063 ref.

Shamim Abbas Bokhari for Petitioners.

Kh. Mushtaq Ahmed for Respondents.

Date of hearing: 2nd December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 486 #

2004 M L D 486

[Lahore]

Before Muhammad Muzammal Khan, J

Sh. ALLA‑UD‑DIN and 5 others‑‑‑Petitioners

Versus

IRSHAD ULLAH SIAL, ADDITIONAL DISTRICT JUDGE, LAHORE and 6 others‑‑‑Respondents

Writ Petition No. 15666 of 2000, heard on 10th December, 2003.

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

‑‑‑‑O.IX, Rr. 8, 9 & S.115‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Dismissal of suit for non‑prosecution by transferee Court‑‑‑Plaintiff's plea was that he had no notice about transfer of his suit by District Judge on administrative side‑‑‑Trial Court restored suit on payment of costs, but revisional Court set aside such order and dismissed application for restoration of suit ‑‑‑Validity‑‑Reasons advanced by plaintiff for restoration of suit were sufficient‑‑Trial Court had exercised discretion in favour of plaintiff judicially while compensating defendant by awarding costs for inconvenience suffered by him due to non‑appearance of plaintiff‑‑‑Revisional Court could not interfere with order of Trial Court, which was not passed illegally and with material irregularity‑‑‑Defendant had accepted costs, thus, he was estopped from challenging the order of Trial Court and his revision petition was not maintainable‑‑‑High Court accepted Constitutional petition and declared impugned order as illegal, resultantly suit would be deemed pending before the Trial Court.

The Crown v. Mehmood Khan and 2 others PLD 1954 BJ 18 and Hashmat Ali v. Sheikh Hafizullah and others PLD 1956 BJ 33 ref.

Elahi Baksh and others v. Sardar Begum PLD 1967 BJ 5 and Sultan alias Sultan Ahmad v. Mehr Nawazish Ali and another 1971 SCMR 185 rel.

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

‑‑‑‑S.115‑‑‑Interference by revisional Court in the order passed by Court below‑‑‑Scope‑‑‑Such interference would not be justified, if order of Court below is neither arbitrary or fanciful nor, suffering from jurisdictional defect or illegality or irregularity‑‑‑Revisional Court cannot substitute its own view for that taken by Court trying the suit.

‑‑‑‑O.IX, R.9 & S.115‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 114‑‑Order of Trial Court restoring suit subject to payment of costs‑‑‑Revision petition by defendant after accepting costs from plaintiff‑‑Maintainability‑‑‑Defendant was estopped under law from challenging such order‑-‑Revision petition was not maintainable.

Sultan alias Sultan Ahmad v. Mehr Nawazizh Ali and another 1971 SCMR 185 fol.

Farooq Hassain Naqvi for Petitioners.

Iqbal Ahmad Qureshi for Respondent No.2.

Date of hearing: 10th December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 501 #

2004 M L D 501

[Lahore]

Before Muhammad Akhtar Shabbir, J

ABDUL HAMEED through Legal Heirs and others‑‑‑Applicants

Versus

JEHAN KHAN through Legal Heirs and others‑‑‑Respondents

Civil Miscellaneous Application No. 1621/C of 2003 in Regular Second Appeal No. 181 of 1969, decided on 6th November, 2003.

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

‑‑‑‑S.12(2)‑‑‑Limitation Act (IX of 1908), Art. 181‑‑‑Plea of fraud, when to be taken‑‑‑Application under S.12(2), C.P.C. alleging fraud and misrepresentation filed after eight years of the passing of impugned judgment‑‑‑Maintainability‑‑‑Application under S.12(2), C.P.C. was required to be moved within 3 years from the date of judgment of the High Court as provided under Art. 181 of Limitation Act, 1908‑‑‑Where the applicant failed to file the application within the specified time and failed to urge the alleged fraud before the Supreme Court during the pendency of the appeal, the same could not be made sub-judice in any other Court‑‑‑Petition being barred by time was dismissed.

Abdul Aziz and 6 others v. The Member, Board of Revenue and 15 others 1998 SCMR 1078; Javed Akhtar and another v. Sher Muhammad and others 1998 SCMR 292; Sarfraz v. Muhammad Aslam Khan and another 2001 SCMR 1062 and Muhammad Sheerin and others v. Muhammad Sareer and others 2001 CLC 196 ref.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Art. 181‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Plea of fraud, when to be taken‑‑‑Computation of period‑‑‑Application under S.12(2), C.P.C. alleging fraud and misrepresentation filed after expiry of period of 8 years from the passing of impugned judgment‑‑‑Application was required to be moved within 3 years from the date of judgment of the High Court as provided under Art. 181 of Limitation Act, 1908‑‑Said period was to be computed from the date when the cause of action accrued‑‑‑Cause of action accrued to the petitioners during the pendency of the suit as well as from the date of passing of the judgment by the High Court‑‑‑Held, where the petitioners failed to file the application within the time prescribed under Limitation Act, 1908 from the date when alleged fraud came into their notice and even failed to urge the alleged fraud before the Supreme Court during the pendency of the appeal, the same could not be made subjudice in any other Court‑‑Application being barred by time was dismissed.

‑‑‑‑S. 12(2)‑‑‑Application under S.12(2), C.P.C. is maintainable before the Court which had passed the final judgment and decree‑‑‑Final judgment, decree or order means a judgment, decree or order so far as Court rendering it is concerned, is unalterable if it is not to be stayed, modified, reversed or amended by preferring an appeal, revision or review.

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

‑‑‑‑S.12(2)‑‑‑Final judgment, decree or order‑‑‑Definition‑‑‑Final judgment, decree or order means a judgment, decree or order so far as Court rendering it is concerned, is unalterable if it is not to be stayed‑‑Word `final' can mean the last in series of judgments, decrees or orders, which have been passed.

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

‑‑‑‑S.12(2)‑‑‑Maintainability `of application under S.12(2), C.P.C.‑‑Reversal of judgment, principle of‑‑‑Final judgment whether by High Court or Supreme Court‑‑‑Petitioners desired reversal of judgments and decrees passed by the Trial Court and upheld up to the Supreme Court‑‑Where the final judgment was passed by the Supreme Court application in the High Court was not maintainable‑‑‑Where, however, the Supreme Court merely affirms a judgment or order of the High Court by refusing leave to appeal, the final judgment in terms of S.12(2), C.P.C. will be of the High Court and not of the Supreme Court, but where, the Supreme Court reverses a judgment of a High Court and records a finding on question of fact or law contrary to what was held by the High Court, the final judgment or order will be of the Supreme Court for the purpose of S.12(2), C.P.C.‑‑‑Petitioners, in the present case, were granted leave to appeal by the Supreme Court and final judgment was passed on merits by the Supreme Court, after examining respective contentions of the parties, relevant provision of law' and record of the case, therefore, the application under S.12(2), C.P.C. was not maintainable in the High Court.

Muhammad Yousuf and others v. Noor Din and others PLD 2002 SC 391 and Mubarak Ali v. Fazal Muhammad and another PLD 1995 SC 564 ref.

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

‑‑‑‑S.12(2)‑‑‑Contract Act (IX of 1872), S.17‑‑‑Fraud, definition of‑‑Petitioners were not able to establish the misstatement or concealment of the facts by the respondents to obtain the impugned judgment‑‑Petitioners were required to point out right from the Trial Court up to the Appellate Courts which they failed to do‑‑‑Fraud means and includes, inter alia, the suggestion as a fact of that which is not true, by one who does not believe it to be true and the active concealment of a fact by one having knowledge or belief of the fact.

Allah Wasaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184 ref.

(g) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S.17‑‑‑Civil Procedure Code (V of 1908), S.12(2)‑‑‑Fraud, definition of‑‑‑Petitioners were not able to establish the misstatement or concealment of the facts by the respondents to obtain the impugned judgment‑‑‑Petitioners could have pointed out fraud right from the Trial Court till the Appellate Courts but they failed to do so‑‑‑Fraud means and includes, inter alia, the suggestion as a fact of that which is not true, by one who does not believe it to be true and the active concealment of a fact by one having knowledge or belief of the fact.

Allah Wasaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184 ref.

Muhammad Hussain Awan for Applicants.

MLD 2004 LAHORE HIGH COURT LAHORE 523 #

2004 M L D 523

[Lahore]

Before Maulvi Anwarul Haq and Abdul. Shakoor Paracha, JJ

Engineer JAMEEL AHMAD MALIK and 9 others‑‑‑Appellants

Versus

LAND ACQUISITION COLLECTOR, ATTOCK and 3 others‑‑‑Respondents

First Appeals from Order Nos. 19 to 25 and 36 to 38 of 2002; heard on 24th November, 2003.

(a) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss.28 & 34‑‑‑Payment of interest‑‑‑Scope of S.34, Land Acquisition Act, 1894‑‑‑Section 34 of Land Acquisition Act, 1894 is invocable at a point of time earlier than the one at which S.28 of the Act is attracted‑‑Section 34 of Land Acquisition Act, 1894 mandates the Land Acquisition Collector to pay interest at the rate of 8% compound on such amount of compensation which has not been paid or deposited on or before taking possession of the land‑‑‑Interest is paid from the date of taking possession till the deposit of the said amount.

(b) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑S.28‑‑‑Interest on excess compensation, payment of‑‑‑Scope of S.28 of Land Acquisition Act, 1894‑‑‑Where the dispute had arisen in the matter of calculation of interest payable to the landowners under S.28 of Land Acquisition Act, 1894, the interest would be payable only in case the Court comes to the conclusion that the compensation payable to the landowner was more than the amount of compensation awarded to him by the Land Acquisition Collector‑‑‑Once the Court came to the said conclusion, the Collector upon the direction of the Court, would have to pay the excess amount at the rate of 8%.

‑‑‑‑S.28‑‑‑Compound interest, payment of‑‑‑Scope of S.28 of Land Acquisition Act, 1894‑‑‑Payment of interest with‑ retrospective effect‑‑Compound interest payable by the Collector under S.28 of Land Acquisition Act, 1894 is paid on the excess amount and this excess refers to the difference between the amount determined by the Court and amount assessed by the Collector provided the amount determined by the Court is in excess of the amount assessed by the Land Acquisition Collector‑‑‑Interest is to be paid retrospectively with effect from the date the possession of the land was taken over by the Collector and till such time that the excess amount was deposited in the Court.

(d) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss.23 & 28‑‑‑Section 23, Land Acquisition Act, 1894 guidelines for determination of excess interest under S.28 of the Act‑‑Excess interest to be based on the market value plus compulsory charges as determined under S.23, Land Acquisition Act, 1894‑‑‑Analogy to be taken from S.23(2) of Land Acquisition Act, 1894 is that market value of land calculated under S.23(1) of the Act has to be made the basis for calculation of payment of additional amount for compulsory nature of acquisition‑‑‑Excess interest payable under S.28 is calculated on the basis of the market value amount determined by the Court along with the compulsory charges, with effect from the date on which the Land Acquisition Collector takes possession‑‑‑Excess interest is payable till such date when the amount is deposited in the Court by the Collector.

Muhammad Munir Paracha and Malik Qamar Afzal for Appellants.

Qazi Ahmad Naeem Qureshi, Federal Counsel for Respondent.

Date of hearing: 24th November, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 532 #

2004 M L D 532

[Lahore]

Before Mansoor Ahmad, J

CHIEF ADMINISTRATOR OF AUQAF, PUNJAB, LAHORE and 2 others‑‑‑Appellants

Versus

ABDUL QADEER KHAN and another‑‑‑Respondents

First Appeal from Order No. 107 of 2000, decided on 25th November, 2003.

(a) Punjab Waqf Properties Ordinance (IV of 1979)‑‑‑

‑‑‑‑Ss.7, 11(b), 15(2) & 17 ‑‑‑Waqf created through registered Waqf deed specifying limits and conditions for administration of Waqf properties through Mutawalis‑‑‑Taking over such property through notification under S.7 of Punjab Waqf Properties Ordinance, 1979‑‑‑Validity‑‑Dedicator in Waqf deed had specifically named appellant as Mutawali to run affairs of Waqf‑‑‑Waqf deed provided mode for appointment of successors of Mutawalis‑‑‑Such condition of Waqf deed relating to Mutawalis would be frustrated‑‑‑In event of taking over by Auqaf Department‑‑‑Condition of Mutawali was not reconcilable with the notification, thus, same was not legally tenable‑‑‑Trial Court had rightly issued declaration in terms of SA1(b) of Punjab Waqf Properties Ordinance, 1979‑‑‑High Court dismissed the appeal.

(b) Punjab Waqf Properties Ordinance (IV of 1979)‑‑‑

---‑Ss.7, 11 & 17‑‑‑Waqf by virtue of dedication having its roots in past immemorial ‑‑‑Waqf created through registered deed containing its purpose and specifying limits and conditions for administration of Waqf property‑‑‑Distinction‑‑‑Word "limits" as used in. S.11(1)(b) of Punjab Waqf Properties Ordinance, 1979 would mean condition ‑‑‑Waqf by virtue of dedication having its roots in past immemorial would be taken to the Waqf on basis of past practice, tradition and conduct‑‑‑Conditions in registered Waqf deed would constitute conditions or limits as spelled out from S.11(b) of the Ordinance‑‑‑Such conditions or limits, if in conflict with notification under S. 7 of the Ordinance, would prevail and notification would become liable to be struck down through declaration as contemplated in S.11(b) thereof‑‑‑Principles.

Section 11(1)(b) of the Punjab Waqf Properties Ordinances, 1979 contemplates issuing a declaration that the property is a Waqf property within the limits stated in the petition as against a notification issued under section 7 of the Punjab Waqf of Properties Ordinance, 1979. Language of section 11 implies that a notification issued under section 7 can be challenged by any person claiming any interest in the Waqf property and may seek a declaration that said property is not a Waqf property as envisaged under section 11(a) or seek a declaration that it is a Waqf within the limits stated in the petition. Subsection (b) is not happily worded, but intention of law appears to be that a declaration can be made that the Waqf property is Waqf, but it has certain limits. The expression "limits" here means condition. Normally, in the Waqf, which are Waqf by virtue of a dedication having its roots in past immemorial are taken to be Waqf on the basis of past practice, tradition and conduct. On the other hand, there may be specific Waqf, which is created by the dedicator through a registered Waqf deed specifying the limits and conditions for regulating, managing and supervising the Waqf created and purpose is also given out in the Waqf deed. In the latter case, the condition contained in the Waqf deed would constitute conditions or limits as spelled out in sub‑clause (b) of section 11 of Punjab Waqf Properties Ordinance, 1979. In case any condition is in conflict with the taking over of the Waqf property under section 7 and harmony is not possible, the limits of the Waqf property would prevail and a notification under section 7 would have to be struck down through a declaration as contemplated in sub‑clause (b).

Sh. Zameer Hussain and Hafiz Saeed Ahmed Sheikh for Appellants.

Muhammad Younus Bhatti for Respondents.

Date of hearing: 7th November, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 555 #

2004 M L D 555

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

AHMAD KHAN‑‑‑Petitioner

Versus

Mst. SARWAR KHATOON and others‑‑‑Respondents

Writ Petition No. 14078 of 2003, heard on 21st January, 2004.

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

‑‑‑‑S.14‑‑‑Civil Procedure Code (V of 1908), S.96‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Dismissal of suit by the Family Court‑‑‑Appeal‑‑‑Decree of Judge Family Court was not produced in appeal and the appeal was filed only against the judgment of the Family Court‑‑‑Appellate Court remanded the case to the Trial Court to decide the same on the basis of evidence already on record on the ground that conclusion arrived at by the Trial Court was contradictory and self‑negating‑‑ Validity‑‑‑Appeals under S.14, West Pakistan Family Courts Act, 1964 and under S.96, C.P.C. were matters inter parties with regard to matters in which the parties differed and it was the continuation of the suit‑‑‑Right of appeal was a substantive right which was not inherent in a party to suit‑‑‑Right of appeal was specifically conferred by law and appeal always lay against the decree passed by a Court in the exercise of original civil jurisdiction‑‑‑Appellate Court may either confirm, vary or reverse the decree or order or remand the case, it could also pass a decree‑‑‑Appellate Court, in the present case, was fully empowered to decide the case on the basis of evidence on record, no justification existed to remand the case to the Trial Court on the basis of same evidence on record, where the Court had exercised its original civil jurisdiction and dismissed the suit‑‑‑High Court, accepting the Constitutional petition remanded the case to the Appellate Court to decide the same, on the basis of evidence existing on record after giving an order of production of decree passed by the Trial Court; within two months from the receipt of the judgment of the High Court.

M. Gohar Razzaq Awan for Petitioner.

M. Muhammad Farooq Qureshi Chishti for Respondent No. 1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 21st January, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 564 #

2004 M L D 564

[Lahore]

Before Maulvi Anwarul Haq, J

TEHSIL MUNICIPAL ADMINISTRATION, TALAGANG through Malik Tariq Iqbal, Tehsil Nazim, Talagang‑‑‑Petitioner

Versus

ROVINCE OF PUNJAB through Secretary, Local Government and Rural Development Department, Lahore and 2 others‑‑‑Respondents

Writ Petition No.1683 of 2002, heard on 25th September 2003.

Punjab Local Government Ordinance (XIII of 2001)‑‑‑

‑‑‑‑Ss.54(1)(nn) [as inserted by Punjab Local Government (First Amendment) Ordinance (XVIII of 2001) w.e.f. 25‑8‑2001)], 55, 140(4)(c), 185(1), 187 & Second Sched., Part II, Items Nos.2, 11 [as inserted by Punjab Local Government (Second Amendment) Ordinance (XXVI of 2001) w.e.f. 13‑10‑2001] & Part III, Item No.2 [as deleted by Punjab Local Government (Second Amendment) Ordinance (XXVI of 2001) w.e.f 13‑10‑2001)]‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Levy and collection of tax by District Government on transfer of immovable property from 14‑8‑2001 to 31‑12‑2001 and on sale of animals in cattle markets from 13‑10‑2001 to 31‑12‑2001‑‑‑Validity‑‑‑Tehsil Municipal Administration (petitioner) within its jurisdiction was authorized to impose and collect fee on sale of animals in cattle markets w.e.f. 13‑10‑2001 by virtue of amendments made in Parts II, III of Second Sched. of Punjab Local Government Ordinance, 2001 through Punjab Local Government (Second Amendment) Ordinance, 2001‑‑‑District Government was not authorized to levy and recover such taxes up to 30‑6‑2002 in view of S.187 of Punjab Local Government Ordinance, 2001‑‑‑Order of succession had already been prescribed and financial transition provided in S.185(1) of Ordinance, 2001 was subject to revision, withdrawal or variance under the Ordinance‑‑‑Petitioner was entitled to recover tax on transfer of immovable property from 14‑8‑2001‑‑‑Levy and collection of such tax by District Government during such period was without jurisdiction‑‑High Court accepted Constitutional petition with directions to Zila Nazim to convene meeting of Zila Mushawirat Committee to determine exact amount due to petitioner on account of tax on transfer of immovable property within its jurisdiction during such period and same be paid to petitioner by District Government.

Malik Muhammad Kabir for Petitioner.

Tanvir Iqbal, A.A.‑G. for Respondent No. 1.

Muhammad Amir Butt for Respondents Nos.2 and 3.

Date of hearing: 25th September, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 577 #

2004 M L D 577

[Lahore]

Before Muhammad Muzammal Khan, J

KHALID JAVED---Appellant

versus

MUHAMMAD IMRAN---Respondent

Second Appeal from Order No.95 of 2003. .decided on 15th December, 2003.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

-----S.15---Written -tenancy, and oral tenancy, validity of---Terms of written tenancy to continue after lapse of specified period---Where tenant entered into a rented premises under a written agreement, after the lapse of period mentioned in the rent agreement, the terms and conditions settled between the parties through written agreement, would continue to govern the terms and conditions of the tenancy and it by no stretch of imagination would become an oral tenancy.

Mst. Maqsooda Begum v. Hamid Mahmood Butt 1999 CLC 391; Ismail Adamjee v. Mst. Bilquis Iqbal 1996 CLC 619; Ivtehfooz, Ali v. Mst. Parveen Fatima 1998 MLD 137 and Abdul Aleem Ansari v. Mgt. Zubaida Shaheen and another 2000 CLC 1873 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--

----S.13(2)(i)---Written tenancy---Default of terms by tenant ---Effect--Where tenancy was' written by the parties with certain terms and conditions, but the tenant did not pay the rent amounts according to those terms and conditions, he would become a defaulter and would be liable to ejectment.

---- Witness, admissibility of---Where the witness was the brother of the respondent, but was summoned by the appellant and appeared in the witness-box on his behalf, the depositions of the witness will bind the latter.

Agha Abdul Hassan Arif for Petitioner.

Muhammad Munir Badar for Respondent.

Date of hearing: 8th December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 581 #

2004 M L D 581

[Lahore]

Before Muhammad Muzammal Khan, J

RIAZ KHAN and 3 others---Petitioners

versus

MUHAMMAD AMIR and another---Respondents

Civil Revision No.528-D of 1998, decided on 12th December, 2003.

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

----Ss.12 & 27(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Suit for specific performance of agreement to sell---Original vendee was proceeded ex parte and he did not deny execution of agreement, but its execution was denied by subsequent vendee claiming to be bona fide purchaser for value without notice of earlier agreement---Trial Court decreed suit, which was upheld by Appellate Court---Validity---Denial of execution of earlier agreement by subsequent vendee would not be much material---Plaintiff to prove execution agreement and receipt of earnest money had produced marginal witnesses and scribe thereof---Evidence of such witnesses was recorded more than six years after execution of such documents---Any minor discrepancy not with regard to execution thereof, but only regarding situation and the manner in which such witnesses had reached at spot, would not be fatal to suit nor would make such documents forged---Such minor discrepancies were bound to appear by lapse of time especially when witnesses were illiterate---Subsequent vendee had not produced original vendee to prove fictitious nature of the agreement in favour of plaintiff---Presumption, thus, would be that had original vendee entered in witness-box, he must have supported plaintiff's case---Revenue Record showed possession 'of suit-land with plaintiff---Subsequent vendee had not deposed that he went to inquire from plaintiff before purchase of suit-land---Mere denial of existence of earlier agreement by subsequent vendee would not be enough to bring him within purview of bona fide purchaser and would ,not protect his purchase and rights, unless he proved that he underwent due inquiry about same from all possible sources--Subsequent vendee was not bona fide purchaser without notice of earlier agreement in favour of plaintiff---Court below had not committed any illegality or irregularity ---High Court dismissed revision petition.

Ghulam Ali Shah and another v. Abbas Ali and 5 others 1995 CLC 1977; Muhammad Yaqoob and others v. Naseer Hussain and others PLD 1995 Lah. 395; Muhammad Ashraf v. Ali Zaman and others 1992 SCMR 1442 and 1992 CLC 1678. ref.

Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 S.C. 25; Mst. Surraya Begum and others v. Mst. Suban Begum and others 1992 SCMR 652 and Muhammad Shafi v. Muhammad Sarwar and others 1997 CLC 1231 rel.

(b) Witness---

---- Minor discrepancies are bound to happen by lapse of time, especially when witnesses were illiterate.

----S.27(b)---Transfer of Property Act (IV of 1882), Ss.41 & 53-A--Subsequent vendee claiming to be bona fide purchaser---Proof---Mere denial of existence of earlier agreement by subsequent vendee would not be enough to bring him within purview of bona fide purchaser and would not protect his purchase and rights thereunder, unless he proved that he underwent due inquiry about same from all possible sources.

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

----S.115---Concurrent findings of fact by Courts below---Validity---No interference in such findings was permissible in revisional jurisdiction of High Court in absence of misreading or non-reading of evidence ---Reappraisal of evidence and substitution of view concurrently taken by Courts below would not be within purview of S.115, C.P.C.

Khalid Ikram Khatana for Petitioners.

Muhammad Munir Khan for Respondents.

Date of hearing: 3rd December, 2003.

2004 M L D 612

[Lahore]

Before Rustam Ali Malik, J

MUHAMMAD RIAZ and another---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.7962-B of 2002, decided on 13th December, 2002.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/364/34---Bail, grant of---Further inquiry---Complainant who was real brother of deceased, during hearing of bail application had filed an affidavit before Trial Court to the effect that he had not nominated accused in the F.I.R. and that his thumb-impression had been obtained by police on a blank paper---Complainant had also deposed in the said affidavit that he was satisfied that accused had not committed the offence---Two witnesses of extra judicial confession had also filed affidavits before Trial Court to the effect that none of accused persons had made any confession in their presence---Two witnesses who were witnesses of last seen had not filed affidavit---Furnishing of affidavits by complainant and two witnesses of extra judicial confession had clearly made case of further inquiry---No direct evidence was available with prosecution connecting the accused with murder of deceased---Accused were entitled to bail, in circumstances.

Zafar Iqbal Chohan for Petitioners.

Najum-ul-Hassan Gill for the State

Date of hearing: 13th December, 2002.

MLD 2004 LAHORE HIGH COURT LAHORE 614 #

2004 M L D 614

[Lahore]

Before Muhammad Muzammal Khan, J

Malik NAZIR AHMAD AWAN--Petitioner

versus

MUHAMMAD SAJID BUTT---Respondent

Civil Revision No. 1828 of 2003, decided on 23rd December, 2003.

Punjab Pre-emption Act (IX of 1991)---

----S.13---Talb-e-Muwathibat---Non-mentioning of date, time and place of gaining knowledge of sale or regarding performance of such Talb in the plaint---Effect---All Talbs are interlinked, which must be made in terms of S.13 of Punjab Pre-emption Act, 1991---Starting point of entire activity of fulfilment of other Talbs is Talb-e-Muwathibat---In absence of such particulars in plaint, one cannot determine performance of Talbe-Ishhad to be within time or not and pre-emptor would be handicapped to lead evidence to prove the same ---Pre-emptor cannot be given any latitude to undo mandatory of requirements of S.13 of Punjab Pre-emption, Act, 1991, which cannot be termed as procedural requirements---Such requirements of law, if not fulfilled, right of preemptor would stand extinguished.

Haji Noor Muhammad through his Legal Heirs v. Abdul Ghani and 2 others 2000 SCMR 329; Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and aaother 2000 SCMR 314; Abdul Malik v. Muhammad Latif 1999 SCMR 717; Muhammad Gul v. Muhammad Afzal 1999 SCMR 724; Ghulam Hussain v. Imam Din and 2 others 2003 CLC 379; Muzaffar Khan v. Muhammad Amir 2002 MLD 118 and Muhammad Iqbal v. Mst. Ghulam Ruqia 2003 MLD 138 ref.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 fol.

Iqbal Mahmood Awan for Petitioner.

Muhammad Saeed Bhatti for Respondent. Date of hearing: 15th December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 620 #

2004 MLD 620

[Lahore]

Before Ch. IjaZ Ahmad, J

Mst. NAJMA BEGUM---Petitioner

versus

REHMAT ALI and 19th others---Respondents

Civil Revision No. 1833 of 1998, heard on 15th December, 2003.

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

---Art.120---Execution of general power of attorney---Burden of proof---Where the respondents claimed to be beneficiaries of the general power of attorney on the basis of which the land was sold by the general attorney of the petitioner to the respondents, and the petitioner denied the execution of general power of attorney, it would be the duty and obligation of the respondents to prove the execution of general power of attorney, as the burden of proof in the said matter shifts upon the respondents.

Pakistan American Fertilizer Ltd. v. Amir Abdullah Khan and others 1984 CLC 2170 and A. Baghavamma and another v. A. Chenchamma and another AIR 1964 SC 136 ref.

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

------Arts. 72, 73, 74 & 76---Non-production of primary or secondary evidence---Where the respondents had failed to produce general power of attorney on the basis of which the land was sold by the alleged general attorney of the petitioner to the respondents and also had failed to prove the said document by producing the secondary evidence, the judgment of the First Appellate Court in which it relied on the oral evidence of the respondents would not be sustainable in law.

Pakistan American Fertilizer Ltd. v. Amir Abdullah Khan and others 1984 CLC 2170 and A. Baghavamma 'and another v. A. chenchamma and another AIR 1964 SC 136 ref.

----Arts.17 & 79---Non-production of witnesses---General power of attorney---Where the respondents claimed the execution of sale-deed on the basis of general power of attorney, it was the duty and obligation of respondents to prove the execution of the contents of general power of attorney by producing two witnesses in view of Arts. 17 & 79 of Qanune-Shahadat, 1984.

Salman Ali v. Ch. Maqbool 2000 YLR 1938 and Ch. Maqbool Ahmad and others v. Salman Ali and others PLD 2003 SC 31 ref.

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

----Arts.17 & 79---Failure to prove contents of the document---Where the respondents claimed to be beneficiaries of general power of attorney, it was the duty and obligation of the respondents to prove the contents of general power of attorney, but the respondents failed to do so-- Effect---When the basic document was without lawful authority. superstructure built on the same would fall on the ground automatically.

Abdul Aziz's case PLD 1958 SC (Palo 104 ref

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

----Arts.17 & 79---Failure to prove consideration for the document --Where the respondents claimed to be beneficiaries of general power of attorney, it was the duty and obligation of the respondents to prove on record the consideration for the said agreement, but the respondents failed to do so---Effect--First Appellate Court had erred in law to decide the case against the petitioner without applying its independent mind and without proper appreciation of evidence.

Muhammad Shafi v. Allah Dad PLD 1986 SC 519 ref.

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

----Arts.112--Failure of the Court to take judicial notice---General power of attorney---Judgment of the Appellate Court was not sustainable in the eye of law where it had ample jurisdiction to take judicial notice of the discrepancies pointed out in the general power of attorney and it failed to do so.

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

----S.115---Revisional jurisdiction, exercise of---Scope---Finding of the Courts below, interference with---When it was found that the Courts below, while giving finding on a question of fact had committed material irregularity or had omitted to read evidence on a point, which had resulted in miscarriage of justice, High Court, would have the occasion to re-examine the question and give its own finding on that question in the exercise of revisional jurisdiction.

Kanwal Nain's case PLD 1983 SC 53 and Shaukat Nawaz's case 1988 SCMR 851 ref.

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

----S.41---Principle of bona fide purchases---Where the respondents failed to bring on record the original copy of the general power of attorney executed by the petitioner in favour of the respondent and also failed to prove oral sale executed between the parties, the principle of bona fide purchaser in view of S.41 of Transfer of Property Act, 1882 would not be attracted in favour of the respondents.

Ghulam Sabir for Petitioner:

Ch. Mubashir Nisar Khan for Respondents.

Date of hearing: 15th December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 630 #

2004 M L D 630

[Lahore]

Before M.A. Shahid Siddiqui, J

MASKEEN ULLAH KHAN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.2183-B of 2002, decided on 15th April, 2002.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/324/337-F(ii)/337D/34/109---Bail, grant of---Occurrence appeared to be the result of sudden flare-up---Motive had been ascribed to co-accused who had picked up a quarrel with deceased and had injured him---Accused had not caused any injury to deceased and injury which had been ascribed to him constituted an offence under S.337-F(ii), P.P.C. which was punishable upto three years---Accused being tried under Juvenile Justice System Ordinance, 2000 he was admitted to bail, in circumstances.

Zafar Iqbal Chohan for Petitioner.

Muhammad Latif Sheikh for the State

Date of hearing: 15th April, 2002.

MLD 2004 LAHORE HIGH COURT LAHORE 635 #

2004 M L D 635

[Lahore]

Before Sardar Muhammad Aslam, J

Malik IRFAN AHMED GHEBA---Petitioner

versus

ZUBI IRFAN and 4 others---Respondents

Writ Petition No.2641 of 2003, heard on 20th November, 2003.

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

----S.7(2)---Production of witness---No prohibition exists in the West Pakistan Family Courts Act, 1964 for the production of witness if it was not mentioned earlier in the list provided by the parties---Section 7(2) of the West Pakistan Family Courts Act, 1964 provides that a Family Court may allow production of evidence even at a later stage if it is in the interest of justice---Parties may with permission of the Court call any witness at any later stage under S.7(2) proviso, if .the Court considered such evidence expedient in the interest of justice.

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

----S.7(2)---Poviso---Interpretation---Production of witness---Word `further' in proviso to S.7(2) of West Pakistan Family Courts Act, 1964 manifests the intention of the legislature to grant of permission liberally, if, the Court considers such evidence expedient and essential for a just decisions.

----S.11(2)---Issuance of summons for appearance of witness---Section 11(2) of West Pakistan Family Courts Act, 1964 places bar on issuance of summons for the appearance of witness, unless a party intimates the Court within three days of the framing of issue of its desire to summon a witness through the Court---Section 11(2) of the Act is not couched in a mandatory language and should not be treated as such in the absence of consequence for its non-compliance.

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

----Ss.7(2) and 11(2)---Spirit of law underlying the provisions of Ss.7(2) & 11(2) West Pakistan Family Courts Act, 1964 is to provide speedy justice and by all means simplify the procedure for resolution of the family dispute by reducing the time limit to its minimum for advancing cause of justice rather than creating stumbling block to impede justice.

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

----Art.199---Constitutional jurisdiction---Scope---Decisions under special law--- Decisions of forum constituted under the special law are normally not interfered with in exercise, of Constitutional jurisdiction unless the same are illegal, void and without jurisdiction.

Syed Asghar Hussain Sabzwari for Petitioner.

Zulfiqar Ali Abbasi for Respondents.

Date of hearing: 20th November, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 638 #

2004 M L D 638

[Lahore]

Before Ali Nawaz Chowhan, J

MUHAMMAD AJAIB---Petitioner

versus

FARRUKH IMTIAZ and 3 others---Respondents

Civil Revision No.615-D of 2001, decided on 5th November, 2003.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.15---Waiver of the right of pre-emption--Validity---Absolute refusal, requirement of---Waiver, how exercised---Mere oral statements by same witnesses showing that a pre-emptor had knowledge of sale was not enough to create relinquishment of the pre-emption right---Where vendor offered land in question at a relevant time and which was not accepted by pre-emptor for certain reasons, the latter may change his mind subsequently when his liquidity permits, and opt for the same land, thus, an absolute refusal is required to establish a waiver--Right of pre-emption could be waived before the actual sale either by express refusal to purchase the property or by a clear conduct on the part of the pre-emptor showing that he was not interested in the purchase of the property.

Abaid-ur-Rehman and others v. Mehmood' and others 1999 SCMR.201; AIR 1937 Lah. 504; Jam Pari v. Muhammad Abdullah 1992 SCMR 786 and Baqri and 4 others v. Salehon and 3 others PLD 1972 SC 133 ref.

(b) Punjab Pre-emption Act (IX of 1991)---

----S.15---Waiver---Definition---Dismissal of suit of pre-emptor, legality of---Waiver is an intentional relinquishment of a known right and consists either of a positive act or relinquishment or of conduct such as would warrant an inference of relinquishment of the right---Where the pre-emptor had established his right of pre-emption and his locus standi as Shafi Jar and Shafi Shareek, mere help from two witnesses giving oral evidence was not enough for the Court to dismiss the suit of the preemptor on the ground of waiver.

Mustaqim v. Sher Bahadur PLD 1962 W.P. Peshawar 14 ref.

Malik Shahzad Ahmad Khan for Petitioner.

Mujeeb-ur-Rehman Kiani for Respondents.

MLD 2004 LAHORE HIGH COURT LAHORE 642 #

2004 M L D 642

[Lahore]

Before Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ

PROVINCE OF PUNJAB through Secretary Health and 3 others---Appellants

versus

Sh. MUHAMMAD AKRAM SHANGI---Respondent

I.C.A. No.548 of 2001, heard on 16th December, 2003.

Punjab Drug Rules, 1988---

----R.20(2)---Constitution of Pakistan (1973), Art.18---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Raising of new plea---Drugs licence, non-issuance of---Authorities refused the licence to the applicant under the provision of R.20(2) of Punjab Drug Rules, 1988, for the reason that he was not a pharmacist---High Court set aside the order passed by the authorities on the ground that the provisions of R.20(2) of Punjab Drug Rules, 1988, had been declared to be ultra vires of Art. 18 of the Constitution in the case reported as PLD 1992 Lah. 415---Plea raised by the authorities was that till such time valid provisions were made to Punjab Drug Rules, 1988, the criteria as provided under the previous Drug Rules, 1945 and 1958 should be followed---Validity---Plea raised by the authorities was not raised before the Single Bench of the High Court---Case of the applicant was akin and at par with the case reported as PLD 1992 Lah. 415 and the Single Bench of High Court had rightly decided the matter---High Court in Intra-Court Appeal, declined to take any exception to the judgment passed by Single Bench of High Court.

PLD 1992 Lah. 415 ref.

Hafiz Muhammad Saeed for Appellant.

Nemo for Respondent.

Date of hearing: 16th December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 646 #

2004 M L D 646

[Lahore]

OWN Before Ijaz Ahmad Chaudhary, J

MUHAMMAD IQBAL---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.2750-B of 2002, decided on 7th May, 2002.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.380/411 /457---Prevention of Anti-National Activities Act (VII of 1974), S.13---Bail, grant of--Allegation against accused was that he alongwith co-accused was involved in theft of Diesel oil---Accused was behind the bars for the last more than 4 months--- Recovery had already been effected from accused of two Cans of Diesel valuing about Rs.1000 and nothing else had been recovered from him---Accused was not apprehended at the spot--Accused who was not involved previously in any criminal case, could not be kept behind the bars for a long period without trial which was not likely to be completed within a short period---Accused was admitted to bail.

Zafar Iqbal Chauhan for Petitioner.

Tariq Mahmood Chaudhry for the State.

Date of hearing: 7th May, 2002.

MLD 2004 LAHORE HIGH COURT LAHORE 650 #

2004 M L D 650

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD SHAFI---Petitioner

versus

SIKANDAR KHAN- --Respondent

Civil Revision No. 1708 of 2002, decided on 4th December, 2003.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss.6(1)(a), 13 & 14---Pre-emption suit---Notice of Talab-e-Ishhad drafted by Counsel---Non-appearance of plaintiff in Court as witness) due to old-age and ailing health, but appearance of his son (his attorney) as witness---Validity---Postal Clerk as witness had proved issuance of receipt against registered letter in defendant's name---Postman as witness had proved delivery of such letter to defendant and his signatures on Acknowledgement Due---Plaintiff aged 80 years had authorized,his son to follow proceedings and make statement on his behalf---Plaintiff's son had deposed that his father instantly after gaining knowledge of sale had performed Talb-e-Muwathibat in presence of witnesses---Witnesses to notice of Talb-e-Ishhad had deposed that same was written in their presence and was thumb-marked by plaintiff---Son of plaintiff being duly constituted attorney could validly prove making of Talb-e-Muwathibat on behalf of his principal---Notice of Talb-e-Ishhad bearing thumbmarked of plaintiff had been prepared and written on his instructions by Counsel---Such notice could not be graded as notice from Advocate, rather same was a notice on behalf of plaintiff from his counsel--Plaintiff had substantially proved performance of all three Talbs--Plaintiff was a co-sharer in Khata in question while defendant had no such superior qualification---Suit was decreed in circumstances.

Kala Khan v. Ayub Khan 1992 MLD 2023; Muhammad Gul v. Muhammad Afzal 1999 SCMR '724; Abdul Malik.v. Muhammad Latif 1999 SCMR 717 and Hajji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----Ss.13(2) & 14---Talb-e-Muwathibat---Proof---Duly constituted attorney could validly prove making of such Talb on behalf of his principal (pre-emptor).

Kala Khan v. Ayub Khan 1992, MLD 2023 rel.

----Ss.13(3) & 14---Notice of Talb-e-Ishhad---Such notice, if prepared and written by Advocate on behalf of pre-emptor (his client) and also thumb-marked by pre-emptor, could not be graded as a notice from Advocate, rather would be treated as a notice on behalf of pre-emption from his counsel.

Kala Khan v. Ayub Khan 1992 MLD 2023 rel.

Ch. Muhammad Sadiq for Petitioner.

Khadim Hussain Qaisar for Respondent.

Date of hearing: 2nd December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 667 #

2004 M L D 667

[Lahore]

Before Muhammad Sair Ali, J

MUHAMMAD GULZAR---Petitioner

Versus

Rana ABDUL JABBAR and others---Respondents

Civil Revision No.586 of 1982, heard on 10th October, 2003.

(a) Arbitration Act (X of 1940)---

----Ss.14, 19, 26-A & 37(5)---Civil Procedure Code (V of 1908), S.9--Remitting of award to arbitrator---Failure to state reasons by arbitrator in award---Death of arbitrator---Condonation of delay---Basic material for award was not submitted for scrutiny by the Court---Plea raised by the petitioner was that under the provision of S.26-A(1), of Arbitration Act, 1940, the Court had to examine the award to determine absence of reasons or sufficient details for such reasons for deciding to remit the award to the arbitrator---Validity---In absence of proceedings, the statements and documents, the questions involved in arbitration could not be held to have been settled and decided by the arbitrator with reasons in sufficient details---Basic material for award was neither submitted for scrutiny by the Court nor the same was relied upon or filed to enable High Court to form opinion different from the one recorded by the arbitrator---Court had only to examine the award under S.26-A(1) of the Act to determine absence of reasons or sufficient details for such reasons for deciding to remit the award to the arbitrator---As the absence of reasons was patent on bare reading of award, the Courts below committed material irregularity and failed to exercise their jurisdiction by not adverting to the effect of absence of reasons in terms of S.26-A(1) of Arbitration Act, 1940 and the award had become remittable to the arbitrator for re-decision---Where the arbitrator had died and the .parties did not agree to appoint arbitrator, the award could not be sent to, any arbitrator---Reference was suspended under S.19 of Arbitration Act, 1940, and arbitration agreement between the parties ceased to have effect---Award was set aside in exercise of powers under S.26-A(1) and, S.16(3) of Arbitration Act, 1940---High Court observed that the parties might invoke jurisdiction of civil Courts under S.9 C.P.C. for seeking effective adjuducation of their differences/disputes/causes of action/ objections by filing proper suit---Period between commencement of arbitration and setting aside of award by High Court was excludable under S.37(5)' of Arbitration Act, 1940, in computing the period prescribed in Limitation Act, 1908.

(b) Arbitration (Amendment) Ordinance (XV of 1981)---

----S.3---Setting aside/remitting of award ---Suo motu powers of Court--Scope---In view of mandatory compulsions of law enacted in S.3 of Arbitration (Amendment) Ordinance, 1981, the Court can suo motu exercise powers of revision to set aside or remit award which is without reasons.

Hafiz Khalil Ahmad for Petitioner.

Rana Muhammad Sarwar for Respondents

Date of hearing: 10th October, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 685 #

2004 M L D 685

[Lahore]

Before Maulvi Anwarul Haq, J

CANTONMENT BOARD, RAWALPINDI through Executive Officer---Petitioner

versus

Mrs. ASMA MUNAWAR and another---Respondents

Civil Revision No.32-D of 1998, heard on 10th November, 2003.

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

----Ss.42 & 54--Suit for declaration and injunction ---Maintainability--Not always necessary for plaintiff to sue for declaration of his title as substantive relief and ask for injunction only as consequential relief.

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

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

----Ss.42 & 54---Cantonments Act. (II of 1924), S.273---Suit for declaration and injunction against Cantonment Board---Service of prior notice on Board---Dismissal of suit in view of provisions of 5.273 of Cantonments Act, 1924 due to addition of relief of declaration--,.Validity---Supreme Court permitted deletion of relief of declaration and continuation of suit for relief of permanent injunction.

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

----S.273---SpecificRelief Act (I of 1877), Ss.53 & 54---Civil Procedure Code (V of 1.908), O.XXXIX, Rr.1 & 2---Suit for injunction to restrain Cantonment Board from demolishing construction---Temporary injunction---Trial Court while granting temporary injunction allowed plaintiff to continue with exterior or interior finishing work of building---Validity--Allowing such relief to plaintiff was beyond scope of S.53 of Specific Relief Act, 1877 and O.XXXIX, C.P.C.---New situation vis-a-vis suit property could not be created under protection of stay order or injunction---High Court accepted revision petition with direction to parties to maintain status quo qua suit property.

Waqarul Haq Sheikh for Petitioner.

Nemo for Respondents.

Date of hearing: 10th November, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 690 #

2004 M L D 690

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD ASLAM---Petitioner

versus

LIAQAT ALI KHAN and another---Respondents

Civil Revision No.292-D of 1982, heard on 16th December, 2003.

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

----Ss.53-A & 54---Registration Act (XVI of 1908), Ss.17 & 49---Civil Procedure Code (V of 1908), S.115---Dismissal of suit of the petitioner---Petitioner claiming to be the owner of the property on the basis of an unregistered sale-deed executed earlier to the registered saledeed of the respondent for the same property---Trial Court on the basis of S.54 of Transfer Property Act, 1882 and- Ss. 17 & 49 of the -Registration Act, 1908 found that no title could be claimed by the petitioner on the basis of the said unregistered deed---Subsequent appeal by the petitioner was also dismissed by the Court after going through evidence and finding that the sale-deed claimed by the petitioner was a fictitious and forged document and moreover no reliable evidence was produced by the petitioner---High Court in revisional jurisdiction, declined to interfere in the conclusions of the subordinate Courts in revisional jurisdiction as proper appreciation of evidence had been undertaken by them---Petitioner was not to benefit by the implications of . S.53-A of Transfer of Property Act, 1882 for he was not found in possession of the said property, as such plea could only be taken as a shield or defence but not used as a sword.

Fazla v. Mehr Din and others 1997 SCMR 837 ref.

Ch Muhammad Sharif and Shabbir Hussain Qureshi for Petitioner.

Ch. Jehangir Wahia for Respondent No. 1.

Respondent No.2: ex parte.

Dates of hearing: 9th and 16th December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 696 #

2004 M L D 696

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

AFTAB MOHY-UD-DIN---Petitioner

versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Writ Petitions Nos. 18148 of 2000 and 963 of 2002, decided on 16th February, 2004.

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

----Ss.19 [as amended by Family Courts (Amendment)- Ordinance (VII of 2002)] 5 & Sched.---Court Fees Act (VII of 1870), Sched. II, Art. 17(vii)---Suit for recovery of dowry articles dismissed by the Trial Court---Court-fee payable on the memorandum of appeal---Claim of plaintiff in a suit for recovery of dowry articles is not substitution of money, which is for the Court to determine on the basis of evidence whether substitution of dowry articles will be justifiable in money or not---In all such cases where the valuation of suit is not determined for the purposes of court-fee and for the jurisdictional purposes on the decree sheet the case will fall under the remedial and curative enactment of S.19, West Pakistan Family Courts Act, 1964 and Art.17(vii), Sched.II of the Court Fees Act, 1870 and the stamp of Rs.15 will be affixed on the memo. of appeal as is apparent from the intention of Legislature through West Pakistan Family Courts. (Amendment) Ordinance, 2002 promulgated on 1-10-2002---Principles.

Husband has no vested right in the payment of court-fee. It is the matter between the subject and the State and intention of Legislature is to give relief to the wives and distressed in order to fulfil the purposes of legislation. All the case-laws cited pertain to maintenance allowance cases where section 7 (ii) of Court Fees Act does not apply as the decree in maintenance allowance is a money decree. But the plaintiff in suit for recovery of dowry articles demands dowry articles given to her at the time of marriage, which are detained by the husband against her wishes, therefore, in such cases the claim of the plaintiff is always for return of dowry articles and not for the substitution of money and the matter rests with the Court of first instance to decide whether it is possible that the dowry articles can be returned in their proper manner and whether the substitution of dowry, articles will be justifiable in money and this is purely a matter of evidence. If the suit is decreed by the Court of first instance when plaintiff has successfully proved her claim then the decree-sheet must disclose the value of articles of dowry decreed by the Trial Court and the party appealing against the judgment and decree will affix the court-fee to the valuation of suit for the purposes of court-fee and jurisdiction expressly declared and disclosed in the decreesheet.

If the suit for recovery of articles of dowry is dismissed by the trial Court and no valuation for the purposes of court-fee and jurisdiction is determined in the decree-sheet then the interpretation of the statute will be that claim of the plaintiff for the return of dowry articles will fall under Article 17 (vii) Schedule II of Court Fees Act, which provides that every other suit where it is not possible to estimate money value of subject-mattes in dispute and which is not otherwise provided for by this Act court-fee of Rs.10/- will be affixed on the memo. of appeal.

Undoubtedly the proceedings in appeal are the continuation of suit. In the present cases the subject-matters of suits of the plaintiffs wives were dismissed and the decree-sheets of both these suits did not disclose the valuation of the suits for the purposes of court-fee and jurisdiction.

In the present cases the trial Court had viewed that no dowry articles were given and were detained by the husband and the suits were dismissed. The impugned decree did not determine the market value of movable articles, therefore, no valuation was shown on the body of decree-sheet. Under Schedule II, Article 17 (v) of the Court Fees Act read with section 19 of the West Pakistan Family Courts Act, 1964, the same is always a remedial enactment for that purpose and a stamp of Rs.15 will be affixed on the memo. of appeal. As far as the intention of Legislature in respect of family matters is concerned section 19 of the West Pakistan Family Courts Act, 1964 of course will have retrospective effect. In the present case the claim in suit is the claim in appeal, in which the court-fee of Rs.15 is affixed.

The intention of Legislature by way of not attracting the provision of Code of Civil Procedure in stricto senso is that no technical bar be created to give relief to the distressed wives in family matters for the purposes of justice and the suits in both the cases for recovery of dowry articles were dismissed by the trial Court. Plaintiff in suit for recovery of dowry articles demands articles of dowry given to her at the time of marriage and those of course carry sentimental attachment i.e. the paternal grandmother of the bride gifts her an old small silver jewellery box at the time of marriage, which except sentimental value will not carry any market value and such-like other items might be existing in the suit for recovery of dowry articles, for which the true assessment of market value is impossible. The decree in a suit for recovery of dowry articles is not a money decree as envisaged in section 7 (ii) of the Court Fees Act.

General principle in the Court Fees Act is that value of suit for the purposes of jurisdiction is to be determined according to the value of relief sought and the Court has to determine the value of articles of dowry at the time of presentation of plaint and their depreciated value during the long preceding years as established through evidence. Court-fee is a fiscal enactment. Ambiguity or doubt is to be resolved in favour of subject. In order to decide whether a suit is governed by section 7 (iv) (c) and Article 17 (iii) Schedule II of the Court Fees Act, 1870, one must look to the substance and the nature of the claim and not to the language or the form in which the relief claimed is framed. As the Court Fees Act is fiscal enactment merely to collect revenue any ambiguity raised out of it should be resolved in favour of the plaintiff.

The claim of plaintiff in a suit for recovery of dowry articles is not substitution of money, which is for the Court to determine on the basis of evidence whether substitution of dowry articles will be justifiable in money or not, in all such cases where the valuation of suit is not determined for the purposes of court-fee and other for the jurisdictional purposes on the decree-sheet the case will fall under the remedial and curative enactment of section 19 of the West Pakistan Family Courts Act, 1964 and Article 17 (vii), Schedule 11 of the Court Fees Act, 1870 and the stamp of Rs.15 will be affixed on the memo. of appeal as is apparent from the intention of Legislature through West Pakistan Family Courts (Amendment) (LV of 2002) promulgated on 1-10-2002.

2000 CLC 1680 and AIR 1935 Rangoon 460 distinguished.

Pandurang Mangal and others v. Bhojalu Usanna and others AIR (36) 1949 Nagpur 37; Ratansingh and others v. Raghurajsingh and others AIR (33) 1946 Nagpur 30 and Manzoor Hussain and others v. Rasool Bakhksh and others 1991 CLC 640 ref.

Ch. Muhammad Yaqoob Sabir for Petitioner.

Nemo for Respondents Nos. l and 2.

Ch. C.R. Adam with Mian Qamar-uz-Zaman for Respondent No.3.

Syed Afzal Haider, S.M. Almas Ali, Taki Ahmad Khan and Ch. Muhammad Zafar for Amicus Curiae.

Date of hearing: 19th January, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 706 #

2004 M L D 706

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ASLAM and 10 others--Petitioners

versus

ALLAH DITTA---Respondent

Civil Revision No. 1932 of 1999, decided on 2nd January, 2004.

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

----S.42---Transfer of Property of Act (IV of 1882), S.54---Qanun-e-Shahadat (10 of 1984), Art. 119---Mutation of sale---Proof---After denial of transaction of sale, onus of proving the same would shift to beneficiary to prove through positive evidence not only mutation, but also transaction incorporated therein i.e. sale, payment of sale price, transfer of possession and attestation of mutation.

(b) West Pakistan Land Revenue Act, (XVII of 1967)---

----S.42---Mutation---Evidentiary value---Mutations are sanctioned only for fiscal purposes, which create no title---Mutation by itself is not a document of title---Person deriving title through mutation must prove transaction embodied therein.

Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832; Wazir Ali Industries Ltd. and others v. The Secretary to Government of Sindh (Local Government) and 2 others 1985 CLC 1843; Niaz Ali and 16 others v. Muhammad Din through Legal Heirs and others PLD 1993 Lah. 33; Mst. Rasul Bibi v. Nasrullah Khan 1994 CLC 1774; Allah Bakhsh and others v. Ghulam Hussain and others PLD 1975 Lah. 1349 and Collector, Dera Ismail Khan and others v. Shahzad Bibi and 7 others 1995 CLC 1843 rel.

----Art.129(e)---Official acts done in discharge of official duties Presumption of correctness attached to such acts---Proof---Such acts would need to be proved to have been taken honestly and according to law.

(d) Administration of justice---

----Nobody can be made liable for acts of others, unless it is proved that such person had some participation or connivance in the alleged act.

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

----S.115---Revisionaljurisdiction of High Court---Scope---In absence of misreading or non-reading of evidence or any illegality or irregularity in the impugned judgment, no interference is permissible in revisional jurisdiction of High Court.

Ras Tariq Chaudhry for Petitioners.

Abdul Wahid Malik for Respondent.

Date of hearing: 15th December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 716 #

2004 M L D 716

[Lahore]

Before Maulvi Anwarul Haq, J

NAZIR HUSSAIN and 2 others---Petitioners

versus

WARRIS---Respondent

Civil Revision No.387-D of 1997, heard on 16th September, 2003.

Oaths Act (X of 1873)---

----Ss.8, 9, 10 & 12---Civil Procedure Code (V of 1908); O.XXVI, Rr. 2 & 16---Issuance of Local Commission for taking oath of defendant as per terms of agreement made before Court---Local Commissioner on his own amended terms of agreement and then recorded statement of defendant---Trial Court decreed suit on failure of defendant to take oath as per terms of agreement made before Court---Appellate Court dismissed appeal filed by defendant---Validity---Local Commissioner had no jurisdiction to amend such agreement as well as order of Trial Court---Such agreement, after it was amended by Local Commissioner had not provided or stipulated as to what would happen, if oath was not taken---Suit could not be decreed for refusal or failure of defendant to take oath proposed before Local Commissioner or for that matter before Trial Court- --Impugned judgments were wholly without jurisdiction--High Court allowed revision petition and set aside impugned judgments/ decrees with direction to Trial Court to decide suit after recording evidence of parties on its merits.

Inayat Ali and others v. Muhammad Sultan 1988 MLD 811 rel.

Waqar-ul-Haq Sheikh for Petitioners

M. Munir Paracha for Respondent.

Date of hearing: 16th September, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 724 #

2004 M L D 724

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

MALIK TALKIES DISTRIBUTORS through Malik Raheel Bari and another---Appellants

versus

Khawaja MEHBOOB ELLAHI and 3 others---Respondents

S.A.O. No, 15 of 2002, heard on 22nd December, 2003.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)----

----Ss.13 & 15(6)---Bona fide personal need of landlord---Concurrent findings of fact---Validity---Landlord had a right to conduct his business at one place and under one roof---Testimony of landlord would be sufficient to establish his personal bona fide requirement---Courts below after appreciating entire evidence had concurrently found that landlord needed the property for his personal use---Courts below had neither failed to determine material issues of law nor misread evidence---High Court dismissed appeal in circumstances.

Sakha Ullah v. Mst. Tahir Almas alias Tahira Shabbir and another 2001 CLC 1641; Noor Jehan Begam's case 1991 SCMR 2300 and Jehangir Rustam Kaka's case (1992 SCMR 1296 rel.

Ch. Mumtaz Ahmad for Appellants.

Sohaib Saeed for Respondents.

Date of hearing: 22nd December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 726 #

2004 M L D 726

[Lahore]

Before Muhammad Khalid Alvi, J

Haji GHULAM FARID and 9 others---Appellants

versus

HAQ NAWAZ and 93 others.---Respondents

Regular Second Appeal No. 142 of 1988, decided on 30th December, 2002.

(a) Punjab Pre-emption Act (I of 1913)--- .

----S.4---Superior right of pre-emption, exercise of---Co-owners in estate ---Pre-emptors were owners of the estate where the suit-land was situated while vendees did not produce any evidence to prove their such ownership ---Effect---Pre-emptors had superior right of pre-emption as against the vendees.

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

----S.4(9)---Term `estate'---Necessary conditions---Area is deemed to be an estate, if anyone of the following three conditions is available in a particular case; a separate record-of-right is made or is being separately assessed to land revenue or it has been declared to be an estate by Board of Revenue through a general or special order.

----Ss.4 & 21---Civil Procedure Code (V of 1908), O.XXIII, R.1(4)--Abandoning of claim by some of the opre-emptors---Misjoinder or nonjoinder of parties---Plea of partial pre-emption ---Two pre-emptors withdrew not only from their suit but had also abandoned their right in their share of Zar-e-Panjum (pre-emption money)---Plea raised by the vendees was that the withdrawal was without the consent of the other pre-emptors, therefore, the suit was bad for non-joinder of parties and had become one of partial pre-emption ---Validity---All pre-emptors were being represented by the same counsel who made his statement on behalf of the two pre-emptors for the withdrawal of the suit and abandonment of the share in Zar-e-Panjum---Other pre-emtors were entitled to pre-empt the whole land in dispute---Neither the suit was bad for non-joinder of necessary parties nor it was for partial pre-emption---Judgment and decree passed by the Appellate Court was set aside and the suit was decreed in favour of the pre-emptor by the High Court in second appeal.

PLD 1972 SC 59 ref.

(d) Punjab Pre-emption Act (I of 1913)---

----S.21---Pre-emption suit---Principal of waiver---Applicability--Presence of pre-emptor at the time of sale---Effect---Mere presence of pre-emptor at the time of bargain does not constitute waiver---To establish waiving of right of pre-emption, it is incumbent upon vendee to establish through evidence the conduct of pre-emptor indicating that he had clearly shown by his conduct that he had abandoned his right of preemption.

2002 SCMR 49; 1999 SCMR 201; 1996 SCMR 806 and 1996 SCMR 1729 ref.

Mian Arshad Latif for Appellants.

Mian Shams-ul-Haq Ansari and Mian Muhammad Jamal for Respondents.

Date of hearing: 16th December, 2002.

MLD 2004 LAHORE HIGH COURT LAHORE 742 #

2004 M L D 742

[Lahore]

Before Muhammad Muzammal Khan, J

Messrs FATIMA BIBI and 5 others- --Petitioners

versus

GHULAM SAFDAR and another---Respondents

Civil Revision No.274 and C.M. No.1-C of 2003, heard on 4th December, 2003.

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

----O.XLI, R.27---Application seeking permission to produce pedigree table and mutation as additional evidence---Appellate Court kept appeal pending, but dismissed the application---Validity---Dispute between parties related to inheritance and their relationship with deceased---Documents produced appeared to be quite relevant to matter in issue but finding with regard to their relevancy could only be given at the time of hearing of appeal---Such documents were copies of public documents and there was no probability of their having been tampered with---Such application should not have been dismissed in isolation, but should have been decided alongwith appeal itself---Impugned order was tainted with illegality and material irregularity---High Court accepted revision petition and set aside impugned order with direction to Appellate Court to decided such application on merits alongwith appeal.

S.M. Tayyab-for Petitioners.

Malik Mumtaz Ahmad for Respondents.

Date of hearing: 4th December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 752 #

2004 M L D 752

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ANWAR CHAUDHRY---Petitioner

versus

IMTIAZ BUTT and 2 others---Respondents

Civil Revision No.484-D of 1997, heard on 29th September, 2003.

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

----O.VII, RAI ---Suit for damages for tortuous acts---Rejection of plaint without recording evidence---Validity--Plaintiff would get decree, if several factual allegations made in plaint were proved at trial---High Court set aside such order and remanded case to Trial Court to decide same in accordance with law.

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

----O.XXII, R.6---Suit for damages for tortuous acts---Death of one of the defendants before passing of decree---Suit would stand abated to the extent of deceased defendant.

Sardar Masud Akash for Petitioner.

Nemo for Respondents.

Date of hearing: 29th September, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 769 #

2004 M L D 769

[Lahore]

Before Maulvi Anwarul Haq, J

ISLAMABAD STOCK EXCHANGE (GUARANTEE) LIMITED ‑‑‑Appellant

Versus

SHAKEEL MEHMOOD‑‑‑Respondent

F.A.O. No.58 of 2001, heard on 11th March, 2003.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.IX, Rr.8, 9 & S.151‑‑‑Limitation Act (IX of 1908), S.5‑‑Dismissal of suit for non‑prosecution on a date not fixed for its hearing‑‑‑Application seeking restoration of suit filed after 1‑1/2 years of its dismissal was accompanied with application under S.5 of Limitation Act, 1908‑‑‑Trial Court dismissed application for being time‑barred‑‑Validity‑‑‑Neither suit itself was fixed for hearing nor same was called for hearing on relevant date, rather on such date an application for reply and arguments was fixed‑‑‑No order, thus, could be passed on such date with reference to suit under O.IX, R.8, C.P.C.‑‑‑Trial Court had not taken up on such date application fixed for hearing‑‑‑Impugned order was void ab initio and wholly without jurisdiction‑‑‑Application for restoration was not time‑barred as such matter would be covered by S.151, C.P.C.‑‑‑Defendant needed to be compensated‑‑‑High Court accepted revision petition and set aside impugned order on condition of payment of Rs.5,000 as costs to respondent.

Qazi Muhammad Tariq v. Hasin Taban and 3 others 1993 SCMR 1949 rel.

Abdur Rashid Awan for Appellant.

Tahir Mehmood Abbasi for Respondent.

Date of hearing: 11th March, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 772 #

2004 M L D 772

[Lahore]

Before Muhammad Akhtar Shabbir, J

RAHIM SHAH‑‑‑Petitioner

Versus

MANAGING DIRECTOR, PUNJAB SMALL INDUSTRIES, CORPORATION, LAHORE and others‑‑‑Respondents

Writ Petition No. 1273 of 2001/BWP decided on 24th October, 2002.

Constitution of Pakistan (1973)‑‑‑‑--

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Notice demanding outstanding loan amount‑‑‑Incentive scheme/relief package issued for benefit of defaulters by respondent corporation‑‑‑High Court disposed of Constitutional petition with direction to the petitioner to approach the respondent corporation for availing such benefit and deposit amount, if any found outstanding after availing such scheme.

Khalid Shamshad Rana for Petitioner.

Shamshir Iqbal Chughtai for Respondents.

MLD 2004 LAHORE HIGH COURT LAHORE 773 #

2004 M L D 773

[Lahore]

Before Maulvi Anwarul Haq, J

Messrs ZEB LABORATORIES (PVT.) LIMITED‑‑‑Petitioners

Versus

CENTRAL LICENSING BOARD and others‑‑‑Respondents

Writ Petition No.22022 of 1998, decided on 9th August, 2002.

(a) Drugs (Licensing, Registering and Advertising) Rules, 1976‑‑--

‑‑‑‑R.5(3)‑‑‑"Initial grant of licence to manufacture drugs" and its "renewal"‑‑‑Distinction‑‑‑Application for renewal of licence, if made after expiry of its validity period, would be Heated as fresh application for grant of licence.

(b) Drugs (Licensing, Registering and Advertising) Rules, 1976‑‑‑

‑‑‑‑R.5 & Sched‑B, Para 2(K) [as amended on 31‑5‑1983 and then on 15‑5‑1995]‑‑‑Drugs Act (XXXI of 1976), S.23‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Refusal of authority to permit shifting of Laboratory to new premises‑‑‑Licence granted to petitioner in 1974 and revalidated under Drugs Act, 1976 was being renewed from time to time‑‑‑Authority after amendment introduced on 31‑5‑1983 in para. 2(k) of Schedule to Drugs (Licensing, Registering and Advertising) Rules, 1976, directed petitioner to shift laboratory from residential area to a proper area‑‑‑Petitioner in pursuance of such direction purchased plot, constructed new building and applied for permission to shift laboratory to new premises‑‑‑Authority refused permission on the ground that size of plot was less than 2000 square yards being a condition laid down under such Schedule, as amended on 15‑5‑1998‑‑‑Contention of petitioner was that several other laboratories were being allowed to continue on plots less than such size‑‑‑Validity‑‑‑Respondent had not shown any reason as to why petitioner was being discriminated against‑‑Respondent could not insist upon performance of a condition introduced in May, 1995‑‑‑Nothing was on record to show that petitioner had not completed new construction before introduction of such condition‑‑‑High Court accepted Constitutional petition and declared impugned order to be without lawful authority.

Faqir Sayyed Fayyaz‑ud‑Din and another v. District Magistrate, Lahore and another PLD 1964 Lah. 359 ref.

Sh. Zia Ullah for Petitioners.

Kh. Saeed‑uz‑Zafar, D.A.‑G. for Respondents.

Date of hearing: 9th August, 2002.

MLD 2004 LAHORE HIGH COURT LAHORE 787 #

2004 M L D 787

[Lahore]

Before Syed Zahid Hussain, J

Mst. ANJUM ARA and 11 others‑‑‑Petitioners

Versus

PROVINCE OF PUNJAB through Secretary to Government of the Punjab, Revenue Department and 3 others‑‑‑Respondents

Civil Revision No‑906‑D of 1995, heard on 15th December, 2003.

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

‑‑‑‑S.2‑‑‑Cancellation of Permanent Transfer Deed‑‑‑Legality‑‑‑Order of cancellation of permanent transfer deed of the property by; the, Department for non‑payment of the price, which was calculated after issuance of the said deed was held to be illegal and unwarranted‑‑‑Where a part of the price was already paid by the petitioner, the balance price could have been recovered by the Department by adopting legal course, and not by the cancellation of transfer.

Allah Bakhsh and others v. Ghulam Shabbir Shah 1980 SCMR 789; Mst. Majeeda Begum v. Deputy Settlement Commissioner‑II and others 1980 SCMR 827 and Israr Ahmad and others v. Member, Board of Revenue/Chief Settlement Commissioner, Lahore and another 1997 SCMR 1559 ref.

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

‑‑‑‑S.2‑‑‑Civil Court, jurisdiction of‑‑‑Where Permanent Transfer Deed was issued to the transferee and price demanded had been paid and the dispute was with regard to whether the price had been correctly assessed before the issuance of the said deed, the matter could have been dealt by the civil Court by enabling the transferee or his successors to make payment of the balance price and in this way the cancellation and resumption of the property by the Department that was transferred long before the repeal of Evacuee laws could have been avoided.

Pakistan Transport Company Ltd. v. Walayat Khan through Legal Heirs 2002 SCMR 1470 ref.

‑‑‑‑S. 2‑‑‑Where the petitioners ad expressed their willingness in order to settle the matter and bring an end to litigation by making payment of the extra price being demanded by the Department, the Court had to give due consideration to such desire of the petitioners, so that the settled transferee is not ousted from the property except to effect recovery of the price if some balance was found due.

Muhammad Iqbal for Petitioners.

Rana Muhammad Nawaz for Respondents Nos. 1 to 3.

Khalid Iqbal Mian for Respondent No.4.

Date of hearing: 15th December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 794 #

2004 M L D 794

[Lahore]

Before Pervaiz Ahmad, J

ARIF SANA BAJWA‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT Judge, (MUSHTAQ AHMED TARAR), LAHORE and 4 others‑‑‑Respondents

Writ Petition No.7940 of 2003, heard on 22nd December, 2003.

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

‑‑‑‑Ss.5 & 17‑A [as incorporated by Family Courts (Amendment) Ordinance (LV of 2002)] ‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Interim maintenance‑‑‑Failure to pay such maintenance‑‑‑Family Court directed father of the minors to pay interim maintenance but he did not pay the same and defence of the father was struck off‑‑‑Order passed by Family Court was maintained by Appellate Court‑‑‑Plea raised by the father was that order to deposit interim maintenance was passed prior to incorporation of S.17‑A in West Pakistan Family Courts Act, 1964, hence the same was illegal‑‑Validity‑‑Although prior to addition of S.17‑A in West Pakistan Family Courts Act, 1964, there was no specific provision empowering the Court to pass an order for interim maintenance during the pendency of the suit for maintenance, yet it did not mean that the Family Court was powerless to pass such order if justice of the situation so required‑‑‑If a Court or Tribunal had the authority to pass the final order it could also pass an interim order unless the power to do so was expressly or impliedly excluded from its jurisdiction‑‑‑Family Court was not denuded of its power under the provisions of West Pakistan Family Courts Act, 1964, to pass interim order for maintenance‑‑‑Both under statutory law and Islamic Law, the father was obliged to provide maintenance to his child‑‑‑Order of Family Court directing the father to pay maintenance to his minor children during the pendency of the suit was just and according to the situation demanded‑‑‑Father was given opportunity to deposit part of maintenance allowance which had become due against him as token of goodwill but he had refused to deposit any amount‑‑‑Conduct of the father throughout the proceedings of the matter also did not entitle him to any discretionary relief‑‑‑No illegality or irregularity had been committed by Appellate Court while passing the judgment against the father‑‑‑High Court, in exercise of Constitutional jurisdiction declined to interfere with the judgment and decree passed by the Courts below‑‑‑Constitutional petition was dismissed in circumstances.

Commissioner, Khairpur Division, Khairpur and another v. Ali Sher Sarki PLD 1971 SC 242; Sind Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. PLD 1975 SC 32; Moulvi Muhammad Yaqub v. Chairman, Election Tribunal, N.‑W.F.P. and others PLD 1976 SC 625 and Muhammad Sarwar v. Sughran Bibi and 2 others 1996 MLD 1057 ref.

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

‑‑‑‑S.107(2) & O.XLI, R.33‑‑‑Appellate Court, powers of‑‑‑Scope‑‑Appellate Court can pass order which is within the jurisdiction of original Court‑‑‑To fill in gap in procedure, S.107(2), C.P.C. has been enacted under which the Appellate Court has the same powers and is burdened with the same duties, as conferred and imposed on the Trial Court‑‑‑Provisions of O.XLI, R.33 C.P.C. give wide discretionary powers to Appellate Court to adjudge the rights of the parties as the ends of justice may demand and pass such decrees or orders as sought to have been passed.

North‑West Frontier Province Government, Peshawar through Collector, Abbattabad and another v. Abdul Ghafoor Khan through Legal Heirs and 2 others PLD 1993 SC 418 ref.

Muhammad Shahzad Shaukat for Petitioner.

Mrs. Tehsin Irfan for respondents.

Date of hearing: 22nd December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 798 #

2004 M L D 798

[Lahore]

Before Raja Muhammad Sabir, J

Mst. FARIDA KHANUM‑‑‑Petitioner

Versus

DEPUTY COMMISSIONER/COLLECTOR, OKARA, and others‑‑‑Respondents

Writ Petition No.2601 of 1994, decided on 2nd January, 2002.

Muslim Family Laws Ordinance (VIII of 1961)‑‑--

‑‑‑‑S.9‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintenance‑‑‑Wife claimed maintenance for period during which she was deserted by husband till Talaq became effective‑‑‑Parties did not dispute such period‑‑‑Record supported wife's contention that during her deserted period, husband had not made any effort to rehabilitate her through any Court proceedings by filing a suit for restitution of conjugal rights‑‑‑Husband was bound to‑maintain wife, but had not paid her maintenance for such period‑‑‑Wife was entitled to maintenance from husband‑‑‑High Court set aside order of remand passed by Deputy Commissioner and directed husband to, pay maintenance to wife for such period.

Zahid Hussain Khan for Petitioner.

Muhammad Nawaz and M. Mazhar Sher Awan, A.A.‑G. for Respondents.

Date of hearing: 2nd January, 2002.

MLD 2004 LAHORE HIGH COURT LAHORE 801 #

2004 M L D 801

[Lahore]

Before M. Javed Buttar and Ali Nawaz Chowhan, JJ

AZAM KHAN and 16 others ‑‑‑ Petitioners

Versus

LAND ACQUISITION COLLECTOR, WAPDA, RAWALPINDI and 2 others‑‑‑ Respondents

Regular First Appeal No. 12 of 1989, heard on 6th February, 2001.

Land Acquisition Act (I of 1894)‑‑‑--

‑‑‑‑Ss. 4 & 18‑‑‑Acquisition of land‑‑‑Market value, determination of‑‑Relevant facts‑‑‑Failure to consider upward trend in prices‑‑Delayed announcement of award‑‑‑Land owners being dissatisfied with the award, referred the matter to Civil Court‑‑‑Land owners sought enhancement of the compensation on the basis of a sale‑deed executed three months after the issuance of notification under S.4 of Land Acquisition Act, 1894‑‑Trial Court failed to take into consideration the sale‑deed produced by the land owners and the compensation awarded by the authorities was maintained‑‑‑Validity‑‑‑Sale relied upon by the land owners could not be ignored merely because it did not take place prior to the issuance of the notification‑‑‑Period of the sale relied upon by the land owners was relevant as it was approximately the same period when the land in dispute was acquired and the sale‑deed had shown the market value of the lands situated in the vicinity‑‑‑Trial Court failed to take into notice the upward trend in the sale prices and the Court also did not consider the fact that the award was announced by the authorities more than two years after the issuance of notification under S.4 of Land Acquisition Act, 1894‑‑‑Order and decree passed by the Trial Court were set aside and the amount of compensation awarded to the land owners by the authorities was enhanced‑‑‑Land owners were also entitled to receive profits on the amount of compensation at the interest profit rate awarded by National Bank of Pakistan on its saving accounts from the date of issuance of notification under S.4 of Land Acquisition Act, 1894‑‑Appeal, was allowed accordingly.

N.‑W.F.P. through Collector, Abbotabad Land Acquisition and others v. Haji Ali Asghar Khan and others 1985 SCMR 767 rel.

Muhammad Munir Paracha for Petitioners.

Qazi Ahmed Naeem Qureshi Federal Counsel.

Date of hearing: 6th February, 2001.

MLD 2004 LAHORE HIGH COURT LAHORE 804 #

2004 M L D 804

[Lahore]

Before Ali Nawaz Chowhan, J

MUHAMMAD ASIM alias BHOLA‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 3382‑B of 2003, decided on 24th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), S.390‑‑‑Pre‑arrest bail, grant of‑‑‑Case was of further inquiry in which it was to be inquired whether accused was the robber or some other person was the culprit‑‑‑Ad interim pre‑arrest bail granted to accused was confirmed and he was asked to continue joining investigation.

Zafar Iqbal Chowhan for Petitioner.

Muhammad Naeem Saleem for the State.

Date of hearing: 24th June, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 805 #

2004 M L D 805

[Lahore]

Before Jawwad S. Khawaja and Abdul Shakoor Paracha, JJ

MUHAMMAD RAMZAN‑‑‑Petitioner

Versus

FEDERAL LAND COMMISSION and others‑‑‑Respondents

Writ Petitions Nos. 2111 and 3491 of 1991, decided on 22nd April, 2002.

(a) Land Reforms Regulation, 1972 (MLR 115)‑‑‑--

‑‑‑‑Para. 29, third proviso ‑‑‑Suo motu exercise of revisional powers by Federal Government or its authorized officer‑‑‑Scope‑‑‑Such powers could not be exercised after 30‑11‑1976.

Government of N.‑W.F.P. through Secretary, Forests, Fisheries and Wildlife, Peshawar and others v. Federation of Pakistan and. others 1998 SCMR 36 and The Chairman; Federal Land Commission, Islamabad and another v. Akhtar Abbas PLD 1989 SC 550 fol.

(b) Land Reforms Regulation, 1972 (MLR 115)‑‑‑--

‑‑‑‑Para. 29, third proviso‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition ‑‑‑Laches‑‑‑Transfer of land by declaration made on 23‑8‑1969 was finally adjudicated upon on 24‑10‑1973 by order of Additional Chief Land Commissioner‑‑‑Review petition was dismissed by order dated 26‑3‑1976 declaring such transfer as void‑‑‑Chairman, Land Commission set aside such order in suo motu revisional jurisdiction on 5‑5‑1990‑‑‑Constitutional petition was filed after more than one year of passing impugned order‑‑‑Validity‑‑‑Provision of third proviso to para. 29 of Land Reforms Regulation, 1972 had placed complete embargo on suo motu exercise of revisional jurisdiction by Government or its authorized officer after 30‑I1‑1976‑‑‑Impugned order was wholly void, coram non judice and had been passed at petitioner's back without issuing notice‑‑‑Objection as to Constitutional petition being hit by laches was rejected in circumstances‑‑‑High Court accepted Constitutional petition and declared impugned order to be without lawful authority and of no legal effect.

Mahmoona and others v. Ilam Din and 6 others PLD 1984 Lah. 228 and Muhammad Hayatullah Khan and others v. Federal Land Commission PLD 1977 Lah. 166 ref.

Government of N.‑W.F.P. through Secretary, Forests, Fisheries and Wildlife, Peshawar and others v. Federation of Pakistan and others 1998 SCMR 36 and The Chairman, Federal Land Commission, Islamabad and another v. Akhtar Abbas PLD 1989 SC 550 fol.

Ch. Abdul Ghani and Ch. Qadir Bakhsh for Petitioner.

Malik Muhammad Rafiq Rajwana for Respondents.

Date of hearing: 22nd April, 2002.

MLD 2004 LAHORE HIGH COURT LAHORE 814 #

2004 M L D 814

[Lahore]

Before Jawwad S. Khawaja, J

OLYMPIA TEXTILE MILLS through Aurengzeb Mannoo Authorized Director‑‑‑Petitioner

Versus

PROVINCE OF THE PUNJAB through Secretary and others‑‑‑Respondents

Writ Petition No.9565 of 2001, decided on 24th October, 2001.

Punjab Local Government Ordinance (XIII of 2001)‑---

‑‑‑‑S.39(b) & Second Sched., Part‑I‑‑‑Constitution of Pakistan (1973), Fourth Sched., Federal Legislative List, Part‑I, Entry No.48‑‑‑Levy of professional tax by Zila Council on corporate body‑‑‑Validity‑‑‑Such tax could not be levied by Zila Council as only Federation had the power to do so by virtue of Entry No.48 in Federal Legislative List of the Constitution‑‑‑Levy of such tax by Zila Council was constitutionally not permissible.

Amir Ali Shah for Petitioner.

Zahid Alam Khan, A.A.‑G. for Respondent No.1.

Ch. Abdul Wadood for Zila Council.

Date of hearing: 24th October, 2001.

MLD 2004 LAHORE HIGH COURT LAHORE 815 #

2004 M L D 815

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. NAZIRAN BIBI‑‑‑Petitioner

Versus

ABDUL SATTAR and 12 others ‑‑‑Respondents

Civil Revision No. 1729 of 2003, heard on 16th December, 2003.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XLI, R.27‑‑‑Refusal of Appellate Court to allow production of additional evidence‑‑‑Validity‑‑‑Defendant claimed suit property to have been gifted to her by deceased mother, who had no male child‑‑‑Trial Court decreed the suit filed by other heirs‑‑‑Defendant in appeal filed an application for production of certified copies of death entries of her father and mother as additional evidence to show that her father was alive at the time of death of her mother, thus, claiming share of inheritance from her father in case such gift was adjudged‑‑‑Appellate Court dismissed application to have been filed at a belated stageValidity-‑‑Such documents sought to be produced by way of additional evidence, if read in evidence, then fate of proceedings could be different‑‑‑High Court accepted revision petition, set aside impugned judgment and remanded case to Appellate Court for its fresh decision.

Muhammad Aslam Nagi for Petitioner.

Syed Ijaz Hussain Gilani for Respondents.

Date of hearing: 16th December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 819 #

2004 M L D 819

[Lahore]

Before Ch. Ijaz Ahmad, J

MUSHTAQ MASIH‑‑‑Petitioner

Versus

PAK FEEDS INDUSTRIES (PVT.) LTD. through Managing Director, Gujranwala and 2 others‑‑‑Respondents

Writ Petition No. 18516 of 2002, decided on 16th February, 2004.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Grievance of the petitioner was that the respondents had terminated his services illegally and the Tribunals below had erred in law to non‑suit the petitioner, their judgments being a result of misreading and non‑reading of evidence‑‑High Court under Constitutional jurisdiction found that both the Tribunals below, after proper appreciation of evidence, had concurrently decided against the petitioner‑‑‑Petitioner had failed to point out any piece of evidence, which was misread or non‑read by both the Tribunals below or they had violated any provision of law .wile non‑suiting the petitioner‑‑ ‑Petitioner had also failed‑ to point , out that the action of the respondents was violative of any provisions of law‑‑Constitutional petition, in circumstances, was held to be non maintainable.

Ali Mir's case PLD 1984 SCMR 433 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Concurrent findings of inferior Tribunals‑‑‑Effect‑‑‑Constitutional petition was not maintainable in the High Court against the concurrent findings of the Tribunals below.

Khuda Bukhsh v. Muhammad Sharif and another 1974 SCMR 279; Muhammad Sharif v. Muhammad Afzal Sohail and others PLD 1981 SC 246 and Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 ref.

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑High Court had no jurisdiction to substitute its findings in place of findings of Tribunals below.

M. Massadaq Naseem Sindhoo's case PLD 1973 Lah. 600 and Syed Azmat Ali v. Mst. Aimna Bibi PLD 1964 SC 260 ref.

Justin Gill for Petitioner.

Umar Kasuri and Sheharyar Kasuri for Respondents.

MLD 2004 LAHORE HIGH COURT LAHORE 824 #

2004 M L D 824

[Lahore]

Before Nasim Sikandar, J

SARDAR ALI ‑‑‑Petitioner

Versus

MUHAMMAD‑UL‑DIN and 9 others‑‑‑Respondents

Civil Revision No.2849 of 2000, decided on 21st November, 2003.

Specific Relief Act (I of 1877)‑‑‑--

‑‑‑‑S. 9‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for possession‑‑‑Plaintiff claimed to have been forcibly evicted from the property of which he was the owner in possession‑‑‑Dismissal of the suit of the plaintiff by the trial Court‑‑‑Appellate Court on appeal, through the impugned judgment reversed the findings of the trial Court to restore possession of the plaintiff‑‑‑High Court under revisional jurisdiction found that the impugned judgment betrayed lack of proper application of mind‑‑‑Record showed that plaintiff tried to get benefit from revenue entries created by way of dubious correction in the Revenue Record and had no knowledge of material facts regarding the purchase and value of the said property‑‑‑Report of local commissioner was no considered by the Appellate Court according to which the correction introduced in the Revenue Record through which the plaintiff claimed ownership of the property was doubtful and was not made after seeking permission from the Competent Authority‑‑‑Impugned order of the Appellate Court, in circumstances, was reversed and that of the trial Court restored by High Court.

M.M. Alam for Petitioner.

Malik Abdul Latif for Respondent No.1.

Zafar Iqbal Ch. For Respondents.

MLD 2004 LAHORE HIGH COURT LAHORE 827 #

2004 M L D 827

[Lahore]

Before Muhammad Muzammal Khan, J

NAWAB DIN‑‑‑Appellant

Versus

ABDUL KHALIQ and another‑‑‑Respondents

Regular Second Appeal No.65 of 2001, decided on 15th December, 2003.

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

‑‑‑‑S.12‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.59‑‑‑Suit for specific performance of agreement to sell‑‑‑Defendant alleged the agreement, pronote and receipt of sale price to be forged documents ‑‑‑Proof‑‑Marginal witnesses to such documents deposed that same had been thumb‑marked in their presence‑‑‑Scribe of such documents deposed that he had scribed same at defendant's instruction, which were read over to him and he had thumb‑marked same in his presence‑‑‑All such witnesses not having personal interest in suit property would not be taken to have deposed falsely against defendant‑‑‑Defendant, inspite of knowing about such documents at least from date of suit had neither got them annulled from any Court or authority nor proceeded against plaintiff for committing forgery‑‑‑Defendant had not taken any civil or criminal action against plaintiff, when he took forcible possession of suit property‑‑‑Report of Finger Print Expert had confirmed thumb impressions on such documents to be that of defendant‑ ‑‑Defendant inspite of Court's offer refused to cross‑examine Finger Print Expert in support of his objections‑‑Defendant had not explained as to how plaintiff had got his thumb‑impressions on the documents‑‑‑Such documents were, held, to have been executed by defendant.

Mst. Ashraf Alia v. Dr. Asif Majeed 1991 CLC 53 distinguished.

(b) Document‑‑‑

‑‑‑Execution of‑‑‑Proof‑‑‑Witness‑‑‑Only relatives and friends of a party coming to attest document in his favour‑‑‑Such friendship between party and attesting witnesses would not be enough to brush aside impact of their evidence.

‑‑‑‑S.52‑‑‑"Complete sale" and "agreement to sell" ‑‑‑Distinction‑‑Delivery of possession is a requirement of complete sale and not that of an agreement to sell.

A. Karim Malik for Appellant.

Faiz Muhammad Bilal for Respondent.

Respondent No.2‑Ex‑parte.

Date of hearing: 9th December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 835 #

2004 M L D 835

[Lahore]

Before Sardar Muhammad Aslam, J

WAH CEMENT COMPANY EMPLOYEES' MANAGEMENT GROUP, WAH through its Authorized and another‑‑‑Petitioners

Versus

STATE CEMENT CORPOPRATION OF PAKISTAN, (PRIVATE LIMITED through its Chairman) and 3 others‑‑‑Respondents

C.O.S. No. 19 of 2000, decided on 13th February 2004.

Arbitration Act (X of 1940)‑‑‑

‑‑----Ss.8, 14, 20, 30 & 41‑‑‑Award, setting aside of‑‑‑Failure to give sufficient reasons‑‑‑Dispute between the parties was referred to arbitrator for decision in terms of arbitration agreement‑‑‑One of the clauses of the sale agreement had mentioned in clear terms that plant and machinery or the land, building and structures of old plant would not be subject of sale and the area of old plant would remain cordoned off by a boundary wall‑‑‑Another clause of the sale agreement provided that buyer 'would be responsible for payment/discharge of all liabilities including that of old plant‑‑‑Petitioner sought setting aside of award on the ground that the award was made in violation of the sale agreement between the parties and no sufficient reasons had been given in support of the award‑‑Validity‑‑‑Both the clauses of the sale agreement were complied with by the arbitrator‑‑‑Award could not be set aside merely on the ground that arbitrator had not given sufficient reasons in support of award‑‑Arbitrator had given opportunity of hearing to the parties, considered their case in detail, examined the documents and thereafter recorded finding which contained the reasons‑‑‑Petitioner being bound by the express terms could not legitimately make any grievance‑‑‑No error or infirmity in the award was discovered‑‑‑Award was made rule of the Court.

Messrs Joint, Venture KG/Rist through D.P. Giesler G.M. Bongard Strasse 3,4000, Dusseldorf‑30, Federal Republic of Germany, C/O 15 Shah Charagh Chambers, Lahore and 2 others v. Federation of Pakistan, through Secretary Food, Agricultural and Cooperation and others PLD 1996 SC 108; Messrs Khan Brothers and Associates v. Director General Food, Government of Pakistan 1998 CLC Kar. 1671; Zakaullah Khan v. Government of Pakistan through Secretary, Buildings and Roads Department, Lahore PLD 1998 Lah. 132; Messrs World Circle Limited v. State Cement Corporation of Pakistan Ltd. 1997 CLC Kar. 212; Messrs Quality Builders Ltd. v. Karachi Metropolitan Corporation 1999 CLC 1777 Kar.; Ghee Corporation of Pakistan (Pvt.) Limited v. Broken Bill Proprietary Company Limited through their Local Agents PLD 1999 Kar. 112; Messrs Income Services v. Messrs Sui Gas Transmission PLD 1993 Kar. 429; Messrs Abdullah Traders through Partner Mukhtar Ahmad v. Trading Corporation of Pakistan through Chairman, Attorney, Principal Officer and 2 others 1999 CLC Karachi 2047 and Champsey Bhara & Co. v. Jvrajhy Balloo Spinning and Weaving Company Ltd. AIR 1923 P.C. 66 rel.

Muhammad Munir Paracha for Petitioner.

Raja Muhammad Akram for Respondent.

Date of hearing: 19th December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 841 #

2004 M L D 841

[Lahore]

Before Maulvi Anwarul Haq, J

QAIM DIN‑‑‑Petitioner

Versus

MUHAMMAD FAZAL and another‑‑‑Respondents

Civil Revision No.37 of 2001, heard on 16th February, 2004.

Specific Relief Act (I of 1877)‑‑‑--

‑‑‑‑Ss.39 and 42‑‑‑Qanun‑e‑Shahadat (X of 1984), Art.72‑‑‑Civil Procedure Code (V of 1908), S.115 & O.LXI, R.23‑‑‑Execution of document‑‑‑Onus to prove‑‑‑Additional issue, framing of‑‑‑Plaintiff denied having executed the registered sale‑deed in favour of the defendant acid claimed the mutation as fictitious and illegal‑‑‑Suit was dismissed by the Trial Court but Appellate Court after framing additional issue, remanded the case to the Trial Court for decision afresh‑‑Additional issue‑framed by the Appellate Court was with regard to the proof of execution of sale‑deed‑‑‑Validity‑‑‑Whether it be registered sale deed or a mutation, the moment there was a dispute, the burden was upon the beneficiary to prove the same‑‑‑By way of remand order passed by the Appellate Court, the defendant had been given a chance to prove the validity of sale and execution of the sale‑deed alleged by him in his favour‑‑‑Revision was dismissed in circumstances.

Mst. Sughra Bibi alias Mehran Bibi v. Asghar Khan and another 1988 SCMR 4; Mehr Din (represented by his Legal Heirs v. Dr. Bashir Ahmad Khan and 2 others 1985 SCMR 1; Munir Ahmad v. Ghulam Qadir 2000 CLC 2000; Mst. Sughran Bibi and others v. Mst. Jameela Begum and others 2001 SCMR 772 and Abdul Majeed and 6 others v. Muhammad Subhan and 4 others 1999 SCMR 1245 ref.

Nasir Saeed Sheikh for Petitioner.

Raja Maqbool Husnain for Respondent.

Date of hearing: 16th February, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 850 #

2004 M L D 850

[Lahore]

Before Mansoor Ahmad, J

COMPUTER DATA SYSTEMS (PVT.) LTD. through Managing Director‑‑‑Petitioner

Versus

Mst. SHAHNAZ ZAFAR and another‑‑‑Respondents

Civil Revision No.375‑D of 2003, decided on 20th January, 2004.

Specific Relief Act (I of 1877)‑‑‑--

‑‑‑‑S.42‑‑‑Easements Act (V of 1882), Ss.22, 28 & 35‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2‑‑‑Interim injunction, grant of‑‑"Irreparable loss" and balance of convenience‑‑‑Connotation‑‑‑Prima facie case was of irreparable loss and balance of convenience ‑‑‑Scope‑‑Obtaining loan for construction‑‑‑Suit building was commercial plaza and plaintiff was occupying the second floor as tenant while he was owner of two rooms on the third floor‑‑‑Defendant was owner of a portion in the plaza and had already constructed 3rd and 4th floor while intended to construct 5th and 6th floor‑‑‑Building plan for 5th and 6th floor was approved by the Cantonment Board‑‑‑Plaintiff was aggrieved of the proposed construction‑‑‑Interim injunction granted by Trial Court, restraining the defendant from raising any construction was set aside by Appellate Court‑‑‑Plea raised by the plaintiff was that it was his right to enjoy his possession as well as easement rights without interruption‑‑‑Validity‑‑‑Plaintiff merely for the reason of ownership of two rooms on the 3rd floor and enjoying an advantage of running a business on second floor as tenant would not have prima facie case as against owner in respect of other floors to impose easement‑‑‑Such imposing of easement rights would tantamount to abridging the rights to enjoy their properties‑‑‑Plaintiff was jealous about his own rights disregarding the rights of the others‑‑‑Would be unfair to curtail the rights of ether absolute owners to enjoy and improve their property merely because the plaintiff intended to have more peaceful enjoyment of his tenancy and ownership in respect of two rooms‑‑‑In multistoried commercial buildings the rights of owners and the occupants had to be balances and the easement rights had also to be considered in a manner that it did not put a complete restraint on the rights of the others‑‑‑Defendant who prima facie appeared to be the owner in respect of major part of 3rd and 6th floor was being deprived of her right to enjoy property‑‑‑Appellate Court took note of the fact that the loan obtained by the defendant was multiplying‑‑‑"Irreparable loss" meant such loss which could not adequately be remedied by award of damages and the "balance of convenience" meant the balance of mischief or inconvenience toy the parties‑‑‑No irreparable loss would accrue to the plaintiff while oh the other hand balance of convenience tilted in favour of the defendant who was being obstructed from completing the finishing part of the construction on 3rd and 4th floor and raising any further construction on 5th and 6th floors‑‑‑Order passed by the Appellate Court was upheld by High Court.

Datari Construction Company v. A. Razzak Adamjee 1995 CLC 846; Mst. Kausar Musa Jee v. Niaz Ahmad 2000 SCMR 1823; Qamarud Din Soomro v. Administrator Municipal Committee Ratoderao 2000 CLC 633; Multiline Associate v. Ardeshir Cowasjee and others 1995 SC 423; Messrs Continental (Pvt.) Ltd. v. Government of Sindh through Secretary House Town Planning Department Karachi 1996 CLC 417; Abdul Razzak v. Karachi Building Controlling Authority PLD 1994 SC 512; Muhammad Saleem v. Salamat Ullah 1988 CLC 2313 and Bakhtawar and others v. Amin and others 1980 SCMR 89 ref.

Dr. Babar Awan for Petitioner:

Malik Qamar Afzil, Mirza Viqas for Respondent No. 1.

Qazi Ahmad Naeem for Respondent No.2 with Shahid Hamid Dy. MEO.

Date of hearing: 19th December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 859 #

2004 M L D 859

[Lahore]

Before Ch. Ijaz Ahmad and Mian Hamid Farooq, JJ

SAEED AHMAD MALIK ‑‑‑Appellant

Versus

Rana MUZAFFAR ALI ‑‑‑Respondent

Regular First Appeal No.358 of 1996, heard on 17th February, 2004.

(a) Administration of justice‑‑‑--

‑‑‑‑ Act of Court‑‑‑No body could be penalized by act of Court.

Mian Irshad Ali v. Government of Pakistan through Secretary, Ministry of Rehabilitation, Islamabad and 13 others PLD 1975 Lah. 7 ref.

(b) Administration of justice‑‑‑--

‑‑‑‑Technicalities‑‑‑Cases be decided on merits instead of technicalities.

Said Muhammad and others v. M. Sardar and others PLD 1989 SC 532 ref.

‑‑‑‑S.12‑‑‑Civil Procedure Code (V of 1908), O.XVII, R.3‑‑‑Specific performance of agreement to sell‑‑‑Striking off defence‑‑‑Penal provisions of O.XVII, R.3 C.P.C.‑‑‑Applicability‑‑‑Agreement to sell the suit land for a sum of Rs.94,00,000/‑ was executed by defendant in favour of the plaintiff and a sum of Rs.50,00,000/‑ had been paid by the plaintiff as earnest money‑‑‑Three adjournments were sought by the plaintiff for producing his evidence but on his failure to produce the evidence on the third date, the Trial Court struck off the defence of the plaintiff resultantly the suit was dismissed‑‑‑Validity‑‑‑Trial Court did not give sufficient opportunity to the plaintiff to produce the evidence, therefore, the Trial Court committed material irregularity‑‑‑Trial Court had the discretion to close the evidence of the parties under O.XVII, R.3 C.P.C.‑‑‑Such discretion was to be exercised judiciously on relevant considerations in the light of attending facts and circumstances of each case and not whimsically or arbitrarily‑‑‑Power conferred on Court under O.XVII, R.3 C.P.C. was very drastic and should be used only in exceptional cases like when the Court was satisfied that party was trifling with Court or contemptuous to the proceedings or was purposely absenting himself in order to harass the adversary‑‑‑Dismissal order passed by the Trial Court was set aside by High Court and one opportunity was given to the plaintiff to produce his evidence subject to payment of cost‑‑‑Appeal was allowed accordingly.

Mst. Zahida Begum and another v. Muhammad Shafique PLD 1997 SC 73; Muhammad Aslam and others v. Ijaz Ahmad and others 1982 SCMR 622; Amir and another v. Sardar Ahmad 1985 SCMR 1223(2); PLD 1992 AJK 205; Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 and Abdul Rashid and another v. Fazal Karim NLR 1981 AC 88 ref.

Malik Muhammad Ashraf for Appellant.

Ghulam Sabir for Respondent.

Date of hearing: 17th February, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 863 #

2004 M L D 863

[Lahore]

Before Abdul Shakoor Paracha, J

Mst. SHAZIA NADEEM‑‑‑Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, RAWALPINDI and 11 others‑‑‑Respondents

Writ Petition No.2788 of 2003, decided on 3rd November, 2003.

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

‑‑‑‑S.9‑‑‑Civil Court, jurisdiction of‑‑‑Determination as to whether a person was the real owner or just a Benami of a property was a question to be decided by the civil Court.

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

‑‑‑‑Art.199‑‑‑Criminal Procedure Code (V of 1898), Ss. 154 & 439‑‑ Constitutional petition‑‑‑Refusal to register case‑‑Petitioner was deprived of her lawful ownership and possession of the house and articles by her husband with the help of police and criminal associates‑‑‑Application of the petitioner to issue directions for registering a case in this regard was denied by the Additional Sessions Judge through the impugned order despite a report of an Inquiry Officer in favour of the petitioner‑‑Contention of the respondent that the Constitutional petition of the petitioner was not maintainable because the impugned order was revisable under S.439 of Criminal Procedure Code, 1898 was refuted by the High Court‑‑‑Examination of the impugned order revealed that it was not passed under the provisions of Criminal Procedure Code, 1898, therefore, the same was not revisable under S.439 of the Code‑‑‑Findings of the Additional Sessions Judge were not relevant in the context of the case and were not warranted under the law‑‑‑Additional Sessions Judge, in circumstances was obliged to see that if the contents of the application of the petitioner submitted to the police provided for registration of a cognizable case, why the police official had not exercised his jurisdiction under S.154, Cr.P.C.

‑‑‑‑Art.199‑‑‑Criminal Procedure Code (V of 1898), Ss. 154 & 439‑‑Constitutional petition‑‑‑Refusal to register case‑‑‑Petitioner was deprived of her lawful ownership and possession of the house and articles by her husband with the help of police and criminal associates‑‑Social conditions with regard to highhandedness of the police in allowing trespass into houses of citizens and providing assistance to criminals deprecated by High Court‑‑‑Act of the police alongwith other respondents was declared to be without lawful authority and they were directed to restore the possession of the house to the petitioner.

Malik Ghulam Mustafa Randhawa for Petitioner.

Malik Waheed Anjum for Respondent No.7.

Raja Saeed Akram Khan, A.A.‑G.

ORDER

MLD 2004 LAHORE HIGH COURT LAHORE 873 #

2004 M L D 873

[Lahore]

Before Maulvi Anwarul Haq, J

IMRAN MALIK and another‑‑‑Petitioners

Versus

Mrs. FARZANA QAYYUM and another‑‑‑Respondents

Civil Revision No.545 of 2000, heard on 22nd January, 2004.

Arbitration Act (X of 1940)‑‑‑--

‑‑‑‑Ss.30 & 33, second proviso‑‑‑Arbitration (Amendment) Ordinance (XXVII of 1977), S.2‑‑‑General Clauses Act (X of 1897), S.7‑‑Arbitration award‑‑‑Objections‑‑‑Repealing of statute‑‑‑Furnishing of security under S.33, second proviso, of Arbitration Act, 1940‑‑‑Plea raised by the petitioner was that as the second proviso had been omitted from the Arbitration Act, 1940, therefore, security could not be deposited‑‑‑Contention of the respondent was that the statute omitting the second proviso of S.33 of Arbitration Act, 1940, was repealed, therefore, the proviso was revived and the Trial Court had rightly asked the petitioner to furnish the security‑‑‑Validity‑‑‑If it was intended to revive either wholly or partially any enactment that had been wholly or partially repealed, an express statement in the repealing statute had to be made‑‑‑No such express statement in the repealing statute was present that the purpose of the same was to revive the second proviso to S.33 of Arbitration Act, 1940, which had been omitted by the Arbitration (Amendment) Ordinance, 1977‑‑‑Order of Trial Court directing the petitioner to deposit the security equivalent to the amount of award, was set aside.

Afnan Karim Kundi for Petitioners.

Raheel Malik and Raja Amjad Iqbal for Respondents.

Date of hearing: 22nd January, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 875 #

2004 M L D 875

[Lahore]

Before Muhammad Muzammal Khan, J

SHOUKAT ALI and others‑‑‑Petitioners

Versus

MUHAMMAD ANWAR and others‑‑-Respondents

Civil Revision No.629 of 2003, decided on 16th February, 2004.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑--

‑‑‑‑Art.72‑‑‑Document, execution of‑‑‑Onus to prove‑‑‑Party challenging any document has simply to deny its execution whereafter onus to prove the same through positive evidence shifts on the person drawing any benefit through it.

Hakim Khan v. Nazeer Ahmed Lughmani and 10 others 1992 SCMR 1832; Mst. Bakht Bano v. Mst. Zainab Khatoon 1991 MLD 2389; Niaz Ali and 16 others v. Muhammad Din through Legal Heirs and 13 others PLD 1993 Lah. 33 and Mst. Rasul Bibi v. Nasrullah Khan 1994 CLC 1774 ref.

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

‑‑‑‑Ss.8 & 42‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.72 & 79‑‑Declaration of title and recovery of possession‑‑‑Execution of power of attorney‑‑‑Onus to prove‑‑‑Non‑production of original power of attorney‑‑‑Effect‑‑‑Failure to produce marginal witnesses or scribe of the document‑‑‑Plaintiff denied having executed any power of attorney in favour of the defendant and also denied sale of the suit land‑‑‑Plaintiff was resident of place "G" while the power of attorney was attested at place "S"‑‑‑Suit land was sold by the attorney to different persons on the basis of disputed power of attorney‑‑‑Attorney though appeared as a witness, yet did not produce the original power of attorney in the Court, wherefrom thumb impression/signatures could have been compared‑‑Attorney also failed to explain as to why the power of attorney was executed at a place other than the place of residence of the plaintiff‑‑None of the marginal witnesses of the power of attorney was produced and its scribe was also withheld‑‑‑Trial Court decreed the suit but the Appellate Court dismissed the same‑‑‑Validity‑‑‑On account of non production of marginal witnesses, power of attorney could not be said to have been executed by the plaintiff merely on the basis of statement of the attorney without any independent corroboration of his statement‑‑Judgment and decree passed by the Appellate Court was contrary to the evidence on record as well as to the settled propositions of law‑‑Appellate Court acted illegally and with material irregularity while deciding the appeal‑‑‑High Court in exercise of revisional jurisdiction set aside the judgment and decree passed by the Appellate Court and that of the Trial Court was revived.

Muhammad Khan v. Mst. Rasul Bibi PLD 2003 SC 676 ref.

‑‑‑‑S.42‑‑‑Declaration of title‑‑‑Sale of suit land through attorney‑‑Plaintiff denied execution of power of attorney in favour of the vendor‑‑None of the witnesses deposed that bargain was struck in his presence and sale price was paid to the plaintiff‑‑‑Effect‑‑‑Execution of power of attorney itself having not been proved, any act done by the alleged attorney (vendor) had no sanctity under law‑‑‑Sale deed executed by the attorney (vendor) was of no consequence having been executed without any authority‑‑‑Sale was set aside in circumstances.

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

‑‑‑‑Arts.72, 117 & 120‑‑‑Execution of power of attorney‑‑‑Onus to prove‑‑‑Plea of Pardahnashin and illiterate lady‑‑‑Effect‑‑‑Such ladies are protected under law and transactions by such women require more authentic and clear positive proof‑‑‑Beneficiary of such document has to bring evidence on file to show that the lady had executed the document out of her free will after understanding the impact of the same by having some independent advice.

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

‑‑‑‑Ss.39 & 42‑‑‑Declaratory suit‑‑‑Limitation‑‑‑Proceedings before Settlement Authorities regarding suit property concluded on 1.3.1982 and the suit was filed on 22.1.1985‑‑‑Validity‑‑‑Declaratory suit in the form of suit under S.39 of Specific Relief Act, 1877, could be filed within six years from the date of cause of action which in the present case arose on final determination of title of the plaintiff‑‑‑From the date of determination of title, the suit filed within a period of less than three years was within limitation.

Shaukat Hussain Khan Baloch for Petitioners.

Nemo for Respondents.

Date of hearing: 16th January, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 882 #

2004 M L D 882

[Lahore]

Before Abdul Shakoor Paracha, J

KHALID MEHMOOD‑‑‑Petitioner

Versus

Mst. ZOHRA BEGUM and others‑‑‑Respondents

Writ Petition No.565 of 2004, decided on 29th January, 2004.

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

‑‑‑‑O. VII, R.11 & S.115‑‑‑ Constitution of Pakistan (1973), Art. 199‑‑Petitioner through a suit had challenged the vires of the gift made by his surviving father in favour of the respondents‑‑‑Suit of the petitioner was rejected by the trial Court under O.VII, R. 11, C.P.C. on the ground that the impugned gift made by a surviving father could not be challenged under the law‑‑‑Appellate Court dismissed the appeal of the petitioner through the impugned order on the same ground‑‑‑Petitioner challenged the impugned order under Constitutional petition‑‑‑Revision under S.115, C.P.C. would lie against the impugned order passed against the petitioner, and he need not have resorted to Constitutional petition.

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

‑‑‑‑Art.199‑‑‑Constitutional petition ‑‑‑Maintainability‑‑‑Vires of gift made by a surviving father‑‑‑Petitioner through a suit had challenged the vires of the gift made by‑ his surviving father in favour of the respondents‑‑‑Suit of the petitioner was rejected by the trial Court on the ground that impugned gift made by a surviving father could not be challenged under the law‑‑‑Appellate Court dismissed the appeal of the petitioner through the impugned order on the same ground‑‑‑Plaintiff challenged the impugned order under Constitutional petition ‑‑‑Validity‑‑ Constitutional petition was not maintainable as the father of the petitioner who made the alleged gift was alive but was not impleaded as respondent in the suit‑‑‑Gift made by a surviving father in favour of a person could not be challenged under the law.

Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624 ref.

‑‑‑‑S.2‑‑‑Power of Attorney of Advocate‑‑‑Effect‑‑‑Authority to withdraw a case‑‑‑Parties in litigation are bound by the bona fide acts of their counsel acting within the scope of their authority‑‑‑Unless there was anything to the contrary in the Wakalatnama an advocate may abandon an issue.

Raja Ali Bahadur Khan v. Mir Hussain Khan and 2 others PLD 1979 SC AJK 47 and Munshi Muhammad Afzal Khan and another v. Khadam Hussain Khan PLD 1978 SC AJ&K 73 ref.

Petitioner in person.

MLD 2004 LAHORE HIGH COURT LAHORE 888 #

2004 M L D 888

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD IQBAL and others‑‑‑Appellants

Versus

FAKHAR‑UL‑ISLAM and 3 others‑‑‑Respondents

Regular Second Appeals Nos.35, 36, 67 and 68 of 1996, decided on 15th December, 2003.

(a) Registration Act (XVI of 1908)‑‑‑

‑‑‑‑S.49‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 90 & 91‑‑‑Presumption of correctness is attached to documents that are registered under Registration Act, 1908.

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

‑‑‑‑S.12‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.114‑‑‑Suit for specific performance ‑‑‑Estopple, principle of‑‑‑Applicability‑‑‑Plaintiff claimed specific performance of agreements to sell against the defendants with respect to certain lands‑‑‑Sale‑deeds were found to have been executed in favour of other persons by the defendants for the said lands claimed by the plaintiff‑‑‑Court, after appraisal of the evidence found that the said sale‑deeds had been executed with the consent of the plaintiff, and thus he was estopped to seek cancellation of those sale‑deeds and pray for specific performance of the agreements‑‑‑Specific performance was rightly refused in circumstances.

Noman Qureshi for Appellants.

Jehangir A. Jhoja for Respondents.

Date of hearing: 8th December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 894 #

2004 M L D 894

[Lahore]

Before Ch. Ijaz Ahmad, J

ABDUL GHAFOOR and others‑‑‑Appellants

Versus

Mst. ANWAR JEHAN BEGUM and others‑‑‑Respondents

Regular Second Appeal No.51 of 1990, heard on 16th January, 2004.

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

‑‑‑‑S.22‑‑‑Specific performance‑‑‑Discretion of Court ‑‑‑Principles‑‑Specific performance of agreement was a discretionary relief in terms of S.22 of the Specific Relief Act, 1877‑‑‑Principles provided in the said provision of the Act and further highlighted by the superior Courts should be considered while granting or refusing equitable relief of ‑specific performance ‑‑‑Laches or waiver on the part of the plaintiffs was not one of the grounds mentioned in S.22 of the Act to disentitle relief of specific performance, but as the conduct of the plaintiffs was a factor to be equally considered, delay in not taking a suitable action on the part of the plaintiffs would disentitle them to this equitable relief‑‑‑Relationship between consequences of delay and acts done by parties during the interval before taking suitable action explained in terms of plaintiffs' remedy.

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

‑‑‑‑S.22‑‑‑Suit for specific performance‑‑‑He who seeks equity must come to the Court with clean hands‑‑‑Application of‑‑‑Plaintiffs had filed the suit after a period of 13 years of execution of the agreement to sell and had failed to fulfill certain conditions mentioned therein‑‑‑Plaintiffs were not entitled to equitable relief of specific performance as they had not come to the Court with clean hands.

‑‑‑S.22‑‑‑Suit for specific performance‑‑‑Non‑production of evidence‑‑Effect‑‑‑Suit for specific performance, dismissal of‑‑‑Plaintiffs had failed to bring on record sufficient material in order to prove that certain deeds were not executed subsequent to their agreements to sell‑‑‑Said deeds being registered, therefore, it was a heavy duty upon the plaintiffs to rebut the same with reliable evidence but they failed to do so‑‑‑Courts, in circumstances, were justified to give weight to the said deeds and dismiss the suit of the plaintiffs.

Rahim Bakhsh's Case 1992 CLC 2433 ref.

(d) Registration Act (XVI of 1908)‑‑‑--

‑‑‑‑S.49‑‑‑Effect of registration‑‑‑Principles‑‑‑Registered documents had sanctity attached to them and stronger evidence was thus required to disprove their genuineness.

Mirza Muhammad Sharif and others v. Mst. Nawab Bibi and others 1993 SCMR 462 ref.

(e) Administration of justice‑‑‑‑--

‑‑‑‑ Each and every case was to be decided on its own facts and circumstances.

Ch. Khurshid Ahmad for Appellants.

Tariq Masood Khan and Ahmad Waheed Khan for Respondent.

Date of hearing: 16th January, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 910 #

2004 M L D 910

[Lahore]

Before Muhammad Farrukh Mahmud and Sh. Hakim Ali, J

MUHAMMAD YOUSUF‑‑‑Appellant

Versus

MUHAMMAD IDREES and others‑‑‑Respondents

Criminal Appeal No. 171 of 2002/BWP, heard on 22nd January, 2004.

(a) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Burden of proof‑‑‑Prosecution to get the accused convicted in an offence of capital punishment is bound to prove its case wherein no weakness could be found to give the benefit of doubt to the accused.

(b) Penal Code (XLV of 1860)‑‑--

‑‑‑‑Ss. 302/364/34‑‑‑Criminal Procedure Code (V of 1898), S.417(2‑A)‑‑Appeal against acquittal‑‑‑Motive alleged by the complainant in the F.I.R. was nothing more than mere throwing pebbles in the river without any justification‑‑‑Last seen evidence was not proved up to the hilt which was based on contradictory statements of the witnesses and improbable prosecution version‑‑‑Prosecution had failed to prove the motivating force behind the extra judicial confession which had compelled the accused to open his mouth with regard to the performance of his criminal act and this important factor being missing the confession was not proved‑‑‑Recovery of weapon of offence was, not believable as the accused could not be expected to have kept the same in safe custody for its discovery‑‑‑Blood could not possibly be found on the "Chhuri" after a month of its use‑‑Prosecution case was based on implausible and incredible story and the appreciation of evidence had not led to the only conclusion of the guilt of the accused‑‑‑Appeal against acquittal of accused was dismissed accordingly.

Sarfraz Khan v. The State and 2 others 1996 SCMR 188 and Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928 ref.

‑‑‑‑S.164‑‑‑Confession‑‑‑Extra judicial confession‑‑‑Essential ingredients‑‑‑Four ingredients are essential to believe an extra judicial confession‑‑‑Firstly, that the extra judicial confession was in fact made; secondly, that it was voluntarily made; thirdly, that it was truly made and fourthly that the motivating force behind it was proved, because an accused cannot be believed to open his mouth with regard to the performance of his criminal acts unless and until there is a reason behind it.

Sarfraz Khan v. The State and 2 others 1996 SCMR 188 ref.

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

‑‑‑‑S. 417‑‑‑Penal Code (XLV of 1860), S.302/364/34‑‑‑Appeal against acquittal‑‑‑Concept‑‑‑To get an acquittal converted into conviction is a difficult job for the prosecution; it is like a liberated bird who had flown away towards the limitless space and free air, but now prosecution wants to get him back again into his cage‑‑When rights of liberty have, once been granted to an accused by the Trial Court on sound judicial principles of appreciation of evidence and after observing and delivering cogent explanations in accordance with judicial conscience especially with regard to his acquittal, the judgment cannot be set aside, merely to satisfy the itching passion of the complainant‑‑‑Judgment must be proved to have been delivered with foolish appreciation of evidence, with perverse actions and where the reasons adduced for the release of accused were not acceptable to a mind of a prudent man.

Ch. Riaz Ahmad for Appellant.

Nemo for Respondents:

Date of hearing: 22nd January, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 918 #

2004 M L D 918

[Lahore]

Before Tanvir Bashir Ansari, J

SULTAN KHAN and 3 others‑‑‑Petitioners

Versus

SULTAN KHAN‑‑‑Respondent

Civil Revision No.306 of 2003, heard on 19th January, 2004.

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

‑‑‑‑S.115(1)‑‑‑Revision‑‑‑Furnishing of certified copies of documents‑‑Requirement‑‑‑Scope‑‑‑Petitioner under S.115(1) C.P.C., was obliged to furnish copies of pleadings, documents and the orders of subordinate Court along with the revision petition,‑‑Word certified' is conspicuous by its absence in S.115(1) C.P.C.‑‑‑Inference from omission of wordcertified' in the statute is clearly to absolve the revision petitioner from filing such copies of the judgment etc. along with the revision petition.

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

‑‑‑‑S. 115(1)‑‑‑Limitation Act (IX of 1908), S.12‑‑‑Revision‑‑Condonation of delay‑‑‑Reason for filing the revision beyond the period of limitation was delay caused by Copying Agency in preparing the certified copies‑‑‑Validity‑‑‑Subordinate Court was obliged under S.115(1), second proviso, C.P.C. to provide a copy of decision within three days thereof and there was no requirement of law that such copy would be a `certified' copy‑‑‑Petitioner was obliged to have approached the Trial Court which passed the judgment and decree to obtain a copy of the same‑‑‑Once an application for copy was made to the Trial Court and there was a failure of the Court to provide the copy within the, prescribed period of three days, the petitioners could have sought condonation of delay on the ground that it was beyond their control to obtain a copy from the lower forum‑‑‑No such application was made by the petitioners to the Trial Court‑‑‑Approaching the Copying Agency for obtaining certified copy of the judgment was neither apt nor necessary and would not in any manner extend the benefit of S.12 of Limitation Act, 1908 to the petitioners‑‑‑High Court declined to condone the delay caused in filing of revision petition because of time consumed by Copying Agency in preparation of the certified copies‑‑‑Revision was dismissed in circumstances.

Shujahat Hussain v. Muhammad Habib and others 2003 SCMR 176 distinguished.

‑‑‑‑S. 115(1)‑‑‑Revision‑‑‑Duty of Court to provide copy of its decision within three days‑‑‑Object and scope‑‑‑Legislature while amending S.115 C.P.C. was alive to the requirement of law and procedure that civil revisions should be filed promptly and decided expeditiously, otherwise there was no occasion to have burdened the subordinate Court with the duty of providing a copy of its decision to an intending petitioner within three days.

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

‑‑‑‑S.115(1), second proviso‑‑‑Limitation Act (IX of 1908), Ss.4, 9, 18 & 22‑‑‑Revision‑‑‑Limitation‑‑‑Scope‑‑‑Special and specific period of limitation has been provided in S.115, second proviso, C.P.C. which is different from the period prescribed by first schedule of Limitation Act, 1908‑‑‑Provisions of Ss.4, 9, 18 and 22 of Limitation Act, 1908, are applied only insofar as, and to the extent to which they are not expressly excluded by provisions of such special or local laws.

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

‑‑‑‑S. 115(1)‑‑‑Revision, filing of-Obtaining a certified copy‑‑Procedure‑‑‑Imperative for petitioner who intends to invoke S.115 C.P.C. to apply and obtain a copy of judgment from the concerned subordinate Court and applying for a certified copy to the Copy Branch would be violative of the proviso to S.115(1) C.P.C.

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

‑‑‑‑S.115‑‑‑Revisional jurisdiction of High Court‑‑‑Scope‑‑‑Time‑barred revision‑‑‑High Court under such jurisdiction can take suo motu notice of any illegality or material irregularity committed by the lower Court, despite the fact the revision is barred by time.

Razzaq A. Mirza for Petitioners.

Malik Muhammad Kabir for Respondent.

Date of hearing: 19th January, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 923 #

2004 M L D 923

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

LAHORE DEVELOPMENT AUTHORITY through Director‑General, LDA Lahore and 3 others‑‑‑Petitioners

Versus

Haji ABDUL QADOOS‑‑‑Respondent

Civil Revision No.313 of 1998, heard on 10th February, 2004.

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

‑‑‑‑S.96 & O.VIII‑, R.10‑‑‑Appeal, continuation of suit‑‑‑Finality of judgment‑‑‑Suit for permanent injunction‑‑‑Defence of defendant struck ff by Trial Court due to non‑filing of written statement‑‑‑Decree of Trial Court set aside by the Appellate Court‑‑‑Appeal was continuation of trial in which the judgment of the trial Court merged into the judgment of the Appellate Court‑‑‑Where the setting aside of judgment and decree of the Trial Court by the Appellate Court was not challenged, the judgment passed by the Appellate Court achieved finality.

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

‑‑‑‑O.VIII, R.1‑‑‑"Written statement"‑‑‑Definition‑‑‑Written statement is a statement filed by the defendant in answer to the plaint and constitutes his defence‑‑‑Time of filing‑‑‑Defendant could file the written statement without formal order of the Court at any stage of the proceedings‑‑‑All available objections should be made in the pleading in the shape of written statement.

‑‑‑‑O.VIII, R.10‑‑‑Failure to file written statement‑‑‑Effect‑‑‑Order VIII, R.10, C. P.C., was a punitive rule for non‑filing of written statement and its provisions were attracted whenever the defendant failed to file written statement.

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

‑‑‑‑O. VI, R.9‑‑‑Effect of documents in pleadings‑‑‑Under O. VI, R.9, C.P.C. wherever the contents of any document were material, it was sufficient in any pleading to state the effect of the same as briefly as possible, without setting out the whole or any part of it, unless the precise words of the document or any part of it were material.

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

‑‑‑O.VIII, R.10 & S.115‑‑‑Leading evidence without written statement‑‑‑Legality‑‑‑Trial Court struck off the right of the defendant to file the written statement after giving him certain number of opportunities‑‑Appellate Court in appeal, remanded the case to the trial Court with the direction to record the evidence of the defendant after giving opportunity of ‑ cross‑examination to the plaintiff‑‑‑Defendant in revision petition contended that the Appellate Court had allowed the plaintiff to lead evidence without realizing how evidence was to be led without pleadings of parties and the list of documents that were to be relied in the written statement‑‑‑Judgment of the Appellate Court was modified by the High Court under revisional jurisdiction to the extent that the trial Court should give an opportunity to the defendant to file the written statement‑‑‑Mere technicalities of procedural law, were not to be allowed to defeat the ends of justice.

Manager, Jammu and Kashmir, State property in Pakistan v. Khuda Yar and others PLD 1975 SC 678 ref.

(f) Administration of justice‑‑‑--

‑‑‑‑Procedural law‑‑‑Mere technicalities of procedural law, unless offering insurmountable hurdles, should not be allowed to defeat the ends justice.

Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and others PLD 1975 SC 678 ref.

Ch. Abdul Rashid for Petitioners.

Ghulam Hussain Malik for Respondent.

Date of hearing: 10th February, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 930 #

2004 M L D 930

[Lahore]

Before M. Javed Buttar and Muhammad Muzammal Khan, JJ

Mst. ROHILA MEHNDI through real Mother and 5 others‑‑‑Petitioners

Versus

FEDERAL LAND COMMISSION, ISLAMABAD and 2 others‑‑‑Respondents

Writ Petition No. 10 of 1981, heard on 15th January, 2004.

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

‑‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Principles of natural justice‑‑Violation‑‑‑Effect‑‑‑Gift mutations in favour of petitioners ‑‑‑Validity‑‑Authorities declared the said gift transactions as void through impugned judgment‑‑‑Petitioners were donees of the land that was ordered to be resumed through the impugned judgments of the Authorities‑‑‑Authorities while passing the impugned judgment and while declaring the impugned transactions of gift as invalid, did not associate the petitioners in the proceedings and did not grant them opportunity of being heard, although they were direct affectees of the said proceedings and had a vested right to be heard‑‑‑Impugned judgment being violative of principles of natural justice of audi alteram partem, was held to be illegal and without jurisdiction.

(b) Land Reforms Act (II of 1977)‑‑‑

----S.25‑‑‑Land Reforms Regulation, 1972 (MLR 115), Paras. 7(1)(b) & 29‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Gift mutations in favour of petitioners‑‑‑ValidityAuthorities under para. 7(1)(b) of Land Reforms Regulation, 1972, declared the gift transactions as .void through impugned judgment‑‑‑Petitioners challenged such judgment through Constitutional petition‑‑‑Section 25 of Land Reforms Act, 1977 provided that all proceedings before the Authorities were to abate on the commencement of the Act, except the ones provided for by the Government‑‑‑Petitioners: matter had not abated under S.25 of Land Reforms Act, 1977 in the light of a notification providing an exception to gases falling under para.29 of the Land Reforms Regulation, 1972‑‑‑Validlty‑‑‑Notification purported to nullify the effect of S.25 of the Act as a whole, was ultra vires of the powers of the Government‑‑‑In the absence of any material on record showing that the case of the petitioners was consciously considered by the Government to ensure that it had not abated, the Authorities could not have passed the impugned judgment, as the same, stood abated under S.25 of the Act.

Federal Land Commission through its Senior Member, Islamabad v. Sher Muhammad and others PLD 1990 SC 626 and Salah-ud‑Din Qureshi v. Federal Land Commission and others 1992 CLC 2362 ref.

Raja Shafqat Khan Abbasi for Petitioners.

Nemo for Respondents.

Date of hearing: 15th January, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 936 #

2004 M L D 936

[Lahore]

Before Mansoor Ahmad, J

Mrs. SHAHNAZ ZAFAR‑‑‑Petitioner

Versus

EXECUTIVE OFFICER, CANTONMENT BOARD RAWALPINDI CANTT. and another‑‑‑Respondents

Writ Petition No. 1878 of 2003, decided on 20th January, 2004.

(a) Cantonments Act (II of 1924)‑‑‑--

‑‑‑‑S. 181‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Building plan, sanction of‑‑‑Military Estate Officer‑‑Functions‑‑‑Municipal functions and other matters relating to the proposed construction‑‑‑Jurisdiction‑‑‑Function of Military Estate Officer in sanction of building plan by Cantonment Board, is only limited to the extent that he is to ensure whether there is any objection on the part of the Government or not‑‑‑Military Estate Officer is appointed by Federal Government to perform duty under rules made under S.280(2)(a)(b) of Cantonments Act, 1924‑‑‑Land of Government or the land of Federal Government in the cantonment area is administered, supervised and controlled by the Military Estate Officer and to ascertain that erection and re‑erection of the proposed building is not adverse to the interest of Government and military installments in the Cantonment area‑‑‑If the proposed construction is raised on leased land, the land is properly owned by the person seeking sanction of the plan‑‑‑Municipal functions and other matters related to the proposed construction like right of way, ventilation, structural strength or otherwise are within the domain of Cantonment Board and Military Estate Officer is not vested with any jurisdiction to oversee such aspect of the building plan‑‑‑Building plan is sent to Military Estate Officer under S.181(3) of Cantonments Act, 1924, for the purpose of obtaining "No Objection Certificate" from the point of view of its location and the land point of view.

(b) Cantonments Act (II of 1924)‑‑‑--

‑‑‑‑S.181‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Locus poenitentiae, doctrine of‑‑‑Applicability‑‑‑Military Estate Officer firstly issued "No Objection Certificate" in favour of the petitioner but later on withdrew the same‑‑‑Such withdrawal of the "No Objection Certificate" was on the application submitted by the respondent‑‑‑Military Estate Officer had not acted fairly, justly and in proper manner within the parameters of law‑‑‑Such act of Military Estate Officer was against the principles of natural justice and violative of doctrine of locus poenitentiae.

‑‑‑‑S. 181‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Building plan, sanction of‑‑‑Withdrawal of "No Objection Certificate" issued by Military Estate Officer‑‑‑Jurisdiction of Military Estate Officer in considering technical aspects of building plan‑‑Petitioner applied for sanction of building plan and the same had been approved by the Cantonment Board after "No Objection Certificate" was issued by the Military Estate Officer‑‑‑Petitioner had completed construction on the 3rd and 4th floors of the building on the basis of approved plan‑‑‑Dispute between the petitioner and her neighbour had arisen and on the application of the neighbour, the Military Estate Officer had recalled the "No Objection Certificate"‑‑‑Validity‑‑‑By completion of 3rd and 4th floors, valuable rights had been created in favour of the petitioner‑and the same could not be tampered with by the Military Estate Officer by recalling the "No Objection Certificate" on the consideration of facts which were neither in his domain nor in his jurisdiction‑‑‑High Court observed it with concern that public functionaries like the Military Estate Officer had become a party to a private dispute between the parties and disapproved such conduct of a public functionary‑‑‑Public functionary had to act impartially, fairly and justly‑‑‑Letter issued by the Military Estate Officer recalling the "No Objection Certificate" was without any lawful authority .and without jurisdiction and the same was set aside.

(d) Cantonments Act (II of 1924)‑‑‑

‑‑‑‑S. 181‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Building plan, sanction of‑‑‑Doctrine of locus poenitentiae and principles of natural justice‑‑‑Applicability‑‑‑Suspending site plan approved by Cantonment Board‑‑‑Petitioner applied for sanction of building plan and the same had been approved by Cantonment Board after "No Objection Certificate" was issued by Military Estate Officer‑‑Petitioner, on the basis of approved site plan, had constructed 3rd and 4th floors of the building‑‑‑Dispute between the parties had arisen and on the complaint of the respondent, who was neighbour of the petitioner, the Military Estate Officer withdrew the "No Objection Certificate" and the Executive Officer of Cantonment Board restrained the petitioner from raising any construction‑‑‑Plea raised by the petitioner was that the Cantonment Executive could not restrain the petitioner as the building plan had been approved by the Cantonment Board‑‑‑Validity‑‑‑When the building plan was sanctioned by the Cantonment Board, the same cold only be suspended and stopped by the Cantonment Board‑‑‑Executive Officer of Cantonment Board had attempted to nullify the sanction of the plan which was already accorded by the Board and no such jurisdiction was vested in the Executive Officer under Cantonments Act, 1924 as such the letter issued by the Executive Officer of Cantonment Board was without any notice to the petitioner and the same was violative of the principles of natural justice as well as doctrine of locus poenitentiae‑‑Order suspending the building plan was struck down as the same was arbitrary, unfair, unjust and without any lawful authority.

Malik Qamar Afzil for Petitioner.

Mirza Viqas for Respondent No.1.

Qazi Ahmad Naeem Qureshi for Respondent No.2 with Shahid Hamid Dy. MEO.

Date of hearing: 19th December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 943 #

2004 M L D 943

[Lahore]

Before Muhammad Muzammal Khan, J

KHAIRAT MASIH through L.Rs.‑‑‑Petitioners

Versus

AZIZ SADIQ‑Respondent

Civil Revision No.2411 of 2003, decided on 23rd December, 2003.

(a) Limitation‑----------

‑‑‑‑ Limitation is a mixed question of law and fact and. cannot be determined without recording of evidence.

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

‑‑‑‑S.42‑‑‑Declaratory suit‑‑‑Limitation, computation of‑‑‑Limitation for filing of a declaratory suit, starts from the date of denial of title of plaintiff‑‑‑If the title was denied in the year, 1999, the suit filed on 28‑10‑2001, was within limitation.

Tariq Mehmood v. Najam‑ud‑Din 1999 SCMR 2396 and Abdur Rahim v. Karachi Development Authority 1988 CLC 1207 ref.

‑‑‑‑S.11‑‑‑Principle of resjudicata‑‑‑Applicability‑‑‑Since earlier suit was withdrawn and was not decided on merits, principle of resjudicata was not applicable.

Punjab Board of Revenue, Employees. Cooperative Housing Society, Limited v. Additional District Judge, Lahore 2003 SCMR 1284 ref.

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

‑‑‑‑Ss.42 & 54‑‑‑Civil Procedure Code (V of 1908), O.II, R.2, O.VII, R.11 & O.XXIII, R.1(3)‑‑‑Resection of plaint‑‑‑Withdrawal of suit for permanent injunction and filing of suit for declaration‑‑‑Bar contained in O.XXIII R.1(3), C.P.C. or under O.II R.2, C.P.C,‑‑‑Applicability‑‑Earlier suit was for permanent injunction, simplicitor, on the basis of plaintiff's ownership whereas the present suit had been filed for declaration, challenging ownership of defendants as Benamidars‑‑‑Trial Court rejected the plaint being barred by limitation while Appellate Court set aside the order and remanded the case to the Trial Court for decision on merits‑‑‑Validity‑‑‑Suit which had not been decided on merits of the case, could not create bar envisaged by O.II, R.2 C.P.C.‑‑Grounds of limitation on which the plaint was rejected by the Trial Court, could only be determined after recording of evidence‑‑‑Plaint, in the present case, disclosed a cause of action and prima facie, was not barred by any law, hence plaint could not have been rejected‑‑‑Order of remand passed by Appellate Court caused no prejudice to the defendants as the grounds had been put to issue and after recording of evidence of the parties, the same would be decided by the Trial Court on merits‑‑Appellate Court had taken a right decision and had correctly remanded the case for decision‑‑‑No illegality or irregularity was committed by the Appellate Court in absence of which no interference was called for in the revisional jurisdiction of High Court.

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

‑‑‑‑O.XIV, R.2‑‑‑Treating an issue as preliminary‑‑‑Principle‑‑‑After framing of entire issues, a party can move an application to Trial Court, for treating issues of law, as preliminary and to decide such issues before proceeding with the merits of the case‑‑‑Provision of O.XIV, R.2 C.P.C. is mandatory in nature and cannot be ignored by Trial Court.

Ch. Muhammad Arshad for Petitioners.

MLD 2004 LAHORE HIGH COURT LAHORE 951 #

2004 M L D 951

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD AKBAR ‑‑‑Appellant

Versus

Sheikh ABDUL SHAKOOR ‑‑‑Respondent

Regular First Appeal No.364 of 2003, decided on 24th December, 2003.

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

‑‑‑‑O.XXXVII, R.2‑‑‑Issuance of cheque‑‑‑Burden of proving consideration‑‑‑Suit for recovery filed by respondent was decreed in his favour by trial Court on the basis of a cheque issued by the appellant‑‑‑Plea of the appellant was that there was no proof of any loan amount on record for which cheque was claimed to be issued and without receipt of the loan, cheque issued in that regard was to be presumed without consideration‑‑‑Appellant had not denied before the trial Court and in leave to appeal the issuance, execution and signing of the said cheque or that it was not from his cheque book or that it did not relate to his account, nor was he able to explain how did the cheque come into the hands of the respondent‑‑Effect‑‑‑Appellant had issued, signed and executed the clique in favour of the respondent and thus it was upon the appellant to prove that he had not received any consideration, but he had failed to do so‑‑‑Under O.XXXVII, R.2, C.P.C. it was not required from the respondent to prove payment of loan in stricto senso, with regard to the issued cheque by the appellant.

United Bank Ltd. v. Mrs. Bilquees Begum and 3 others 1988 CLC 1613 and Khalid Mukhtar v. Mrs. Sadiqa Tasneem 1996 CLC 741 ref.

(b) Cheque‑‑‑--

‑‑‑‑ Presentation of cheque for encashment‑‑‑Limitation‑‑‑Cheque could be presented for the purposes of encashment within six months as per bank rules and a holder of cheque can bank and present it within his period at his convenience.

‑‑‑‑S. 30‑‑‑Issuance of notice, failure of‑‑‑Notice under S.30 of Negotiable Instruments Act, 1881 specifying refusal of the encashment of cheque was required to be issued by the respondent, but where the appellant had failed to take this objection both at the trial and leave to appeal stage, respondent was not required to prove issuance and service of this notice‑‑‑Issuance and non‑issuance of notice was a matter of fact which should have been asserted in the pleadings by the appellant and in the absence of it, presumption would be that this obligation was discharged by the respondent.

Ms. Gulzar Butt for Appellant.

Abdul Aziz Sheikh for Respondent.

Date of hearing: 17th December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 955 #

2004 M L D 955

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. NASIRAN KHATOON‑‑‑Petitioner

Versus

PUNJAB PROVINCE through Secretary to Government of Punjab and 2 others‑‑‑Respondents

Writ Petition No. 17944 of 2003, decided on 31st December, 2003.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑----

‑‑‑‑Ss.15 & 16‑‑‑West Pakistan Board of Revenue Act (XI of 1957), S.8‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Sale of land at market price to its allottee in possession thereof under bogus entitlement certificate on the ground of his affiliation with land and having made same cultivatable by putting labour and expending money‑‑‑Board of Revenue after 2,1/2 years on review petition filed by the Collector cancelled the sale order‑‑‑Validity‑‑‑Board of Revenue in its other judgments had found that sale by private treaty having attained finality would not require any relaxation of policy ‑‑‑Such decisions and right of petitioner to purchase land, which once given could not be taken back under law, had not been brought to the notice of Board at the time of passing of impugned order‑‑‑Such sale order could not be graded as void‑‑‑Collector was, thus, required to explain delay in filing review petition‑‑‑High Court accepted Constitutional petition and declared impugned order as illegal and void, resultantly review petition would be deemed to be pending for its decision afresh in accordance with law.

The State v. Khadim Hussain ROR 1296 of 1997 ref.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 3‑‑‑Limitation once starts running, could not be stopped by any subsequent act.

‑‑‑‑S.5‑‑‑Delay, condonation of‑‑‑Delay has to be explained from day to day, meaning thereby each day's delay.

Nazar Hussain Chaudhry for Petitioner.

Ch. Muhammad Suleman, Addl. A.‑G. for Respondents

MLD 2004 LAHORE HIGH COURT LAHORE 963 #

2004 M L D 963

[Lahore]

Before Ch. Ijaz Ahmad, J

SABIR HUSSAIN and 6 others‑‑‑Petitioners

Versus

EISA and 2 others‑‑‑Respondents

Civil Revisions Nos.684‑D and 647‑D of 1998, heard on 15th March, 2004.

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

‑‑‑‑Ss.42 & 8‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suits for declaration and possession on the basis of the sale‑deed‑‑‑Trial Court, after consolidation of the two suits, filed by the rival parties, dismissed the suit of the plaintiffs for declaration and decreed the suit of the defendants for possession‑‑‑Plaintiffs being aggrieved of the said decree filed an appeal that remained unsuccessful‑‑‑Plaintiffs subsequently filed a revision petition against the decisions of the Courts below on the ground that they were based on misreading and non‑reading of evidence‑‑Validity‑‑‑Courts below had given concurrent findings of fact against the petitioners not merely on the ground that their sale‑deeds were not registered but also after considering the evidence on record‑‑‑Sale‑deeds were not proved by the plaintiffs in terms of the Evidence Act, 1872 or Qanun‑e‑Shahadat, 1984‑‑‑Mere possession over the suit‑land did not create any title in favour of the plaintiffs‑‑‑Discrepancies in the statements of the plaintiff's witnesses were also noted by the Courts below‑‑‑Courts below had also given concurrent finding of fact against the plaintiffs that entry in the register of Petition‑writer regarding execution of documents was not proved, therefore, they were justified in non‑suiting the plaintiffs‑‑‑Petition was dismissed in circumstances.

Muhammad Sharif Uppal's case PLD 1990 Lah. 229 and Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 ref.

(b) Evidence‑‑‑

‑‑‑‑ Re‑appraisal of‑‑‑Principles‑‑‑Evidence of a witness must be read as a whole and the case should not be decided merely by relying upon one sentence.

‑‑‑‑S.49‑‑‑Registration, effect of‑‑‑Principles‑‑‑Registered document had sanctity attached to it and stronger evidence was required to challenge its genuineness.

Mirza Muhammad Sharif and 2 others v. Mst. Nawab Bibi and 4 others 1993 SCMR 462 ref.

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

‑‑‑‑S.115‑‑‑Revisional jurisdiction of Nigh Court ‑‑‑ Scope ‑‑‑ Revisional Court had very limited jurisdiction to reverse findings arrived at by the Courts below after proper appreciation of evidence, until and unless, the judgments of both the Courts below were result of misreading and non-reading of evidence on record‑‑‑Parameters of exercise of powers under S.115 of Civil Procedure Code, 1908, recorded.

N. S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madras PLD 1949 PC 26 and Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood 1985 CLC 657 ref.

Ustad Muhammad Iqbal for Petitioners.

Ch. Abdul Ghaffar for Respondents.

Date of hearing: 15th March, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 976 #

2004 M L D 976

[Lahore]

Before Sh. Hakim Ali, J

NAYYAR ABBAS and others‑‑‑Petitioners

Versus

GOVERNMENT OF THE PUNJAB and 4 others‑‑‑Respondents

Writ Petitions Nos.3640, 3793 and 3894 of 2003/BWP, decided on 26th March, 2004.

(a) Prospectus of the Government Medical Colleges of the Punjab‑‑‑

‑‑‑‑Chapter on Examination, Para. 4‑‑‑University of Health Science Ordinance Examination Rules, R.2‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Petitioners and certain respondents were students of M.B.,B.S. Professional at a medical college‑‑Grievance of the petitioners was that relaxation from the attendance of minimum 75% of total lectures, in order to sit for the examination, was provided to, certain respondents by the Authorities on the orders of the Health Minister, whereas, no such relaxation was provided to them, which amounted to a discriminatory treatment‑‑‑Attendance percentage as provided under the rules and regulations‑‑‑Determination of‑‑‑Petitioners were admitted to the college on the basis of the Prospectus that provided attendance of at least 75% lectures in order to sit for the examination‑‑Even the University of Health Sciences provided the minimum required attendance of lecturers to the extent of 75% of the total lectures delivered‑‑‑Petitioners were thus found to be deficient in the percentage of lecturers attended both according to the said prospectus and the University of Health Sciences‑‑‑Constitutional petition was dismissed.

(b) Prospectus of the Government Medical Colleges of the Punjab‑‑‑

‑‑‑‑Chapter on Examination, Para. 4‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑-‑Contention of the petitioners was that the Authorities had no power to relax the rules and grant permission to the respondents to sit in the examination‑‑‑Validity‑‑‑No provision in the Prospectus bestowed power upon the Authorities to permit the students deficient of lectures to sit in the examination‑‑‑Right to grant relaxation created a vested right in a person which has to be clearly granted to an Authority through clear provision of law‑‑‑Any such relaxation, would be an act in derogation and violation of provisions of law.

‑‑‑‑Arts.139, 248 & 199‑‑‑Rules of Business, 1974, R.6 & Sched. VII‑‑Constitutional petition‑‑‑Order passed by Provincial Health Minister for relaxation of the attendance limit, validity of‑‑‑Contention of the petitioner was that the Health Minister had no power to order relaxation of rules and grant permission to the respondents to sit in the examination‑‑‑Validity‑‑‑For application of Art.248 of the Constitution, it was necessary to prove that the act done by the Health Minister was in the exercise of powers conferred by some law and in relation to performance of those functions‑‑‑Respondents reliance upon R.6 and Ser. 20 of Part A, Sched. VII of Rules of Business, 1974 to justify the act of the Minister was unacceptable‑‑‑Minister was found to have no power to allow relaxation and his order regarding the same was illegal.

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

‑‑‑Art.199‑‑‑Interpretation and Scope of Art.199 of the Constitution‑‑Constitutional petition‑‑Maintainability‑‑‑Principles‑‑‑Locus standi‑‑Aggrieved party‑‑‑Contention of the respondents was that the petitioners had no locus standi to file the Constitutional petition as they were not an aggrieved party‑‑‑Validity‑‑‑Words 'any aggrieved party', 'any aggrieved person' and 'any person' appearing in different clauses of Art. 199 of the Constitution had different meanings, connotations and interpretations‑‑Petitioners, in the present case, were invoking provisions of Sub‑Article (1) of Art. 199 read with Art.25 of the Constitution‑‑‑Interpretation of the words 'an aggrieved party' by superior Courts in different circumstances, examination of‑‑‑Right to claim as 'any aggrieved party' and to have the same exercised under Art. 199(l) of the Constitution, requirements of‑‑‑Petitioners, under said requirements, were unable to find any relief, as the orders of relaxation by the Minister and the Authorities were illegal ‑‑‑Principles‑‑‑Direction, order or instructions issued by the Constitutional Court would not compel or cause the person or any authority to perform an illegal act or omission, as it would result in giving birth and creation of illegal and unlawful child of law whose existence would become a perpetual painful succession‑‑‑Petition, in the circumstances was dismissed.

Muhammad Farooq v. Vice‑Chancellor, University of Azad Jammu and Kashmir and 2 others 1990 MLD 1428; Khawar Ijaz and another v. Government of the Punjab 1981 CLC 321 and Azizuddin v. Muhammad Ismail and others 1985 SCMR 666 ref.

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

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Educational institution‑‑Contention of the petitioners was that they should be treated alike the respondents in the matter of relaxation of their deficiency in the attendance of lectures‑‑‑Validity‑‑‑Fixation of percentage of attendance of lectures was a necessary requirement for obtaining a prescribed standard quality of education‑‑‑Once relaxation was granted, it would open the flood‑gate of concessions, which gives birth to many vices and would cause the collapse of whole qualitative system of imparting of the professional education‑‑‑Orders of relaxation by the Minister and the Authorities were illegal and could not be used by the petitioners to gain benefit or made the basis for obtaining assistance from the Court‑‑Petition was dismissed.

Raja Muhammad Sohail Iftikhar for Petitioners.

Ahmad Mansoor Chishti, A.A. ‑G. for Respondents Nos. 1 and 2.

Ch. Naseer Ahmad for Respondent No.3.

Mumtaz Hussain Bazmi for Respondents Nos.4 and 5.

Date of hearing: 25th February, 2004.

JUDGMENT

I propose to dispose of the instant writ petition as well as Writ Petitions Nos.3793 of 2003/BWP (Muhammad Ali Usman and another v. Government of the Punjab and 6 others) and 3894 of 2003/BWP (Nayyar Abbas and another v. Government of the Punjab and 3 others) by this single judgment because all these writ petitions have got similar facts and common questions of law to be resolved.

An order passed on 22‑8‑2003 by the Minister for Health, Punjab, Lahore, conveyed through Dr. Tahir Ali Javed, to the Principal, Quaid‑e‑Azam Medical College, Bahawalpur with regard to the grant of permission and relaxation in attendance of lectures, a preceding condition to be fulfilled by a student for appearance in the coming examination to Salman Arif son of Muhammad Arif, and Fawad Yousuf, two students of 3rd Year and 4th Year M.B.,B.S. Class respectively (who have been arrayed as respondents Nos.4 and 5 in the instant writ petition) considering their cases as of exceptional nature and based on hardship. It created unrest and upheaval amongst the students of Quaid‑e-Azam Medical College, Bahawalpur and has brought into being these petitions. Upon the above noted letter/order, an office note was put up by the Officer Incharge of the Staff and Students Affairs, QAMC, Bahawalpur, in which it was clearly noted that both these students were not qualified to appear in the Annual Examination of 2003. It was further informed that the Admission Forms for the examination would be sent if ordered by the high ups. Even after this office note, but acting upon the order of the Health Minister, Punjab, the Principal, QAMC, Bahawalpur passed an order in the following words:‑‑

"As per relaxation by the Health Minister, their admission is allowed.

Signed

23‑8‑2003"

Nayyar Abbas and Junaid Saleem, petitioners considering themselves to have been deprived of the same concession, allowed to the aforesaid students, and discriminatory treatment having been given to them, have filed this writ petition. Concisely, their case is that as the aforesaid students (Salman Arif and Fawad Yousuf) have been allowed relaxation from the completion of 75% attendance of total lectures, both in theory and practical in the M.B.,B.S. Professional so they are also entitled to be treated alike and to be granted the same concession as have been given to the aforesaid students, in the examination.
During the pendency of writ petition, petitioners prayed for grant of permission to amend the writ, which was allowed and the petitioners included in it the prayer to declare the impugned order of aforesaid Minister and Principal to be legal and unlawful as an alternative.
The respondents have defended these orders by taking the plea that these were passed by the aforementioned authorities within their competence.
In Writ Petition No.3793 of 2003/BWP, Muhammad Ali Usman and Azhar‑Abbas Malik have also prayed for issuance of a direction to the respondents, to allow them to appear in the forthcoming examination by ignoring the shortage of their lectures in the subject of Pathology and Community Medicine on the basis of order; memorandum dated 22‑8‑2003 issued by the Minister for Health, Punjab, referred to above.
The petitioners of Writ Petition No.3894 of 2003/BWP (Nayyar Abbas and another v. Government of the Punjab and 3 others) have also filed this writ petition, to get a direction issued, against the respondents, to allow them to sit in the 4th Class of M.B‑B.S. while considering their .case to be at par with those of the above mentioned respondents Nos.4 and 5.
All the parties concerned have appeared through their respective counsel, who have argued the case with their full force and vigour.
The learned counsel appearing on behalf of the petitioners Nayyar Abbas and others has argued that in case of petitioners, violation of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter called the Constitution) has been committed because they were refused admission into the examination on the basis of shortage of lectures, while respondents Nos.4 and 5 were granted relaxation in the percentage of their attendance of lectures. So, they were also entitled to be treated alike. It has further been canvassed by the learned counsel that Admission Form prescribed for the examination issued by the University of Health Sciences had prescribed 66% of attendance of lectures for the purpose of participation in the examination but the Administration of QAMC, Bahawalpur had illegally required the percentage of lecturers up to 75 % of the total lectures without any justification. The learned counsel has indicated that the order/letter dated 22‑8‑2003, conveyed by Dr. Tahir Ali Javed, had referred to 70% attendance of total lectures to have been fixed by the PMDC and the Punjab Government as per prospectus. So, the condition for the completion of attendance of 75% lectures by the authorities of the QAMC, Bahawalpur was not lawful. The learned counsel has further asserted that the prospectus although had provided 75% attendance of lectures for the aforesaid purpose but that was the requirement of the Islamia University Bahawalpur and after the affiliation with, the University of Health Sciences, the requirement of 75% of attendance of lectures was not to be complied with as the University of Health Sciences had prescribed 66% attendance of lectures in its form of admission. To support his arguments on the proposition of equality of citizens, learned counsel has referred to 1999 SCMR 467 (Nizamuddin and another v. Civil Aviation Authority and 2 others), PLD 1992 SC 263 (Board of Intermediate and Secondary Education, Lahore, through its Chairman and another v. Mst. Salma Afroze and 2 others), 1998 CLC 1984 (Shagufta Man v. Islamia University, Bahawalpur and another) and 2002 SCMR 71 (Abdul Samad and others v. Federation of Pakistan and others).
The learned counsel appearing on behalf of respondents Nos.4 and 5 Salman Arif and Fawad Yousuf pleading their case has replied that the writ petitions were not maintainable as Fawad Yousuf, respondent No.5 was the student of 3rd Year M.B‑B.S. Class while the petitioners were the students of 2nd Year M.B‑B.S. Class and the date of examination was not the same, therefore, they were not the sailors of the same boat. He has further argued that Fawad Yousuf, having passed his examination, has already migrated from this Institution to Allama Iqbal Medical College, Lahore, therefore, the ground of discrimination is not available to the petitioners. It may be noted here that the argument creating difference and presenting distinguishing features is a mere far fetched idea which is an outcome of the mind of the learned counsel and is not acceptable. These points cannot be held to have created dissimilarity with the writ petitioners qua respondents Nos.4 and 5. As regards the power of the Minister, learned counsel has referred to Articles 139(3) and 248 of the Constitution and has further relied upon Proviso to rule 6 of the Rules of Business and Serial No.20 of Schedule VII, appended to it and has tried to prove that the aforesaid Minister had the power to order the relaxation in the case of respondents Nos.4 and 5. He has further argued that the writ petitioners have got no locus standi to challenge the order of the Health Minister, Punjab and that of Principal QAMC, referred to the above, because they cannot be held to be an aggrieved party. Learned counsel has also relied upon PLD 1985 Quetta 63 (Nek Muhammad and another v. The Member Board of Revenue (Judicial), Quetta and 3 others) 2002 SCMR 970 (Qazi Hussain Ahmad, Ameer Jamat‑e‑Islami, Pakistan, Lahore and others v. General Pervez Musharraf, Chief Executive and others), PLD 1991 Lahore 433 (The State v. Muhammad Nazir and others), PLD 1990 SC 295 (Shrin Munir and others v. Government of Punjab through Secretary Health Lahore and another), 1988 SCMR 988 (Khairuddin and others v. Settlement Commissioner and others), PLD 1987 Lahore 286 (Adeeb Jawedani, Correspondent Daily 'Wafaq', Faisalabad v. Chief Administrator Auqaf, Government of the Punjab Lahore and 2 others), 1992 SCMR 809 (Mst. Mahmooda Begum and another v. Taj Din), 1990 PCr.LJ 1231 (Juvenile Jail Landhi, Karachi in Re: (Suo Motu notice), 1999 SCMR 467 (Nizamuddin and another v. Civil Aviation Authority and 2 others) and PLD 1990 SC 1092 (Amanullah Khan and others v. The Federal Government of Pakistan through Secretary Ministry of Finance, Islamabad and others).
The learned counsel appearing on behalf of QAMC, Bahawalpur/respondent No.3 has asserted through his arguments that it is wrong to state that the University of Health Sciences had prescribed 66% attendance of total lectures for admission in the examination. According to the learned counsel, Admission Form was misprinted and the authorities of QAMC, Bahawalpur had got it clarified through their letter on 8‑8‑2003 and earlier to it, in which University of Health Sciences had clarified that attendance, of lectures must be 70% of the full course of lectures delivered in each subject of the examination. As regards the case of Salman Arif and Fawad Yousuf, it was pleaded that the Principal QAMC, Bahawalpur had acted on the directions/instructions of the Health Minister because these were considered as special cases of "hardship" by the aforesaid Minister. As to the case of the present petitioners, he has opposed the grant of permission to them by stating that the permission would create a chaotic condition in all the institutions of medical education. Resisting the prayer and case of the petitioners being accepted, learned counsel has informed this Court that the petitioners were provided a chance to improve their lectures by arrangement of special classes but they failed to appear and attend. As they failed to make up the deficiency of lectures, so no indulgence should be shown to them by this Hon'ble Court.
The learned Assistant Advocate‑General has also supported the version of the QAMC, Bahawalpur.
After hearing and pondering over the lengthy and valuable arguments of all the learned counsel, appearing on behalf of the parties to the writ petitions and examining the record made available by them, I have concluded that to deliver a decision upon other issues of controversial nature, it is necessary to resolve the first and foremost issue as to what was the attendance percentage provided and envisaged by the rules and regulations to govern the situation? As I have already held in Writ Petition No.2894 of 2003/BWP (Syed Fiaz‑ur‑Rehman v. Principal Sheikh Zaid Medical College, Rahimyar Khan and others) that a prospectus is a document which has to be granted sanctity by both the parties i.e. Government/college administration and the students, otherwise anarchy would prevail in the medical institutions of valuable learning. Not only the smooth running of college administration yet the discipline, which is an essential ingredient for the impartation of education to the student community, would be destroyed.
The present petitioners were admitted to the college on the basis of the prospectus for the Session 2000‑2001, which would be a governing document of vital importance for both the parties as held by me earlier. According to Para. No.5 of Chapter "Examination", it is essential for a student to sit in the examination to fulfil the condition of 75% attendance of lectures delivered. As all these students, who had entered into this educational institution, were to follow these rules/regulations in the matter of their examination in the future and the students/petitioners having bowed their heads to these rules and having undertaken implicitly by their own act and admission that they would abide by these conditions, were bound to act accordingly. The argument that the petitioners were required 66% attendance of the lectures as entered in the Admission Form of the University of Health Sciences cannot be accepted because the University of Health Sciences has already clarified the minimum required attendance of lectures to the extent of 75% of the total lectures delivered. The letter dated 8‑8‑2003 had clearly given out that the students had to fulfil the requirement of 75% of the full course of lectures delivered in each of the subject to qualify for participation in the examination of M.B.,B.S. to be held in the year 2003, which was further clarified by the second letter dated 29‑12‑2004 (the year was in fact 2003) bearing No. UHS/CE/RC/03/307 issued by the University of Health Sciences. Therefore, seen from both the angles, the petitioners are deficient in the percentage of lectures even if it be considered to the extent of 70% or 66% as provided by the prospectus, and the University of Health Sciences.
The next question which arises for decision is as to whether Principal of QAMC, Bahawalpur had the power to relax the rules and grant permission to respondents Nos.4 and 5 to sit in the examination? Para 4 of Chapter, "Examinations" of the Prospectus of The Government Medical Colleges in the Punjab, it has been written:

"The Principal reserves the right to detain any student from appearing in the Professional M.B.,B.S. University Examination at any stage, if in his opinion, the student is found to be short of attendance in theory or practical of any subject or his work is reported to be unsatisfactory by any professor, lecturer or if in the opinion of the Principal, the character and conduct of the student is unsatisfactory".

From bare reading of this para. it is clear that the Principal has been granted the right to detain a student if in his opinion the student is found to be short of required lectures. The learned counsel for the parties have not been able to refer to any other provision which could be construed to have bestowed upon the Principal, any such power, to relax these rules and permit the students deficient of lectures to sit in the examination. An argument can be raised that an authority, which has got the right to detain can also relax the rules and admit a student in the examination. The argument on its face is very fascinating but cannot be accepted on its deeper examination. From the apparent wording of para. 4 even, this power cannot be spelled out. The right to grant relaxation creates a vested right in a person which has to be clearly granted to an authority through clear provision of law. It may be kept in mind that the relaxation is, in fact, an act in derogation and in violation of a provisions of law. If the right to detain was provided into this Chapter, there was no impediment in the way of the Government to introduce such a power into this Chapter. The omission to add such provision is, therefore, a conscious act of the Government to maintain and keep the discipline.

Learned counsel for the respondents Nos.4 and 5 has tried to justify/prove the validity of the impugned order dated 23‑8‑2003 passed by the Punjab Minister for Health, by referring to Article 248 of the Constitution. The learned counsel has submitted that the Provincial Minister is not answerable to any Court for the exercise of power and performance of function of his respective office or for any act done or purported to be done in the exercise of those powers and for performance of those functions. The emphasis has been laid down upon the words "for any act done" by the learned counsel. The answer to this proposition is very simple one. For application of this Article 248 of the Constitution, the learned counsel has also to prove and to show that the act was done in the exercise of powers conferred by any law and in relation to performance of those functions. Because a Health Minister is not a person having unlimited and unrestricted powers to do all or any act, he wishes to perform. If a Provincial Minister has not been vested with the powers or performance of any function or act, he could not claim protection of the wordings of this Article of the Constitution. So, when confronted with this, the learned counsel referred to sub‑Article (3) of Article 139 of the Constitution. By referring to it, he states that the Governor is empowered to make rules for the allocation of the business of the Provincial Government. To augment it further, he has referred to the Punjab Government Rules of Business, 1974, which were framed under Article 13.9 of the Constitution by the Governor of the Punjab through Notification of 1st July, 1974. The learned counsel has referred to Rule 6 of the aforesaid Rules. This rule, as per learned counsel, provided a Minister with the power to conduct the business of his department. Rule 6 is reproduced hereunder, for ready reference:‑‑

"6. Functions of the Minister.

A Minister shall‑‑‑

(a) be responsible for policy matters and for the conduct of business of his Department:

Provided that in important political economic or administrative matters, the Minister shall consult the Chief Minister;

(b) submit cases to the Chief Minister as required by the provisions of these rules;

(c) keep the Chief Minister informed of any important case disposed of by him without reference to the Chief Minister; and

(d) conduct the business relating to his Department in the Assembly.

Interpreting the aforesaid rules, learned counsel has relied upon clause (c) of the same, in which the Minister, if he has disposed of any case without reference to the Chief Minister, has to inform afterward to the Chief Minister. But having found himself on weaker position, in the last, he has switched over to Schedule VII Part‑A of the Rules of Business and has referred to Serial No.20 where, the words "All cases of relaxation of Service Rules" have been used, to empower the Minister to grant the relaxation. The learned counsel has, accordingly, concluded with this reasoning that these words in fact are beneficial to the interest of his clients. But I am astonished as to how these words could help them. The wording of this Serial No.20 are itself suggestive of its applicability of those cases where Service Rules are involved and not to the case of respondents Nos.4 and 5, so, the reference to Rule 6 and thereafter to Serial No.20 of Part‑A of Schedule VII, has been found to be of no use to the learned counsel for respondents Nos.4 and 5 because the words, on the face of it, have wiped out the arguments of the‑learned counsel and have proved their ineffectiveness with regard to the case of respondents Nos.4 and 5. The word "Service" has been used in it with its first letter in capital. Therefore, this exercise of the learned counsel has proved to be a non‑gratifying provision for the aforesaid respondents because Serial No.20 of Schedule VII is clear in its scope, word anti import, the meaning of which cannot be stretched on any far fetched idea to the facts of the present case. Accordingly, learned counsel for the respondents has failed to prove that the aforesaid Minister had the power to allow relaxation in the matter in dispute.

The learned counsel for the respondents Nos.4 and 5 has further argued that the petitioners had got no locus standi to file the instant writ petition as they do not fall within the definition of words used in the Constitution for "an aggrieved party". He has referred to 1990 PCr.LJ 1231 (Juvenile Jail Landhi, Karachi in Re: (Suo motu notice). There is no cavil to the proposition that under clause (a) containing sub‑clauses (i) and (ii) of Sub‑Article (1) of Article 199 of the Constitution, the words any aggrieved party", whereas in clause (c) of sub‑Article (1) of the Article 199 of the Constitution the words used are "any aggrieved person" and in clause (b) consisting of sub‑clauses (i) and (ii) of Sub-Article (1) of Article 199 of the Constitution find the word "any person". So, all these three clauses "any aggrieved party", "any aggrieved person" and "any person" have got different meanings, connotations and interpretations. In the case in hand the petitioners are invoking the provisions of Sub‑Article (1) of Article 199 read with Article 25 of the Constitution. The words "any aggrieved party" has to be seen through the authoritative and propounded judgment of the superior Courts, which have laid down its definition in the following words:‑‑

"A person who has a personal interest in performance of legal duty and that the non‑performance of the duty is to result in loss of some "personal benefit or advantage or the curtailment of a privilege".

In 1990 MLD 1428 Muhammad Farooq v. Vice‑Chancellor, University of Azad Jammu and Kashmir and 2 others, the petitioner who was denied admission in the University was considered "an aggrieved party". In PLD 1975 Lahore 544 (Munawar Ali and 5 others v. Secretary; to the Government of Punjab and 2 others) and 1981 CLC 321 (Khawar Ijaz and another v. Government of the Punjab), it was held hat a person; was aggrieved when he had got an interest in the performance of legal duty. As held in 1985 SCMR 666 (Azizuddin v. Muhammad Ismail and others), if rights of person can be affected or if a person can gain advantage with regard to his rights by getting a declaration he has got locus standi to invoke these provisions of Article 199 of the Constitution. After this interpretation, it becomes explicit that to claim the right and to get it exercised under Article 199 (1) of the Constitution the person coming to this Court has to show and prove the following requirements before he could be granted the relief:‑‑

(i) petitioners' personal interest;

(ii) that must be in the performance of legal duty;

(iii) he must be benefited/affected from its performance; and

(iv) benefit, advantage may be small or large

To examine the case of petitioners in the light of these requirements, petitioners are loser of this case, because it has been found and held by me that the orders of relaxation by the Minister and the above noted Principal were not legal. After making declaration of such a nature, if this Court directs the Principal to grant relaxation, it would amount and tantamount to get performed from the Principal a duty, an act which has no been considered by the Court itself a legal one. Therefore, it has to be kept in mind that the direction, order or instructions to be issued by this Court would not compel or cause the person or an authority to perform an illegal act or omission, as it would result in giving birth and creation of illegal and unlawful child of law whose existence would become a perpetual painful succession: So, the petitioners cannot be granted the declaration prayed for and their petitions merit dismissal on this sole account.

The last question which is of vital importance and consideration is as to whether the petitioners should be treated alike as those of respondents Nos.4 and 5 in the matter of relaxation of their deficiency in the attendance of lectures or not? Viewed from the fact that the dispute relates to the students who have got an edge of special paternal feelings, if considered through this out look they earn concession/relaxation but seen from another angle of maintaining discipline and importance of imparting of quality education, it being a branch of human suffering, the petitioners are not to be granted any relaxation. Students of today would be licence holders of tomorrow with conferred powers to play with the fate of ailing humanity. The qualitative education would, produce a doctor of competence while relaxation would bring in a bad addition. Fixation of percentage of attendance of lectures, in fact is a necessary requirement for reception of a prescribed standard quality of education. Therefore, it is a requirement of vital importance to maintain the standard.
It may be noted that once relaxation is granted, it would open the flood‑gate of concessions, which will give birth not only to nepotism, favourtism but to corruption also. This would cause the collapse of whole qualitative system of imparting of the medical education. There may be cases of hardship, difficulties and of unavoidable circumstances but the thought to be given is as to whether such a power, has to be conferred upon an authority or not and what would be the result of such grant of power to any authority. The consequences have come out from and have brought before us the result from a wrong precedent set out from the order of the Minister of Health.
So, the powers granted by the Constitution to this Court are to be exercised in aid when a person claims right or discrimination on the basis of a valid and legal order. As found from the discussion dilated u upon the foregoing pages, the order of relaxation passed by the Health Minister and implemented by the Principal, QAMC, Bahawalpur having been found illegal, without lawful authority, it cannot be used as precedent for the present petitioners because an illegal/invalid/unlawful order cannot be used to gain benefit or made the basis for obtaining the assistance form this Court. This Court would not act to enternizing and expanding the illegal act and orders in the field. It would rather curb such practice and orders and would nip the evil in the bud as to bar its more creation and implementation in future.

With these observations, all these writ petitions are dismissed with no order as to costs.

M.A.W./N‑29/L Petitions dismissed.

MLD 2004 LAHORE HIGH COURT LAHORE 988 #

2004 M L D 988

[Lahore]

Before Muhammad Sayeed Akhtar and Mian Hamid Farooq, JJ

Mian MUHAMMAD AMJAD AMIN‑‑‑Appellant

Versus

Rana BASHIR AHMAD‑‑‑Respondent

Regular First Appeal No.794 of 2002, decided on 27th January, 2003.

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

‑‑‑‑O.XXXVII, Rr.2(2) & 3‑‑‑Limitation Act (IX of 1908), S.5 & Art. 159‑‑‑Suit for recovery of money based on pro note‑‑‑Application for leave to defend was time‑barred‑‑‑Application for condonation of delay under S.5 of Limitation Act, 1908‑‑‑Trial Court dismissed both applications and decreed the suit‑‑‑Defendant's plea was that he was seriously ill from 8‑3‑2002 uptil 9‑4‑2002; and though he was served on 20‑3‑200.2, but copy of plaint was delivered to him on 10‑4‑2002, thus, leave application filed on 16‑4‑2002 was within time‑‑Validity‑‑‑Summons personally served on defendant on 20‑3‑2002 showed that copy of plaint was annexed with such summons‑‑‑Defendant had not raised objection at time of receipt of summons that same did not accompany copy of plaint‑‑‑Article 159 of Limitation Act, 1908, nowhere provided that period of limitation for filing leave application would start from date of delivery of copy of plaint to defendant‑‑Summons had been served on 20‑3‑2002, and defendant could have filed leave application within 10 days thereafter i.e. up to 30‑3‑2002‑‑‑Leave application filed on 16‑4‑2002 was, thus, time‑barred‑‑‑Ground of illness alleged in application for condonation of delay had not been urged before High Court‑‑‑No material was placed on record to show that defendant was in fact indisposed and was not in a fit state of health to file leave application‑‑‑Defendant had failed to explain each day's delay in filing leave application‑‑‑No sufficient cause for condonation of delay within parameters of law had been made out‑‑‑No rebuttal attempted to ex parte evidence recorded by Trial Court, wherein original pro note was produced and witnesses of pro note were examined‑‑‑Impugned judgments were completely in consonance with law on the subject‑‑‑High Court dismissed appeal.

Emirate Bank International v. Dost Muhammad Cotton Mills 1993 MLD 54 rel.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Art.159‑‑‑Civil Procedure Code (V of 1908), O.XXXVII, R.3‑‑Application for leave to appear and defend suit‑‑‑Limitation for filing such application would not start from date, when copy of plaint was delivered to defendant but from the date when summons were served.

‑‑‑‑O. XXXVII, R. 2(2)‑‑‑Suit upon negotiable instrument‑‑‑Failure to obtain leave to appear and defend suit‑‑‑Effect‑‑‑Allegations in plaint would be deemed to be admitted and plaintiff would be entitled to decree.

Messrs Ahmad Autos and another v. Allied Bank of Pakistan Limited PLD 1990 SC 497 fol.

Muhammad Ramzan Chaudhry for Appellant.

MLD 2004 LAHORE HIGH COURT LAHORE 993 #

2004 M L D 993

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD BASHIR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.694‑B of 2004, decided on 11th March, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of‑‑Further inquiry‑‑‑Medico‑legal Report attached by accused with his bail application had shown that accused had sustained as many as nine injuries on his person and he was medically examined on the day of occurrence, but said injuries on the person of accused had not been explained by prosecution in F.I.R.‑‑‑Brother of accused had brought private complaint against complainant party in which Trial Court had summoned the complainant‑‑‑Case being that of two versions of the alleged incident, it was yet to be determined as to who was the aggressor and who was the aggressed and that would be seen at trial‑‑‑Scope of further inquiry into guilt of accused being there, his case was covered under S.497(2), Cr.P.C. entitling him to the grant of bail‑‑‑Accused who was previous non‑convict was granted bail.

Mst. Shafiqan v. Hashim Ali and another 1972 SCMR 682; Bahadur and 9 others v. The State 1975 PCr.LJ 162; M. Shrafuddin v. The State‑1977 PCr.LJ 530; Muhammad Boota and 5 others v. The State 1978 PCr.LJ 300 and Moeeuddin v. The State and another 1999 PCr.LJ 810 ref.

Akhtar Hussain Bhatti for Petitioner.

Ishfaq Ahmad Chaudhry for the State.

Azhar Ali Shah Bokhari for the Complainant.

MLD 2004 LAHORE HIGH COURT LAHORE 1000 #

2004 M L D 1000

[Lahore]

Before Ijaz Ahmad Chaudhry, J

KHADIM HUSSAIN and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.257‑B of 2004; decided on 9th February, 2004.

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

‑‑‑‑S.498‑‑‑Bail before arrest, grant of‑‑‑Principles‑‑‑Bail before arrest was meant to protect innocent citizens if there were chances of their false implication and case was found to have been registered against them with mala fide intention‑‑‑If circumstances would show that chances were of false implication of accused, bail before arrest could be granted as liberty of a person could not be curtailed without sound reasons and sufficient evidence on record.

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

‑‑‑‑S.498‑‑Penal Code (XLV of 1860), S.379‑‑‑Bail before arrest‑‑Confirmation of‑‑‑No evidence had been collected by police except statement of complainant, who had only raised suspicion that accused had committed theft‑‑‑Statement of tracer had not been recorded‑‑‑Case against accused persons was not registered for more than one and a half years for the reasons best known to complainant or the police‑‑‑Co-accused remained on physical remand, but police could not recover any material from him connecting accused with commission of offence‑‑Complainant seemed to be in the habit of levelling allegations against accused as on police record there was, an application moved by complainant regarding theft of his buffalo and he suspected that accused were, responsible for the same‑‑‑During investigation accused had alleged that they had been falsely implicated by complainant to whom one buffalo and one cow were given as security till the decision of Punchait‑Since allegation levelled for commission of theft was found false against accused in Punchait, they demanded back said animals, whereupon complainant with mala fide intention had falsely got registered criminal case against them‑‑‑Police had also come to the conclusion that accused were innocent‑‑‑Liberty of citizen could not be curtailed merely on suspicions‑‑‑Chances of false implication of accused due to mala fides on part of complainant who was continuously involving accused in such‑like cases could not be ruled out‑‑‑Delay of about one and half years had occurred in registration of case which delay had not been explained in any manner‑‑‑Bail could not be refused merely on ground that recovery was yet to be effected as sufficient evidence had not been collected to prima facie connect accused with commission of crime‑‑‑Ad interim pre-arrest bail already granted to accused by Court, was confirmed in circumstances.

Mian Waseem Alam Ansari for Petitioners.

Ch: Muhammad Jameel for the Complainant.

Rao Atif Nawaz for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1003 #

2004 M L D 1003

[Lahore]

Before Maulvi Anwarul Haq, J

SOHBAT ALI and 2 others‑‑‑Petitioners

Versus

MUKHTAR HUSSAIN and 4 others‑‑‑Respondents

Civil Revisions Nos.259‑D and 260‑D of 1999 and 87 of 2000, heard on 16th December, 2004.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S.21‑‑‑Punjab Pre‑emption Act (IX of 1991), Ss.13 & 35‑‑‑Preemption suit, revival of‑‑‑Three suits were filed on 19.5.1975 and the same were dismissed by Trial Court on 14.3.1977‑‑‑Lower Appellate Court and High Court maintained the judgment and decree passed by the Trial Court ‑‑‑Pre‑emptors filed application under S.35 of Punjab Preemption Act, 1991, which was dismissed on 14.5.1991 but the Lower Appellate Court allowed the application in exercise of revisional jurisdiction, revived the suits and the suits were remanded to Trial Court for decision afresh‑‑‑On revival of the suits, the evidence regarding Talb‑i‑Ishhad was produced by the pre‑emptors and the suits were decreed by the Trial Court and the decree was set aside by Appellate Court‑‑‑Plea raised by the vendees was that the suits could not have been revived as the same had been filed under the provisions of Punjab Preemption Act, 1913‑‑‑Validity‑‑‑Suits were not initially dismissed for the reason that requisite Talb had not been made because at the relevant time Punjab Pre‑emption Act, 1913, was in force and no such requirement was there‑‑‑Such dead and buried suits could not have been revived under the provisions of S.35 of Punjab Pre‑emption Act, 1991‑‑‑Trial Court while decreeing the suits had not committed any illegality‑‑Witnesses produced by the vendees in defence did not also suffer from any disqualification‑‑‑Such being the situation, the Trial Court had failed to read evidence on record while recording its finding that Talb‑i‑Ishhad had been proved‑‑‑Appellate Court failed to consider the findings of Trial Court and also failed to read the evidence on record in support of Talb‑i‑Ishhad‑‑‑Judgements and decrees passed by the two Courts below had been set aside and suits filed by the pre‑emptors were dismissed in circumstances.

Ahmad and others v. Muhammad Hayat and others 1995 MLD 571 fol.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S.13‑‑‑Civil Procedure Code (V of 1908), O.VI, R.1‑‑‑Pleadings pertaining to Talb‑‑‑Denial of right of pre‑emption ‑‑‑Statement in the plaint, "although vendees were called upon to admit the right of preemptor and deliver possession after taking the price but they had refused a week ago" was not sufficient to constitute pleadings pertaining to Talb as understood in Islamic Law.

Ghulam Qadir v. Nawab Din and others PLD 1988 SC 701 rel.

Sh. Zamir Hussain and Ajmal Kamal Mirza for Petitioners.

Ch. Mushtaq Ahmad Khan and Abdul Karim Karala for Respondents.

Dates of hearing: 20th November and 16th December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 1010 #

2004 M L D 1010

[Lahore]

Before Ch. Ijaz Ahmad and Mian Hamid Farooq, JJ

ZUBAIR AHMAD and another‑‑‑Appellants

Versus

SHAHID MIRZA and 2 others ‑‑‑Respondents

Regular First Appeal No.370 of 2003, heard on 9th March, 2004.

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

‑‑‑O.XXXVII, R.3‑‑‑Dishonoured cheque‑‑‑Suit for recovery was filed by the respondents against the appellants under O.XXXVII, C.P.C.‑‑Appellants' application seeking leave to defend was allowed by the trial Court on the condition that they were to furnish a bank security of a certain amount within a specified period‑‑‑Failure of the appellants to fulfil the said condition led to passing of decree against them‑‑‑Appeal was filed by the appellants against the said decree‑‑‑Plea of the appellants was that they were a partnership firm, but were not impleaded as such in the suit, therefore, the same was not maintainable‑-‑Validity‑‑‑No such plea was agitated by the appellants before the trial Court or raised in their application seeking leave to defend‑‑‑Defendant, under the law, was required to specifically raise all points of law and facts in the written statement in order to show that the suit was not maintainable and barred by law, inasmuch as the legal infirmities in the suit must be specifically pleaded and its particulars must be narrated‑‑‑Party was not permitted to deviate from its pleadings nor the Court could set up a different plea for a party‑‑Appellants, in circumstances, were precluded from urging said plea for the first time in the Appellate Court.

Amir Shah v. Ziarat Gul 1998 SCMR 593; Anwar Ali and others v. Manzoor Hussain and another 1996 SCMR 1770; Messrs Chaudhry Brother Ltd., Sialkot v. The Jaranwala Central Cooperative Bank Ltd., Jaranwala 1968 SCMR 804; Mst. Janat Bibi v. Sher Muhammad and others 1988 SCMR 1696 and Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336 ref.

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

‑‑‑‑O.XXX, R.1‑‑‑Contract Act (IX of 1872), S.43‑7‑Suit against firms‑‑Scope‑‑‑Anyone partner may sue or be sued on behalf of the firm and it was not necessary that all the remaining partners should be joined as plaintiffs or defendants.

Messrs Combined Enterprises v. Water and Power Development Authority, Lahore PLD 1988 SC 39 ref.

‑‑‑‑O.XXXVII, R.3(2)‑‑‑Conditional leave to appeal‑‑‑Legality‑‑‑Plea of the appellants. was that they were entitled to unconditional leave to appear and defend the suit and a conditional leave granted to them by the Trial Court was not sustainable under the law‑‑‑Validity‑‑‑Under O.XXXVII, R.3(2), C.P.C. discretion has been conferred upon a Court to grant leave to defend the suit, either unconditionally or subject to such terms as to payment into Court or giving security‑‑‑Trial Court in exercise of its discretionary powers, had tagged the condition for the appellants of submitting bank security with leave to appear and defend the suit, and the same could not be termed, as illegal, without jurisdiction or even arbitrary or harsh.

Mian Rafique Saigol arid another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1996 SC 749; Niaz Ahmad and 2 others v. Habib Bank Ltd. and others 1991 SCMR 75 and Messrs Ark Industrial Management Ltd. v. Messrs Habib Bank Limited PLD 1991 SC 976 ref.

(d) Discretion‑‑‑

‑‑‑‑Exercise of‑‑‑Discretionary orders of subordinate Courts cannot be interfered with unless found fanciful and arbitrary.

Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 ref.

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

----O. XXXVII, R. 3(2)‑‑ Failure of a person to fulfil the condition subject to which he was granted leave to defend the suit‑‑‑Effect‑‑‑When defendant fails to fulfil the condition subject to which the leave was granted, it was the duty of the Court to pass a decree against the said defendant.

Abdullah v. Shaukat 2001 SCMR 60, Col. (Retd.) Ashfaq Ahmad and others v. Sh. Muhammad Wasim 1999 SCMR 2832; Aftab Iqbal Khan Khichi and another v. Messrs United Distributors Pakistan Ltd. Karachi 1999 SCMR 1326 and Fayyaz‑ul‑Hassan v. Messrs National Feed (Pvt.) Ltd. 2001 MLD 1630 ref.

Messrs Ahmed Autos and another v. Allied Bank of Pakistan Limited PLD 1990 SC 497 and Muhammad Yousaf v. Allah Yar (PLD 1987 Lah. 101 distinguished.

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

‑‑‑O.XXXVII, R.3‑‑‑Award of payment of interest till the realization of decree against the appellants‑‑‑Validity‑‑‑Appellants had nowhere undertaken to pay the interest to the respondents in case they failed to return the amount mentioned in the cheque‑‑‑Respondents, in circumstances, were not entitled for the grant of interest, which was illegally allowed by the trial Court.

Arif Chaudhary for Appellants.

M. Yaqub Pannu for Respondents.

Date of hearing: 9th March, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1018 #

2004 M L D 1018

[Lahore]

Before Ijaz Ahmad Chaudhry, J

DILAWAR HUSSAIN ‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Revision No.244 of 2003, heard on 10th February, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.540, 435 & 439‑‑‑Penal Code (XLV of 1860), S.161‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Application for recalling prosecution witnesses for cross‑examination‑‑Application of accused for recalling prosecution witnesses was allowed subject to deposit of Rs.1000 within one week‑‑‑Accused having failed to deposit said amount in terms of order of Court, order for recalling prosecution witnesses, was recalled by the Trial Court‑‑‑Validity‑‑‑Once the Court had come to a definite conclusion that accused was not afforded sufficient opportunity to cross‑Examine witnesses and ordered for summoning of witnesses, said order of the Court could not be recalled merely on ground that accused had failed to deposit amount of fine within specified period‑‑‑Opportunity for cross‑examination should have been afforded to the accused despite he had failed to deposit said amount as cross‑examination of a witness was the right of accused and sufficient opportunity had to be granted to accused in that regard‑‑‑Order recalling order passed by trial Court earlier for recalling of prosecution witnesses, was set aside‑‑Accused having undertaken to deposit amount of fine on the next date of hearing, Trial Court would recall prosecution witnesses and one more opportunity would be afforded to accused to cross‑examine witnesses.

Malik Arab Hassan for Petitioner.

Ch. Muhammad Masood Sabir for the State.

Date of hearing: 10th February, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1020 #

2004 M L D 1020

[Lahore]

Before Mansoor Ahmad, J

MUHAMMAD TAJ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1259‑B of 2003, decided on 10th February, 2004.

Criminal Procedure Code (V of 1894)‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/324/109/148/149‑‑Bail, grant of‑‑‑Further inquiry‑-‑Allegation against accused was of his indiscriminate firing which had not caused any injury to anybody‑‑Whether the accused had incurred any liability under the provisions of Ss.148/149/109, P.P.C. was to be seen at the time of trial‑‑‑Case against accused, was that of further inquiry at the present stage‑‑‑Conclusion of the trial in near future did not appear to be possible‑‑‑Accused was behind the bars for more than four years‑‑‑Statutory grounds for the grant of bail, though had been deleted through amendment in S.497, Cr.P.C., but in genuine cases where inordinate delay in conclusion of trial was not attributed to accused, Court could consider circumstances and had the discretion to take it as ground for grant of bail‑‑‑Accused was admitted to bail, in circumstances.

M. Ilyas Siddiqui for Petitioner.

Tanvir Iqbal Khan, A.A.‑G. assisted by Mukhtar Ahmad Gondal for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1025 #

2004 M L D 1025

[Lahore]

Before Bashir A. Mujahid, J

SAQIB NAJEEB‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1042‑B of 2004, decided on 4th March, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.337‑A(i)(ii), 458, 506, 109 & 34‑‑‑Bail, grant of‑‑‑Accused was named in promptly recorded F.I.R.‑‑No possibility of false implication of accused or of substitution or mistaken identity existed because he was known to complainant and to prosecution witnesses being resident of same locality‑‑‑Accused had been found guilty during investigation and his involvement in offence had neither been denied nor seriously challenged‑‑‑Record showed that S.458, P.P.C. was added in challan/report under S.173, Cr.P.C.‑‑--Opinion of D.S.P. was not binding on the Court‑‑‑Accused could not claim bail as of right even if case did not fall under prohibitory clause of S.497(1), Cr.P.C.‑‑‑Accused though was not convicted in any case previously, but his involvement in eight cases of similar nature, was sufficient to declare him habitual offender and apprehension existed that if he was released on bail, he could repeat the offence as he seemed to be a political "Ghunda" rather than a political worker and was involved in humiliating public representatives‑‑‑Accused did not deserve any leniency or sympathy, in circumstances‑‑‑Both prosecution witnesses were natural witnesses and it was yet to be seen by Trial Court after recording of evidence whether the offence committed by accused fell under S.458, P.P.C. or 452, P.P.C.

1994, PCr.LJ 511; 1995 PCr.LJ‑930; Muhammad Akhtar v. State 1984, PCr.LJ 2340; Imtiaz Ahmed and another v. The State PLD 1997 SC 545; Dr. Ghulam Sarwar Bhatti v. The State PLD 1993 Lah. 110 and Muhammad Akhtar v. State 1984 PCr.LJ 2340 ref.

Messrs Asghar Ali Gill, Mushtaq Tahir and Tayyaba Zameer Qureshi for Petitioner.

Mr. Azam Nazeer Tarar and Rana Mashud Ahmad for Complainant.

Miss Kiran Hayat, for State.

MLD 2004 LAHORE HIGH COURT LAHORE 1033 #

2004 M L D 1033

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD IDREES JAG‑‑‑Appellant

Versus

Mst. UNEZAH SHAHID and another‑‑‑Respondents

Regular Second Appeal No.2 of 2003, heard on 22nd January, 2004.

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

‑‑‑‑S.24‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.72‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Second appeal‑‑‑Agreement to sell‑‑Execution of document‑‑‑Proof‑‑‑Related witnesses‑‑‑Concurrent findings of facts by the Courts below‑‑‑Plaintiff asserted that agreement to sell the suit‑land was executed by the defendants for a total consideration amount of Rs.1,095,000 out of which a sum of Rs.110,000 was paid as earnest money‑‑‑Time fixed for the completion of the agreement was 10‑9‑1990‑‑‑Plaintiff alleged that a sum of Rs.700,000 was paid to the defendants on 11‑8‑1990 through a receipt and the time was extended till 31‑7‑1993‑‑‑Defendants denied receiving of Rs.700,000 and alleged that the receipt was a forged document‑‑‑Plaintiffs produced marginal witnesses of the receipt who were closely related to him and no independent witness was produced‑‑‑Plaintiffs did not take any step under the agreement to sell for having sale‑deed executed i.e. purchase of stamp papers needed for inscribing the sale‑deed, deposit of District Council fee and other allied taxes/fees, showing his willingness to perform his part of contract by paying the balance sale price till the last date fixed for the purpose‑‑‑Trial Court dismissed the suit‑‑‑Validity‑‑Depositions of closely related witnesses could not be relied upon without some independent corroboration‑‑‑Failure to take any step by the plaintiff under the agreement to sell for having sale‑deed executed proved that he was not willing to perform his part of contract within the stipulated time and thus suffered penalties provided by the agreement‑‑‑Both the Courts below had given exhaustive judgments after due appraisal of evidence on file and after discussing all pros and cons of the case‑‑‑Judgments passed by the Courts below were in consonance with the evidence on file and did not have any legal defect‑‑‑Interference in second appeal under S.100 C.P.C. was only permissible if the impugned decision was contrary to law or it had been rendered without deciding some material issue of law or there had been any error or defect of procedure provided by law‑‑Judgments passed by both the Courts below were neither tainted with any illegality or irregularity nor were fanciful or arbitrary‑‑‑High Court declined to interfere with the judgments and decrees passed by both the Courts below in exercise of jurisdiction under S.100 C.P.C.‑‑‑Second appeal was dismissed in circumstances.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.84‑‑Comparison of signatures‑‑‑Unwillingness to get the same compared‑‑‑Presumption‑‑‑When a party does not show his willingness to have the signatures compared by the Court itself, such unwillingness creates doubt regarding genuineness of the document.

‑‑‑‑S.55‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Agreement to sell‑‑Time as essence of contract‑‑‑Determining factors‑‑‑Parties agreed to conclude sale by specifying a particular date and stipulated penalties for default by any of the parties‑‑‑After execution of the original agreement neither any additional earnest money was received nor time for completion of sale was extended‑‑‑Effect‑‑‑Question of time being of the essence of contract, was to be decided according to the intention of parties reflected in the agreement, its terms, conduct of the parties after the agreement and all attending circumstances‑‑‑Parties intended to make the time of the essence of contract in circumstances.

Seth Essabhoy v. Saboor Ahmad PLD 1973 SC 39; Zaheer Ahmad and another v. Abdul Aziz and others 1993 SCMR 559; Sandoz Limited and another v. Federation of Pakistan and others 1995 SCMR 1431; Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Masud Sarwar v. Mst. Farah Deeba 1988 CLC 1546 and Abdul Habib Durrani v. Toriali 1999 CLC 207 ref.

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

‑‑‑‑S.100‑‑‑Second appeal‑‑‑Scope‑‑‑Interference in second appeal under S.100 C.P.C. was only permissible if the impugned decision was contrary to law or it had been rendered without deciding some material issue of law or there had been any error or defect of procedure provided by law.

Muhammad Ashraf Wahla for Appellant.

Taffazul H. Rizvi for Respondents.

Date of hearing: 22nd January, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1040 #

2004 M L D 1040

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ISHAQ ‑‑‑ Petitioner

Versus

THE STATE and 6 others‑‑‑Respondents

Writ Petition No.4983 of 2003, decided on 27th January, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 244(2) & 265‑F‑‑‑Penal Code (XLV of 1860), Ss.336/334‑L (ii)/34‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Application for summoning of Rapt on basis of which F.I.R. was lodged‑‑‑Petitioner/complainant after recording his statement, moved application for summoning Rapt on basis of which F.I.R. was recorded, but said application was concurrently dismissed by Trial Magistrate and Additional Sessions Judge on ground that said Rapt neither was attached with report under S.173, Cr.P.C. nor same was part of record of Police file and that prosecution could not be allowed at belated stage to produce same in Court‑‑‑F.I.R. itself showed that the same was based on said Rapt‑‑‑Discretion had to be exercised by Courts judiciously and in a proper manner‑‑‑Provisions of Ss.244 & 265‑F, Cr.P.C. had made it clear that prosecution could be allowed to produce additional evidence, both oral as well as documentary, unless it was proved that document had been subsequently cooked up or that such witness was being called for vexation or to delay or for defeating the ends of justice and that it would prejudice the case of accused‑‑‑Document (Rapt) which was sought to be produced was already with the police which was initially recorded on statement of petitioner/complainant and on basis of same F.I.R. was lodged the next day‑‑‑Required document, in circumstances, should have been produced by prosecution in order to prove that F.I.R. was lodged by complainant in time‑‑‑Said document had not been introduced subsequently as it found mentioned in opening sentence of F.I.R.‑‑‑Non‑attachment of said document with the report under S.173, Cr.P.C. and non‑production of same in the Court earlier, was not sufficient to deprive prosecution from producing the same in the Court‑‑‑Concurrent orders of Courts below dismissing application of complainant for summoning said Rapt were set aside by High Court and application of complainant was allowed.

Muhammad Aslam v. The State PLD 1995. Lah. 632; Muhammad Akram v. The State 1999 PCr.LJ 496; Muhammad Yaqoob v. Sessions Judge, Kasur and 21 others 2003 MLD 1296 and Mst. Shama Akram v. Muhammad Latif alias Teefa alias Liaqat and 7 others 2001 YLR 746 ref.

Ch. Muhammad Arshad for Petitioner.

Mr. Mudassar Ali Khan Dha for Respondents Nos.4 to 7.

MLD 2004 LAHORE HIGH COURT LAHORE 1044 #

2004 M L D 1044

[Lahore]

Before Muhammad Muzammal Khan, J

SARFRAZ and 5 others‑‑‑Petitioners

Versus

MUHAMMAD RAMZAN and another‑‑‑Respondents

Civil Revision No. 1186 and Writ Petition No.8507 of 2003, decided on 4th March, 2004.

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

‑‑‑‑S.9‑‑‑Forcible dispossession‑‑‑Nature of possession‑‑‑Suit‑land was situated in front of the house of plaintiffs and was being used by them as their compound where they had been tethering their cattle‑‑‑Defendants forcibly dispossessed the plaintiffs from the suit‑land and claimed to be owners on the basis of an agreement executed in their favour by a third person‑‑‑Trial Court decreed the suit in favour of the plaintiffs and the judgment and decree was maintained by Appellate Court‑‑‑Plea raised by the defendants in revision was that possession of the plaintiffs over suit‑land was of temporary in nature‑‑‑Validity‑‑‑Such possession of the plaintiffs was not of temporary nature‑‑‑Defendants had no right to take the law in their own hand and to take forcible possession under some agreement executed by an unconcerned person who was not shows to be in possession of the suit‑land‑‑‑If defendants were interested in possession of the land, they must seek their remedy before the Court of competent jurisdiction on the basis of their claimed agreement‑‑‑High Court declined to take any exception to the concurrent findings of facts returned by the two Courts below, which were in consonance with the evidence on the file‑‑‑Revision was dismissed in circumstances.

Devi Ditta Ram and others v. Waryam AIR 1929 Lah. 526 and Jalal Din and others v. The Crown PLD 1953 Lah. 34 distinguished.

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

‑‑‑‑S.54‑‑‑Permanent injunction, grant of‑‑‑Partition of Shamilat Deh‑‑Suit‑land being Shamilat Deh was in possession of defendants‑‑‑Plaintiffs on the basis of an agreement forcibly dispossessed the defendants from the suit‑land and sought injunction against recovery of the possession of the suit‑land‑‑‑Trial Court dismissed the suit and judgement and decree was maintained by Appellate Court‑‑‑Validity‑‑‑Defendants being in possession of Shamilat Deh would be considered to be the owners till the partition of Shamilat Deh‑‑‑No one else including the co‑owners of the village had any right to dispossess the defendants by show of force‑‑Plaintiffs had no claim in share in Shamilat Deh land, as their basis in the suit was only an agreement to sell which in itself did not create any right, title or interest in the property‑‑‑Both the Courts below had rightly dismissed the suit for permanent injunction and declined to protect the illegal and forcible possession.

Mian Muhammad Nawaz for Petitioners.

Muhammad Hussain Awan for Respondents.

MLD 2004 LAHORE HIGH COURT LAHORE 1049 #

2004 M L D 1049

[Lahore]

Before Ch. Iftikhar Hussain, J

TANVEER ALI ‑‑‑ Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.742‑B of 2004, decided on 11th March, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.382/459‑‑‑Bail, grant of‑‑Further inquiry‑‑‑Accused neither was named in F.I.R. nor he was put to any identification test‑‑‑Name of accused figured in the supplementary statement of complainant‑‑‑Accused, in said statement was named as one of culprits on basis of suspicion‑‑‑Suspicion howsoever strong, that might be, could not take place of proof‑‑‑Nothing incriminating had been recovered from accused despite he remained with Police on physical remand for about four days‑‑‑All said facts had made the case of accused as one of further inquiry into his guilt as contemplated under subsection (2) of S.497, Cr.P.C.‑‑‑Accused was stated to be previous non‑convict‑‑Accused was entitled to bail, in circumstances.

Muhammad Younas Khokhar for Petitioner.

Malik Muhammad Akbar Awan for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1053 #

2004 M L D 1053

[Lahore]

Before Muhammad Akhtar Shabbir, J

Mst. AZAM JAHAN ARA BEGUM and 4 others‑‑‑Petitioners

Versus

COMMISSIONER, SARGODHA DIVISION, SARGODHA and 2 others‑ ‑‑Respondents

Writ Petition No.353 of 1982, heard on 17th February, 2004.

Displaced Persons (Land Settlement) Rules‑‑‑

‑‑‑‑R.7‑A‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Fraudulent allotment‑‑‑Repeal of evacuee laws‑‑Cancellation of allotment during consolidation proceedings‑‑‑ Concurrent findings of facts by the Courts below‑-‑During consolidation proceedings, the allotment made in favour of predecessor‑in‑interest of the petitioners was found to be bogus and result of fraud and fabrication, thus the same was cancelled by Revenue Authorities‑‑‑Order of cancellation was maintained by Appellate Authority‑‑‑Plea raised by the petitioners was that after repeal of evacuee laws, the Revenue Authorities could not cancel the allotment made in favour of the predecessor‑ininterest of the petitioners‑‑‑Validity‑‑‑Where the allotment relied upon made by the Settlement Authorities was alleged to be, without jurisdiction, based on fraud and forgery, the authority which exposed the fraud and forgery had rightly set aside the bogus allotment‑‑‑High Court in exercise of its Constitutional jurisdiction declined to annul such order, though it was without jurisdiction‑‑‑The Settlement and Rehabilitation Officer having become functus officio, after repeal of evacuee laws, lacked jurisdiction to interfere with allotment made in favour of evacuee but Board of Revenue being the successors of Rehabilitation Officer and Chief Settlement Commissioner having control over the record could, on the basis of earlier record, make inquiry and observe their opinion with regard to fraudulent allotment.

Akbar Ali v. Mst. Rashida Bibi and others 1990 SCMR 1616; Guldar Khan v. Isa Khan 1993 SCMR 2099; Haji Muhammad Din v. Malik Muhammad Abdullah 1994 PSC 254; Sh. Muhammad Bashir Ali v. Sufi Ghulam Mohay‑ud‑Din 1996 SCMR 813; Abdul Hakeem v. Habib Ullah 1997 SCMR 1139; Abdul Qayyum v. Mushk‑e‑Alam 2001 SCMR 798; Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691 and Quetta Hindu Punchayat v. Mst. Dilshad Akhtar and 5 others 1993 SCMR 21 ref.

Sh. Masood for Petitioners.

M. Sohail Dar, A.A.‑G. with Riaz Ahmad, DOR, Muhammad Aslam and Alamdar Hussain, Patwaries.

Abdul Aziz Qurashi for Respondent No.4.

Date of hearing: 17th February, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1058 #

2004 M L D 1058

[Lahore]

Before Maulvi Anwarul Haq, J

THE STATE‑ ‑‑Petitioner

Versus

Dr. MUMTAZ AHMED MIR ‑‑‑Respondent

Criminal Appeal Nos.372 to 376 of 2001, heard on 16th February, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.417 & 249‑A‑‑‑Appeal against acquittal‑‑‑Sufficient material was available on record to connect accused with commission of offence alleged against him‑‑‑After filing challan in Trial Court, charge was framed and on the same day an application under S.249‑A, Cr.P.C. was filed by the accused‑‑‑Trial Court pending such application proceeded to stay proceedings when same were almost concluded‑‑‑No less than 10 prosecution witnesses and 2 Court witnesses were recorded in the case and prosecutor had not closed evidence as two more witnesses including complainant, were still to be examined‑‑‑Trial Court, after discussing evidence already recorded, proceeded to acquit the accused‑‑Proceedings in case had reflected anxiety of Trial Court to conclude the matter that could be apparent from recording evidence of witnesses in time span of about nine days‑‑‑Trial‑Court, in its judgment referred to evidence on record in some detail and‑concluded that accused had been made a scapegoat and that no probability was available of his being convicted‑‑‑Stage and circumstances in which Trial Court had opted to exercise its power under S.249‑A, Cr.P.C. in acquitting the accused had thrown shroud on proceedings conducted by Trial Court as to what motivated Trial Court to first rush post haste in recording almost entire evidence of prosecution and then to bring matter to screeching halt and to acquit accused under S.249‑A, Cr.P.C.‑‑‑Trial Court, apart from evidence on record had even relied upon contents of bail granting order of the High Court‑‑‑Appeals against acquittal were allowed and oral order passed by Trial Court was set aside with the result that trial would be deemed to be pending which would be declared by the Trial Court on merits within specified time.

S.C. Subjally v. A. Hamid Khan and another 1999 MLD 1645 ref.

Tanvir Iqbal, A.A.‑G. and Mr. Fasail Mehmood, Raja for Appellant.

Muhammad Ilyas Siddiqui for Respondent.

Date of hearing: 16th February, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1068 #

2004 M L D 1068

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD GHAUS RANA ‑‑‑Petitioner

Versus

SECRETARY COMMUNICATION AND WORKS and others‑ ‑‑Respondents

Writ Petition No.346 of 2004/BWP, decided on 2nd April, 2004.

(a) Electricity Rules, 1937‑‑‑

‑‑‑‑S. 48‑‑‑Constitution of Pakistan, 1973, Arts. 18 &199‑‑‑Constitutional petition‑‑‑Grievance of the petitioner was that under R. 48 of Electricity Rules, 1937 no person other than the electrical contractor licensed by the Provincial Government, could participate in tenders invited by the Authorities for electrical works to be done in different Government departments, however, the Authorities had illegally and without jurisdiction invited all general contractors to participate in the tenders‑‑‑Validity‑‑‑Under Art. 18 of the Constitution, it was the right of every citizen to embrace a lawful profession or adopt a business, trade or run an industry, and this right could only be curtailed, regulated, licensed or prohibited through some legislation and by prescribed law‑‑Principles‑‑‑Deprivation of a vested right should not be made without the sanction of any law‑‑‑No law, order or direction existed prescribing any restriction upon the general contractors by .the Federal or Provincial Government of the Punjab to take part in the said electrical works advertised by the Authorities‑‑‑Only carrying on of the work through any person other than the licensed electrical contractor was prohibited by the said R. 48 and it would be wrong to interpret the same in a way to bar the participation of general contractors in the tender‑‑‑Tenders, were legally advertised by the Authorities and the general contractors could equally take part in the invitation and filing of the same‑‑‑Petition was dismissed.

(b) Constitution of Pakistan, 1973‑‑‑

‑‑‑‑Art. 18‑‑‑Interpretation of Art. 18 of Constitution‑‑‑Freedom of trade, business or profession‑‑‑Right‑‑‑Concept‑‑‑Every citizen of Pakistan had got a right to adopt any lawful trade, occupation or profession of his choice unless he was prohibited or restrained by any provision of law, and such was commonly known as freedom of trade, business and profession‑‑‑Proviso (a) of Art. 18 of the Constitution conferred powers upon a Federal or Provincial Government to regulate any trade, profession through a licensing system‑‑‑Proviso (b) of the said Article granted power to the Governments to regulate trade, commerce or industry to the interest of free competition‑‑‑Governments have been given power under Proviso (c) of the said Article, to carry on any trade, business, industry or service, by excluding completely or partially persons to enter into it if trade, business, industry or service is owned or controlled by it.

1991 MLD 267 (Messrs Murree Brewery Company Limited v. Director General, Excise & Taxation and 3 others) and 1992 MLD 1882 (Riaz Ahmed v. The Regional Transport Authority, Multan, through its Secretary Lalazar Colony, Multan and 2 others) ref.

‑‑‑‑R. 48‑‑‑Interpretation and scope of R.48, Electricity Rules, 1937‑‑Rule 48 of the Electricity Rules, 1937 provided that the electric installation work had to be done by and through an electrical contractor, therefore, if a general contractor gets a contract through filing of tenders, he would be bound to get the work of electrical installation done through a licensed electrical contractor‑‑‑Carrying on of the work through any person other than the licensed electrical contractor, was prohibited by said Rule‑‑‑To interpret said Rule in a way as to bar the participation of general contractors in the tender amounted to bringing in, those words, which were not found therein.

(d) Interpretation of Statutes‑‑‑

‑‑‑‑ Clear words, the import and meanings of which are free from doubt, should not be twisted or changed to other meanings from their apparent tenor‑‑‑Words, which are not found in a law, have not to be imported to distort the meanings of plain words.

(e) Electricity Rules, 1937‑‑‑

‑‑‑‑R. 48‑‑‑Cdnstitution of Pakistan, 1973, Art. 199‑‑‑Constitutional petition‑‑‑Contention of the petitioner was that under a notification, one of the departments of the Provincial Government had interpreted R.48 of Electricity Rules, 1937, to bar the participation of general contractors in the tender process‑‑‑Validity‑‑‑Interpretation of the said R. 48 by the Provincial Government could not be held binding upon the Constitutional Court‑‑‑Practice of the department could not be considered the law of the Province, and could not override the clear meaning of law.

Bilal Ahmad Qazi for Petitioner.

Ahmad Mansoor Chishti A.A. ‑G. for Respondents Nos. 1 to 3.

Sardar Mahmood Iqbal Khakwani for Respondents Nos.4 to 6.

Date of hearing: 22nd March, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1075 #

2004 M L D 1075

[Lahore]

Before Muhammad Farrukh Mahmud and Sh. Hakim Ali, JJ

Rao MATLOOB HUSSAIN and others‑‑‑Petitioners

Versus

D. P.O. and others‑‑‑Respondents

Writ Petition No. 1869 of 2003/BWP, heard on 21st January, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 353, 427, 148, 149, 186 & 506‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss. 7 & 6(2)(m)(n)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Transfer of the case from ordinary Criminal Court to Anti‑Terrorism Court ‑‑‑Validity‑‑‑Accused were having no weapon of any kind in their hands but had used only the abusive language which could not be termed as a serious one attracting the provisions of S.6 of the Anti‑Terrorism Act, 1997‑‑‑Accused, according to the complainant, were provoked when he tried to advise them‑‑‑All the efforts stated in the F.I.R. were stated to be an attempt only‑‑‑No serious coercion or intimidation of a public servant had occurred at the time of occurrence even according to the contents of the F.I.R.‑‑‑No harm having been caused to the informant or to any other person to his life and property, it could not give an impression or create any apprehension in the public for the commission of an act of a serious nature inviting the applicability of the word "terrorism"‑‑‑Representation of the Clerks' Association had infuriated superior Officer of the Organization which had led to an exchange of hot words and altercation and the same could not fall within the definition and clause of terrorism‑‑‑Police had added S.7 of the Anti‑Terrorism Act, 1997, with mala fide intention merely to satisfy the desire of vengeance of a superior official of a Government Department who was annoyed due to the representation of the office bearers of the Clerks' Association, at the time and stage when bail was granted to the accused‑‑‑Impugned order whereby the case was 'entertained in the Court of Anti‑Terrorism without assigning any sound reasons could not be sustained and the same was declared to be illegal and without lawful authority‑‑‑Case against accused was consequently directed to be tried by the ordinary Court of criminal jurisdiction‑‑‑Constitutional petition was accepted accordingly.

Syed Munawar Hussain Naqvi for Petitioners.

Ahmad Mansoor Chishti for Respondents.

Date of hearing: 21st January, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1080 #

2004 M L D 1080

[Lahore]

Before Sh. Abdul Rashid, J

RASHIDA PARVEEN‑‑‑Appellant

Versus

THE STATE and 4 others‑‑‑Respondents

Criminal Appeal No.211 of 2004, decided on 10th February, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.365/148/149‑‑‑Criminal Procedure Code (V of.1898), S.417‑‑Appeal against acquittal‑‑‑Accused persons faced the trial in case for almost six years and on several occasions the summonses and even warrants were issued by the Trial Court for appearance of prosecution witnesses, ,but they did not appear‑‑‑Trial Court, after lapse of six years refused to grant further adjournment for prosecution evidence and recorded acquittal of the accused persons on the ground that no prosecution evidence was available on file against the accused‑‑Validity‑‑‑Prosecution could not be given licence to prolong the agony of accused by avoiding to produce its evidence for an indefinite period‑‑Prosecution was duty bound to produce evidence as early as possible‑‑Inordinate delay which occurred in the case had justified Trial Court for refusing to grant further adjournment for production of prosecution evidence‑‑‑No incriminating evidence being available on file against accused persons, their acquittal had rightly been recorded.

Dildar Hussain Alvi for Petitioner.

MLD 2004 LAHORE HIGH COURT LAHORE 1095 #

2004 M L D 1095

[Lahore]

Before Bashir A. Mujahid, J

Ch. HAQ NAWAZ‑‑‑Petitioner

Versus

HAQ NAWAZ DHODI and others‑‑‑Respondents

Criminal Miscellaneous No.3364/CB of 2003, decided on 10th February, 2004.

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

‑‑‑Ss. 497(5) & 498‑‑‑Penal Code (XLV of 1860), S. 302‑‑‑Pre‑arrest bail, cancellation of‑‑‑Accused was specifically nominated in the promptly recorded F.I.R.‑‑‑Eye‑witnesses had duly supported the prosecution story in their statements recorded under S. 161, Cr.P.C.‑‑Subsequent conduct of accused by winning over the witnesses amounted to tampering with the evidence‑‑‑Conclusion of the trial was immaterial as the accused party had produced the witnesses without providing opportunity of cross‑examination to the petitioner who being the father of the deceased was an aggrieved party under the law and had not been associated in the subsequent investigations or provided with an opportunity to cross‑examine the witnesses particularly when they had earlier supported the prosecution story but had made concessional statements before the Trial Court‑‑‑Accused had failed to furnish any justification for his abscondence for a continuous period of eight years and thus disentitled himself for the concession of pre‑arrest bail‑‑‑No mala fide was alleged on the part of police or the complainant‑‑Impugned order of Sessions Court granting pre‑arrest bail to accused was in clear violation of the principles laid down by the Supreme Court‑‑‑Pre‑arrest bail allowed to accused was cancelled accordingly.

Awal Gul v. Zawar Khan and others PLD 1985 SC 402 and Zia-ul-Hassan v. The State PLD 1984 SC 192 ref.

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

‑‑‑‑S. 498‑‑‑Pre‑arrest bail, grant of‑‑‑Essentials‑‑‑Court has no power to grant bail before arrest unless all the conditions laid down by the Superior Courts from time to time are satisfied, the most essential of them being that the intended arrest would be tainted with mala fides which must be specifically stated.

Zia‑ul‑Hassan v. The State PLD 1984 SC 192 ref.

‑‑‑‑Ss. 497 & 498‑‑‑Penal Code (XLV of 1860), S. 302‑‑‑Bail, grant of‑‑‑Abscondence of accused‑‑‑Effect‑‑‑Fugitive from law and Courts loses some of the normal rights granted by the procedural as well as substantive law to the accused.

Awal Gul v. Zawar Khan and others1985 SC 402 ref.

Khawaja Sultan Ahmad for Petitioner.

Dr. Khalid Ranjha for Respondent No. 1.

Abdul Rehman, A.A.‑G. with Akhtar Ali, S.‑I. for State.

MLD 2004 LAHORE HIGH COURT LAHORE 1099 #

2004 M L D 1099

[Lahore]

Before Maulvi Anwarul Haq, J

Syed MAQBOOL KHALIQ and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Revision N o.25 of 2004, heard on 20th February, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 540, 435 & 439‑‑‑Penal Code (XLV of 1860), Ss.408/420/467/471/489‑F‑‑‑Allowing production of document by Magistrate, which he had earlier declined‑‑‑Cheques in dispute earlier were sought to be produced in course of statement of prosecution witness, but for reasons recorded, Magistrate declined to permit their production‑‑‑Subsequently Magistrate proceeded to allow complainant to produce said cheques under S.540, Cr.P.C.‑‑‑Validity‑‑‑Provisions of S.540, Cr.P.C. did not at all refer to documents, but it talked of summoning or examining of persons as witnesses or to recall or reexamine any person already examined‑‑‑Magistrate, for reasons recorded, which reasons, were found to be correct, had declined permission to produce said cheques‑‑‑Magistrate, in circumstances had acted illegally in subsequently allowing production thereof under S.540, Cr.P.C. which did not deal with documents‑‑‑High Court, set aside order of the Magistrate permitting complainant to produce the said cheques.

Pir Altaf Hussain Shah for Petitioners.

Khawaja Khalid Farooq for Respondent.

Date of hearing: 20th February, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1101 #

2004 M L D 1101

[Lahore]

Before Maulvi Anwarul Haq, J

FAZAL MUHAMMAD ‑‑‑Petitioner

Versus

CENTRAL GOVERNMENT through Deputy Commissioner, (General), Notified Officer, Evacuee Property, Attock and another‑‑‑Respondents

Civil RevisiondNo.72‑D of 2000, heard on 15th March, 2004.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), O.II, R.2 & O.XXIII, R.1‑‑‑Suit for declaration‑‑‑Withdrawal of suit‑‑‑Suit earlier filed was withdrawn by plaintiff with permission to file a fresh suit‑‑‑Fresh suit filed by plaintiff was dismissed by Trial Court and Appellate Court dismissed appeal filed by plaintiff against judgment of Trial Court holding that order permitting plaintiff to withdraw the suit and to file a fresh suit on the same cause of action was illegal‑‑‑Validity‑‑‑Permission granted to plaintiff for withdrawal of suit and to file fresh suit, having not been challenged in the manner prescribed by law, same could not have been questioned or set aside in suit which was filed as a result of said permission‑‑‑Appellate Court, in circumstances had acted without lawful authority in holding suit to be barred by O.II, R.2, C.P.C.‑‑‑Appellate Court having acted without lawful authority, order passed by it was set aside by High Court in revision.

Nirbheram Fatee Kurmi v. Sukhdeo Kisun Kurmi and another AIR (31) 1944 Napur 307, Hriday Nath Roy v. Ram Chandra Barna Sarma AIR (sic) Calcutta 34 and Iswari Prasad Singh and another v. Sahodra Kumari and another AIR 1922 Patna 42 ref.

Hifz ur‑Rehman Syed for Petitioner.

Nemo for Respondent.

Date of hearing: 15th March, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1104 #

2004 M L D 1104

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD REHMAN‑‑‑Petitioner

Versus

RENT CONTROLLER, ISLAMABAD and another‑‑‑Respondents

Writ Petition No.786 of 2004, decided on 26th March, 2004.

Islamabad Rent Restriction Ordinance (IV of 2001)‑‑‑

‑‑‑‑Ss.2(g) & (j) 17 & 21‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Relationship of landlord and tenant between the parties‑‑‑On filing ejectment application by landlord, tenant, despite admitting that he had been a tenant under landlord, in his written statement had denied relationship of landlord and tenant between the parties contending that he had purchased shop in dispute vide an agreement allegedly executed by landlord, in his favour‑‑‑Mere agreement to sell even if it be assumed to have been executed by landlord, would not bring to an end the relationship of landlord and tenant between the parties‑‑‑Tenant in his own pleadings had admitted that he entered the premises as a tenant and there was no agreement between the parties that tenancy had ceased and obligation of tenant to pay rent to landlord had been put to an end by way of said agreement‑‑Rent Controller had not applied his mind to written statement wherein simply a bald statement as to non‑existence of relationship of landlord and tenant between the parties had been made‑‑‑Rent Controller was not at all required by any law to hold a trial on such a frivolous plea which was completely negated by contents of written reply itself and the very agreement being relied upon by tenant‑‑‑Order for deposit of rent passed by Rent Controller, ,was with jurisdiction‑‑‑Rent Controller, however, was directed to frame issues on merits and proceed to decide ejectment application in case tenant had complied with the order for deposit of rent according to tentative rent order passed by Rent Controller.

Qazi Muhammad Hayat and others v. Dad Muhammad and others PLD 2003 SC 231 and Haji Jumma Khan v. Haji Zarin Khan PLD 1999. SC 1101 ref.

Tariq Mahmood Jahangiri for Petitioner.

MLD 2004 LAHORE HIGH COURT LAHORE 1107 #

2004 M L D 1107

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD YOUSAF alias BALA ‑‑‑Petitioner

Versus

KHUDA DAD and 11 others‑‑‑Respondents

Civil Revision No.2326 of 2003, heard on 9th February, 2004.

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

‑‑‑‑O. XXVI, Rr. 9 & 10‑‑‑Appointment of local commissioner‑‑-Suit for permanent injunction‑‑‑Where the controversy between the parties was with regard to the boundaries of lands owned by them, the same could, only be resolved through demarcation and the Trial Court was right to Tim adopt the procedure of appointing a local commissioner under O. XXVI, Rr. 9 & 10, C. P. C.

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

‑‑‑‑O. XXVI, R. 10(3)‑‑‑Report of local commissioner ‑‑‑Objections‑‑Validity‑‑‑Suit for permanent injunction filed by the respondents‑‑‑Trial Court appointed local commissioner in view of controversy regarding demarcation of properties‑‑‑Suit was decreed in favour of the respondents after relying on the report of the local commissioner‑‑Petitioner raised objections against the report of the local commissioner in appeal but was unsuccessful‑‑‑Petitioner had raised objections to the report of the local commissioner in the Trial Court‑‑‑Reply to these objections was also given by the respondents‑‑‑Local commissioner was also examined by the Trial Court‑‑‑Trial Court was obliged under O. XXVI, R. 10(3), C.P.C. to decide objections to the report of the local commissioner, and while doing so, to confirm it or if dissatisfied ‑for any reason, to direct such further inquiry as may be necessary.

Ahmad Hossain alias Tipu Mia v. Abdus Samad Shah and others (PLD 1967 Dacca 774) and Mst. Mariam and another v. Mst. Amina and others (AIR 1937 All. 65) ref.

‑‑‑‑O. XXVI, R. 10‑‑‑Interpretation of O. XXVI, R. 10, C.P.C.‑‑‑Report of local commissioner‑‑‑Objection‑‑‑Validity‑‑‑Express language of O. XXVI, R. 10, C.P.C. provided that without adjudication of objections to the report, without accepting or turning down the objections and without confirmation of the report of the local commissioner, it could not have been relied for the decision and for this purpose, Trial Court had to apply its conscious judicial mind for passing a specific order‑‑‑No such exercise was taken by the Trial or Appellate Court and an unconfirmed report of the local commissioner was relied upon‑‑Judgment of the Courts below, in circumstances, was set aside by High Court.

Malik Amjad Parvez, for Petitioner.

Ch. Muhammad Ikram for Respondents No. 1 and 2.

Nemo for Respondents Nos.3 to 12.

Date of hearing: 9th February, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1111 #

2004 M L D 1111

[Lahore]

Before Sh. Abdul Rashid, J

Dr. ASIF MAHMOOD JAH, DIRECTOR CUSTOMS INTELLEGENCE AND INVESTIGATION‑‑‑Petitioner

Versus

THE STATE and 2 others‑‑‑Respondents

Criminal Miscellaneous No.2086‑M of 2003, decided on 10th February, 2004.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.161(15)‑‑‑Central Excises Act (I of 1944), S.9‑A‑‑‑Criminal Procedure Code (V of 1898), Ss. 164 & 561‑A‑‑‑Recording of statement under S.164, Cr.P.C.‑‑‑Petition for quashing of order‑‑‑Complaint in the present case, in shape of report under S.173, Cr.P.C., had already been submitted by the Investigating Officer after inquiry and accused were summoned to face the trial‑‑‑Provisions of S.161(15) of Customs Act, 1969 had provided for recording of statement under S.164, Cr.P.C. only during inquiry proceedings whereas S.164, Cr.P.C. itself stipulated that a Magistrate could record the statement or confession made to him in course of an investigation‑‑‑Statement under S.164, Cr.P.C. could only be recorded by a Magistrate First Class during inquiry or investigation and not after submission of complaint in the shape of report under S.173, Cr.P.C. leading to summoning of accused and commencement of their trial.

Khawar Ikram for Petitioner.

Najeeb Faisal Ch. Addl. Advocate‑General with Mian Muhammad Tariq for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1118 #

2004 M L D 1118

[Lahore]

Before Maulvi Anwarul Haq, J

MANZOOR HUSSAIN ‑‑‑Petitioner

Versus

Mst. ZAMURRAD BEGUM and 8 others‑‑‑Respondents

Civil Revision No.374‑D of 2001, heard on 25th March, 2004.

Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss.6 & ‑13‑‑‑Suit for pre‑emption ‑‑‑Civil Procedure Code (V of 1908), S.96‑‑‑Trial Court having dismissed suit, plaintiff filed first appeal which was admitted for hearing and notice was issued to opposing party‑‑‑On date fixed for hearing of appeal, counsel for respondent was present, but none was present for appellant‑‑‑Appellate Court adjourned case for arguments giving them last and final opportunity‑‑‑None being present on adjourned date of hearing, Appellate Court proceeded to decide appeal on merits and dismissed same‑‑‑Validity‑‑‑Appellate Court could have dismissed appeal when none of the parties was present for non-prosecution, but had no lawful authority to decide first appeal on merits without hearing parties.

Sazia Sultana v. Razia Begum PLD 2003 Lah. 27 ref.

Muhammad Younas Bhatti for Petitioner.

Ch. Nisar Ahmad for Respondents.

Date of hearing: 25th March, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1122 #

2004 M L D 1122

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD SADIQ and another‑‑‑Petitioners

Versus

SAEEN KHAN-‑‑Respondent

Civil Revision No.86 of 2004, decided on 27th February, 2004

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

‑‑‑‑S. 115‑‑‑Revision jurisdiction‑‑‑Re‑appraisal of evidence‑‑‑Principles‑‑‑Re‑appraisal of evidence was though not permitted under revisional jurisdiction but if the petitioners claimed misreading of evidence, the Court was to undertake the exercise to satisfy itself and to verify the propriety of judgment and decree impugned.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 13‑‑‑Suit for possession through pre‑emption ‑‑‑Performance of Talbs‑‑‑Trial Court non‑suited the respondents but on appeal a decree in their favour was passed by the Appellate Court‑‑‑Contention of the petitioners was that the pre‑emptor had failed to perform the Talbs as required under S.13 of Punjab Pre‑emption Act, 1991‑‑‑Validity‑‑‑Preemptor through detailed evidence had proved that he had no prior knowledge of the sale and as soon as he gained knowledge of the same he immediately preferred Talb‑i‑Muwathibat'‑‑‑Pre‑emptors, in the circumstances, had proved his right and discharged his obligations as required under S.13 of Punjab Pre‑emption Act, 1991‑‑‑Pre‑emptor by making immediateTalb‑i‑Muwathibat' and by sending notice of 'Talb‑i-Ishhad' within time fixed by law sufficiently complied with the provisions of Pre‑emption Act, 1991.

Abdul Malik v. Muhammad Latif 1999 SCMR 717 and Muhammad Gul v. Muhammad Afzal 1999 SCMR 724 ref.

‑‑‑‑Ss. 13 & 30‑‑‑Pre‑emption suit‑‑‑Performance of Talb has to be based on information of sale of land and not on the bargain‑‑‑Contention of the petitioners that the pre‑emptor was aware of the bargain, therefore, there was a delay in performance of Talbs‑‑‑Validity‑‑‑Section 13 of Preemption Act, 1991 required performance of Talbs on receiving information of sale, similarly, under S.30 (b) of the said Act limitation for filing of pre‑emption suit started in case of sale affected through mutation, from the date of attestation of mutation‑‑‑Everything including Talbs was to be done after the sale and its knowledge, so bargain or its information was not relevant.

(d) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 13 & 33‑‑‑Pre‑emption suit‑‑‑Performance of Talbs‑‑‑Trial Court non‑suited the pre‑emptors but ‑on appeal a decree in their favour was passed by the Appellate Court‑‑‑Contention of the petitioners was that it was a case of misreading and non‑reading or evidence, as there were minor discrepancies in the statements of witnesses produced by the preemptors during trial‑‑‑Validity‑‑‑Parties and witnesses produced by the pre‑emptors were illiterate and such minor discrepancies were bound to occur with the lapse of time, as evidence was recorded after two years of sale‑‑‑Statements of the witnesses could not be discarded on the basis of minor discrepancies‑‑‑No misreading or non‑reading of evidence having been found which required any interference.

Abdul Qayyum (deceased) through L.R.s v. Mushke‑e‑Alam and another 2001 SCMR 798 ref.

Ghulam Farid Chaudhry for Petitioners.

Abid Iqbal Butt for Respondents.

MLD 2004 LAHORE HIGH COURT LAHORE 1127 #

2004 M L D 1127

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

MUHAMMAD ASIF‑‑‑Petitioner

Versus

MUHAMMAD ANWAR ‑‑‑Respondent

Writ Petition No.4621 of 2004, decided on 1st April, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXXVII, R.2, 3 & O.XI, Rr.12 & 14‑‑‑Suit for recovery of amount‑‑‑Application for recovery and production of document‑‑‑Court had discretion to order any party to produce upon oath, such of documents in his possession or power, relating to any matter in question in such suit, as the Court would think right during the pendency of suit‑‑Court could deal with such documents, when produced, in such manner as would appear just‑‑‑Application for production of document filed by defendant, in the present case, was entirely based on a contradictory plea and contents of documents sought to be produced entirely 'negated the averments of written statement filed by applicant/defendant‑‑ Production of such documents could not be ordered as envisaged in O.XI, R.12, C.P.C. which had provided that discovery could not be ordered when Court was of the opinion that it was not necessary either for fair disposal of the suit or for saving the costs.

Syed Ghulam Nabi Shah for Petitioner.

MLD 2004 LAHORE HIGH COURT LAHORE 1133 #

2004 M L D 1133

[Lahore]

Before Ch. Ijaz Ahmad, J

RASHID ALI ‑‑‑Petitioner

Versus

NATIONAL COLLEGE OF ART through Principal‑‑‑Respondent

Writ Petition No. 18897 of 2002, decided on 24th February, 2004.

(a) Constitution of Pakistan, 1973‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Educational Institution‑‑ Petitioner secured admission in the College on self‑finance basis by initially depositing the whole amount of tuition fee for the complete course‑‑‑Petitioner's admission was, however, terminated on certain grounds by the College after a few months‑‑‑Consequently, petitioner demanded the return of the said tuition fee amount that he had initially deposited‑‑‑On refusal by the College, petitioner through Constitutional petition prayed for the return of the said fee amount‑‑Contention of the petitioner was that he had a contract based on Calendar‑Prospectus with the College that made petition maintainable, whereas, College objected that as the petitioner wanted enforcement of a contract, therefore, the petition was not maintainable ‑‑‑Calendar Prospectus issued by the College on the basis of which the petitioner secured admission had a statutory force, therefore the Constitutional petition was maintainable‑‑‑Held, petitioner was not entitled to any relief as the action of the respondent was in accordance with the rules prescribed by it in the Prospectus‑‑‑Petitioner failed to point out that the action of the College was in derogation of its rules and regulations‑‑‑Constitutional petition, in circumstances, was not maintainable.

Ali Mir's case PLD 1984 SC 433 ref.

(b) Constitution of Pakistan, 1973‑‑‑

‑‑‑‑Arts. 25 & 199‑‑‑Constitutional petition‑‑‑Petitioner had not mentioned certain facts in the Constitutional petition, but raised them subsequently during his arguments‑‑‑Effect‑‑‑Parties were bound by their pleadings‑‑‑Court refused to entertain those facts at the arguments stage.

Mst. Murad Begum and others v. Muhammad Rafique and others PLD‑1974 SC 322 ref.

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑General allegation of mala fides is not sustainable in the eye of law.

Saeed Ahmad Khan's case PLD 1974 SC 151; Aman Ullah Khan's case PLD 1990 SC 1092 ref.

Shezada Mazhar for Petitioner.

Muhammad Qamar‑uz‑Zaman for Respondents

MLD 2004 LAHORE HIGH COURT LAHORE 1136 #

2004 M L D 1136

[Lahore]

Before Muhammad Sair Ali, J

Mst. SARWARI BIBI‑‑‑Petitioner

Versus

Mst. ANWARI BIBI and others‑‑‑Respondents

Writ Petition No. 16817 of 2000, heard on 15th March, 2004.

Islamic Law‑‑‑

‑‑‑‑ Inheritance‑‑‑Hanfi Law‑‑‑Original owner of the property died leaving behind only one daughter and two daughters of his deceased brother‑‑‑Inheritance mutation was sanctioned in favour of only daughter of deceased wherein one half share out of estate of deceased was granted to her as sharer and remaining one half was granted to her on return of the residue in absence of any residuaries‑‑‑Daughters of deceased brother of original owner, claimed residue one half after satisfaction of the share of daughter of original owner as the sharer‑‑‑Validity‑‑‑In the present case, there being no residuaries, only daughter of deceased owner was held entitled by the Board of Revenue to one half as sharer and residue one half on the right of reverter or `Return'‑‑‑Only daughter of deceased owner under Hanfi Law of Inheritance was entitled to inherit from the estate of her deceased father one half share as the sharer and the remaining one half share as the residue in absence of residuries‑‑Daughters of deceased brother of deceased original owner being distant kindreds, were not entitled to claim share in presence of sharer/only daughter of original owner‑‑‑Inheritance mutation was validly sanctioned in favour of only daughter of original owner.

Nawab Din and four others v. Gewni 1990 MLD 725; Ibrahim and four others v. Rehmat Ali and six others PLD 2002 SC 471 ref.

Muhammad Saeed Ansari for Appellant.

Ch. Muhammad Akbar Shad for Respondents.

Date of hearing: 15th March, 2004.

2004 M L D 1161

[Lahore]

Before Maulvi Anwarul Haq, J

PROVINCE OF PUNJAB through Director Excise and Taxations, Rawalpindi ‑‑‑Petitioner

Versus

MAKHAN KHAN‑‑‑Respondent

Civil Revisions Nos. 419‑D and 422‑D of 2000, heard on 21st January, 2004.

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

‑‑‑‑Ss.2(g)(i) & 3‑‑‑Levy of immovable property tax‑‑‑Urban and rating area, determination of‑‑‑Authority had claimed that properties of respondents being located in urban area within Municipal limits, it had lawful authority to levy and recover property Tax on said property‑‑Claim of respondents on the other hand was that village in which they had built up property in question was not an urban area within the meaning of West Pakistan Urban Immovable Property Tax Act, 1958 and was not liable to pay property Tax‑‑‑Validity‑‑‑Village no doubt was located within the limits of Municipal Committee, but provisions of S.3(1) of West Pakistan Urban Immovable Property Tax Act, 1958, enjoined that Government could by Notification specify urban area where tax would be levied under said Act‑‑‑Rating areas were also to be specified and it was in respect of a building or land located in such rating area that tax would be charged, received and paid‑‑‑No evidence was available on record to the effect that such Notification was issued by Government specifying village in question to be an urban area and then the formation of rating area to enable Authority to charge, levy and make respondents liable to pay said Tax‑‑‑Authority, in circumstances was not entitled to levy and recover property tax from respondent in respect of property in question‑‑‑In view of specific denial by respondents that said village did not fall within a rating area, it was by all means for Authority to prove same affirmatively.

Tanvir Iqbal, A.A.‑G. for Petitioner.

Ch. Sultan Masnoor for Respondent.

Date of hearing: 21st January, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1164 #

2004 M L D 1164

[Lahore]

Before Muhammad Muzammal Khan, J

DOST MUHAMMAD through Legal Heirs and 9 others‑‑‑Petitioners

Versus

SECRETARY, GOVERNMENT OF PAKISTAN, MINISTRY OF RELIGIOUS AFFAIRS AND MINORITIES AFFAIRS, ISLAMABAD and 3 others‑‑‑Respondents

Writ Petition No.6664 of 1998, heard on 31st March, 2004.

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

‑‑‑‑S.10(a) & (b)‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Evacuee trust property, declaration of‑‑‑Facts to be considered‑‑‑Inheritance of property by Chela from his Guru ‑‑‑Effect‑‑Disputed property was allotted to the respondent from whom, the petitioners purchased the same‑‑‑Authorities declared the property as evacuee trust property‑‑‑Neither entire documentary evidence was taken into consideration in its true perspective, nor dedication of property, creation of trust, objects and purpose of trust were considered‑‑Validity‑‑‑Out of misinterpreting entries in Revenue Record, it was wrongly held by the authorities that Chela inherited his property from his Guru‑‑‑Authorities failed to consider the impact of provisions of S.10(a) or S.10(b) of Evacuee Trust Properties (Management and Disposal) Act, 1975, and there was no finding as to whether at the time of allotment in favour of the allottee, the disputed land was agriculture or urban‑‑‑Disputed property could not be said to be urban because in the relevant Revenue Record the property was agriculture in nature and the same could be allotted on RL‑II‑‑‑Authorities failed to make deeper inquiry, consideration and determination of the matter‑‑‑Judgment and order passed by the Authorities being contrary to record and law applicable, was illegal, void and of no legal consequence‑‑‑Matter was remanded to the Authorities for decision afresh.

Federal Government of Pakistan and others v. Khurshid Zaman Khan 1999 SCMR 1007 and Muhammad Yaqub v. Additional Secretary 1999 MLD 2068 ref.

Ch. Sarfraz Ahmed for Petitioners.

Mian Mati‑ur‑Rehman for Respondents.

Date of hearing: 31st March, 2004.

JUDGMENT

MLD 2004 LAHORE HIGH COURT LAHORE 1168 #

2004 M L D 1168

[Lahore]

Before Rustam Ali Malik, J

MUHAMMAD ZAHID‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2696‑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.10/11‑‑‑Penal Code (XLV of 1860), S.380‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Offence of Zina‑‑‑No direct evidence was available with prosecution regarding commission of offence by accused ‑‑‑Abductee herself had taken plea before Court that she had not been abducted by accused‑‑‑Suit for dissolution of marriage filed by abductee against complainant (her husband) was prior to registration of criminal case‑‑‑Motive for registration of case against accused was that he had tried to assist abductee to escape from clutches of complainant, who was subjecting her to cruelty‑‑‑Allegation against accused needed further inquiry‑‑‑Accused was admitted to bail in circumstances.

Chaudhry Muhammad Ishtiaq for Petitioner.

Nizam‑ud‑Din Arif for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1170 #

2004 M L D 1170

[Lahore]

Before Ch. Ijaz Ahmad, J

MUNICIPAL COMMITTEE, GUJRAT through Administrator‑‑‑Petitioner

Versus

DEPUTY ADMINISTRATOR, EVACUEE TRUST PROPERTY, GUJRAT and 3 others‑‑Respondents

Writ Petition No.4158 of 2001, decided on 12th April, 2004.

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

‑‑‑‑S.21‑‑‑Civil Procedure Code (V of 1908), O.V, R.19‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Principle of natural justice‑‑‑Applicability‑‑‑Statement of process server without oath‑‑‑Effect‑‑‑Non‑compliance of provisions of O.V, R.19 C.P.C.‑‑Grievance of the petitioner was that the Chairman Evacuee Trust Properties Board without effecting proper service on him decided the matter against him‑‑‑Validity‑‑‑Provisions of O.V, C.P.C. were applicable to the proceedings before the Chairman under S.21 ‑of Evacuee Trust Properties (Management and Disposal) Act, 1975‑‑Notice to the petitioner was received by him after the date of appearance and the report of the process server was not on oath as required under law, therefore, the service of the petitioner was not in accordance with the mandatory provisions of law‑‑‑Report of the process server did not contain any mention that petitioner had received the notice‑‑‑Chairman without application of independent mind, had decided the case against the petitioner ex parte which was not in consonance with the mandatory provisions of O.V C.P.C., read with S.21 of Evacuee Trust Properties , (Management and Disposal) Act, 1975‑‑‑Ex parte decree passed against the petitioner was hit by the principles of natural justice and the same was set aside‑‑‑High. Court remanded the matter to the Chairman for decision afresh‑‑‑Petition was allowed accordingly.

Syed Mazhar Shah's case 1990 MLD 1070; Muhammad Ibrahim'.s case 1994 CLC 1994; Major Taj‑ud‑Din's case 1989 CLC 2183; Haji Karamat Hussain's case 1986 CLC 6; Munshi Tamiz‑udDin's case PLD 1970 Dacca 483; Allah Bakhsh's case 1990 MLD 230; Mian Shabbir Ahmad's case 1991 CLC 1830; University of Dacca v. Zakir Ahmad PLD 1965 SC 90 and Pakistan Chrome Mines v. The Enquiry Officer 1983 SCMR 1208 rel.

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

‑‑‑‑O. V, R.19‑‑‑Service of process‑‑‑Procedure‑‑‑Duty of Court/authority as to observe the process prescribed in O.V, C.P.C.‑‑‑When summons is neither witnessed by any person from locality nor an affidavit is given, same is not a valid service.

Feroz Khan v. Muhammad Shuaib 1994 CLC 1462 rel.

‑‑‑‑ Ex parte decree, passing of‑‑‑Principles‑‑‑Ex parte decree in spite of service of notice cannot be pressed unless service effected through summons.

Sanaullah Gill v. Mst. Elveena PLD 1980 Lah. 668 rel.

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

‑‑‑‑O.V, R.19‑‑‑Service on defendant‑‑‑Statement of process server‑‑Presumption‑‑‑If process server had nowhere stated in his report that copy of the summons was delivered to the defendant, presumption would be that the defendant was not properly served.

Syed Mazhar Ali Shah v. Shah Muhammad 1990 MLD 230 rel.

(e) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.129(e)‑‑‑General Clauses Act (X of 1897), S.27‑‑‑Civil Procedure Code (V of 1908), O.V, R.10‑A‑‑‑Service through post‑‑‑Presumption with regard to service by post generally would be that summons has duly been served on the addressee by registered post in view of Art. 129(e) of Qanun‑e‑Shahadat, 1984, read with S.27 of General Clauses Act, 1897, but such presumption is rebuttable.

Pehalwan Khan v. Mrs. Najma Mujtaba 1986 CLC 1735; Khair Muhammad v. Akhtar Hussain 1983 CLC 302; L.C. De Souza, Cawnpore, In re Civil Miscellaneous Case No.714 of 1931 AIR 1932 All. 374; Emirate Bank International v. Dost Muhammad Cotton Mills 1993 MLD 54; Muhammad Sulaiman Malik and another v. Royal Trust Corporation of Canada and others 1979 CLC 48 and. Mst. Afzal Begum v. Y.M.C.A. through General Secretary PLD 1979 SC 18 rel.

(f) Natural justice, principles of‑‑‑

‑‑‑‑Principles of natural justice must be read in each and every statute unless and until the same are prohibited by the wording of the statute itself.

Commissioner of Income Tax v. Fazal‑ur‑Rehman PLD 1964 SC 410 rel.

(g) Order‑‑‑

‑‑‑‑ Void order‑‑‑Effect‑‑‑When basic order is without lawful authority then superstructure falls on the ground automatically.

Crescent Sugar Mills and Distillery Ltd. Faisalabad v. Central Board of Revenue, Islamabad and 2 others PLD 1982 Lah. 1 and Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104 rel.

Zabi Ullah Nagra on behalf of Ramzan Chaudhry for Petitioner.

Ch. Munir Ahmad for Respondents Nos. 1 and 2.

Muhammad Hanif Khatana, Additional Advocate‑General for Respondents Nos.3 and 4.

MLD 2004 LAHORE HIGH COURT LAHORE 1176 #

2004 M L D 1176

[Lahore]

Before Sardar Muhammad Aslam, J

ZAHIDA SHAHEEN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.256‑B of 2004, decided on 10th March, 2004.

Criminal Procedure Code (V of 1898)‑‑

---S.497‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of‑‑‑Explanation offered by the complainant for lodging the F.I.R. with a delay of 28 days was not plausible‑‑‑Non‑disclosure of the incident and motive therefore by the deceased and complete silence of the eyewitnesses till lodging the F.I.R., had cast serious doubt on the truthfulness of the prosecution version, benefit of which could be extended to accused even at bail stage‑‑‑Motive for the offence was also not free from doubt‑‑ ‑Contention that the accused had been falsely involved in the case to order to deprive her of her share in the deceased's estate was not without force‑‑‑Case of accused, thus, was open to further inquiry‑‑‑Accused was a woman and was behind the bars for the last about four months‑‑‑Bail was allowed to accused in circumstances.

Raja Nosherwan Akhtar for Petitioner.

Mukhtar Ahmed Gondal for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1182 #

2004 M L D 1182

[Lahore]

Before Ch. Ijaz Ahmad, J

ALI MUHAMMAD and 6 others‑‑‑Petitioners

Versus

PROVINCE OF PUNJAB through Commissioner Lahore Division, Lahore and 2 others‑‑Respondents

Writ Petition No.5497 of 1984, decided on 22nd April, 2004.

(a) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑S.4‑‑‑Punjab Land Acquisition Rules, 1983, R.7‑‑‑Acquisition of land‑‑‑Notification‑‑‑Retrospective effect of R.7 of Punjab Land Acquisition Rules, 1983‑‑‑Notification under S.4 of Land Acquisition Act, 1894, was issued on 13‑10‑1981, whereas Punjab Land Acquisition Rules, 1983, were enacted on 22‑2‑1983, as such the Rules had no retrospective affect and could not affect the acquisition proceedings which had been initiated prior thereto.

Allah Ditta's case PLD 1997 Lah. 499; Mahraj Flour Mill's case 2001 SCMR 1806; Muhammad Ishaq's case 2002 SCMR 1652; Muhammad Hussain's case 1988 CLC 1745 and Liaqat Rashid's case 1993 CLC 558 rel.

(b) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss. 4 & 17(4)‑‑‑Acquisition for public purpose‑‑‑Setting up of industries‑‑‑Prior consent of Provincial Government ‑‑‑Scope‑‑Acquisition for such purpose is for public purpose‑‑‑Prior consent of Provincial Government under S.17(4) of Land Acquisition Act, 1894, is not any for issuance of acquisition notice.

Mohsin A. Rehman's case PLD 1982 FSC 233; Mian Abdul Waheed's case PLD 1973 Lah. 739; Ch. Khushi Muhammad's case PLD 1965 Lah. 250; Federation of Pakistan's case 1993 SCMR 1673 and Abdul Ghaffar's case PLD 1984 Quetta 24 and Dr. Nasim Javed's case PLD 1983 Lah. 552 rel.

‑‑‑‑ Order passed by public authority‑‑‑Duty of Court‑‑‑Principle‑‑‑Before an order passed by a public functionary is struck down, it is the duty of Court to explore every possible explanation for its validity and examine the entire field of powers conferred on the authority in pursuance of which the order has been passed.

Lahore Development Trust's case PLD1971 SC 811 rel.

(d) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss.4 & 18‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Vires of acquisition of land‑‑‑Subsequent events‑‑‑Petitioner had accepted the award announced by Land Acquisition Collector on 16‑1‑1985‑‑‑Before filing the present petition, the petitioner had filed reference under S.18 of Land Acquisition Act, 1894, and the reference had been decided during the pendency of the petition‑‑‑Plea raised by the petitioner was that the award was void and without jurisdiction‑‑Validity‑‑‑High Court had ample jurisdiction to look into the subsequent events at the time of deciding the case‑‑‑Constitutional jurisdiction being discretionary in nature, High Court declined to exercise the same in favour of the petitioner‑‑‑Petition was dismissed in circumstances.

Allah Ditta's case PLD 1997 Lah. 499; Mahraj Flour Mill's case 2001 SCMR 1806 and Muhammad Ishaq's case 2002 SCMR 1652 ref.

Mst. Amina Begum's case PLD 1978 SC 220 and Nawab Syed Raunaq Ali's case PLD 1973 SC 236 rel.

Muhammad Shahzad Shaukat for Petitioner.

Muhammad Hanif Khattana, Additional Advocate‑General for Respondents Nos. 1 and 2.

Jahangir A. Jhoja for Respondents Nos.3.

MLD 2004 LAHORE HIGH COURT LAHORE 1188 #

2004 M L D 1188

[Lahore]

Before Ijaz Ahmad Chaudhry, J

BASHIR AHMAD and 3 others‑‑‑Appellants

Versus

THE STATE‑‑ ‑Respondent

Criminal Appeal No.231, Criminal Revision No.186 of 1992 and Criminal Appeal No.22 of 1993, decided on 14th January, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑Ss.302/307/452/380/34/304/308‑‑‑Appreciation of evidence‑‑‑Trial Court, acquitted all accused persons from charges under Ss.302/307/452/380/34, P.P.C., but convicted them under Ss.304 & 308, P.P.C.‑‑‑Contradictions appeared in the statements of Medical Officer, Police and eye‑witnesses‑‑‑Injured had received injuries by firearm, but he was medically examined after about six hours of incident without any explanation for such delay in Medical examination‑‑‑F.I.R., in circumstances was not registered with promptitude as claimed by prosecution‑‑‑Version of complainant and prosecution was not probable and seeing of occurrence by complainant and other prosecution witnesses regarding commission of murder of deceased, was also doubtful‑‑Occurrence, strangely had allegedly taken place over registration of a case against accused two years earlier at the instance of complainant, but he was not taken to task‑‑‑Had the complainant been present on both the places of occurrence, accused would also have murdered or injured him‑‑‑Complainant in F.I.R. had alleged that he was threatened by accused persons with dire‑consequences, but he changed his version at the trial by stating that accused had not seen him and other witnesses‑‑Complainant could not be termed as a truthful witness as during cross-examination he firstly stated that there was no allegation against him for receiving amount in the name of D.S.P., but then admitted registration of case against him in that regard‑‑‑Certain other contradictions and concealments of certain facts were also in the statement of complainant which were sufficient to prove that he was not a truthful witness ands could not be relied upon for conviction in a case of capital charge‑‑Prosecution had also failed to prove motive of occurrence‑‑‑Empties and weapons having been sent together for comparison, no sanctity was attached to reports in that respects which could not be relied upon to provide independent corroboration to ocular account‑‑‑Prosecution having failed to prove the charge of murder of deceased against accused beyond any shadow of doubt, judgment to the extent of their conviction and sentence under S.304/34, P.P.C., was set aside and they were acquitted of said charge extending them benefit of doubt‑‑‑Conviction and sentence recorded against accused under S.308/34, P.P.C. by Trial Court, however was maintained because injured prosecution witness who had no enmity with accused had fully proved said‑ offence against accused.

Sahibzada Farooq Ali for Appellants.

Shaukat Ali Kharal and Maqsood Ahmad for Respondent.

Zafar Mehmood Anjum for the State.

Dates of hearing: 10th, 11th December, 2003 and 13th January, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1198 #

2004 M L D 1198

[Lahore]

Before Muhammad Akram Baitu, J

THE STATE‑‑‑Petitioner

Versus

Sh. ALLAH BAKHSH, DUTY MAGISTRATE and others‑‑‑Respondents

Writ Petition No.3662 of 2003, decided on 22nd December, 2003.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Criminal Procedure Code (V of 1898), Ss.167(2), 173 & 190‑‑‑Constitutional petition‑‑‑Quashing of order‑‑‑Police produced accused before Magistrate with request for his judicial remand, but Magistrate instead of doing so, discharged the accused against whom case of embezzlement of amount was registered ‑‑‑Validity‑‑‑Undoubtedly in such‑like cases, exclusive jurisdiction was vested with Special Court‑‑‑If Magistrate had no jurisdiction to try case or send it for trial and considered further detention of accused unnecessary, he could order accused to be sent to a Magistrate having such jurisdiction as provided by S.167(2), Cr.P.C.‑‑‑Recourse to Magistrate before whom accused was produced for his judicial remand, was to pass an order for his production before the Court of competent Magistrate‑‑‑Magistrate was not vested with jurisdiction to pass order to discharge the accused in absence of any request made by police for the purpose‑‑‑Under relevant provisions of S.173, Cr.P.C. Magistrate was not competent to touch the merits of case which fall within the exclusive jurisdiction of Special Court to take cognizance of offence on police report‑‑‑Order passed by Magistrate suffered from illegality and also was without jurisdiction which called for interference of High Court‑‑‑Order passed by Magistrate was set aside, in circumstances.

Ch. Saghir Ahmed for Petitioner.

Mian Abbas Ahmed for Respondents.

Date of hearing: 22nd December, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 1201 #

2004 M L D 1201

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ZIA‑UL‑GHANI‑‑‑Petitioner

Versus

ADDITIONAL DIRECTOR, ANTI-CORRUPTION ESTABLISHMENT, MULTAN REGION, MULTAN and 3 others‑‑‑Respondents

Writ Petitions Nos.4393/Q, 4463 of 2003 and Writ Petition No.67 of 2004, decided on 12th February, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.154, 156 & 403‑‑‑Penal Code (XLV of 1860), Ss.419/420/467/468/471‑‑‑Constitution of Pakistan (1973), Arts. 13 & 199‑‑‑Constitutional petition‑‑‑Principle of double jeopardy‑‑‑Second F.I.R. registered in presence of earlier F.I.R.‑‑‑Earlier F.I.R. was lodged by complainant against accused person under Ss.4191420/467/468/471, P.P.C. and investigation in that case was being conducted by Range Crime Branch and bail before arrest was granted to accused‑‑During pendency of investigation in said case, complainant had moved another application on which Anti‑Corruption Department had initiated inquiry under Anti‑Corruption Establishment Rules, 1985‑‑‑Said later inquiry had been challenged by accused through Constitutional petition‑‑Contention of accused/petitioners was that in presence of earlier F.I.R., on the same subject, second F.I.R. could not be registered and that initiation of inquiry by Anti‑Corruption Establishment on subsequent application of complainant, was illegal as accused could not be vexed twice on same allegation‑‑‑Matter was still at early stage and only inquiry had been initiated on application of complainant and initiation of inquiry was not an adverse action‑‑‑Mere apprehension of petitioners accused that second F.I.R. would be registered against them, was not sufficient to issue writ against the Authorities‑‑‑Even otherwise, no bar existed in law for registration of F.I.R. by Anti‑Corruption Department relating to offences mentioned in the Schedule, even if F.I.R. had earlier been lodged by Local Police as Art:13 of the Constitution and S.403, Cr.P.C. would only come in the field if accused after prosecution, had been convicted or acquitted of same offence‑‑‑Accused in F.I.R. earlier lodged against them, had even not been tried so far‑‑‑Principle of double jeopardy, in circumstances did not attract to the case of accused‑‑Earlier, accused were granted pre‑arrest bail on technical ground without touching merits of case‑‑‑If case against accused would be registered by Anti‑Corruption. Establishment, petitioners could move for their bail.

1981 SCMR 1101 and PLD 1999 Lah. 109 ref.

Shakeel Javed Chaudhry for Petitioner.

Raja Mahboob Ahmad on behalf of Sh. Muhammad Usman for Respondents.

MLD 2004 LAHORE HIGH COURT LAHORE 1204 #

2004 M L D 1204

[Lahore].

Before Maulvi Anwarul Haq, J

MUHAMMAD RAMZAN‑‑‑Petitioner

Versus

AMIR AFZAL‑‑‑Respondent

Civil Revision No.331 of 2003, heard on 29th March, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XVII, Rr.2 & 3‑‑‑Disposal of suit in view of O.XVII, Rr.2 & 3, C.P.C.‑‑‑Suit of the plaintiff was dismissed under O.XVII, R.3 C.P.C. by the Trial Court on the date when neither the plaintiff nor his counsel was present‑‑‑Validity‑‑‑Although plaintiff was given several opportunities and he failed to produce evidence, yet on the fateful day none appeared for the plaintiff‑‑‑Case of the plaintiff fell within the ambit of O.XVII, R.2 read with O.IX, R.8 C.P.C. if at all the Trial Court intended to dismiss the suit for non‑prosecution‑‑‑Judgments and decrees passed by both the Courts below were without lawful authority‑‑High Court set aside the judgments and decrees passed by the two Courts below against the plaintiff subject to payment of costs‑‑‑Case was remanded to Trial Court giving with one last opportunity to plaintiff for production of his evidence‑‑‑Revision was allowed accordingly.

Ahmad Bakhsh v. Province of Punjab through Collector, Bahawalpur 2001 MLD 782 and Wahid Bakhsh v. Mst. Mubarik and others NLR 1982 CLJ 194 ref.

Muhammad Haleem and others v. H.H. Muhammad Naim and others PLD 1969 SC 270 fol.

Zahida Ameen for Petitioner.

Sardar Zaheer Ahmad Khan for Respondent.

Date of hearing: 29th March, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1207 #

2004 M L D 1207

[Lahore]

Before Asif Saeed Khan Khosa, J

DAUD TARIQ and 2 others‑‑‑Petitioners

Versus

JAVED MANSHA and 4 others‑‑‑Respondents

Criminal Miscellaneous No.15‑H of 2004, decided on 8th January, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.491‑‑‑Habeas corpus petition‑‑‑Detenu who was an adult, major and Sui Juris, could not be detained by any person against her wishes‑‑Detaining the detenu by her husband at his house against her wishes could amount to a denial of detenu's right to have access to a Court of law for seeking annulment or dissolution of her marriage as desired by detenu‑‑‑High Court allowed habeas corpus petition and released detenu from custody of her husband‑‑‑Detenu having expressed her desire to go and live with her brothers, she was set at liberty and could go and live with her brothers‑‑‑Bailiff had alleged in his report that at the time of recovery of detenu, not only he was assaulted; but was also abused and threatened by four persons mentioned in report of Bailiff‑‑‑Report had further shown that Bailiff had also been wrongfully confined at the time he was discharging his official duties‑‑‑S.H.O. of Police Station concerned was directed to register a criminal case against delinquents on basis of report of Bailiff and to proceed in the matter as warranted by law.

C.M. Sarwar and Tariq Mahmood Chaudhary for Petitioners.

Shahid Zaheer for Respondent No. 1.

Raja Mahmood Akhtar for Respondents Nos.4 and 5.

Date of hearing: 8th January, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1211 #

2004 M L D 1211

[Lahore]

Before Raja Muhammad Sabir and Bashir A. Mujahid, JJ

ABDUL WAHID‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 400 of 1997 and Murder Reference No. 184 of 1997 decided on 4th June, 2003.

Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss.302/324/34‑‑‑Appreciation of evidence‑‑‑Sentence, reduction in Prosecution case was supported by evidence of prosecution witnesses including witness who was injured in occurrence and had reiterated allegations set up in F.I.R. alongwith motive‑‑‑Ocular account was corroborated by medical evidence and alleged motive‑‑‑Prosecution had proved its case against accused beyond any shadow of doubt‑‑‑One of prosecution witnesses was an injured witness and his fire‑arm injuries could not be said to be self‑inflicted‑‑‑Such witness had given true account of occurrence qua the accused‑‑‑Defence counsel knowing the fate of case on merits, had fairly not challenged conviction of accused and confined his arguments to the quantum of sentence‑‑Conviction of accused recorded by Trial Court being based on proper appreciation of evidence on record, was maintained‑‑‑Prosecution had alleged that accused had caused injuries to the deceased with their respective firearms weapons one after the other‑‑‑Complainant as well as other eyewitnesses had not specified the seat of the injuries of each accused to deceased‑‑‑Fatal injury on person of deceased, was not specifically attributed to a specified accused‑‑‑Was difficult in circumstances to determine as to who had caused said injury on deceased ‑‑‑When a it was not certain as to whose injury had caused death of deceased, award of extreme penalty was unjustified‑‑‑Sentence of death awarded to accused by Trial Court, was reduced to imprisonment for life‑‑‑Sentence under S.324, P.P.C. was also maintained‑‑‑Appeal was dismissed with modification in sentence and murder reference was answered in the negative.

Aftab Farrukh and Aitezaz Ahsan for Appellant.

Sultan Ahmad Khawaja and M. Taqi Khan for the Complainant.

Mian Mansoor Ahmad for the State.

2004 M L D 1227

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD HANIF‑‑‑Petitioner

Versus

PROVINCE OF PUNJAB through COLLECTOR, LAHORE and 10 others‑‑‑Respondents

Civil Revision No. 1625 of 2001, heard on 16th April, 2004.

(a) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss.18(1) & 31(2), proviso, (3)‑‑‑Civil Procedure Code (V of 1908), O.VII, R.10‑‑‑Return of plaint‑‑‑Interpretation of provisions of Ss. 18 and 31(2) of Land Acquisition Act, 1894‑‑‑Trial Court, in view of S.18 of Land Acquisition Act, 1894, returned the plaint under O.VII, R.10 C.P.C.‑‑‑Judgment passed by the Trial Court was maintained by Appellate Court‑‑‑Plea raised by the plaintiff was that the plaint was returned without adverting to proviso 3 to S.31(2) of Land Acquisition Act, 1894‑‑‑Contention of the defendant was that S.18 of Land Acquisition Act, 1894, was a complete code and proviso 3 to S.31(2) of Land Acquisition Act, 1894, had no applicability‑‑‑Validity‑‑‑Legislature in its wisdom had inserted proviso 3 in S.31(2) of Land Acquisition Act, 1894, which had been placed after S.18 of Land Acquisition Act, 1894‑‑‑If the contention of defendant was accepted, then proviso 3 to S.31(2) of Land Acquisition Act, 1894, would become redundant which was not in consonance with the basic principle of interpretation of statute‑‑‑Judgments of both the Courts below were in violation of law‑‑Judgments and decrees passed by both the Courts below were set aside as the Courts had committed material irregularity and the case was remanded to Trial Court for decision in accordance with law‑‑‑Revision was allowed in circumstances.

Abdul Marian's case 1990 CLC 1377 distinguished.

Bsago's case AIR 1926 Lahore 321; Syed Iftikhar Ahmed Shah's case PLD 1967 Pesh. 151; Shri Deo Jankiramji Bindraban Saugor v. Ramchand 160 Indian Cases 1013; Khanwal Nain's case PLD 1983 SC 53 and Shaukat Nawaz's case 1988 SCMR 851 rel.

(b) Interpretation of Statute‑‑‑

‑‑‑‑Instead of rendering one of the provisions of Act as redundant, the same have to be reconciled and interpreted harmoniously‑‑‑Act to be read as an organic whole.

Lalit Mohan Das's case PLD 1957 SC 219; Hakim Ali's case PLD 1992 SC 595 and Khanun and others v. Ghulam Muhammad 1994 CLC 987 rel.

Sh. Abdul Sattar Zahid for Petitioner.

Mian Muzaffar Hussain and Muhammad Hanif Khatana, Addl. A.‑G. for Respondent No.2.

Date of hearing: 16th April, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1231 #

2004 M L D 1231

[Lahore]

Before Pervaiz Ahmad and Rustam Ali Malik, JJ

Ch. MUHAMMAD TARIQ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Writ Petition No. 11080 of 2003, decided on 15th October, 2003.

National Accountability Ordinance (XVIII of 1999)‑‑‑

‑‑‑Ss.9 & 10‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Bail, grant of‑‑‑Submission of accused that he was never posted at alleged place as S.D.O. during time of occurrence, needed no discussion as Reference had already been entrusted to the Court of competent jurisdiction for trial‑‑‑Reports of both doctors of respective Medical Institutions had revealed that accused was patient of 'hypertension' and `ischaemic' heart disease and he had to undergo Coronary Angiography for the purpose of evaluation and investigation‑‑Accused was found to be suffering from mild Coronary Artery Disease and also multiple gallstones‑‑‑Accused had also placed on record the summary of the chart prepared by Institute of Cardiology, alongwith the certified copy of the orders sheet showing that Reference against him was at its initial stage and charge in the Reference had not yet been framed‑‑‑Accused having been able to make out a case, for post‑arrest bail, he was allowed the same.

Sittar Sahi for Petitioner.

Waqar Hassan Mir for NAB.

Date of hearing: 15th October, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 1235 #

2004 M L D 1235

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD SHARIF and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.67 of 2000, decided on 24th February, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.340(2), 342, 364, 537‑‑‑Penal Code (XLV of 1860), S.420‑‑Examination of accused‑‑‑Accused had contended that while examining under S.342, Cr.P.C. no question was put to them regarding making of statement under S.340(2), Cr.P.C. and that certificate as required under S.364(2), Cr.P.C. was also not appended after statement of accused under S.342, Cr.P.C., which was an illegality not curable under S.537, Cr.P.C. and that both judgments of Courts below were liable to be sec aside and accused could be acquitted‑‑‑Validity‑‑‑Non‑appending of certificate as required under S.364(2), Cr.P.C. was merely an irregularity and provisions of S.537, Cr.P.C. would be attracted and on that point alone finding of Courts with regard to sentence of accused, could not be altered or reversed‑‑‑Contention that non‑appending of certificate as required under S.364(2), Cr.P.C. under the statement of accused made under S.342, Cr.P.C. was fatal and that retrial should be ordered, was repelled‑‑‑Accused had the choice to make statement under S.340(2), Cr.P.C. or not and he could not be compelled to make such statement at any cost‑‑‑Case of accused was not that they wanted to make their statements on Oath, but same was not recorded by the Trial Court‑‑‑Accused also did not move any application before the Courts below or before High Court in that respect‑‑‑Accused had failed to explain as to what prejudice had been caused to them by not putting such question to them‑‑‑Objection of accused in that respect, was overruled‑-Case was remanded to the Appellate Court to be decided afresh on merits.

Liaqat Ali v. The State 2002 PCr.LJ 230; Munshi v. The State 1985 PCr.LJ 1677; Sabir Raza Nadeem v. The State 1986 PCr.LJ 1948; Sikandar v. The State 1990 PCr.LJ 396 and Moseb Kaka Chowdhry and another v. State of West Bengal PLD 1956 SC (Ind.) 202 ref.

Sh. Muhammad Farooq for Petitioners.

Qazi Khalid Pervaiz for the, Complainant.

Muhammad Rafique Rajpoot for the State.

Date of hearing: 27th January, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1242 #

2004 M L D 1242

[Lahore]

Before Ch. Ijaz Ahmad and Farrukh Latif, J

Messrs TRANSTECH LTD.,‑‑‑Appellant

Versus

Messrs PAKISTAN TOBACCO COMPANY LTD. ‑‑‑Respondent

Regular First Appeal No. 174 of 2003, heard on 21st April, 2004.

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

‑‑‑‑O.XVII, R.3‑‑‑Defence, striking off‑‑‑Dismissal of suit for non-production of evidence‑‑‑Previous default‑‑‑Plaintiff was granted many opportunities to produce his evidence but on the last date when the case was dismissed under O.XVII, R.3 C.P.C. it was not clear on whose request the adjournment was given‑‑‑Trial Court closed the evidence on the ground that the plaintiff failed to produce the evidence on successive dates‑‑‑Validity‑‑‑.Where time had been granted to a party at his instance to produce evidence or to perform any other necessary action for the progress. of the case, the provisions of O.XVII, R.3 C.P.C. would be applicable and the same would not apply unless the default had been committed by such party in doing the act for which time was granted‑‑Defence could not be struck off under O.XVII, R.3 C.P.C. on the date which had not been fixed at the request of defaulting party‑‑‑Trial Court had the discretion to close the right of defence of plaintiff under O.XVII, R.3 C.P.C., but the discretion was to be exercised judicially on relevant consideration in the light of attending facts and circumstances which should not reveal arbitrariness‑‑‑Earlier adjournment on the request of the party would not constitute valid basis for closure of his evidence and on subsequent date to which the case was not adjourned at his request‑‑‑Order passed by the Trial Court was set aside with costs and the case was remanded to Trial Court for giving one opportunity to plaintiff for producing his evidence‑‑‑Appeal was allowed accordingly.

Moulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and others PLD 1971 SC 434; Nasim Javaid v. National Bank of Pakistan PLD 1985 SC 91; Pakistan Burmah Shell Ltd. v. Tariq Brothers 1997 CLC 761; Mst. Arifa Amjad and others v. Abbas Tayyab Dar and another 1990 CLC 1743 and Abdur Rehman's case 1990 ALD 672(2) ref.

Sajida Mussarrat v. Muhammad Shjafi and 2 others 1993 CLC 1514; Haji Muhammad Abdullah v. Muhammad Riaz PLD 1992 Lah. 237; Asian Associated Agencies v. Pakistan, through Secretary 1989 SCMR 2029; Muhammad Bashir v. Mst. Iqbal Begum and another 1998 CLC 333; Fateh Sher v. Muhammad Zubair 2003 SCMR 797; Executive Engineer v. Messrs Tour Muhammad and Sons and others 1983 SCMR 619 and Muhammad Nawaz's case PLD 2004 Lah. 21 distinguished.

Qutab‑ud‑Din v. Gulzar and 2 others PLD 1991 SC 1109; Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and others PLD 1971 SC 343; Jindwadda v. Abdul Hamid PLD 1990 SC 1192; Muhammad Siddiq's case 1995 CLC 431 and Javed Akhtar Nawaz's case 1990 CLC 1122 rel.

(b) Administration of justice‑‑‑

‑‑‑‑Court is duty bound to decide controversy between the parties after applying its independent mind.

Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 rel.

‑‑S.24‑A‑‑‑Public functionaries, acts of‑‑‑Scope‑‑‑Under S.24‑A, General Clauses Act, 1897, the public functionaries are duty bound to decide the controversy between the parties with reasons.

Messrs Airport Support Service v. The Airport Manager, Karachi, Airport 1998 SCMR 2268 and Zainyar Khan v. Chief Engineer C.R.B.C. 1998 SCMR 2419 rel.

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

‑‑‑‑O.XVII, R.3‑‑‑Striking off defence‑‑‑Technicality‑‑‑Affixing of court-fee at Rs.15,000‑‑‑‑Relief of permanent injunction and damages was sought by the plaintiff who had affixed court‑fee at Rs.15,000 but his defence was struck off by Trial Court for failure to .produce evidence‑--Plaintiff again affixed a court‑fee at Rs.15,000 with appeal before High .Court‑‑‑Effect‑‑‑Appellant should not have been knocked out on technical ground in circumstances.

Akbar Jan's case 1996 MLD 242 rel.

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

‑‑‑‑O.XVII, R.3‑‑‑Striking off defence‑‑‑Exercise of powers under O.XVII, R.3 C.P.C.‑‑‑Scope‑‑‑Power conferred on Trial Court under O.XVII, R.3 C.P.C. is very drastic Which should be used in very extraordinary and exceptional cases‑‑‑Such power should be used in such cases where the Court is satisfied that the party is trifling with Court or is contumacious in the Court proceedings.

Abdul Rashdi's case NLR 1981 Appeal Cases 88 rel.

(f) Administration of justice‑‑‑

‑‑‑‑ Law favours decision on merits and technical knock out is not the intention of law.

Muhammad Din's case 1992 ALD 670 and Zahoor Ahmed's case 1999 SCMR 105 rel.

(g) Administration of justice‑‑‑

‑‑‑‑ Each and every case is to be decided on its own peculiar circumstances and facts‑‑‑Every judgment must be read as applicable to the peculiar facts proved or assumed to be proved.

Trustee Board of Karachi's case 1994 SCMR 2213 rel.

Umar Atta Bandial for Appellant.

Jamal Sakhera for Respondent.

Date of hearing: 21st April, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1251 #

2004 M L D 1251

[Lahore]

Before Rustam Ali Malik, J

SARDAR ALI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.33‑B of 2003, decided on 16th January, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), S.440‑‑‑Interim pre‑arrest bail, confirmation of ‑‑‑F.I.R., revealed that accused was present in his own Haveli at the time of occurrence and had not himself entered into crop of complainant‑‑‑Litigation was already going, on between the parties concerning land in dispute and it appeared that accused had been falsely implicated in the case with a mala fide intention and ulterior motives‑‑ Accused who had joined investigation, had assured that he would continue to do so whenever required by police‑‑‑Accused, in circumstances was entitled to concession of bail‑‑‑Interim pre‑arrest bail already granted to accused was confirmed.

Ch. Barkat Ail for Petitioner.

Masood Ahmad War for the Complainant.

Ishfaque Ghuman for the State.

Date of hearing: 16th January, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1264 #

2004 M L D 1264

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ASHFAQ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.374 of 2002, decided on 27th January, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.241‑A, 435 & 439‑‑‑Surrender of Illicit Arms Act (XXI of 1991), S.7‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13 ‑‑Appreciation of evidence‑‑‑Magistrate after framing charge against accused and recording his alleged confessional statement, convicted him and sentenced him under S.7 of Surrender of Illicit Arms Act, 1991‑‑Appellate Court converted conviction of accused to S.13 of West Pakistan Arms Ordinance, 1965 and also reduced his sentence‑‑‑Accused filed revision against judgment of Appellate Court and Trial Magistrate alleging that Trial Magistrate had not adopted proper procedure as provided under S.241‑A, Cr.P.C. and that Appellate Court had convicted the accused under S.13 of West Pakistan Arms Ordinance, 1965 without framing charge under S.13‑‑‑Validity‑‑‑Trial Magistrate had not adopted proper procedure as provided under S.241‑A, Cr.P.C. because after supplying of copies to the accused, at least seven days time was to be. afforded to him before framing the charge, but said mandatory provision of law had been violated by Trial Court/Magistrate‑‑‑Accused was also not afforded opportunity of engaging any counsel of his choice and confessional statement was made by accused under the duress of police‑‑Case of accused was seriously prejudiced‑‑‑Due to said illegal procedure adopted by Courts below, conviction and sentence recorded against accused were not sustainable in the eye of law‑‑‑High Court, set aside judgments of conviction and sentence and remanded case for initiating trial against accused in accordance with law.

Rana Muhammad Nazir Saeed for Petitioner.

Zahid Sultan Khan for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1266 #

2004 M L D 1266

[Lahore]

Before Muhammad Muzammal Khan, J

ANJUMAN MADRASSA ANWAARUL QUR'AN JAMIA HANFIA RIZVIA SADIQ ALI SHAH through President and 5 others‑‑‑Petitioners

Versus

CHIEF ADMINISTRATOR AUQAF, PUNJAB.LAHORE and 7 others‑‑‑Respondents

Writ Petition No.9705 of 1998, heard on 5th April 2004.

(a) Punjab Waqf Properties Ordinance (IV of 1979)‑‑‑

‑‑‑‑S.7‑‑‑Waqf properties‑‑‑Status‑‑‑Chief Administrator, powers of‑‑Scope ‑‑‑Waqf properties vest in Almighty Allah and status of Chief Administrator, after assumption of such properties is no better than Mutwalli, manager or superintendent‑‑‑Chief Administrator is not equipped or vested with ownership of the properties and the same continues to remain with Almighty Allah‑‑‑Chief Administrator is authorized under S.7 of Punjab Waqf Properties Ordinance, 1979, to take over and assume the administration, control, management and maintenance of Waqf properties and he acts as Ameen and he cannot convert such properties to his own use.

(b) Punjab Waqf Properties Ordinance (IV of 1979)‑‑‑

‑‑‑‑S.7‑‑‑Punjab Waqf Properties (Administration) Rules, 1960, R.7‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑ Waqf properties‑‑‑Lease, grant of‑‑‑Entitlement of Auqaf Department‑‑Petitioner assailed the order of Chief Administrator who leased out the disputed properties to low paid employees of his department for 99 years on very low rate‑‑‑Validity‑‑‑Lease of Waqf properties, under R.7 of Punjab Waqf Properties (Administration) Rules, 1960, had to be in writing and its period could not exceed three years time‑‑‑To grant the lease beyond three years, the Chief Administrator had to justify his decision by giving reasons‑‑‑Grant of lease had to be fair, transparent, justifiable on reasons and that too through open auction as provided in R.7(1)(a)(iii) of Punjab Waqf Properties (Administration) Rules, 1960‑‑Lessees of the Waqf properties could not justify their claim solely on the ground that they were poor qasids, naib qasids or other low paid employees of Auqaf Department‑‑‑Employees had joined the service on the offered remuneration of their own volition and they, in no manner, could claim any right over a property which did not vest even it; the department‑‑‑If there was any chance of waste of Waqf property, it should have been leased out through open auction after giving a thorough public notice‑‑‑Chief Administrator had used his powers not only arbitrarily, fancifully and capriciously but he had also not shown any judiciousness, fairness or justness‑‑‑High Court found it painful to note that such attributions were being given to the office of Chief Administrator who was a caretaker of the properties standing in the name of Allah Almighty‑‑‑Order of Chief Administrator leasing the properties was illegal, void, mala fide, unauthorized, without jurisdiction, ultra vires of Waqf Properties Ordinance, 1979, and of no legal consequence‑‑‑Petition was allowed accordingly.

Hedaya by Charles Hamilton 335; Digest of Mohammadan Law by Neil B. E. Baillie, 1957 Edition 607 and Muhammad Sadiq and 15 others v. The Chief Administrator of Auqaf, West Pakistan, Lahore and another PLD 1972 Lah. 780 ref.

Jehangir A. Jhoja for Petitioners

Nemo for Respondents.

Date of hearing: 5th April, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1272 #

2004 M L D 1272

[Lahore]

Before Ch. Iftikhar Hussain, J

NISAR AHMAD alias Shari and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1316‑B of 2004, decided on 30th March, 2004.

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

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑Five different police officers had found the accused innocent in investigation and a report for their discharge was ultimately made‑‑Police opinion although was not binding on the Court, yet it was a relevant circumstance to be taken into consideration while deciding a bail application‑‑‑No reason was apparently available to believe that the accused had committed a non‑cognizable offence, rather their guilt required further probe as envisaged by S.497(2), Cr.P.C., particularly when the said police opinion was based upon sound material available on record‑‑‑Accused were admitted to bail in circumstances.

Kalu and others v. State PLJ 1999 Cr.C Lah. 200 and Sher Muhammad and 2 others v. The State and 4 others 1994 SCMR 549 ref.

Aitbar Khan and another v. The State 1977 PCr.LJ Lah. 114 and Liaqat Ali v. The State PLD 1994 SC 172 distinguished.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail‑‑‑Police opinion‑‑‑Although opinion of police is not binding upon the Court, still it is a relevant circumstance to be taken into consideration while deciding the bail application.

Kalu and others v. State PLJ 1999 Cr.C Lah. 200 and Sher Muhammad and others v. The State and 4 others 1994 SCMR 549 ref:

Mailk Saeed Hassan for Petitioners

Maqbool Ahmad Qureshi for the State.

Hafiz Muhammad Hanif Zafar for the Complainant.

MLD 2004 LAHORE HIGH COURT LAHORE 1275 #

2004 M L D 1275

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

UMAR HAYAT and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.7524‑B of 2003, decided on 15th January, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.399/402/171‑‑‑Bail, grant of‑‑‑Trial in case having already commenced, it was not appropriate to give any findings qua the factual aspects of the case lest it should prejudice case pending before the Trial Court‑‑‑Petition stood disposed of with direction to Trial Court to proceed with the matter expeditiously and conclude same within six months.

Ejaz Anwar for Petitioners.

Muhammad Naeem Sheikh for the State.

Date of hearing: 15th January, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1285 #

2004 M L D1285

[Lahore]

Before Mian Muhammad Akram Baitu, J

DOST MUHAMMAD and others‑‑‑Petitioners

Versus

HAMEEDA BEGUM alias ZAMURAD BIBI and others‑‑‑Respondents

Writ Petitions Nos.262 and 263 of 2004, decided on 18th February, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XVII, R.3‑‑‑Specific Relief Act (I of 1877), S.8‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Suit for possession‑‑‑Closing of evidence‑‑Evidence of defendants was closed by Courts below on ground that defendants could not produce evidence despite sufficient opportunities were provided to them for that purpose‑‑‑Evidence on record had proved that about fourteen opportunities including last opportunity were afforded to defendants to produce evidence, but they failed‑‑‑Evidence of defendants, in circumstances had rightly been closed by Courts below‑‑‑Concurrent order passed by two Courts below not suffering from any illegality, could not be interfered with by High Court in exercise of its Constitutional jurisdiction.

PLD 1986 SC 129; PLD 1987 Lah. 157 and PLD 1971 SC 434 ref.

Malik Muhammad Nawaz Tandla and Kaleem Ullah Buzdar for Petitioners.

Zafar Ullah Khan Khakwani for Respondents.

Date of hearing: 13th February, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1288 #

2004 M L D 1288

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD AFZAAL‑‑‑Petitioner

Versus

MUHAMMAD IQBAL and another‑‑‑Respondents

C .R. No. 1288 of 2000, heard on 5th March, 2004.

(a) Act of the Court---

‑‑‑‑Litigant should not be allowed to suffer for acts of the Court.

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

‑‑‑‑S.41‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Benami transaction, ingredients of‑‑‑Onus of proof‑‑‑Suit for declaration and permanent injunction were filed by the plaintiff claiming that he was the owner of the properties purchased by him in the name of his father as benamidar‑‑Suits were decreed by the Trial Court declaring plaintiff to be the real owner of the properties‑‑‑Appeals by the brother and father of the plaintiff were dismissed‑‑‑Validity‑‑‑Contention was that the plaintiff from the evidence on record had failed to prove that it was a benami transaction‑‑‑Scan of evidence showed that the plaintiff had discharged the onus of providing the transactions, as 'Benami' in the name of his father by establishing all the ingredients of such transactions like proof of source of consideration, custody of title documents possession of the properties and motive of transactions‑‑‑Revision petition, in circumstances, was dismissed.

Mst. Farida Malik and others v. Dr. Khalida Malik and others 1998 SCMR 816 and Muhammad Siddiqi through Attorney v. Messrs T.J. Ibrahim and Company and others 2001 SCMR 1443; Mv. MD. Addul Majid and others v. MD. Jainul Abedin and others PLD 1970 Dacca 414; Messrs Shalimar Ltd. Karachi v. Raisuddin Siddiqui and 3 others 1979 CLC 338; Miss Qamar Ali v. Syed Nadir Ali and others 1993 CLC 605, Moinuddin Paracha and 6 others v. Sirajuddin Paracha and 23 others 1993 CLC 1606 and Salman Ashraf v. Begum Asmatun Nisa 1997 CLC 176 ref.

‑‑‑‑S.115‑‑‑Revisional jurisdiction of High Court‑‑‑Scope‑‑‑Concurrent findings of the Courts below, after proper appraisal of evidence on the file, were not only immune from interference in revisional jurisdiction, in absence of any misreading but the revisional Court was also not competent to substitute its own viewpoint, in place of the one formed by the Courts within their lawful framework, even if it may be erroneous.

Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Secretary to Government of the Punjab, Education Department, Lahore and another v. Saeed Ahmed Khan PLD, 1994 SC 291; Sirbaland v. Allah Loke and others 1996 SCMR 575; Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139; Mst. Ameer Begum v. Muhammad. Naeem Khan and another PLD 2000 SC 839 and Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others 2001 SCMR 1493 ref.

Malik Noor Muhammad Awan for Petitioner.

Syed Masood Hussain Sherazi for Respondent No. 1.

Date of hearing: 5th March, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1295 #

2004 M L D 1295

[Lahore]

Before Syed Sakhi Hussain Bukhari, J

KHURRAM SHAHZAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.7463‑B of 2003, decided on 8th January, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.392/411‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑‑‑Bail, grant of‑‑‑Allegation against accused was that he was present at the scene of occurrence at relevant time alongwith his co‑accused‑‑‑F.I.R. showed that the accused was empty‑handed and no role had been attributed to him‑‑‑During investigation nothing was recovered from accused‑‑‑Prosecution case was that the co‑accused was apprehended by complainant and prosecution witnesses at the spot, whereas accused fled away‑‑Accused was aged about 16 years and did not appear to be previous convict‑‑‑Case of accused being fit for grant of bail, he was admitted to bail.

M. Naseem Kashmiri for Petitioner.

M. Iqbal Vehniwal for the Complainant.

Masood Pervaiz for the State.

Date of hearing: 8th January, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1297 #

2004 M L D 1297

[Lahore]

Before Muhammad Muzammal Khan, J

DAULAT BIBI and 5 others‑‑‑Petitioners

Versus

MUHAMMAD KHAN and 7 others‑‑‑Respondents

Civil Revision No.694 of 2000, heard on 30th March, 2004.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss.8 & 42‑‑‑Civil Procedure Code (V of 1908), S.11, & O.II, R.2‑‑Filing of second suit‑‑‑Same cause of action‑‑‑Principle of res judicata‑‑Applicability‑‑‑Eviction of licensee‑‑‑Disputed property was allotted to the predecessor‑in‑interest of plaintiffs which had been given to defendants for temporary use as licensees‑‑‑Earlier suit was filed by the predecessor‑in‑interest of plaintiffs for declaration which was dismissed by Trial Court in exercise of jurisdiction under O.XVII, R.3 C.P.C.‑‑Subsequently, the plaintiffs filed the present suit for possession of the suit property on account of revocation of licence‑‑‑Both the Courts below concurrently decreed the suit in favour of plaintiffs‑‑‑Plea raised by defendants was that the suit was hit by principle of res judicata and the same could not be filed in view of the provisions of O.II, R.2 C.P.C.‑Validity‑‑‑Cause of action in both the suits was altogether different‑‑Basis on which the subsequent suit was filed was not available to the plaintiffs at the time of filing of the earlier suit‑‑‑Dispute of permissive possession of defendants was neither raised nor was resolved in the earlier suit on the basis of which provisions of S.11 and O.II, R.11 C.P.C. were sought to be applied‑‑‑None of the provisions as relied upon by the defendant was applicable‑‑‑Both the Courts below had rightly concluded the dispute between the parties by concurrently holding that the suit property in possession was allotted to the predecessor‑in‑interest of the plaintiffs who licensed it for temporary residence to the defendants‑‑‑No legal defect or flaw was found in the judgments and decrees passed by both the Courts below which were in consonance with the evidence on file‑‑‑Both the Courts below had not committed any illegality or irregularity in passing the judgments and decrees in favour of the plaintiffs‑‑‑Revision was dismissed in circumstances.

Mst. Sarwat Ara and 3 others v. Mst. Sabra Khatoon 1993 CLC 1682 distinguished.

Malik Noor Muhammad Awan for Petitioners.

Mian Muhammad Aslam for Respondents.

Date of hearing: 30th March, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1304 #

2004 M L D 1304

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. RASHIDA BEGUM and 5 others‑‑‑Petitioners

Versus

Mst. REHANA NASREEN and 4 others‑‑‑Respondents

Civil Revision No.399‑D of 2000 heard on 2nd April, 2004.

(a) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S.4‑‑‑liaerpretation of S.4, Muslim Family Laws Ordinance, 1961‑‑Succession‑‑‑Share of a daughter of a pre‑deceased son‑‑‑Residue, entitlement of‑‑‑Term "per stripes" as in S.4 of Muslim Family Laws Ordinance, 1961‑‑‑Definition‑‑‑Plaintiffs comprising brother and daughters of the brother of the deceased, filed suits to question the mutations of inheritance in favour of the defendants who comprised of daughters and daughter of the pre‑deceased son of the deceased‑‑‑Suits of the plaintiffs were dismissed by the Trial Court followed by dismissal of appeals preferred against them‑‑‑Revision petition was filed by the plaintiffs‑‑‑Contention of the plaintiffs was that since the brothers of the deceased were alive, the residue after satisfying shares of his daughters and the daughter of his pre‑deceased son had to revert to the brothers and children of the said brother‑‑‑Validity‑‑‑Question', in the present case, was as to whether after satisfying the shares of daughter of predeceased son, the residue should be reverted to the plaintiffs being the collateral of the propositus‑‑‑Term "per stripes" meant a shares according to the stocks and roots or family as against per capita which meant share per head‑‑‑Purpose of S.4 of the Ordinance was to eater the needs of grandchildren and to remove their sufferings, but it could not be interpreted so as to decrease the share of other descendants‑Grandchildren were not entitled to more share than what could be inherited from the parents according to the Islamic Law, consequently, estate was to be divided in proportion of the respective shares their parents, and the heirs claiming through different line of descent would get own share per stripes‑‑‑In the present case after settling the share of daughters of the deceased the remaining residue pertaining to the share of pre‑deceased son was to be distributed amongst pre‑deceased son's other heirs, accordingly, share coming down to pre‑deceased son was treated as his estate notwithstanding the fact that the residue was to be there after settling the share of the daughter and was treated as part of his estate and distributed as such and was not to be added back to the estate of the propositus‑‑‑Revision petition was dismissed, in the circumstances.

Mst. Zainab v. Kamal Khan alias Kamla PLD 1990 SC 1051 and Mst. Qabal Jan v. Mst. Habab Jan and 9 others 1992 SCMR 935 ref.

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

‑‑‑‑Arts.189 & 190‑‑‑Supreme Court judgment ‑‑‑Effect‑‑‑Principles‑‑‑Judgment of Supreme Court is binding upon the High Courts by virtue of Arts. 189 & 190 of the Constitution.

‑‑‑‑Arts.199 & 203‑G‑‑‑Bar of jurisdiction‑‑‑Plea of the petitioner in Constitutional petition was that provisions of Muslim Family Laws Ordinance, 1961 were against the injunction of Islam‑‑‑Validity‑‑‑Matter in question being pending before the Shariat Appellate Bench of the Supreme Court, Art.203‑G of the Constitution placed a bar upon the High Court to entertain such a plea.

Nasir Saeed Sheikh for Petitioners.

Raja Muhammad Sabir for Respondents.

Date of hearing: 2nd April, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1308 #

2004 M L D 1308

[Lahore]

Before Ch. Ijaz Ahmad and Bashir A. Mujahid, JJ

SAMI‑UD‑DIN GHAURI‑‑‑Appellant

Versus

L.D.A. and others‑‑‑Respondents

I.C.A. No.432 of 2003, decided on 28th October, 2003.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Law Reform Ordinance (XII of 19723, S.3‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Disputed question, of fact‑‑‑If contents of Constitutional petition and order passed by Provincial Ombudsman, were put to juxtaposition, it would bring case of petitioner in area of disputed question of fact and High Court had no jurisdiction to resolve the same in Constitutional petition‑‑‑Petitioner was well within his right to file suit before competent Court for resolution of said disputed question of fact‑‑‑Petitioner had also. filed a complaint before Provincial Ombudsman who had dismissed the same‑‑‑Petitioner, in circumstances had alternative remedy to file appeal before higher Authority under S.32 of Provincial Ombudsman Act, 1997‑‑Constitutional petition was rightly dismissed by High Court being not competent‑‑‑In absence of any infirmity or illegality in the order of High Court, same could not be interfered with in Intra‑Court appeal.

Muhammad Younas Khan's case 1993 SCMR 618; Zafar‑ul-Hassan's case PLD 1969 SC 113 and 1992 SCMR 2121 ref.

M.A. Zafar for Appellant.

Date of hearing: .28th October, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 1310 #

2004 M L D 1310

[Lahore]

Before Ch. Ijaz Ahmad, J

ZAHID ALI ‑‑‑ Petitioner

Versus

FIRST PUNJAB MODARABA through Tariq Mehmood and 2 others‑‑‑Respondents

Writ Petition No.6362 of 2004, decided on 29th April, 2004.

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

‑‑‑‑Art.199‑‑‑Civil Procedure Code (V of 1908), Ss. 11 & 12(2)‑‑Constitutional petition ‑‑‑Maintainability‑‑‑Res judicata, principle of ‑‑Applicability‑‑‑Suit filed was decreed and petitioner did not challenge the same in appeal, but instead filed application under S.12(2), C.P.C. before Tribunal which was dismissed‑‑‑Petitioner being aggrieved filed Constitutional petition which was also dismissed by Division Bench of High Court‑‑‑Petitioner had filed present Constitutional petition for same relief‑‑‑Petitioner had not challenged decree passed against him by Trial Court in appeal which remedy was available to him‑‑‑Petitioner, in circumstances had approached the High Court with unclean hands‑‑‑Even otherwise Constitutional petition filed after about five years from decree passed by Trial Court, not only was liable to be dismissed on principle of laches, but also for having been filed qua same subject‑matter and relief which were asked for in earlier Constitutional petition, was not maintainable in view of constructive res judicata under S.11, C. P. C.

Mian Munir Ahmad v. United Bank Limited and others PLD 1998 Karachi 278; Sh. Muhammad Naeem v. Habib Bank Ltd. Karachi 2003 CLD 606; Farzand Raza Naqvi and others v. Muhammad Din and others 2004 SCMR 400; Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304 and Pir Bakhsh v. Chairman Allotment Committee PLD 1987 SC 145 ref.

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

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑Maintainability‑‑Alternate-remedy‑‑Constitutional petition was not maintainable in presence of alternate remedy.

Ch. Muhammad Ismail's case PLD 1996 SC 246 ref.

‑‑‑‑Art.199‑‑‑Civil Procedure Code (V of 1908), Preamble‑‑Applicability of C.P.C. in Constitutional proceedings‑‑‑Principle; of Civil Procedure Code, 1908 were applicable in Constitutional proceedings.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 ref.

(d) Administration of justice‑‑‑

‑‑‑‑ Each and every case was to be decided on its own peculiar circumstances and facts.

Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 ref.

Javed Iqbal Bhatti for Petitioner.

MLD 2004 LAHORE HIGH COURT LAHORE 1313 #

2004 M L D 1313

[Lahore]

Before Rustam Ali Malik, J

MUHAMMAD AAMER‑‑‑Petitioner

Versus

Mst. SABA NAZIR and another‑‑‑Respondents

Writ Petition No.9824 of 2003, decided on 13th October, 2003.

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

‑‑‑‑Ss.5 & Sched, 14 & 19 [As amended by Family Courts (Amendment) Ordinance, (LV of 2002)], Court‑fees Act (VII of 1870), S.13‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Suit for recovery of dower money‑‑‑Appeal‑‑‑Court‑fee payable‑‑‑Effect of amendment in S.19 of West Pakistan Family Courts Act, 1964‑‑‑Suit filed by plaintiff for recovery of dower money having been decreed, defendant challenged same in appeal‑‑‑Appellate Court during proceedings of appeal directed the defendant to affix court‑fee on memo. of appeal which was promptly complied by him‑‑‑Defendant in the meantime, came to know that as per amendment in S.19 of West Pakistan Family Courts Act, 1964 court‑fee to be paid on any plaint or memorandum of appeal in a Family case had been fixed Rs.15‑‑Defendant filed application requesting for review/recall the order affixing court‑fee on memorandum of appeal, but his application was dismissed‑‑‑Application of defendant for recalling the order affixing court‑fee on memorandum of appeal had been disposed of by Appellate Court in a slipshod manner without taking into consideration amendment in S.19 of West Pakistan Family Courts Act, 1964‑‑‑High Court accepting petition, sent the case back to Appellate Court to decide application of defendant afresh after hearing him in accordance with law.

Muhammad Afzal v. Muhammad Aslam 1994 CLC 1277 Lahore and Pakistan Burmah Shell Limited v. Tariq Brothers 1997 CLC 761 Lahore ref.

Bakhtiar Ali Sial for Petitioner.

Akbar Tarar, A.A.‑G.‑‑for Respondents.

Date of hearing: 13th October, 2003.

MLD 2004 LAHORE HIGH COURT LAHORE 1316 #

2004 M L D 1316

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

ALLAH DITTA and others‑‑‑ Petitioners

Versus

NOOK HUSSAIN and others‑‑‑Respondents

Writ Petition No.5061 of 2004, decided on 8th April, 2004

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

‑‑‑O.XIV, Rr.3 & 5‑‑‑Amendment of issue‑‑‑Power of Court ‑‑‑Pre‑conditions‑‑‑Power of Court under O.XIV, R.5, C.P.C. is inherent power to take cognizance of the question going to the root of the case at any stage‑‑‑Such inherent jurisdiction is subject to the terms of O.XIV, R.3, C.P.C. which provides the material from which the issues may be framed.

Baijnath Kuar and others v. Brijraj Kuar and another AIR 1922 Patna 514 and Shamu Patter v. Abdul Kadir Ravuthan and others 35 M 607 PC ref.

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

‑‑‑‑O.XIV, Rr.3 & 5‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Amendment of issues‑‑‑Grievance of the petitioner was that the Revisional Court had not amended the issues properly ‑‑‑Revisional Court observed that under O.XIV, Rr.3 and 5, C.P.C. issues might be framed on the basis of material available on the allegations made on oath by the parties or allegations made in pleadings or in answer to interrogations delivered in the suit or the contents of the documents produced by either party and the discretion exercised by the Court was subject to the provisions of O.XIV, R.3, C.P.C.‑‑‑Validity‑‑Court had discretion under first part of the provisions of O.XIV, R.5, C.P.C. to frame proper issues and it also authorized the Court subject to the terms of O.XIV, Rr.3 and 5, C.P.C. to add, amend or strike out the issues‑‑‑Second part of O.XIV, R.5, C.P.C. made it mandatory upon the ..Court to amend or frame issues for determining the matters in controversy between the parties at any stage of the case‑‑‑Disputed issues being interconnected, therefore, the Revisional Court had correctly held that no interference was needed as the said issues were the outcome of pleadings of the parties in all the consolidated suits and written statements‑‑‑High Court declined to interfere in exercise of Constitutional Jurisdiction, in the order passed by the Revisional Court‑‑Constitutional petition was dismissed in limine.

Ch. Atta Ullah for Petitioners.

MLD 2004 LAHORE HIGH COURT LAHORE 1321 #

2004 M L D 1321

[Lahore]

Before Muhammad Muzammal Khan, J

NOOR MUHAMMAD and 4 others‑‑‑Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, GOJRA, and 35 others‑‑‑Respondents

Writ Petition No.2239 of 2004, decided on 14th April, 2004.

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

‑‑‑‑Ss.8 & 12‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑Limitation Act (IX of 1908), S.3‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for possession of land through specific performance of an agreement to sell was filed by the petitioners‑‑‑Application filed by the respondents under O.VII, R.11, C.P.C., for rejection of the said suit, on the grounds that the agreement to sell was fake and the suit was time‑barred was dismissed by the trial Court‑‑‑Same application of the respondents however was subsequently accepted by the revisional Court through impugned order, thereby rejecting the plaint of the petitioners‑‑‑Constitutional petition was filed by the petitioners against the impugned order‑‑‑Contention of the petitioners was that their suit was within time and therefore, the plaint could not have been rejected‑‑‑Validity‑‑‑Agreement to sell being relied upon by the petitioners was dated 1966 as specifically mentioned that it was to be performed in 1967, therefore, time was the essence of such a contract‑‑‑Suit of the petitioners was filed after 36 years from such period‑‑‑Section 3 of Limitation Act, 1908, makes it obligatory for the Court to look into the point of limitation without there being any objection by any parties‑‑‑Suit filed after such a long time, could not be said to be not barred by any law‑‑‑Trial Court, to circumstances, had not discharged its statutory obligations and the order passed by it was tainted with material irregularity and was rightly corrected by the revisional Court.

Seth Essabho, v. Saboor Ahmad PLD 1973 SC 39; Ghulam Nabi and others v Seth Muhammad Yaqub and others PLD 1983 SC 344 and Naseem Ahmad Chaudhry v. Chairman, Punjab Labour Appellate Tribunal, Lahore and 4 others 1995 SCMR 1431 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑Arts.102 & 103‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Evidence of oral agreements, exclusion of‑‑Assertions of the petitioners was that the time fixed for the execution of the written agreement to sell was verbally. extended ‑‑‑Validity‑‑‑Such evidence of petitioners would not be admissible under Arts.102 and 103 of the Qanun‑e‑Shahadat, 1984 which provided that if terms of contract had been reduced to a document, no oral evidence would be given in proof of the terms of such contract between the parties, for the purposes of varying or adding anything to its 'terms‑‑'‑Oral evidence produced by the petitioners, could not be used to vary the terms of the agreement to sell and as time being the essence of contract it stood lapsed in 1967 on account of non‑performance.

Mrs. Irene Wahab v. Lahore Diocesan Trust Association 2002 SCMR 326 ref.

‑‑‑‑S.3‑‑-Scope of‑‑‑S.3, Limitation Act, 1908‑‑‑Time‑barred suit, dismissal of‑‑‑Section 3 of the Limitation Act, 1908, makes it obligatory for the Court to look into the point of limitation without there being any objection by any party.

Ch. Imtiaz Ahmed Kamboh for Petitioner.

MLD 2004 LAHORE HIGH COURT LAHORE 1328 #

2004 M L D 1328

[Lahore]

Before Maulvi Anwarul Haq, J

WARIS KHAN and 8 others‑‑‑Petitioners

Versus

MUHAMMAD IQBAL‑‑‑Respondent

Civil Revision No.227‑D of 2001, heard on 18th March, 2004.

(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss.6 & 13‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.46‑‑‑Civil Procedure Code (V of 1908), O. VI, R.1‑‑‑Suit for pre‑emption‑‑‑Plea of Zarar and Zaroorat‑‑‑Pleadings‑‑‑Object and Scope‑‑‑Statement made in plaint by deceased plaintiff‑‑‑Admissibility‑‑‑Both Trial Court and Appellate Court dismissed suit holding that Talbs had not been performed and that issue pertaining to Zarar and Zaroorat stood unproved‑‑‑None of witnesses who were named in plaint and even son of deceased plaintiff had stated a word about Zarar and Zaroorat‑‑‑Pleadings were not evidence and primary purpose of pleadings was to enable the parties to set down their respective pleas so as to further enable them to prove same in course of trial‑‑‑Despite death of original plaintiff, the cause of action would survive to his Legal Representatives who were brought on record and one of them who appeared as witness, opted to remain silent on issue of Zarar and Zaroorat‑‑‑Counsel for plaintiff had contended that evidence in the matter of Talbs had not been properly read by Courts below‑‑‑Contention with, regard to Zarar and Zaroorat was that statement made by deceased plaintiff in his plaint before his death and notice of Talb‑i-Ishhad to the effect that he would suffer the loss in case he did not get land was admissible under Art.46 of Qanun‑e‑Shahadat 1984, being a statement of dead person having been made in the normal course of his business‑‑‑Filing of a suit for pre‑emption and giving a notice of Talb‑i‑Ishhad was not a business as envisaged by Art.46 of Qanun‑e‑Shahadat, 1984‑‑‑No foundation was laid in the pleadings or in the evidence for considering as to whether Art.46 of Qanun‑e‑Shahadat, 1984 would apply or not‑‑‑Issue pertaining to Zarar and Zaroorat having stood unproved, concurrent findings of Courts below could not be interfered with‑‑‑Suit was rightly dismissed by Courts below.

Ghulam Jillani and 3 others v. Ghulam Muhammad and 7 others 1991 SCMR 2001 and Mst. Khair‑un‑Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 ref.

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

‑‑‑‑O.VI, R.1‑‑‑Pleadings‑‑‑Purpose of‑‑‑The primary purpose of pleadings was to enable the parties to set down their respective pleas so as to further enable them to prove same in the course of trial.

Ch. Afrasiab Khan for Petitioners.

Ch. M. Tariq for Respondent.

Date of hearing: 18th March, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1331 #

2004 M L D 1331

[Lahore]

Before Ch. Ijaz Ahmad, J

ZULFIQAR HUSSAIN and another‑‑‑Petitioners

Versus

Mirza HAQ NAWAZ and 7 others‑‑‑Respondents

Writ Petition No.5119 of 2003, decided on 25th March, 2004.

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

‑‑‑‑Rr.70, 72(3) & 77‑‑‑Election petition‑‑‑Election petition filed by unsuccessful candidates against returned candidates was objected to alleging that same 'was not filed in terms of R.72(3) of Punjab Local Government Elections Rules, 2000 as was not verified in terms of the said Rule‑‑‑Perusal of Election petition had shown that it was fully verified‑‑‑Legislature in its wisdom, had used the word `may' in R.77 of Punjab Local Government Elections Rules, 2000 which had envisaged that it, was the discretion of Election Tribunal to dismiss Election petition for non‑verification or not‑‑‑Election Tribunal had not exercised discretion in favour of petitioners with cogent reasons‑‑‑Even defective verification of election petition was not fatal‑‑‑Election petition could not be rejected, in circumstances‑‑‑Election Tribunal, had rightly dismissed application for rejection of Election petition.

Niaz Muhammad Khan's case PLD 1974 SC 134; Abdul Nasir and another v. Election Tribunal, T.T. Singh and others 2004 SCMR 602; Nawab Syed Raunaq Ali's case PLD 1973 SC 236 and Rana Muhammad Arshad's case 1998 SCMR 1462 ref.

(b) Administration of justice‑‑‑

‑‑‑‑ Disputes should be decided on merits instead of technicalities.

H. Aman‑Ullah Khan v. Sahibzada Tariq Ullah 1997 MLD 612 ref.

‑‑‑‑O. VI, R.15‑‑-Non‑verification of pleadings ‑‑‑Effect‑‑‑Non-verification of pleadings in accordance with procedure laid down in O. VI, R.15, C.P.C., was not fatal.

Ihrar Khattak v. Mian Muzaffar Shah and others 1991 CLC 175 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Nature‑‑‑Constitutional jurisdiction, was discretionary in character.

Sh. Naveed Sharyar for Petitioners.

Raja Zulqurnain for Respondents.

MLD 2004 LAHORE HIGH COURT LAHORE 1341 #

2004 M L D 1341

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAH MUHAMMAD alias Shahia and another‑‑‑Appellants

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.297 of 1997, decided on 10th December, 1999.

Penal Code (XLV of 1860)----

‑‑‑‑Ss.302/34‑‑‑Appreciation of evidence‑‑‑Un-witnessed occurrence‑‑Last seen evidence furnished by son of deceased who was resident of a town which was about 40 miles away from place of occurrence and die not fit in with the prosecution story and also was not in line with statement of doctor who had conducted the post‑mortem examination of deceased‑‑‑Other prosecution witness belonged to brotherhood of the deceased and was resident of other District‑‑‑No person from District concerned was produced in the case to prove prosecution case‑‑‑Witness of recovery of offensive weapons was resident of 35/36 miles away from the place of recovery‑‑‑No person from neighbourhood of accused was joined in investigation‑‑‑Investigating Officer was bound to have joined some respectable persons from where recovery was effected at the pointation of accused‑‑‑Case was based on circumstantial evidence‑‑No witness for extra‑judicial confession of accused was on record‑‑To convict an accused in a case under S.302, P.P.C. there should be evidence coming from an unimpeachable and independent sources which was lacking in the case‑‑‑Prosecution had not been able to prove its case against accused beyond any shadow of doubt‑‑‑Conviction and sentence awarded to accused were set aside extending them benefit of doubt.

Muhammad Masood Chishti for Appellants.

Siddiqa Altaf Khan for the State.

Date of hearing: 10th December, 1999.

MLD 2004 LAHORE HIGH COURT LAHORE 1346 #

2004 M L D 1346

[Lahore]

Before Maulvi Anwarul Haq, J

COLLECTOR OF GUJRAT and another‑‑‑Petitioners

Versus

ABDUL SHAKOOR and 2 others‑‑‑Respondents

Civil Revision No. 1114 of 2002, heard on 20th April, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.IX, Rr.8, 9‑‑‑Dismissal of suit for non‑prosecution ‑‑‑Restoration‑‑Suit filed by plaintiffs was dismissed for non‑prosecution‑‑‑Application for restoration of suit filed by plaintiffs under O.IX, R.8, C.P.C. after about three months of dismissal of suit, was dismissed by Trial Court, but in appeal same was accepted by Appellate Court and suit was restored‑‑‑Validity‑‑‑Case was adjourned as last opportunity and on adjourned date of hearing plaintiffs and their counsel were absent while counsel for defendant was present and suit was dismissed under provisions of O.IX, R.8, C.P.C.‑‑‑Provisions of O.IX, R.9, C.P.C. had conferred authority upon Court that upon satisfaction that sufficient cause was shown for non‑appearance of plaintiffs when suit was called on for hearing, it might make an order setting aside dismissal order‑‑Trial Court, found that plaintiff had filed false application whereas Appellate Court proceeded to lay down a rule which was not at all warranted by law‑‑‑No doubt the technicalities were to be avoided and justice was to be done, but that was to be accomplished within the four corners of law and not otherwise‑‑‑Appellate Court had acted without lawful authority in restoring the suit when admittedly no cause, sufficient or otherwise, for non‑appearance of plaintiffs on the date fixed for hearing, was shown and the one stated to application for restoration of suit, was turned out to he false‑‑‑High Curt allowing revision petition, set aside order of Appellate Court while one passed by Trial Court dismissing application, of plaintiff under O.IX, R.8, C.P.C., was restored.

Sohail Dar, A.A.‑G. and Miss Alia Neelam for Petitioners.

M. Akram Khawaja for Respondent.

Date of hearing: 20th April, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1349 #

2004 M L D 1349

[Lahore]

Before Mian Hamid Farooq, J

HUSSAIN FAROOQ‑‑‑Petitioner

Versus

Malik JAMIL AHMAD‑‑‑Respondent

Civil Revision No. 1462‑D of 1991, decided on 8th March, 2004.

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

‑‑‑‑‑S.12‑‑‑Limitation Act (IX of 1908), Art.113‑‑‑Suit for specific performance of agreements to sell‑‑‑Plaintiff's suit was decreed by the trial Court‑‑‑On appeal by the defendants Appellate Court proceeded to set aside the decree on the ground that the said suit was time‑barred and agreements to sell were against public policy‑‑‑Revision petition by the plaintiff‑‑‑Plaintiff placed reliance on Art.113 of Limitation Act, 1908 and contended that as no date for the performance of the agreements was specified, the period of limitation for filing the suit for specific performance could start from the date of refusal by the defendants, therefore, the suit was within time‑‑‑Validity‑‑‑When in an agreement, a specific and particular date was fixed for the performance of the contract, then the limitation period for filing the suit for specific performance would commence from the date so fixed‑‑‑Where, however, no particular date was expressly fixed by the parties, then the limitation period for filing the suit for specific performance would start from the date when the plaintiff had the notice that the performance was refused‑‑Defendant could only invoke the bar of Imitation, when he was able to prove that he had refused to perform his part of the contract more than three years before the filing of the suit‑‑‑No date was particularly fixed in the agreements to sell entered into between tire plaintiff and the defendants, neither were the defendants during the suit able to prove that more than three years before the filing of the suit, they clearly refused to perform their part of the contract‑‑‑Findings of the Appellate Court, in the circumstances, were not sustainable, therefore, the same were set aside and those of the trial Court reinstated.

Habibullah Khan and others v. Qazi Muhammad Ishaq and others PLD 1966 SC 505; Inam Naqshband v. Haji Shaikh Ijaz Ahmad PLD 1995, SC 314; R. Muniswami Goundar (died) and another v. B.M. Shamanna Gouda and others AIR (37) 1950 Madras 820 ref.

(b) Contact Act (IX of 1872)‑‑

‑‑‑‑S.23‑‑‑Specific Relief Act (I of 1877), S.12‑‑ Agreements opposed to public policy, validity of‑‑‑Suit for specific performance of agreements to sell‑‑‑Plaintiff's suit was decreed by the trial Court‑‑‑Appellate Court had proceeded to set aside the decree on basis of the plea by the defendants that the agreements to sell were against public policy‑‑Validity ‑‑‑No such objection. regarding S.23 of the Contract Act, 1872, was either raised or pleaded in the written statement by the defendants at the trial stage‑‑‑Defendant, under the law, was required to specifically raise all points of law or fact in the written statement in order to, show that the suit was not maintainable and was barred by law inasmuch as the legal infirmities in the suit must be specifically pleaded and its particulars must be narrated in the written statement‑‑‑Defendant was not allowed to raise in appeal, for the first time, a plea, depending upon the evidence for its determination‑‑‑Non‑pleading a specific question of fact or law in the written statement‑‑‑Effect‑‑‑Principles‑‑‑Party w as not permitted to deviate from its pleadings nor a Court could sea up a different plea for a party‑‑‑Plaintiff and the defendants did not agree on what was prohibited by law, through the execution of the said agreements, nor the terms of the agreements were against any legal provision‑‑‑Agreements were not opposed to public policy in circumstances.

Amir Shah v. Ziarat Gul 1998 SCMR 593; Anwar Aki and others v. Manzoor Hussain and another 1996 SCMR 1770; Messrs Chaudhary Brothers Ltd., Sialkot v. The Jaranwala Central Co‑operative Bank Ltd., Jaranwala 1968 SCMR 804, Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCMR 1696; Binyameen and 3 others v. Chaudhary Hakim and another 1996 SCMR 336 and Sultan Textile Mills Ltd., Karachi v. Muhammad Shamsi PLD 1972 Kar.

‑‑‑‑S.115‑‑‑Revisional jurisdiction‑‑‑Natural justice, principle of ‑‑‑Audi alteram partem‑‑‑Remarks by the Appellate Court against a person not party to the proceedings‑‑‑Validity‑‑‑No remarks could be given against a person at his back without providing any opportunity of hearing to him, otherwise he would be considered as condemned unheard.

Muhammad Punhal v. Dr. Abdul Wahid Abbasi and another 2003 SCMR 1406 ref.

Mian Nisar Ahmad for Petitioner.

Malik Muhammad Azam Rasul for Respondent.

Date of hearing: 20th February, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1359 #

2004 M L D 1359

[Lahore]

Before Ch. Ijaz Ahmad, J

WAPDA through Chairman WAPDA House, Lahore and another‑‑‑Petitioners

Versus

Haji SAMAND KHAN and another‑‑‑Respondents

C.R. No.2706 of 2002, decided on 2nd April, 2004.

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

‑‑‑‑S.42‑‑‑Suit for declaration was filed by the plaintiff against the defendant‑Authority on the ground that the latter had malafidely sent an electricity bill to the former ‑‑‑Trial Court dismissed the suit of the plaintiff who preferred an appeal which was accepted and consequently the suit was remanded to trial Court‑‑‑Trial Court on remand decreed the suit of plaintiff, against which the defendants filed an appeal that was partly accepted‑‑‑Defendants being aggrieved of the decision in appeal filed a revision petition‑‑‑Contention of the defendants was that the findings of the Appellate Court were not in consonance with the evidence on record and in fact were a result of misreading and non‑reading of the record‑‑‑Validity‑‑‑Findings of the Appellate Court revealed that it had through reappraisal of evidence found that the bill was not sent by the defendants to the plaintiff in consonance with the ground realities as the electricity connection was disconnected by the defendants on the request of the plaintiff and the defendants had not sent any bill to the plaintiff against any outstanding amount and the same was sent without any inquiry‑‑Defendants failed to prove whether any piece of evidence was misread by the Appellate Court or whether the impugned judgment passed by it was in violation of the law laid down by superior Courts‑‑Revision petition was dismissed, in the circumstances.

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

‑‑‑‑S.96‑‑‑Appellate Court, powers of‑‑‑First Appellate Court has all powers of reappraisal of evidence on record while exercising power under S.96 C.P.C.

N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madras PLD 1949 P.C. 26 and Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood 1985 CLC 657 ref.

‑‑‑‑R.5‑‑‑Where the Court found that some officer of the Authority had allowed the plaintiff to use electricity without having a proper electricity connection from the Authority, such official/officer of the Authority was to be proceeded against under Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978.

Syed Yaqoob Shah v. XEN, PESCO (WAPDA), Peshawar and another PLD 2002 SC 667 ref.

Ch. Atta Ullah, for petitioners.

Zia Ullah Khan Niazi, for Respondents.

MLD 2004 LAHORE HIGH COURT LAHORE 1365 #

2004 M L D 1365

[Lahore]

Before Muhammad Muzammal Khan, J

SHAMAS‑UL‑HAQ‑‑‑Petitioner

Versus

RETURNING OFFICER/ADDITIONAL DISTRICT JUDGE and 9 others‑‑‑Respondents

Writ Petition No.5803 of 2004, decided on 21st April, 2004.

Conduct of General Elections Order (Chief Executive's Order 7 of 2002)‑‑‑

‑‑‑‑Art.8‑A‑‑‑Constitution of Pakistan (1973), Arts.199 & 225‑‑Constitutional petition‑‑‑Bye‑elections‑‑‑Nomination papers‑‑‑Objection to‑‑‑Candidate filed his nomination papers for contesting Bye‑election, against which petitioner who was a voter, filed objection petition before the Returning Officer‑‑‑Objection of petitioner was that candidate was not graduate as he was holder of degree/certificate issued by Ittehad‑urMadaras‑Al‑Arabia Pakistan which was not recognized by University Grants Commission as equivalent to Bachelors degree‑‑‑Objection petition having been dismissed by Returning Officer, petitioner had filed Constitutional petition against dismissal order‑‑‑Validity‑‑‑Proceedings before Returning Officer, were summary in nature, but despite that matter had thoroughly been thrashed out and ultimately it had come to the light that candidate was not qualified to be elected as Member of Parliament‑‑‑According to Art.8‑A of Conduct of General Election Order, 2002, Election. Petition on basis of pre‑election disqualification; would be maintainable and could be processed under Art.225 of the Constitution‑‑‑Even otherwise petitioner, who being simply a voter, was not aggrieved person, and thus could not maintain election petition and Constitutional petition---Petitioner could avail other remedies available to him at law, where some detailed trial of controversy, could be conducted after recording evidence---Provisions of Art. 199 of Constitution of Pakistan (1973), were not designed to de-franchise or exclude a contestant from the election.

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer; NA-158, Naushero Feroze and others 1994 SCMR 1299; Noor Hassan v. The State 1989 SCMR 396 and Ch. Nazir Ahmed and others v. Chief Election Commissioner and 4 others PLD 2002 SC 184 ref.

Talib H. Rizvi for Petitioner.

Muhammad Shan Gul for Respondent No.4.

MLD 2004 LAHORE HIGH COURT LAHORE 1372 #

2004 M L D 1372

[Lahore]

Before Ch. Ijaz Ahmad, J

REHMAT FILLING STATION through Proprietor‑‑‑Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Industries and Natural Resources Pak Secretariat Islamabad and 2 others‑‑‑Respondents

W.P. No.5104 of 2003, decided on 16th April, 2004.

(a) Petroleum Act (XXX of 1934)‑‑‑

‑‑‑‑Petroleum Rules, 1937, R.115. Sch.1‑‑‑Constitution of Pakistan (1973), Arts. 141, 142 & 199‑‑‑Constitutional petition‑‑‑Federal and Provincial laws, extent and subject‑matter of‑‑‑Petitioner filed an application for installing a petrol pump and for obtaining a "no objection certificate in this regard‑‑‑Application of the petitioner was rejected by the Authorities through impugned notification‑‑‑Contention of the petitioner was that the impugned notification was in conflict with Arts. 141 and 142 of the Constitution as the same was in violation of the mandatory provisions of the Petroleum Act, 1934 and, the Petroleum Rules, 1937, which were Federal Act and Rules and exclusively within the domain and extent of Federal Legislature, and therefore, the Provincial Legislature had no authority to change specifications mentioned in the Schedule of the said Rules‑‑‑Validity‑‑‑Contention had no force as the Federal Statute had prescribed the Provincial Authorities to issue "no objection certificate" in view of R.115(3) of the Petroleum Rules, 1937.

(b) Interpretation of Statutes‑‑‑

----Procedural law‑‑‑Retrospective effect of‑‑‑Respondent authorities had formulated a policy during the pendency of the application of the petitioner, which was procedural in character, therefore, the same had retrospective effect.

Hassan and others v. Fancy Foundation PLD 1975 SC 1; Messrs Airport Support Service v. The Airport Manager, Karachi, Airport 1998 SCMR 2268 and Zain Yar Khan v. The Chief Engineer CRBC WAPDA and others 1998 SCMR 2419 ref.

‑‑‑‑Petroleum Rules, 1937, R.115 Sch.1‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Provincial Government, duties of‑‑‑Law and order, a provincial subject‑‑‑Contention of the petitioner was that the Provincial Government had no lawful authority to change the specifications through the impugned notifications‑‑Validity ‑‑‑Under the Constitution the law and order situation in the Province was primarily the duty of the Province and not the Federation.

Khalid Malik and others v. Federation of Pakistan and others PLD 1991 Kar. 1 ref.

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

‑‑‑‑Art.199‑‑‑Constitutional petition of High Court‑‑‑Scope‑‑‑Judicial review‑‑‑Constitution was based on trichotomy and the Constitutional Court had only jurisdiction to interpret the law and had no jurisdiction to take the role of policy makers.

Government of Pakistan v. Zamir Ahmad Khan PLD 1975 SC 667; Zamir Ahmad Khan v. Government of Pakistan 1978 SCMR 327; Miss Sarah Malik v. Federation of Pakistan 2001 MLD 1026; Muhammad Saleem v. Federal Public Service Commission and 2 others 2003 MLD 1133; Airleague of PIA employees v. Federation of Pakistan 2003 PLC (C.S.), 145, State of U.P. and others v. D.K. Sing and others AIR 1987 SC 190 I.C.A. No 136/2004 ref.

Sadaqat Mehmood Butt for Petitioner.

Muhammad Hanif Khatana, Addl. Advocate‑General for Respondent.

MLD 2004 LAHORE HIGH COURT LAHORE 1377 #

2004 M L D 1377

[Lahore]

Before Muhammad Muzammal Khan, J

SHIFA LABORATORIES (PVT.) LTD. through Chief Executive‑‑‑Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY, through Director‑General, LDA Plaza and 3 others‑‑‑Respondents

Civil Revision No. 195 of 2004, heard on 9th April, 2004.

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

‑‑‑‑S.42‑‑‑Lahore Development Authority Act (XXX of 1975), S.40(2)‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 and 2‑‑‑Temporary injunction, grant of‑‑‑Show‑cause notice, requirement of‑‑‑Plaintiff was a pharmaceutical company who had opened a laboratory in a rented building‑‑‑Notice was set to the plaintiff by the Authorities, alleging that unauthorized constructions and installations had been made by it within the said rented premises‑‑‑In order to restrain the Authorities from demolition of a portion of the said building, a suit for declaration was filed by the plaintiff against the Authorities alongwith an application for grant of temporary injunction‑‑‑Temporary injunction was granted by the Trial Court and the Authorities were restrained from undertaking the demolition‑‑‑Appeal filed by the Authorities against the order of the Trial Court. was accepted and the temporary injunction was refused‑‑‑Revision petition was filed by the plaintiff‑‑‑Contention of the Authorities was that the plaintiff had installed a boiler within the rented premises which was dangerous for human life and was to be removed by the Authorities in discharge of their statutory obligations, towards the public at large‑‑Validity‑‑‑Authorities did not issue any show‑cause notice to the plaintiff earlier to notice under S.40(2) of Lahore Development Authority Act, 1975, requiring it to show cause against the demolition complained by them‑‑‑Nothing was available on record to show that the Authorities had earlier at any stage taken a plea that the boiler installed by the plaintiff was dangerous to lives of the inhabitants of the area‑‑‑Director of Industries and Mineral Development had issued a valid licence to the plaintiff for the installation of the boiler, and the Authorities had no authority under law to check and remove the boiler‑‑‑Plaintiff being a pharmaceutical company if the boiler wag removed by the Authorities, the plaintiff would suffer an irreparable loss and injury‑‑Order of the Appellate Court was set aside, in circumstances, and that of the Trial Court granting the temporary injunction was revived.

(b) Lahore Development Authority Act (XXX of 1975)‑‑‑

‑‑‑‑S.40(2)‑‑‑Show‑cause notice, requirement of‑‑‑Natural justice, principles of‑‑‑Section 40(2) of the Lahore Development Authority Act, 1975, did not envisage any opportunity of hearing to the person against whom the Authority was proceedings, however, there were principles of natural justice that required such hearing‑‑‑If some statute does not provide for a provision of notice of hearing, such a provision is to be still read in every statute.

Collector, Sahiwal and 2 others v. Mohammad Akhtar 1971 SCMR 681; Fateh Muhammad v. Mushtaq Ahmad and 9 others 1981 SCMR 1061 and Gul Muhammad and 8 others v. Buxal and 2 others 1991 CLC 229 ref.

Muhammad Saleem Shahnazi for Petitioner.

Sh. Talib Hussain for Respondents.

Date of hearing: 9th April, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1382 #

2004 M L D 1382

[Lahore]

Before Ch. Ijaz Ahmad, J

LAHORE DEVELOPMENT AUTHORITY through Director‑General, LDA Plaza and another‑‑‑Petitioners

Versus

ALI MUTTQI RIZVI through Bashir Ahmad Chaudhry‑‑‑Respondent

Civil Revision No. 1340 of 2001, decided on 1st April, 2004.

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

‑‑‑‑‑Ss.8 & 12‑‑Qanun‑e‑Shahadat (10 of 1984), Art.114‑‑‑Estoppel, principle of‑‑‑Suit for possession through specific performance of agreement to sell, filed by the plaintiff against the defendant‑authority was decreed by the Trial Court‑‑‑Appeal filed by the defendant against the said decree was dismissed‑‑‑Revision petition was preferred by the defendant‑‑‑Contentions of the defendant were that an agreement was executed between it and the plaintiff, and such agreement contained an arbitration clause, therefore, the suit of the plaintiff was not maintainable without invoking the arbitration clause before filing the same and findings of the Courts below were the result of misreading and non-reading of evidence‑‑‑Validity‑‑‑Defendant had not earlier raised the objection regarding the maintainability of the suit in the presence of arbitration clause and had participated in the proceedings without such objection, therefore, the contention of the defendant was of no force‑‑Defendant failed to point out any piece of evidence, which was a result of misreading and non‑reading by evidence of the Courts below Petition was dismissed in circumstance.

Pakistan International Airlines Corporation v. M/s Pak Saaf Dry Cleaner PLD 1981 SC 553 ref.

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

‑‑‑‑O.I, R.10‑‑‑Specific Relief Act (I of 1877), Ss.8 & 12‑‑‑Suit for possession‑‑‑Necessary and proper party‑‑‑Trespasser, impleading of‑‑Contention of the defendant was that the plaintiff did not implead the trespasser as defendant in the suit, as the property in question was in the possession of the trespasser, therefore, the suit was liable to be dismissed‑‑‑Validity‑‑‑Trespasser was not a necessary and proper party to resolve the dispute regarding the property, on the basis of which the suit was filed‑‑‑Both the Courts below had given concurrent findings of facts and it was not denied by the defendant that the person was a trespasser over the property, therefore, he was not a necessary and proper party and had no right over the property being a trespasser.

Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463 and Anjuman‑Araian Behra v. Abdul Rashid and others PLD 1982 SC 308 ref.

‑‑‑‑Ss.8 & 12‑‑‑Suit for possession‑‑‑Natural justice, principle of‑‑Applicability ‑‑‑Where the defendant‑Authority had passed the impugned order for cancellation of plot without notice to the plaintiff, such order was hit by the principles of natural justice, and was liable to be set aside.

University of Dacca v. Zakir Ahmad PLD 1965 SC 90: Pakistan Chrome Mines Ltd. v. The Inquiry Officer 1983 SCMR 1208; Pakistan and others v. Public at Large PLD 1987 SC 304 ref.

(d) Natural justice, principles of‑‑‑‑

‑‑‑‑Principles of natural justice must be read in each and every statute until and unless it was prohibited by wording of the statute itself.

Commissioner of Income‑tax v. Fazal‑ur‑Rehman PLD 1964 SC 410 ref.

(e) Administration of justice‑‑‑

‑‑‑‑When the basic order is without lawful authority, then superstructure built on it shall have to fall on the ground automatically.

Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104 and Crescent Sugar Mills v. Central Board of Revenue PLD 1982 Lah. 1 ref.

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

‑‑‑‑S.115‑‑‑Revisional jurisdiction ‑‑‑Scope‑‑‑Revisional Court had very limited jurisdiction to disturb the concurrent findings of facts given by the Courts below, especially where they were not a result of misreading and non‑reading of evidence.

N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madras PLD 1949 PC 26 and Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood 1985 CLC 657 ref.

Mian Muzaffar Hussain, Legal Advisor for Petitioner (LDA).

Qazi Abdul Hameed for Respondent.

MLD 2004 LAHORE HIGH COURT LAHORE 1388 #

2004 M L D 1388

[Lahore]

Before Ch. Ijaz Ahmad, J

PAKISTAN EXPATRIATE CO‑OPERATIVE HOUSING SOCIETY LTD. through General Manager‑‑‑Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY through Director General Lahore and another‑‑‑Respondents

Writ Petitions Nos.22643 of 1999 and 3214 of 2002 heard on 26th .March, 2004.

Constitution of Pakistan (1973)‑‑‑

--‑Arts.199 & 201‑‑‑General Clauses Act (X of 1897), S.24‑A‑‑Constituttonal petition‑‑‑Petitioner had filed Constitutional petition and High Court issued certain directions in the matter‑‑‑Such order of the High. Court was not challenged before the higher forum by the petitioner‑‑‑Directions issued by the Court was not complied with‑‑Petitioner filed second Constitutional petition‑‑‑Validity‑‑‑Directions issued in the earlier Constitutional petition was binding on the petitioner and public functionaries were under obligation to decide representations of the citizens with reasons‑‑‑Constitutional petition was accepted in circumstances.

Pir Bakhash's case PLD 1987 SC 145; Messrs Airport Support Service v. The Airport Manager Karachi 1998 SCMR 2268; Zain Yar Khan v. The Chief Engineer 1998 SCMR X419; Ch. Zahoor Elahi's case PLD 1975 SC 383; Zia‑ur‑Rehman's case PLD 1973 SC 49 and Main Nawaz Sharif's case PLD 1993 SC 473 ref.

Anjum Javaid Khan for Petitioner.

Mian Muzaffar Hussain alongwith Falak Sher, Assistant and Rana Aftab Ahmad Representative of Respondent No.2.

Date of hearing: 26th March, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1391 #

2004 M L D 1391

[Lahore]

Before Muhammad Muzammal Khan, J

Messrs KOHINOOR INDUSTRIES LIMITED‑‑‑Petitioner

Versus

PROVINCE OF THEPUNJAB through Secretary Law and Parliamentary Affairs Government of Punjab, Lahore and 4 others‑‑‑Respondents

W.P. No. 1557 of 2004, decided on 5th April, 2004.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Natural justice principle of‑‑Audi alteram partem‑‑‑Applicability‑‑‑Hearing of parties‑‑‑Petitioner was not a party before the proceedings that took place before the Provincial Authorities‑‑‑Impugned order passed by the Authorities was without any notice and without affording hearing to the petitioner‑‑‑Authorities discharging judicial or quasi‑judicial functions are obliged to hear the person against whom they proposed to proceed‑‑‑Impugned order demonstrated that the petitioner was burdened with a liability in his absence‑‑‑Besides requirement of a statute of giving notice of hearing to the affected person, it was a cardinal principle of natural justice that no body should be condemned unheard‑‑‑Even if any statute did not provide any provision regarding hearing of the concerned person, such provision had to be read in each statute‑‑‑Impugned order was not maintainable at law, in the circumstances.

Collector, Sahiwal and 2 others v. Muhammad Akhtar 1971 SCMR 681; Fateh Muhammad v. Mushtaq Ahmad and 9 others 1981 SCMR 1061; Mst. Sattan and others v. Group Captain Masroor Hussain, Officer Commanding P.A.F. Station Sargodha Cantt. PLD 1962 Lah. (W.P.) 151; Mst. Abeda Begum v. Government of Pakistan and others 1985 CLC 2859; Abdul Rashid v. Government of the Punjab through its Chief Conservator of Forests 1985 CLC 199 and Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408 ref.

Syed Ali Zafar for Petitioner.

Ch. Muhammad Suleman, Addl. A.‑G. for Respondents Nos. 1 and 2.

Ali Akbar Qureshi for Respondent No.3.

Syed Haider Ali Shah for Respondent No.5.

MLD 2004 LAHORE HIGH COURT LAHORE 1395 #

2004 M L D 1395

[Lahore]

Before Ch. Ijaz Ahmad, J

METROPOLITAN CORPORATION OF LAHORE through Administrator‑‑‑Petitioner

Versus

Syed BHAIS (PVT.) LIMITED through Managing Director and 5 others-‑‑Respondents

W.P. No.4222 of 2001, decided on 31st March, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. I, R.10‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutiona petition ‑‑‑Impleading of parties‑‑‑Lis pendens, principle of‑Applicability‑‑‑Petitioner (Authority) filed application praying that the petitioner may be impleaded as defendant in the case‑‑‑Said application was dismissed by the trial Court as well as the revisional Court‑Validity‑‑‑Courts had ample jurisdiction to allow such petitioner to be impleaded as a defendant if he had some right or interest in the subject matter, of the lis‑‑‑Party claiming interest could not be kept away‑Parties were also added to avoid multiplicity of litigation‑‑‑Principle of lis pendens could not be made a ground for rejecting application seeking impleadment‑‑‑Orders of the Courts below were set aside in circumstances.

Abdul Wali Khan's case PLD 1975 SC 463; Bashir Ahmad case 1991 SCMR 1656; Muhammad Humayun's case 1991 MLD 1957 Messrs Ideal Life Insurance Company Ltd. v. Mst. Khairunnisa A.G. Mirza 1980 CLC 1375; The Jetpur Memon Association v. Mst. Zubeeda Begum 1981 CLC 1245; Suleman Khan's case PLD 1992 SC 590; Capt. Riffat Chowdhry v. The Executive Board Pakistan Defence Officers Housing Authority 1984 CLC 2426; Messrs Nishibe Kaike Manufacturing Company Ltd. v. Karachi Taxi Meter Co. and another 1986 CLC 1063; Messrs Mona Lisa Fruit Juice Industries Ltd. v. Government of Sindh 1998 MLD 9; Ghulam Abbas and others v. Malik Muhammad Ijaz and others 2002 CLC 47; Mukhtar Haider and others v. Muhammad Feroze and others 1990 ALD 401; Munir Ahmad v. Mst. Rukhsana Khan 1997 MLD 536; A.M. Qureshi v. Deputy Commissioner (East) Karachi 1989 MLD 4543 and University of the Punjab v. Malik Jahangir Khan 1994 MLD 452 ref.

Kh. Muhammad Afzal for Petitioner.

Kh. Mukhtar Ahmad Butt for Respondents.

MLD 2004 LAHORE HIGH COURT LAHORE 1401 #

2004 M L D 1401

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD IQBAL‑‑‑Petitioner

Versus

ADDITIONAL SESSION JUDGE, KHANEWAL and another ‑‑‑Respondents

W. P. No. 1353 of 2004, decided on 30th March, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.337‑F(ii)/337‑F(iii)/337‑L(ii)/337‑A(i)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Application for constitution of Medical Board to re‑examine injuries on the person of the injured as according to accused medical certificates with regard to injuries on person of injured were obtained by prosecution through fraud‑‑‑Said application was dismissed by Judicial/Ilaqa Magistrate on ground that after 26 days of medical examination of injured, Medical Board could not be constituted for re‑examination‑‑‑Additional Sessions Judge accepting revision of accused., set aside order of Judicial Magistrate holding that only medical expert could give opinion regarding nature of injuries‑‑‑Contention of the complainant was that order passed by Ilaqa Magistrate being executive order, no revision could be filed against said order ‑‑‑Validity‑‑‑Judicial/Ilaqa Magistrate had dismissed application of accused filed by him for constitution of Medical Board merely on technical ground while exercising his judicial powers and petitioner/complainant had failed to show anything for declaring order of Magistrate as an executive order‑‑‑Revision petition filed against order of Magistrate, in circumstance, was maintainable‑‑‑No illegality took place in findings of Addl. Sessions Judge while accepting revision petition against order of Judicial 'Magistrate‑‑‑Petitioner/complainant having failed to show any jurisdictional defect in impugned order of Addl. Sessions Judge which was not an adverse order, Constitutional petition against the order, was dismissed.

Muhammad Arif Khan, Advocate.

MLD 2004 LAHORE HIGH COURT LAHORE 1403 #

2004 M L D 1403

[Lahore]

Before Muhammad Akhtar Shabbir, J

Syed FAYYAZ HUSSAIN ZAIDI, ADVOCATE‑‑‑Petitioner

Versus

S.H.O., POLICE STATION CHEHLIYAK, MULTAN and another‑‑‑Respondents

W.P. No. 1642 of 2004, decided, on 15th April, 2004.

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

‑‑‑‑Art.199‑‑‑Penal Code (XLV of 1860); Ss.420/467/468/471---Constitutional petition‑‑‑‑Quashing of F.I.R.‑‑‑Offences under Ss.467/468/471, P.P.C. against accused had been omitted by police vide report/Zimni and only offence under S.420, P.P.C. was available against accused in the F.I.R.‑‑‑After deletion of offences under Ss.467/468/471, P.P.C., no case of false, forged and fabricated document remained against accused ‑‑‑F.I.R had shown that prosecution case against accused Was of pure civil nature‑‑‑Admittedly it was a dispute of civil nature which had been converted into criminal proceedings with ulterior motives‑‑‑In such‑like cases, if on basis of facts admitted and brought on record, no offence was made out, then it would amount to be an abuse of process of law to allow prosecution to continue with the trial of case and if facts of case so warranted, High Court could quash the F.I.R. and it was not always necessary to direct aggrieved person to first exhaust remedy available to him under law‑‑‑F.I.R. was ordered to be quashed as no case under S.420, P.P.C. was made out against accused.

Muhammad Nasim Khan and another v. Fida Muhammad Khan and another 1993 PCr. LJ 1795; Bashir Dawood and 2 others v. Tanveer Ahmed and another 2000 PCr.LJ 1230 and Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.415 & 420‑‑‑Appreciation of evidence ‑‑‑Cheating‑‑‑Ingredients‑‑.Ingredients of offence of, cheating‑‑‑For the ,purpose of cheating, dishonest intention at the time of performing an act or promise was to be inferred and not from subsequent non‑fulfilment of the promise‑‑‑Section 415, P.P.C. had two parts and its first part was that a person should be induced .to deliver any property to any person or to consent that any person would retain any property‑‑‑Second part of S.415, P.P.C., covered the class of acts of doing or omitting to do anything which the deceived would not do or omit to 'do if he was not so deceived‑‑‑In the first part of S.415, P.P.C., the delivery of property with fraudulent and dishonest inducement was the essential ingredient to constitute an offence, whereas in the second class of cases, inducement must lye intentional and the offence of cheating would not be constituted if no deception was practised and no one sustained pecuniary loss‑‑‑Fraudulent and dishonest intention/mens rea and inducement at the time of performance of act, were essential ingredients for the commission of offence of cheating and onus always lay on prosecution to prima facie establish said ingredients for taking cognizance in the matter.

Syed Sibt‑i‑Nabi Abidi for Petitioner.

M.R. Khalid Malik, Addi, A.‑G.

Ishtiaq Hiraj, D.S.P. (Legal)/I.O.

MLD 2004 LAHORE HIGH COURT LAHORE 1411 #

2004 M L D 1411

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAHAB DIN and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 107‑J and Criminal Revision No. 1197 of 2002, decided on 7th April, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b) & 201‑‑‑Appreciation of evidence‑‑‑Out of five accused persons, one was at large while main accused had died‑‑‑Matter was reported to police after 10 years of occurrence by a person who was not eye‑witness of occurrence‑‑‑Complainant lodged F.I.R. on basis of what he was told by prosecution witnesses‑‑‑Both alleged eye‑witnesses appeared before Police 10 years after occurrence, whereas distance between Police Station and place of occurrence was two furlongs‑‑‑Was unimaginable that two persons had seen the occurrence, but they remained mum for a long period of 10 years and no proper explanation was given for such a long delay in lodging F.I.R.‑‑‑Both eye‑witnesses admitted their enmity with accused‑‑‑No incriminating article was recovered from any of the accused‑‑‑A case being that of no evidence while granting benefit of doubt to accused, conviction and sentence awarded to them by Trial Court, were set aside and they were relealsed.

Khurram Latif Khan Khosa with Ashfaq Ahmed Ch. for the Appellants.

Obaid‑ur‑Rehman Masood for the State.

Zafar Iqbal Chauhan for the Complainant.

Date of hearing: 7th April, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1415 #

2004 M L D 1415

[Lahore]

Before Rustam Ali Malik, J

SHAFQAT and 4 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No. 1593/B of 2004, decided on 24th March, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), S.379‑‑‑Pre‑arrest bail, grant of‑‑‑Investigating Officer present in Court had admitted that accused had already joined investigation and that alleged stolen tree had been recovered from the place of occurrence‑‑‑Place of occurrence was owned by complainant, but it was under the graveyard‑‑‑Tree in question was stated to have been found from the spot and not from the possession of accused‑‑‑Accused had joined investigation and nothing else was to be recovered from them‑‑‑Accused, in circumstances were entitled to concession of bail.

Justin Gill for Petitioners.

Syed Fazal Hussain Jafri for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1416 #

2004 M L D 1416

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ABBASS‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.557 of 2002, heard on 11th May, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.308‑‑‑Appreciation of evidence ‑‑‑F.I.R. was lodged with the delay of one year and three months‑‑‑No marks of violence were found on the dead body of deceased when the same was exhumed‑‑‑Report of Chemical Examiner, showed that poison was of insecticide‑‑Complainant had not stated in the F.I.R. that deceased was administered poison‑‑‑No eye‑witness had stated before the Trial Court that it was accused who had poisoned the deceased‑‑‑Story of prosecution was that the complainant received injury on her left ear at the hands of accused, but said lady was never medically examined‑‑‑Plea of accused that deceased had committed suicide,, seemed to be plausible in facts and circumstances of the case‑‑‑No dying declaration having been recorded the case was of no evidence‑‑‑Conviction and sentence recorded against accused by Trial Court, were set aside and he was acquitted of the charge.

Arshad Ali Mehr for Appellant.

Mirza Abdullah Baig for the State.

Date of hearing: 11th May, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1421 #

2004 M L D 1421

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MAQBOOLAN BIBI‑‑‑Petitioner

Versus

DISTRICT POLICE OFFICER, SAHIWAL and 4 others‑‑‑Respondents

Crl. Rev. No. 127 of 2004, decided on 21st April, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.435/436/439 & 154‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/16‑‑‑Application for registration of case‑-‑Dismissal of application‑‑‑Petitioner claimed that her son was abducted by respondent and that she filed application for registration of criminal case against the respondent and that Additional Sessions Judge directed the police S.H.O. concerned to record statement of petitioner and if any cognizable case was made out, to proceed strictly in accordance with law, but S.H.O. did‑not record her statement despite direction of: Additional Sessions Judge and that her application was dismissed after receipt of police report‑‑‑Application filed by petitioner was dismissed on ground that on investigation it was found that son of the petitioner had in fact abducted a married lady and F.I.R. was registered against son of petitioner in that respect‑‑‑Subsequent events could not be ignored which occurred after interim order passed by Addl. Sessions Judge for registration of F.I.R. on application of the petitioner‑‑‑No illegality or improbability was found in subsequent order of Addl. Sessions Judge through which application moved by petitioner was dismissed as true facts were discovered through report submitted by police with regard to abduction of married lady by son of the petitioner‑‑‑Possibility could not be ruled out that application for registration of F.I.R. was moved by petitioner with mala fide intention to save skin of her son from offence which he allegedly had committed by abducting a married lady for which case had been registered against the son of petitioner‑‑‑In absence of any illegality or jurisdictional defect in the order of Addl. Sessions Judge same could not be interfered by High Court, in exercise of its revisional jurisdiction.

Tariq Zulfiqar Ahmad Chaudhry, Advocate.

MLD 2004 LAHORE HIGH COURT LAHORE 1425 #

2004 M L D 1425

[Lahore]

Before Khawaja Muhammad Sharif, J

BABAR alias BABRI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.208 of 2003, heard on 22nd April, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.354‑A & 354‑‑‑Appreciation of evidence‑‑‑Statement of victim girl, who was star witness in the case, could not be disbelieved because she had no enmity with accused‑‑‑Case was of promptly lodged F.I.R. and prosecution witness was an independent witness‑‑‑Though some discrepancies were found between statements of prosecution witness and victim, but as a whole their statements corroborated each other‑‑‑Victim stood to the test of lengthy cross‑examination and defence had failed to create any dent in her story‑‑‑Victim was minor at the time of occurrence‑‑‑Court had to see the quality of evidence and not its quantity‑‑‑Victim, however, in her examination‑in‑chief stated that during scuffle her wearing apparel were torn and she became naked, but in cross‑examination she stated that during scuffle only her shirt was torn‑‑-Said shirt was not produced before Police‑‑‑Even in F.I.R. S.354, P.P.C. was mentioned and challan was also submitted under said section and it was later on, on application of complainant, the Addl. Sessions Judge to whom case was entrusted, framed charge under S.354‑A, P.P.C.‑‑‑Prosecution had not been able to prove its case against accused under S.354‑A, P.P.C., but under S.354, P.P.C.‑‑‑Conviction and sentence of accused was altered from S.354‑A to S.354, P.P.C. and accused was convicted under S.354, P.P.C. to undergo R.I. for two years with fine‑‑‑Appeal filed by accused was disposed of with said modification in sentence.

1989 PCr.LJ 1453; 1991 PCr.LJ 194; 1992 PCr.LJ 1095; 1997 PCr.LJ 600 and 1996 PCr.LJ 620 ref.

Ch. Ali Muhammad for Appellant.

Rai Harder Ali for the State.

Ch. Imran Bhatti for the Complainant.

Date of hearing: 22nd April, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1430 #

2004 M L D 1430

[Lahore]

Before Muhammad Farrukh Mehmud and Sh. Hakim Ali, JJ

ALLAH DITTA and 2 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.271 of 2003/BWP, heard on 19th May, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b), 302(c) & 302(c)/34‑‑‑Appreciation of evidence‑‑‑Delay of nine hours in lodging the F.I.R. was not plausibly explained‑‑Prosecution story was totally belied by medical evidence‑‑‑Prosecution witnesses were not found to 'have seen the occurrence‑‑‑Complainant who was related to the deceased, after knowing about the murders of the two deceased had subsequently carved out a ludicrous story‑‑‑Principal accused, however, had taken the plea that he had committed both the murders under grave and sudden provocation after seeing them committing Zina with each other‑‑‑Vaginal swabs of the female deceased were found stained with semen‑‑‑Both the dead bodies were found naked at the place of ‑ occurrence‑‑‑Investigating Officer knew during the investigation that both the deceased had illicit relationship‑‑‑Said plea of the accused, thus, was supported by the aforesaid circumstances‑‑Conviction of principal accused under S.302(b), P.P.C. was consequently altered to S.302(c), P.P.C. and his death sentence was reduced to ten years' R.I. accordingly‑‑‑Other accused , were acquitted of the charge under S.302(c)/34, P.P.C. in circumstances.

Khalid Javed and another v. The State 2003 SCMR 1419 and Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879 ref.

Malik Muhammad Aslam and Mahmood Ahmad Bhatti for Appellants.

Haq Nawaz Kiani for Respondent.

Date of hearing: 19th May, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1439 #

2004 M L D 1439

[Lahore]

Before Muhammad Muzammal Khan, J

NAEEM QAISER‑‑‑Petitioner

Versus

ADDITIONAL SESSIONS JUDGE; GUJRAT and 4 others‑‑‑Respondents

W.P. No.2030 and W.P. No. 5792 of 2004, decided on 21st April, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.337‑A(iii)/34‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petitions‑‑‑Sessions Court had passed two contradictory orders while deciding the two revision petitions, on the one hand order of the Magistrate summoning the accused in private complaint of the complainant was maintained as lawful and on the other hand the order of the Magistrate whereby he had, not concurred with the police had been set aside with the direction to the S.H.O. to submit Qalandra under S.182, P.P.C. against the complainant‑‑‑Both the findings of the Sessions Court being opposed to each other could not be allowed to stand‑‑‑Order of the Magistrate differing with police report under S. 173, Cr.P.C. being an administrative order was not amenable to revisional jurisdiction and Sessions Court had exercised a jurisdiction not vested in it and that too without any lawful basis or justification‑‑‑Both the complaint case and challan case, no doubt, could be tried simultaneously if each of them had different facts, but in the instant case both the F.I.R. and the complaint case had a verbatim narration of facts‑‑‑Complaint had been filed in view of the report by the police under S. 173, Cr.P.C. and since that report had been wiped off by revival of the order of the Magistrate and the challan case having been sent to police for further investigation, keeping the complaint pending would amount to vex the accused twice for one offence which was neither permissible under the law, nor the same could be allowed in the interest of justice‑‑‑Pendency of complaint, thus, would amount to abuse of the process of law‑‑‑Impugned orders were consequently declared as void and of no legal effect and the complaint filed before the Magistrate was dismissed‑‑‑Constitutional petitions were accepted accordingly.

Abdullah and 2 others v. Eidan and another 2001 PCr.LJ 1624; Noor‑ud‑Din v. Bahadur PLD 2004 Kar. 13; Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63; Altaf Hussain v. Muhammad Fazil and another 1979 PCr.LJ 66; Bahadur and another v. The State and another PLD 1985 SC 62 and Falak Sher and another v. The State PLD 1967 SC 425 ref.

Ch. Muhammad Ashraf Ramka for Petitioner.

Ch. Arshad Mahmood for Respondents Nos.2 and 3.

MLD 2004 LAHORE HIGH COURT LAHORE 1444 #

2004 M L D 1444

[Lahore]

Before Sh. Hakim Ali, J

Mst. NAZIR MAI ‑‑‑Petitioner

Versus

S.H.O. and others‑‑‑Respondents

Writ Petition No. 1056 of 2004/BWP, decided on 28th April, 2004.

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

‑‑‑‑Ss.10(2) & 16‑‑‑Penal Code (XLV of 1860), S.109‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Quashing of F. I. R.‑‑Petitioner who had gone to a Court of law to get divorce from her husband who had deserted her and had taken another wife, was being subjected to illegal blackmailing tactics, duress and coercion‑‑‑Filing of the suit for dissolution of marriage three months prior to the lodging of the F.I.R. had belied clearly the present action being taken by the informant and the local police‑‑Criminal proceedings had been initiated against the petitioner and others with the said motive and as a counterblast to the demand of divorce by her‑‑‑Petitioner who did not want to live with the informant was in fact being made a prey to his illegal wishes‑‑‑Abuse of the process of law was, thus, apparent and the F.I.R. alongwith its subsequent proceedings was quashed accordingly.

Major Nasir Mahmood and others v. The State and others 2002 PCr.LJ 408; Mst. Nasreen Begum alias Sakina and another v. S.H.O. P.S. Jahania, District Khanewal and another 1992 PCr.LJ 1455; Mst. Razia Bibi v. S.H.O. and others 1995 PCr.LJ 797; Muhammad Arshad v. Station House Officer and others 1997 PCr.LJ 928; Gulnaz and another v. The State and 3 others; 1996 PCr.LJ 486 and Mst. Irshad Elahi v. Bashir Ahmad PLD 1997 Lah. 554 ref.

Malik Saeed Ijaz for Petitioner.

Mian Amir Ahmed for the Complainant alongwith Sajjad Hussain S.I.

MLD 2004 LAHORE HIGH COURT LAHORE 1457 #

2004 M L D 1457

[Lahore]

Before Khawaja Muhammad Sharif, J

SANAULLAH‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.679 and Criminal Revision No. 434 of 2003, heard on 10th May, 2004.

(a) Penal Code (1H,V of 1860)‑

‑‑‑‑Ss.302(b)/34‑‑‑Appreciation of evidence‑‑‑All three accused mentioned in F.I.R. were real brothers and one of them was at large‑‑Motive, if any was with absconding accused who caused fatal injury on person of deceased‑‑‑Accused while armed with pistol came at the spot, but he fired in the air‑‑‑Had accused common intention with his coaccused, he should have fired at deceased who insulted his brother, coaccused and not in the air‑‑‑Fire of accused at deceased missed and according to complainant he also fired in the air in his defence‑‑Occurrence was shown to have taken place in the baithak of complainant‑‑‑Site‑plan prepared by Patwari had shown that no mark of bullet was on any wall the roof of baithak where occurrence allegedly occurred and no crime empty was taken into possession from the spot‑‑Mere recovery on pointation of accused was of no help to prosecution‑‑Investigation carried out by Crime Branch showed that the accused was found to be innocent‑‑‑Opinion of police though was not binding upon the Courts, but in the facts of the case, when co‑accused to whom fatal injury on the person of deceased was attributed, was real brother of accused and was still at large and accused only fired in the air, it gained some importance‑‑‑Both eye‑witnesses were real father and maternal uncle of the deceased ‑‑‑Baithak where occurrence had taken place, was surrounded by many houses, but no one from adjacent houses was produced by prosecution‑‑‑Court in a case of capital charge, had to see the quality and not the quantity of evidence and corroboration from independent source‑‑‑Except oral testimony of two witnesses no corroboration was available in shape of motive, medical evidence and recovery‑‑‑Prosecution had not been successful in proving its case against accused rather defence had been able to create dents in the story of prosecution specially when role ascribed to accused was that, of ineffective firing‑‑‑Conviction and sentence awarded to accused by Trial Court were set aside and he was acquitted of charge.

(b) Criminal Trial‑‑‑

‑‑‑‑ Appreciation of evidence‑‑‑In a case of capital charge, the Court had to see the quality and not the quantity of the evidence and corroboration from independent source.

M.A. Zafar for Appellant.

Younas Rana for the State.

Syed Imdad Hussain Hamdani for the Complainant.

Date of hearing: 10th May, 2004.'

MLD 2004 LAHORE HIGH COURT LAHORE 1462 #

2004 M L D 1462

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SABIR HUSSAIN ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Crl. Appeal No.'128 of 2001, heard on 18th March, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b) & 201‑‑‑Appreciation of evidence ‑‑‑F.I.R. was lodged after six days of the disappearance of the deceased only on suspicion against the accused‑‑-Occurrence was unwitnessed‑‑‑Making of extra‑judicial confession by the accused was not mentioned in the belated F.I.R. and the statement in this regard was recorded tinder S.161, Cr.P.C. after ten days of the registration of the F.I.R. without giving any explanation for such delay‑‑‑Accused had no occasion to make extra judicial confession before the prosecution witness whose testimony being not trustworthy could not be relied upon‑‑‑Evidence of last seen was also not disclosed in the F.I.R. and the same had been recorded belatedly without any explanation in order to implicate the accused‑‑‑Motive alleged by the prosecution was not proved on record‑‑‑Crime empty recovered from the pistol, no doubt, had matched with the weapon of offence, but this was not proved on record that empty was the result of shot fired at the deceased‑‑‑Positive report of the Forensic Science Laboratory, therefore, was of no avail to prosecution‑‑‑Accused was acquitted on benefit of doubt in circumstances.

Malik Muhammad Saleem for Appellant.

Muhammad Masood Sabir for the State.

Date of hearing: 18th March, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1473 #

2004 M L D 1473

[Lahore]

Before M. Bilal Khan, J

MANZOOR AHMED ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Cr. Misc. No.3255‑B of 2004, decided on 13th May, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.324/427/148/149‑‑‑Pre‑arrest bail, refusal of‑‑‑Accused earlier obtained ad interim pre‑arrest bail from Trial Court, but accused neither furnished bail bond nor did he appear in that Court on relevant date as a result of which iris bail application was dismissed‑‑‑Accused, thereafter, had filed present application for grant of bail‑‑‑Very serious allegations were levelled against accused and recovery of fire‑arm was yet to be effected from him‑‑‑Accused had successfully managed to elude the process of law for more than five months‑‑‑Case of accused did not present any special feature so as to entitle him to , extraordinary concession of pre‑arrest bail‑‑‑In absence of any merits in bail application same was dismissed.

Zafar Iqbal Chohan for Petitioner.

MLD 2004 LAHORE HIGH COURT LAHORE 1479 #

2004 M L D 1479

[Lahore]

Before Maulvi Anwarul Haq, J

ARSHAD MEHMOOD‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Writ Petition No.498 of 2003, heard on 30th March, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/324/109/34‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑ Constitutional petition‑‑‑Placing accused in Column No.2 of challan‑‑ Summoning of said accused‑‑Petitioner/accused alongwith others was accused of commission of offences under Ss.302/324/109/34, P.P.C.‑‑‑ Investigation had been completed and challan of case had been put up before Trial Court placing accused in Column No.2 of challan and Trial Court had summoned accused persons including petitioner/accused‑‑Petitioner/accused had challenged order of Trial Court in Constitutional petition contending that in absence of any evidence, Trial Court had no jurisdiction to summon him‑‑‑Validity‑‑‑Trial Court had requisite authority to summon accused placed in Column No.2 of challan to face trial and no bar existed in law that before doing so, Trial Court was required to record evidence to ascertain as to whether a prima facie case was made out against such a person.

Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63 ref.

Malik Rabnawaz Noon for Petitioner.

Tanvir Iqbal, A.A.‑G. for the State.

M. Ilyas Siddiqui for Respondent No.2.

Date of hearing: 30th March, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1483 #

200.1 M L D 1483

[Lahore]

Before Rustam Ali Malik, J

MUMTAZ BIBI‑‑‑Petitioner

versus

STATION HOUSE OFFICER, POLICE STATION KURJA TEHSIL AND DISTRICT GUJRAT and 4 others‑‑‑Respondents

Crl. Misc. No.648‑H of 2003, decided on 21st July, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S.491‑‑‑Habeas corpus petition‑‑‑Respondents had stated that alleged detenus were not kept in illegal detention and that habeas corpus petition had been filed to misappropriate the amount which had been paid to them in advance by respondents‑‑‑Alleged detenus who had been produced before the Court, were relieved and allowed to proceed to whatever place they wanted to‑‑‑Respondents could have recourse to competent forum for recovery of any amount "Which they had allegedly paid to detenusin advance.

Abdul Ghafoor for Petitioner.

Azmat Ullah Warraich for Respondents Nos.3 and 4.

S.D. Qureshi for the State with Muhammad Yousaf, Sub Inspector.

MLD 2004 LAHORE HIGH COURT LAHORE 1487 #

2004 M L D 1487

[Lahore]

Before Sardar Muhammad Aslam, J

JAWAD alias JOEE and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 173 of 2001, heard on 29th March, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑‑Deceased was a young roan of 17 years of age‑‑‑Accused had caused injuries on vital part of body of deceased with Danda, which resulted in his death‑‑‑Recoveries were effected from accused and medical evidence had fully supported ocular account‑‑‑False implication of accused in the case was excluded by a promptly lodged ,F.I.R, wherein accused were nominated with specific role‑‑‑Plea of substitution raised by accused that someone else had committed the murder of deceased in the dark, had no basis and was belied by mere fact that deceased was shifted to the hospital within 20 minutes by prosecution witnesses‑‑‑Substitution was a rare phenomenon and it was not acceptable that a father would leave the actual culprits and involve accused falsely in the absence of any grave previous enmity‑‑Trial Court, after appreciation of evidence had correctly found that motive part of prosecution was proved and ocular evidence was supported by medical evidence‑‑‑Trial Court relied on recovery at the pointation of accused‑‑‑Conviction of accused recorded by Trial Court, in circumstances was well reasoned and was in accordance with principles of administration of justice on criminal side‑‑‑Acquitted accused was attributed causing injury on lips of deceased which according to Medical Officer could have been caused by fall on the ground‑‑‑Trial Court gave benefit of doubt to acquitted accused‑‑Conclusion of Trial Court could not be termed as arbitrary, perverse or shocking‑‑‑In absence of any illegality or mis‑reading or non‑reading of evidence by Trial Court order acquitting said accused could not be interfered with‑‑‑Double presumption of innocence being attached to judgment of acquittal of accused by competent Court, same could not be upset unless found perverse or arbitrary.

Nazir Ahmad Bhutta and Malik Abdul Qayyum for Appellants.

Ghufran Khurshid Imtiazi for the Complainant.

M.D. Shahzad and Imran Ahmed Khan for the State.

Date of hearing; 29th March. 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1502 #

2004 M L D 1502

[Lahore]

Before Muhammad Muzammal Khan, J

MUSHTAQ AHMAD ‑‑‑ Petitioner

Versus

S.H.O. and others‑‑‑Respondents

W.P. No.5909 of 2004, decided on 22nd April, 2004.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Truthfulness or otherwise of factual disputes could not be determined without inquiry and recording of evidence and that course was not permissible in Constitutional jurisdiction of High Court.

Muhammad Younas 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 petition‑‑‑Quashing of F.I.R.‑‑‑Where same matter was sub judice before the Civil Courts, criminal proceedings would remain stayed till decision of Civil Court and quashment of F.I.R. was not advisable.

Abdul Haleem v. The State and others 1982 SCMR 988; Haji Ghulam Masoom v. Abdul Hameed and 2 others 1988 PCr.LJ 284 and Muhammad Aslam and others v. Station House Officer, Police Station, Sadar Gojra, Tehsil Gojra District Toba Tek Singh 2003 PCr.LJ 19 ref.

Mian Fazal Rauf Joiya for Petitioner.

Ch. Muhammad Suleman, Addl. A.‑G. for Respondents Nos. 1 to 4.

MLD 2004 LAHORE HIGH COURT LAHORE 1506 #

2004 M L D 1506

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD YOUSUF and others‑‑‑Petitioners

Versus

THE STATE and others‑‑‑Respondents

Crl. Misc. 435‑B of 2004, decided on 14th April, 2004.

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

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Pre‑arrest bail, refusal of‑‑‑Pre‑arrest bail had already been refused to accused by the Sessions Court, but they were still at large without any hindrance and that too in a murder case‑‑‑Recovery of capons used in the commission of the offence was still to be made by the Investigating Officer who did not seem interested in arrest of accused‑‑‑Grant of pre‑arrest bail was an extraordinary remedy provided in exceptional circumstances on showing glaring mala fide on the part of prosecution and imminent apprehension of arrest for the purpose of humiliation‑‑‑All such aspects were lacking in" the case‑‑‑Pre‑arrest bail was declined to accused is circumstances.

Murad v. Fazal‑e‑Subhan and another PLD 1983 SC 82; Nazir Ahmad and 5 others v. Muhammad Shafi and The State NLR 1980 Criminal Lah. 587; Shabbir Ahmad v. The State PLD 1981 Lah. 599; Mureed v. The State 1987 PCr.LJ 1635; Muhammad Hussain v. State 1996 SCMR 71; Muhammad Arshad v. State 1996 SCMR 74; Muhammad Sadiq v Muhammad Nisar and 7 others 2003 PCr.LJ 20; Allahdino and 6 others v. The State 2003 PCr.LJ 135; Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68; Mst. Riaz Bibi v. Sardar and 3 others 1999 PCr.LJ 1323 ref.

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

‑‑‑‑S.498‑‑‑Pre‑arrest‑‑‑Application and scope‑‑‑Grant of pre‑arrest bail is an extraordinary remedy provided in exceptional circumstances when glaring mala fide is shown on the part of the prosecution and there is imminent apprehension of arrest for the purpose of humiliation to innocent persons who are not involved in the case‑‑‑Such concession cannot be granted to those who are already scot‑free ‑‑‑Pre‑arrest bail has to be declined when it is likely to act as strangulation of prosecution investigation‑‑‑Reasonable and plausible ground must exist for grant of bail before arrest which cannot be claimed as a matter of right.

Murad v. Fazal‑e‑Subhan and another PLD 1983 SC 82; Nazir Ahmad and 5 others v. Muhammad Shafi and The State NLR 1980 Criminal Lah. 587; Shabbi Ahmad v. The State PLD 1981 Lah. 599; Mureed v. The State 1987 PCr.LJ 1635; Muhammad Hussain v. State 1996 SCMR 71; Muhammad Arshad v. State 1996 SCMR 74; Muhammad Sadiq v. Muhammad Nisar and 7 others 2003 PCr.LJ 20; Allahdino and 6 others v. The State 2003 PCr.LJ 135; Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68; Mst. Riaz Bibi v. Sardar and 3 others 1999 PCr.LJ 1323 ref.

Malik Ghulam Farid for Petitioner.

MLD 2004 LAHORE HIGH COURT LAHORE 1513 #

2004 M L D 1513

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ALI ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No 68 of 2003, heard on 21st April, 2004.

Penal Code (XLV of 1860)‑‑‑

---S.302(b)‑‑‑Appreciation of evidence‑‑‑Occurrence had taken place in dark hours of the night and no source of light had been mentioned in the F.I.R.‑‑‑Accused was first cousin of deceased‑‑‑Had complainant been present at the spot, he must have named accused to be assailant specially when apart from being related, both parties were residents of same village‑‑‑F.I.R., showed that it was stated by complainant that one shot was fired on the person of deceased, while to private complaint one shoe each was attributed to all three accused‑‑‑No recovery was effected from accused during the course of investigation‑‑‑No specific motive was alleged against accused‑‑‑Complainant had tried to improve his version in complaint case which showed mala fides on his part to implicate accused because of previous enmity between parties‑‑‑Conviction on a capital charge on the basis of evidence led in the case by prosecution could not be maintained‑‑‑Complainant had failed to prove case against accused‑‑Conviction and sentence recorded against accused by Trial Court, were set aside and he was acquitted of the charge.

Zafar Iqbal Chauhan for Appellant.

Miss Tasneem Amin for Respondent.

Date of hearing: 21st April, 2004.

MLD 2004 LAHORE HIGH COURT LAHORE 1518 #

2004 M L D 1518

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD ALI alias Mamma‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Cr. Misc. No.2332‑B of 2004, decided on 7th May, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/452/109/34‑‑‑Bail, grant of‑‑‑Accused according to F.I.R. was only a party to the criminal conspiracy to do away with the deceased‑‑‑Question whether anyone would hatch up a conspiracy so openly and at a place like graveyard especially when other persons might be passing nearby, was open to serious consideration‑‑‑Case of accused, thus, well within the purview of S.497(2), Cr.P.C.‑‑‑Commencement of trial was no bar to grant of bail to the accused‑‑‑Accused was behind the bars for the last eleven months and he was not a previous convict‑‑‑Bail was allowed to accused in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

Sajjad Hussain for Petitioner.

Sadia Altaf Khan for the State.

Shabir Ahmad Khan for the Complainant.

Ghulam Rasool, A.S.‑I. with police record.

MLD 2004 LAHORE HIGH COURT LAHORE 1520 #

2004 M L D 1520

[Lahore]

Before Muhammad Muzammal Khan, J

KANEEZ FATIMA ‑‑‑ Petitioner

Versus

INSPECTOR‑GENERAL OF POLICE, PUNJAB, LAHORE and 16 others‑‑‑Respondents

W. P. No.6253 of 2004, decided on 28th April, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/148/149/452/380/109‑‑‑Police Order [22 of 2002], Art. 18(6)‑‑‑Constitution of Pakistan (1973), Art. 199Constitutional petition‑‑‑Change of investigation‑‑‑Validity‑‑‑Inspector‑General of police, under Art. 18(6) of the Police Order, 2002, was not competent to order investigation in the, case for the fourth time and that too without seeking any recommendations from the Committee constituted for the purpose‑‑‑Inspector‑General of Police had passed the said order without application of conscious judicial mind, without giving reasons in support thereof and without taking into consideration, provisions of Police Order, 2002‑‑-Impugned order passed by Sessions Court affirming the aforesaid order also suffered from the same defects and its finding of one line was not supported by any reason or provision of law‑‑‑Impugned order was illegal, void and contrary to mandatory provisions of law and was consequently declared as such‑‑‑‑Constitutional petition was accepted accordingly.

PLD 2002 Lah. 619 and 2004 YLR 931 ref.

Liaqat Ali Malik for Petitioner.

Rizwan Mushtaq A.A.‑G.

MLD 2004 LAHORE HIGH COURT LAHORE 1526 #

2004 M L D 1526

[Lahore]

Before Khawaja Muhammad Sharif, J

MEHR ALI‑‑‑ Petitioner

Versus

MUHAMMAD NAVEED and others‑‑‑Respondents

Crl. Revision No.264 of 2004, decided on 21st April, 2004.

Juvenile Justice System Ordinance (XXII of 2000)‑‑‑

‑‑‑‑S.7‑‑‑Age of accused‑‑‑Determination of‑‑‑Constitution of Medical Board‑‑‑Three Radiologists were directed to examine accused in order to determine his age‑‑‑Petitioner/complainant had submitted that for determination of the age of accused a Board consisting of five special Doctors, including Medical Superintendent of Hospital, Radiologist, Dental Surgeon, Orthopedic Surgeon and Doctor be constituted who would determine the physical appearance of accused‑‑‑Addl. Advocate General had also submitted that besides Radiologist, a Dental Surgeon was very necessary because he had to examine the teeth of accused in order to determine his age‑‑‑Court after considering that Medical Board was not constituted properly, directed the Medical Superintendent of Hospital concerned to constitute a Board consisting of Medical Superintendent himself, Senior Radiologist, Dental Surgeon, Orthopedic Surgeon and a Professor of Medicine so that actual age of accused could come on record‑‑‑Said Board after examining accused, would submit report before Trial Court which would decide the matter after perusing said report in accordance with law.

Maaz Allah Khan Sherwani, Advocate.

Ch. Abdul Rashid, Advocate.

Muhammad Hanif Khatana, Addl. A.‑G.

Mumtaz Ahmad, Legal Advisor, Service Hospital, Lahore.

MLD 2004 LAHORE HIGH COURT LAHORE 1533 #

2004 M L D 1533

[Lahore]

Before M. Bilal Khan, J

WASIF and 2 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.3254‑of 2004, decided on 13th May, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.324/148/149‑‑‑Pre‑arrest bail, refusal of‑‑‑Period of 6‑1/2 months had elapsed since registration of case against accused, but they had not surrendered to the Authorities Accused in fact, had been playing fast and loose with the process of the Court‑‑‑Serious allegations were present against accused in F.I.R.‑‑Recoveries of fire‑arms had yet to be effected from them‑‑‑Petition for grant of bail, having no merits, was dismissed.

Muhammad Ramzan v. Zafarullah and another 1986 SCMR 1380 ref.

Zafar Iqbal Chohan for Petitioners.

MLD 2004 LAHORE HIGH COURT LAHORE 1537 #

2004 M L D 1537

[Lahore]

Before Nasim Sabir Ch. J

MUHAMMAD ASIF MUSHTAQ---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.1119-B of 2004, decided on 27th April, 2004.

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

----S.497(5)---Bail, cancellation of---Bail granted to accused normally was not interfered with at the stage when trial was already in progress, but where discretion was not exercised in a proper manner, case would fall under exception to said rule and provisions of S.497(5), Cr.P.C. could be invoked unhesitatingly---Where Lower Court had extended concession of bail to accused only on the basis of favourable opinion of a police officer such exercise of jurisdiction, held, was not proper and was in violation of principle of law governing bail matter.

Niamat Ullah v. Zulfiqar Ali and 3 others 1999 PCr.LJ 883; Ch. Zulfiqar Ali v. The State PLD 2002 SC 546; Mst. Noor Jehan and another v. The State 2000 PCr.LJ 883; Nazir, Nadeem v. The State 2002 PCr.LJ 160; Naseem Malik v. The State 2004 SCMR 283 and Muhammad Musa v. The State 1999 PCr.LJ 1260 ref.

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

----S.498---Penal Code (XLV of 1860), Ss.408/468/471---Bail before arrest, refusal of---Accused had approached High Court with the prayer for grant of pre-arrest bail which was an extraordinary Concession granted only in a case where someone's honour was involved or danger was of his humiliation in the eye of law or glaring mala fides was on the part of prosecution---Present case had been adjudicated upon by lower forums exhaustively and merits of case had been discussed thoroughly---Accused at later stage could not urge that he had been involved in case falsely and same was done mala fide---No case for grant of bail before arrest having been made out in view of facts and circumstances of case, petition for grant of bail before arrest, was dismissed.

Ch. Muhammad Saleem Ansari for Petitioner.

Sh. Imtiaz Ahamd for the State.

Mian Arshad Latif for the Complainant.

MLD 2004 LAHORE HIGH COURT LAHORE 1541 #

2004 M L D 1541

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAHZAD MUAZZAM and others---Petitioners

Versus

THE STATE---Respondent

Crl. Misc. No.2376-B of 2004, decided on 23rd April, 2004.

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

----S.498---Penal Code (XLV of 1860), Ss.302/397---Bail before arrest, grant of--Post-mortem report had revealed no injury on the 'person of deceased and prima facie it appeared that deceased died due to heart failure---F.I.R. stated that seven accused alongwith 15/20 persons attacked complainant and his deceased brother, injured them and thereafter they snatched two mobile phones and Rs.40,000 from complainant party, but it was not specifically mentioned that who attacked on deceased and complainant and that who was the person who had snatched two mobile phones and Rs.40,000 from complainant party--Court had to see whether involvement of accused, prima facie, was proved from F.I.R., post-mortem report and other documents on record or not---Both parties belonged to rival political groups, in circumstances, accused could not influence the doctor who conducted post-mortem examination on dead body of the deceased---Accused had also joined investigation--Case against accused being of further inquiry falling under 5.497(2), Cr.P.C. interim bail already granted to him was confirmed.

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

----Art.9---Fundamental rights--Life and liberty of citizens---Life and liberty of the citizens being of too much importance, no person could be deprived of his liberty, unless allegations levelled against him were, prima facie, proved from the record.

Syed Ehsan Qadir Shah and Syed Hassam Qadir Shah for Petitioners.

Malik Abdul Wahid for the Complainant.

Muhammad Hanif Khatana, Addl. A.-G. for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1548 #

2004 M L D 1548

[Lahore]

Before Mian Saqib Nisar, J

Syed SALIM IMTIAZ HUSSAIN through Syed Imtiaz Hassain---Petitioner

Versus

MUHAMMAD SALIM and 2 others---Respondents

W.P. Nos.19437 of 2002 arid 572 of 2003 heard on 27th May, 2004.

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

----S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition--.-Past maintenance of. wife---Wife had been living with her husband abroad and on her return to Pakistan, she had immediately filed suits for dissolution of marriage and recovery of maintenance,--Family Court allowed the past maintenance but the Appellate Court refused the same on the ground that she had been living with her husband--- Validity---Wife failed to prove that her husband had abandoned her in the foreign country and she had been living there with her brother---Even name of her brother had not been disclosed in the plaint, nor the brother had been examined---No independent proof was available on record if the wife and minor son were expelled from the house of husband and they were living and were being maintained by brother of the wife---Appellate Court had rightly interfered and declined to award any maintenance to the lady---High Court refused to take any exception to the judgment passed by Appellate Court---Petition was dismissed in circumstances.

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

----S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintenance allowance---Determination---Criteria---Future security of minor---Future maintenance- allowance of minor son for Rs.5000 per month fixed by Family Court was enhanced by Appellate Court to Rs.34000 per month---Appellate Court divided total monthly income of the father in five parts and fixed 1/5th as maintenance allowance of the minor and directed the mother of the minor to deposit 80% of the allowance in fix deposit to be used by the minor after attaining the age of majority-Validity-Father was legally and morally bound to maintain his child---One of the criteria for determining the quantum of maintenance was the income and status of the father but it did not mean that by taking the total income of the father and dividing it on some subjective and unknown principles, the Court should grant allowance on unfounded mathematical rule---Court of law could not act whimsically and in capricious manner but was supposed to find out from the evidence on record as to what was the requirement of the minor for the purpose of his subsistence, which meant the support of his life-- Requirements included food, clothing, lodging; education, medical care and some amount for extra curricular activities of the minor etc.--- Appellate Court had neither undertaken such exercise, nor it had been so proved by the mother of the minor on record that for the subsistence of the minor the amount of Rs.34,000 per month was essential---While passing judgment, the Appellate Court directed to spend only 20% of the maintenance allowance whereas Defence Saving Certificates were to be purchased for the remaining amount which would be only encashable when the minor would attain the age of majority---Appellate Court in fact had granted Rs.7000 per month as maintenance to the minor and the same could not be reduced having been fixed by a Court 9f competent jurisdiction but balance of Rs.27000 per month was for =his future security---Maintenance which was in the nature of support allowance was not meant for the purposes of future security of the minor usable by him after he would attain the age of majority--.-Such part of the judgment was set aside---Petition was partially allowed in circumstances.

Rai Muhammad Zafar Bhatti for Petitioner.

Muhammad Abdur Rehman Janjua for Respondents.

MLD 2004 LAHORE HIGH COURT LAHORE 1553 #

2004 M L D 1553

[Lahore]

Before Syed Zahid Hussain, J

Mst. SHAEEN ISHFAQUE and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

W.P. No.6456 of 2003, heard on 21st June, 2004.

Specific Relief Act (I of 1877)---

----Ss.9 & 42---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Substituting findings of Courts of competent jurisdiction---Suit property was joint between the parties and petitioners filed suit for possession under S.9 of Specific Relief Act, 1877, whereas the respondents filed suit for declaration on the basis of owners in possession of the same---Suit of petitiohers was dismissed by Trial Court on the ground of maintainability---Judgment and decree passed by Trial Court was maintained by Appellate Court on the ground that the petitioners should have filed the suit for partition---Validity---View taken by the Appellate Court that the petitioners should have neceparily filed suit for partition, was erroneous in law---Possession of a co-sharer/co-owner was deemed to be the possession of all, thus, once the suit property had been found as jointly owned and un-partitioned, the applicability of question of limitation had to be considered in that context---High Court in exercise of jurisdiction under Art.199 of the Constitution could not substitute its own findings and view for that of the Court of competent jurisdiction which was vested with the authority and jurisdiction of appreciating the evidence and deciding the matter in accordance with law---High Court directed the revisional Court to apply its mind afresh, consider and evaluate the evidence on the record and record its findings on objective assessment of the same, in the light of the law applicable-- Judgment and decree of Appellate Court was illegal, the same was set aside and the matter was remanded to revisional Court for decision of the revision petition filed by the petitioners afresh in accordance with law---Petition was allowed accordingly.

Ali Gohar Khan v. Sher Ayaz and others 1989 SCMR 130; Mst. Resham Bibi and others v. Lal Din and others 1999 SCMR 2325; Muhammad Shafi and 2 others v. Munshi and 3 others 1979 CLC 230; Begum B.H. Syed v. Mst. Afzal Jahan Begum and another PLD 1970 SC 29 and Rahim Shah v. The Chief Election Commissioner of Pakistan and another PLD 1973 SC 24 ref.

Malik Saeed Hassan for Petitioners.

Mian Nisar Ahmad for Respondents.

MLD 2004 LAHORE HIGH COURT LAHORE 1562 #

2004 M L D 1562

[Lahore]

Before Bashir A. Mujahid, J

ZIKRAYYA---Appellant

Versus

THE STATE---Respondent

Cr. Appeal No.49 of 2003, decided on 18th February, 2004.

Penal Code (XLV. of 1860)---

----Ss. 302(b)/324/148/149---Appreciation of evidence---Accused was specifically nominated in promptly recorded F.I.R. with specific role---Only one bullet injury was available on body of deceased which had been attributed to accused---Accused absconded after occurrence and was arrested after acquittal of his co-accused---Recovery of weapon of offence was of no consequence as no empty was taken into possession from the spot---Complainant though was father of the deceased and other prosecution witness also was his relative and was not resident of the place of occurrence, but they had sufficiently explained their presence at the -spot---No reason was shown for false implication of accused by letting off real culprit and no contradiction was found in ocular account and medical evidence---Ocular account furnished by prosecution witnesses corroborated by absconsion of accused, was sufficient to prove the guilt of accused---Appraisal made by Trial Court was upto the norms and standards laid down by superior Courts---Trial Court had already taken lenient view by awarding lesser sentence to accused appeal was dismissed.

Nazeer Ahmad v. The State 1992 PCr.LJ 1773; Siyano v. State 1995 MLD 374; Noor Akbar and another v. The State and others 1993 PCr.LJ 1118; 1991 MLD 1623; Zahid alias Zaddo v. State 1994 PCr.LJ 2000; Ghulam Ali v. State1992 PCr.LJ 2033 and Muhammad Iqbal v. The State 1992 PCr.LJ 2092 ref.

Nisar Ahmad Dillon for Appellant.

Ch. Shahid Tabassam for the Complainant.

Rana Javaid Anwar for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1566 #

2004 M L D 1566

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD ARIF BASHIR---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.8211-B of 2002, decided on 18th December, 2002.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 337-A(ii)/337-F(i)/ 3791452/148/149---Pre-arrest bail, grant of---Case was of two versions--- During occurrence, accused had also received injuries and he was got medically examined by police---Question as to which party was aggressor, needed further inquiry---Police finding showed that at the time of occurrence, accused was empty-handed and at the most case against accused was covered under S. 452, P.P.C.---All the co-accused had already been admitted to bail---Ad interim pre-arrest bail already granted to accused, stood confirmed, in circumstances.

Zahid Husain Khan for Petitioner.

Mian Shah Abbas for the Complainant.

MLD 2004 LAHORE HIGH COURT LAHORE 1567 #

2004 M L D 1567

[Lahore]

Before M.A. Shahid Siddiqui and Nasim Sabir, JJ

Syed WAQAS NOOR BUKHARI through Syed Noor Hussain Shah Bukhari---Appellant

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Vice-Chancellor and 2 others---Respondents

I.C.A. No.120 of 2004 in W.P. No.701 of 2004, decided on 9th June, 2004.

Law Reforms Ordinance (XII of 1972)-

----S. 3(2), proviso-Bahauddin Zakariya University Act (III of 1975), S. 32---Intra-Court appeal---Maintainability---Appellant who was refused admission in Electrical Engineering Department of University, filed Constitutional petition against decision of Admission Committee which having been dismissed, he filed appeal under S. 3 of Law 'Reforms Ordinance, 1972, but same was withdrawn by him to avail remedy of appeal before Appellate Admission Committee---Appeal by appellant having been dismissed by Appellate Admission Committee, he challenged such decision in the Constitutional petition---Said petition having been dismissed, appellant had filed Intra-Court Appeal---Which was objected to on the ground that order challenged in Constitutional petition having been passed by Appellate Admission Committee, judgment passed by Single Judge of the High Court could not be challenged under Proviso to S. 3(2) of Law Reforms Ordinance, 1972-- Contention of appellant was that Appellate Admission Committee having no statutory basis, appeal filed by him before Appellate Admission Committee, would not be treated as a remedy available to him under the law---Admission to different programmes of University were regulated by Regulations published in Prospectus of Baha-ud-Din Zakariya University for the year 2003---Said Regulations prescribed minimum qualification and method of entry test for admission to various faculties in the University---If appellant had any grievance, he could prefer appeal to Appellate Admission Committee of University under Regulation 13 of said Regulations---Said Regulations having been framed by Syndicate under S. 32 of Baha-ud-Din Zakariya University Act, 1975, could not be said to be non-statutory basis---Intra-Court appeal being not maintainable, was dismissed.

Muhammad Wan Wyne for Appellant.

Malik Muhammad Rafique Rajwana assisted by Malik Muhammad Tariq Rajwana for Respondent.

MLD 2004 LAHORE HIGH COURT LAHORE 1576 #

2004 M L D 1576

[Lahore]

Before Asif Saeed Khan Khosa, J

KASHIF alias KASHI---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.497/B of 2004, decided on 10th February, 2004.

Criminal Procedure Code (V of 1898)-

----S.497(2)---Penal Code (XLV of 1860), Ss.394/411---Bail, grant of-- Further inquiry---Accused was not nominated in F.I.R. as one of the perpetrators of alleged offences, but his name had surfaced in the case for the first time through a disclosure allegedly made by co-accused before Police after about three months of occurrence---Accused though was correctly picked up in identification parade, but case against accused was at par with, his co-accused who had already been admitted to post-arrest bail---No reason was as to why accused could not be treated in the matter of bail in same manner as said co-accused, when neither State nor complainant had applied before any Court seeking cancellation of bail of said co-accused---Challan had already been submitted after completion of investigation---Continued custody of accused, was not likely to serve any beneficial purpose---Concession of bail ought not to be withheld by way of premature punishment---Case against. accused calling' for further inquiry into his guilt within purview of subsection (2) of S.497, Cr.P.C., he was admitted to bail, in circumstances.

Aftab Ahmad Bajwa for Petitioner.

MLD 2004 LAHORE HIGH COURT LAHORE 1578 #

2004 M L D 1578

[Lahore]

Before Ch. Ijaz Ahmad and Abdul Shakoor Paracha, JJ

PAKISTAN LAWYERS FORUM---Petitioner

Versus

FEDERATION OF PAKISTAN, through Secretary Ministry of Law, Justice and Human Rights, Islamabad and 6 others---Respondents

Diary No.8040 of 2004, decided on 24th June, 2004.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Intra-Court appeal---Under provisions of subsection (1) of S. 3 of Law Reforms Ordinance, 1972, an appeal was competent against an order passed by Single Judge in exercise of High Court's original civil jurisdiction---Intra-Court appeals were competent only if those would fall within the terms of provisions of S. 3. of Law Reforms Ordinance, 1972---Constitutional jurisdiction though original jurisdiction, was distinct from the civil jurisdiction---Constitutional jurisdiction must be described as Constitutional jurisdiction of an original kind---Order passed by High Court on the office- objection would not be an order in the exercise of original civil jurisdiction amenable to Intra-Court appeal.

Sharaf Fareedi v. Government of Sindh PLD 1989 Karachi 404; Government of Sindh v. Sharaf Fareedi 1994 SC 105; Mst. Perveen Akhtar v. Director, FIA, Lahore PLD 1996 Lah. 328; Employees Management Group,, Pak-Saudi Fertilizers Limited through Authorized Representative v. Government of Pakistan in the Ministry of Privatization (Privatization Commission), Pak, Secretariat, Islamabad and others 2002 YLR Lah. 1487; 1985 SCMR 362 (363); Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; The State v. Muhammad Nazir and others PLD 1991 Lah. 433; Ch. Pervaiz Elahi v. Province of Punjab and another PLD 1993 Lah. 595; Ex.-Lt. Col. Anwar Aziz (PA-7122) v. Federation of Pakistan through Secretary, Ministry of Defence Rawalpindi and 2 others PLD 2001 SC 549; Ch. Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66; The Sate v. Zia-ur-Rehman and others PLD 1973 SC 49; The Federation of Pakistan tlirough the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Syed Zafar All Shah and others v. General Pervez Musharraf Chief Executive of Pakistan and others PLD 2000 SC 869; Begum D.F. Hassan v. Habib Bank Ltd. Lahore (PLD 1974 Lah. 117; Ahmad Khan v. The Chief Justice and Judges of the High Court, West Pakistan, through the Registrar High Court of West Pakistan, Lahore and 2 others PLD 1968 Supreme Court 171; Khushi and others v. Agha Hassan Raza 1990 ALD 207(1) and Muhammad Riaz Bhatti v. Federation of Pakistan and others 2004 SCMR 1120 ref.

MLD 2004 LAHORE HIGH COURT LAHORE 1583 #

2004 M L D 1583

[Lahore]

Before Mian Muhammad Akram Baitu, J

SARDAR alias SARDARA---Petitioner

Versus

THE STATE---Respondent

Crl. Rev. No.423 of 2003, decided on 23rd February, 2004.

Criminal Procedure Code (V of 1898)-

----Ss. 540/435/439---Qanun-e-Shahadat (10 of 1984), Art. 137---Re-summoning of prosecution witness for re-examination---Petitioner through his revision petition had called in question the legality of order of Trial Court whereby application made by respondent for re-summoning lady Doctor for her re-examination was allowed---Reexamination of lady Doctor was recorded in absence of the counsel for petitioner especially when application was made by such counsel for adjournment-Contention of petitioner was correct that he had been condemned unheard---State counsel though had pointed out that the right of cross-examination had been reserved, but fact remained that mode for re-examination in absence of counsel for petitioner was violation of Art. 137 of Qanun-e-Shahadat, 1984---Re-examination had been recorded in the form of question and answer and not in narrative form which was clear cut violation of Art. 137 of Qanun-eShahadat, 1984---Order of Court below would not stand in the eye of law which had called for interference of High Court in exercise of its revisional jurisdiction---Said Order was set aside with direction to re-examine lady Doctor according to procedure laid down by law after affording an opportunity of hearing to counsel for petitioner.

Mehr Nazar Muhammad Fatiana for Petitioner.

Altaf Ibrahim Qureshi for the Complainant.

Ghulam Muhammad for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1587 #

2004 M L D 1587

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

MUHAMMAD ISMAIL---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, DEPALPUR, DISTRICT OKARA and 7 others---Respondents

Writ Petition No.9622 of 2003, decided on 21st June, 2004.

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

----Ss. 5, Sched & 13---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for maintenance---Execution of decree---Suit having finally been decreed, plaintiffs filed execution petitionJudgment-debtor was willing to deposit entire decretal amount, High Court in its judgment held that if judgment-debtor would deposit decretal amount, sale of property of judgment-debtor in auction in respect of execution of decree, could be set aside---Judgment-debtor deposited decretal amount, but despite said deposit Executing Court continued execution proceedings-Executing Court while passing order regarding sale of land of judgment-debtor did not give any Schedule---Even sale price was not mentioned and it did not show any reserve price--Validity---No justification was available for executing Court to pass order of execution through sale of land of judgment-debtor and to decline to set aside sale proceedings---Object of S. 13 of West Pakistan Family Courts Act, 1964 was that judgment debtor be asked by the Court to deposit decretal amount and if he refused to deposit decretal amount same was to be assessed as arrears of land revenue and S. 80 of West Pakistan Land Revenue Act, 1967 would apply to execution proceedings---If executing Court had not understood order passed by High Court in the case, then any clarification could be requested by Executing Court, but once Court had allowed judgment-debtor to deposit entire decretal amount, then executing Court could not dismiss application of judgment-debtor in that respect---Executing Court was bound to set aside the sale of property-Interest of decree-holder was only the satisfaction of decree and not the sale of property which was also not in the interest of decree-holder---Impugned order of sale of land of judgment-debtor, was set aside by High Court in view of such glaring illegalities of Court below.

Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512 ref.

Mian Subah Sadiq Wattoo for Petitioner.

Nemo for Respondents Nos.1 and 2.

Mian Muhammad Hanif for Respondent No.8.

MLD 2004 LAHORE HIGH COURT LAHORE 1592 #

2004 M L D 1592

[Lahore]

Before Mian Muhammad Akram Baitu, J

MUHAMMAD HUSSAIN---Petitioner

Versus

THE STATE---Respondent

W.P. No.1942 of 2003, decided on 23rd February, 2004.

Constitution of Pakistan (1973)-

----Art.199---Penal Code (XLV of 1860), Ss. 420/468/471/109-- Criminal Procedure Code (V of 1898), S. 195---Constitutional petition---Quashing of F.I.R.---Before registration of criminal case against petitioner, civil litigation was going on between the parties and during said litigation a compromise deed was written between the parties---Petitioner had contended that according to S. 195, Cr.P.C., Civil Court which was trying the Civil Suit was competent to lodge F.I.R. and F.I.R. lodged by complainant was a source of unnecessary harassment to compel petitioner to effect a compromise and that it was yet to be determined by the Court of competent jurisdiction as to whether any fraud had been committed on the complainant---Contention of petitioner was repelled as criminal proceedings could be taken against petitioner by complainant during the pendency of civil litigation between the parties---Contention of petitioner, otherwise was devoid of any force as he got several recourses to prove his innocence during investigation by way of producing defence evidence as well as at the time of submission of report under S. 173, Cr.P.C.---Petitioner subsequently also could seek remedy before Trial Court under S. 249-A, Cr.P.C.---Petitioner could not seek indulgence of High Court by way of filing instant Constitutional petition.

Muhammad Ramzan Khan Joyia for Petitioner.

Mian Abbas for Respondent.

Muhammad Sarwar Bhatti, A.A.-G. for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1594 #

2004 M L D 1594

[Lahore]

Before Muhammad Akhtar Shabbir and Muhammad Muzammal Khan, JJ

Dr. ABDUL QADIR-Appellant

Versus

ASSISTANT COMMISSIONER (CITY), ISLAMABAD and another---Respondents

I.-C.A. No.118 of 2004, decided on 7th June, 2004.

Law Reforms Ordinance (XII of 1972)---

----S. 3(2), Proviso---Intra-Court appeal-Maintainability-Proceedings or any order passed by a Magistrate in the case was revisable of Law before next higher Court in revision-Proviso to subsection (2) of S. 3 Reforms Ordinance, 1972 had provided that no appeal, would be competent before a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court in a Constitutional petition, if such petition arose out of "any proceedings" in which law applicable provided for at least one appeal or one revision or review to any Court, Tribunal or Authority against original order---Intra-Court appeal against judgment passed by Single Judge of High Court, quashing F.I.R., was not maintainable.

Mst. Karim Bibi v. Hussain Bux PLD 1984 SC 344; Muhammad Abdullah PLD 1985 SC 107 and Nawazul Haq Chauhan v. The State 2003 SCMR 1597 ref.

MLD 2004 LAHORE HIGH COURT LAHORE 1596 #

2004 M L D 1596

[Lahore]

Before Mian Muhammad Akram Baitu, J

MUHAMMAD SALEEM and others---Petitioners

Versus

THE STATE---Respondent

Crl. Misc. No.11-Q of 2004, decided on 24th February, 2004.

Criminal Procedure Code (V of 1898)-

----Ss. 516-A & 561-A---Superdari of vehicle---Petitioner had claimed that vehicle in dispute was purchased by another petitioner, who was his wife, from the respondent through oral agreement, but the said respondent had denied claim of the petitioner---Registration of vehicle was in the name of respondent and vehicle was taken into custody by police from the possession of respondent---Petitioners could not produce any agreement/transfer deed in respect of vehicle allegedly executed by respondent in favour of first petitioner---Vehicle was rightly given in custody of by Courts below--Petitioners could prove their ownership in respect of vehicle in dispute in proper forum.

Saghir Ahmed Bhatti for Petitioners.

Altaf Ibrahim Qureshi for Respondent No.4.

MLD 2004 LAHORE HIGH COURT LAHORE 1600 #

2004 M L D 1600

[Lahore]

Before Mansoor Ahmad, J

AL-JEHAD TRUST/WAQF---Petitioner

Versus

SHARAFUD DIN MUSLEH SHAMI and others---Respondents

Criminal Misc. No.2-Q of 2004, decided on 21st January, 2004.

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

---S. 561-A---Quashing of proceedings---Inherent jurisdiction of High Court----Scope----Inherent jurisdiction of High Court under S. 561-A, Cr.P.C. was neither alternative nor additional---Such jurisdiction was to be exercised to further the cause of justice-Inherent jurisdiction was to be invoked only in the interest of justice in the cases where no other remedies were available---High Court, in exercise of inherent jurisdiction, adapted restraint and was watchful that provision was not used to obstruct or divert the ordinary course of criminal proceedings.

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

---S. 561-A---Penal Code (XLV of 1860), Ss. 338-A(b)/506/34--Quashing of proceedings---Trial was going on and remaining evidence of prosecution witnesses was yet to be recorded---Statement of only two prosecution witnesses was recorded and counsel for accused had pointed out certain contradictions in the statements of said two prosecution witnesses---Counsel had also quoted some extract from the deposition of prosecution-witnesses-Evaluation of the evidence at such juncture would not be proper and fair---If High Court would draw any conclusion, it would cause prejudice to the trial-Depending on the nature and circumstances of the case, the Court would have relied on the solitary statement of the victim, provided it was a confidence-inspiring deposition---Marked difference existed between conclusion drawn from the appreciation of evidence and the inferences concluded that no case was made out on the face of it or the case was that of an abuse of process of law---If the case would fall within the first category, it certainly would not be a case for quashing of proceedings-Counsel in the present case, had based his entire arguments on appreciation of evidence which was not warranted in the midst of the trial---Petition for quashing proceedings was dismissed, in circumstances.

Gulzar Hussain Shah v. Ghulam Mtirtaza PLD 1970 SC 335; M.S. Khawaja v. State PLD 1965 SC 287; The State v. Gulzar Muhammad and others 1998 SCMR 873; Muhammad Noor and others v. Member Board of Revenue 1991 SCMR 643; Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi and others 1983 SCMR 775 and 778; Muhammad Saleent Khan v. Mari Time Security Agency PLD 1994 SC 486; Ata Ullah Khan v. State PLD 1966 Lah. 778; Khudina v. State PLD 1978 Kar. 348; Tauqeer Japan v. Asif Latif Bajwa 1994 SCMR 78; Muhammad Shafique and others v. Abdul Hayee and others 1987 SCMR 1371; Abdul Ghani v. Ali Hassan PLD 1977 Lah. 375; Muhammad Ashraf v. The S.H.O. 2001 PCr.LJ 31; Mst. Sarwar Jan v. Ayyub and others 1995 SCMR 1679; Muhammad Idrees v. State 2001 PCr.LJ 593;

Haji Muhammad Abbas v. Naila Tarranum Jamshaid 2001 PCr.LJ 628; Mehraj Khan v. Gull Ahmad 2000 SCMR 122; Mehmud-ul-Hassan v. Imtiaz Khan PLD 1963 (WP) Lah. 481; Muhammad Khalid Mokhtar v. State through D.G. FIA PLD 1997 SC 275 and Khawaja Fazal Karim v. The State PLD 1976 SC 461 ref.

Habib-ul-Wahab A1-Khairi for Petitioner.

Tanvir Iqbal Khan, A.A.-G. for Respondents.

MLD 2004 LAHORE HIGH COURT LAHORE 1604 #

2004 M L D 1604

[Lahore]

Before Syed Zahid Hussain, J

Mst. KISHWAR SULTANA and others-Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

W.P. No.42-R of 2004, heard on 27th May, 2004.

(a) Land Acquisition Act (1 of 1894)---

----S.16---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Use of acquired land by the Government for some other purpose---Grievance of the petitioner was with regard to transfer of land by the Government that the land had been acquired by the latter for a certain purpose but it was not utilized for the same, therefore, it could not be put to any other use-Reply of the respondent was that the acquisition of the said land had been completed since long, for which compensation was paid and the land had remained, since then, in the possession of the Government, therefore, it still vested in the same and the petitioner could not lay, any claim to it and lacked locus standi in maintaining the Constitutional petition against the governmental action of utilizing the land for another purpose-Validity-Government had fulfilled all the procedural steps, paid the compensation and taken over the possession of the land, therefore, it vested in it in view of S.16 of Land Acquisition Act, 1894---Petitioner could not object to the vesting of the land in, the Government acquired through lawful means as such there remained no doubt as to the power of the Government with regard to acquisition, withdrawal thereof and vesting of the land---Constitutional petition was dismissed, in circumstances;

Messrs Dewan Salman Fiber Ltd. and others v. Government of N.-W.F.P. through Secretary, Revenue Department Peshawar and others PLD. 2004 SC 441; Syed Zainuddin and 9 others v. Assistant Commissioner-Cum-Collector, Quetta and 2 others 1996 MLD 731 and Mian Rafi-ud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others PLD 1971 SC 252 ref.

(b) Land Acquisition Act (I of 1894)-

----S.3(t)---Constitutional of Pakistan (1973), Art.199---Constitutional petition---Public purpose, interpretation of--:Contention of the petitioner was that the "public purpose" for which the acquisition of land was made by the Government had remained unfulfilled, therefore, the land could not be put to any other use---Validity---Once the land had vested in the Government it could make use of the same for any public purpose considered appropriate and best for its utility---Concept of public purpose was quite exhaustive and could not be confined to a limited definition---Broadly speaking, the expression 'public purpose' would include a purpose in which the general interest of the community, as opposed to the particular interest of the individuals, is directly and vitally concerned.

Syed Zainuddin and 9 others v. Assistant Commissioner-Cum Collector, Quetta and 2 others 1996 MLD 731 and Allah Dina and others v. Province of Punjab PLD 1997 Lah. 499 ref.

Jahanzeb Khan Bharwana for Petitioners.

Fazal Miran Chohan, Addl. A.-G. for Respondents.

MLD 2004 LAHORE HIGH COURT LAHORE 1609 #

2004 M L D 1609

[Lahore]

Before Khawaja Muhammad Sharif, J

SAKHI MUHAMMAD---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.988 of 2003, decided on 16th January, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 200 & 202---Quashing of ,order---Petitioner had alleged that two persons were killed in a very brutal manner by police officials in an alleged police encounter and claimed that he produced his evidence before Inquiry Judicial Magistrate, who gave an adverse remark in his inquiry report conducted under S. 202, Cr.P.C. and submitted same before Sessions Judge who dismissed complaint---Respondents alleged that in judicial inquiry it was found that incident was a genuine police encounter and deceased were rightly killed by police---One of deceased persons was not involved in any case in whole of his life whereas other one was a proclaimed offender---F.I.R. and Police Karwai had not mentioned that a pistol was also recovered from dead body of deceased who was not involved in any case---F.I.R. further mentioned that rifle was lying besides the dead body of other person who was proclaimed offender---Both deceased were gundowned from a distance of 1-1/2 miles away---Was neither argued nor brought on record that occurrance had taken place in the shop and the shots fired by the police also hit on the wall or shutter of said shop---Not a single scratch was found on any of police officials who were 17 in number---Crime empties taken from the spot were not sent to fire-arm expert alongwith rifle and pistol of both deceased to ascertain whether they made a fire or not---Prima facie a case was made out against respondents and they would be given sufficient opportunity to produce their evidence before the Trial Court---Order passed by Sessions Judge was set aside, in circumstances.

Ch. Muhammad Hussain Chhachhar for Petitioner.

Masood Mirza for Respondents.

Muhammad Hanif Khatana, Addl. A.-G. for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1615 #

2004 M L D 1615

[Lahore]

Before Nazir Ahmad Siddiqui and Sh. Hakim Ali, JJ

Agha ABDUR RAHMAN KHAN and others---Appellants

Versus

MANAGING DIRECTOR, CHOLISTAN DEVELOPMENT AUTHORITY, BAHAWALPUR---Respondent

Intra-Court Appeal No.6 of 1995/BWP, heard on 4th May, 2004.

(a) Law Reforms Ordinance (XII Of 1972)-

----S.3---Intra-Court appeal---Contention of the appellants that the Court had decided the Constitutional petition through the impugned order on the factual aspects of the case and had derived conclusions on the basis of presumptions, which was unwarranted by law.. and secondly, the impugned order had not adverted to the fact that the `Farmans of Nawab of Bahawalpur' had got the force of law and were as good as laws framed by any legislature---Validity---Constitutional Court had not only taken the pain but had also adjudicated upon the matter in dispute with well-reasoned judgment-Judge must wear the laws of the land on the sleeves of his robe and in order to determine whether the Farman could be implemented the Constitutional Court had to take into consideration not only the law but also some of the facts---Appellants had themselves requested the Court to issue an order for implementation of the Farman, therefore, the Court was obliged to make effort to examine and discover the genuineness of the said Farman, which was about a hundred years old and the appellants were thus estopped from raising a plea that the Court went into factual aspects of the matter-Decision cannot originate in the shape of a legal solution unless there is factual foundation--- Appellants had remained quiet for a very long time, and had never brought the issue of implementation of the Farman despite occurrence of major events negating their ownership of the claimed lands---Findings of the Constitutional Court could not be reversed, in circumstances.

Flaji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690; Lahore Cantt. Park View Cooperativ Housing Society v. Muhammad Ishaq and others 2000 SCMR 39 and Qutab-ud-Din v. Farzand Ali 1994 SCMR 107 ref.

(b) Constitutional of Pakistan (1973)-

----Art. 199---Constitutional jurisdiction---Purpose of---Extraordinary jurisdiction of the Constitutional Court is meant for those persons, who are fair and vigilant, for the safeguard of their rights and their approach to the Court in time.

----S.3---Intra-Court appeal---When to be filed---Intra-Court appeal can be filed when the impugned judgment of the Single Judge in chamber is shown to have been delivered against the provisions of law and is the result of conclusions, which are contrary to any specific provision of law or is the result of misreading, non reading or same has caused miscarriage of justice, or mistakes of like nature; liable to be corrected by the Division Bench, otherwise, the judgment could not be upset in the Intra-Court appeal.

Aejaz Ahmad Ansari for Appellants.

Masood Ashraf Sheikh alongwith Muhammad Azam, Head Clerk and Abdul Majeed Senior Clerk, Incharge Record Room for Respondent.

MLD 2004 LAHORE HIGH COURT LAHORE 1619 #

2004 M L D 1619

[Lahore]

Before Rustam Ali Malik, J

ISLAM-UD-DIN and others---Petitioners

Versus

THE STATE and others---Respondents

W.P. No.3312 of 2003, decided on 31st October, 2003.

Constitution of Pakistan (1973)---

----Art. 199---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/16---Constitutional petition---Quashing of F.I.R.--Petitioners had sought to quash F.I.R. and proceedings against them in Trial Court---Constitutional petition itself had stated that proceedings were pending in Court of Session---Report/parawise comments submitted by respondent revealed that Challan in the case had been submitted and case was pending adjudication---Petitioners, in circumstances, had other efficacious remedy available to them in the form of application under S. 265-K, Cr.P.C. which could be filed before Trial Court---Since other adequate/efficacious remedy was available to petitioners, no justification was available for filing Constitutional petition.

Zafar Iqbal Chohan for Petitioners.

Saif-ul-Haq Ziay for Respondents.

M. Akbar Tarar, Addl.A.-G.

MLD 2004 LAHORE HIGH COURT LAHORE 1621 #

2004 M L D 1621

[Lahore]

Before Zyed Zahid Hussain, J

PAK AMERICAN FERTILIZERS LIMITED through Managing-Director, and another---Petitioners

Versus

BAHADAR KHAN and 53 others---Respondents

W.P. No.6844 of 2004, heard on 28th May, 2004.

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

----Art.199---Constitutional petition---Administration of justice---Bias in a Judge---Grievance of the petitioner was that the same Judicial Officer dealt with his matter both as a Civil Judge in the trial Court and Additional District Judge in the Appellate Court---Validity---When a matter was taken from the loWer Court to the higher forum it deserved to be heard and dealt with by a Judicial Officer having no nexus with the lower forum and who was capable of applying independent mind and who had not dealt with the matter in the lower forum---Party could legitimately complain that his cause suffered from prejudice and bias where the same officer had acted as lower as well as appellate forum---No man can be a Judge in his own cause---Judge is disqualified from determining any case in which he may be or may fairly be suspected to be biased-Case was heard and decided by the same officer both as a Court of first instance and appellate or revisional Court which .had vitiated the proceedings and the consequent order was null and void-Constitutional petition was allowed, in circumstances.

Hai Abdul Sattar v. Additional District Judge, Rawalpindi and others 1984 SCMR 925 and PLD 1971 SC 197 ref.

(b) Administration of justice---

----Justice should not only be done, but should manifestly and undoubtedly be seen to be done.

----Art. 199---Constitutional petition---Jurisdiction---No absolute rule existed to the effect that the objection to jurisdiction if had not been taken before the lower forum could not be taken before the Constitutional Court.

Hai Abdul Sattar v. Additional District Judge, Rawalpindi and others 1984 SCMR 925 and PLD 1971 SC 197 ref.

Aftab Gul for Petitioners.

Ghulam Hussain Malik for Respondents (Except Nos.2, 12, 52 to 54).

MLD 2004 LAHORE HIGH COURT LAHORE 1631 #

2004 M L D 1631

[Lahore]

Before Ali Nawaz Chowhan and Rustarn Ali Malik, JJ

MUHAMMAD SALEEM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1 of 2002 in Cr. Appeal No.1043 of 2002, decided on 12th September, 2002.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S. .302(b)/34---Suspension of sentence---No recovery had been made from accused, but same was effected from co-accused---No motive was attributed to accused and injury ascribed to him was just skin deep and could have been caused by firing of co-accused---Ocular account conflicted with medical account---Police had declared accused a non participant in the occurrence---Case with regard to the role of accused calling for reconsideration, accused was admitted to bail and his sentence was suspended.

Rai Tufail Khan Kharal for Petitioner.

S.D. Qureshi for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1633 #

2004 M L D 1633

[Lahore]

Before Syed Zahid Hussain, J

BARKAT ALI---Petitioner

Versus

ADDITIONAL COMMISSIONER and others---Respondents

W. Ps. Nos.163-R/98, 30-R/98, 36-R/98, 38-R/98, 47-R/98, 48-R/98, 49-R/98, 50-R/98, 55-R/98, 61-R/98, 62-R/98, 69-R/98, 70-R/98, 75-R/98, 161-R/98, 162-R/98, 164-R/98, 41-R/99 and No.42-R/99, heard on 2nd June, 2004.

(a) Interpretation of Statute--

--Statutory instrument or order---Import and impact-Principle-1n order to comprehend the true import and impact of a statutory instrument or order, its tenor and contents assume vital importance.

(b) Precedent---

----Precedent, citation of---Principles---Precedents cited and invoked in support of respective contentions are to be considered and applied keeping in view the facts of a particular case.

----O.XX, R.2---Judgment, pronouncing of---Procedure---Successor Judge under O.XX, R.2 C.P.C. can pronounce a judgment written by his predecessor---Judge, who had heard the case but was transferred later on, could complete the judgment, which could have been announced by his successor---If the case had been heard by the Court or Presiding Officer, such officer could pronounce the judgment/order even if he had been transferred or promoted---Where a Presiding Officer had concluded the hearing of a matter before his transfer, such Officer could decide the matter before relinquishing the charge---Presiding Officer in the present case proceeded to hear the matter despite his transfer and decided the matter---Such order would not be legally sustainable.

Regional Commissioner of Income Tax, Corporate Region, Karachi and others v. Shafi Muhammad Baloch 1998 SCMR 246; Ghee Corporation of Pakistan and another v. Sh. Abdul Haq and another 1990 SCMR 1581; Daya Ram and others v. Must Jatti AIR 1916 Lah. 78(1); Qazi Mehar Din and others v. Mst. Murad Begum and others PLD 1964 SC 446; The State v. Asif Adil and others 1997 SCMR 209; Pakistan Tobacco Company Ltd. v. Pakistan Chest Foundation PLD 1998 Lah. 100; Mirza Abdul Hameed and others v. Member Board of Revenue-II 1986 SCMR 257; Office Reference dated 28-4-1981 PLD 1982 Kar. 250; Nazar Abbas Khan and others v. Government of Pakistan and others PLD 1981 Lah. 237 and Al-Jehad Trust through Raeesul Mujahidden Habibul-Wahabb-u-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324 ref.

(d) Natural justice, principles of---

----Power and authority of Courts, exercise of---Scope---Power and authority of Court / Presiding Officer to hear and decide a matter has a direct nexus with his power to act in that capacity---Principles of natural justice required that justice should not only be done but should manifestly and undoubtedly seen to be done---Rationale behind is that it is not important as to what actually was done but what might appear to be done and nothing should be done which may create a suspicion or may give a party an opportunity for cause of legitimate apprehension that there had been improper disposition of matter resulting in interference with the course of justice---It is of utmost importance that stream of justice should continue to flow unpolluted and unsoiled---Hallmark of adjudicatory process is trust, confidence and satisfaction of litigating parties that Court was acting justly and fairly and kept the scales of justice evenly balanced.

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

----O.XX, R.2---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Judgment, pronouncing of---Grievance of petitioners was that the Notified Officer passed the order against them after he had been transferred---Notified Officer was transferred on 12-1-1998, with immediate effect but he still heard the case on 13-1-1998 and decided it on 16-1-1998---Contention of the respondents was that the order of transfer would have taken effect after the same had been published in official Gazette---Validity---Notified Officer should not have heard the matter because of his transfer having been ordered with immediate effect on 12-1-1998---According to the tenor of notification dated 12-1-1998, its legal efficacy was not dependent upon its publication in the Gazette as it took effect immediately---Disposition made by the Notified Officer was nothing but an act without lawful authority---Order passed by the Notified Officer was set aside and the case was remanded for decision afresh---Petition was allowed accordingly.

(f) Qanun-e-Shandat (10 of 1984)---

----Art.114---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Estoppel and waiver, doctrine of--- Applicability---Plea raised by the respondents was that the order passed by the Authority could not be assailed on the principle of estoppel-- Validity-Doctrine of estoppel could not be invoked so as to give power to an authority which it did not in law possess---No estoppel could legitimate an action which was ultra vires; in the same realm fell the principle of waiver which was akin to estOppel---No amount of waiver or consent could extend powers of a public authority or validate an action which was ultra vires---Petitioners were not estopped to raise the issue of validity of order before High Court, as even the High Court could take notice of such aspect by itself in. view of undisputed position of record-- Petition was maintainable in circumstances.

Mehdi Khan Chohan, S. Abdul Aziz, Hafeez Ahmad, Khan Muhammad Bajwa, Ch. Muhammad Abdullah and M. Riaz Lone for Petitioners.

Syed Aal-e-Ahmad and Fazal Miran Chohan Addl. A.-G., A.R. Shaukat and M. Saleem Ch. for Respondents.

MLD 2004 LAHORE HIGH COURT LAHORE 1640 #

2004 M L D 1640

[Lahore]

Before Mian Muhammad Akram Baitu, J

MUHAMMAD AKRAM and others---Petitioners

Versus

THE STATE and another---Respondents

Writ Petition No.4710-Q of 2003, decided on 12th February, 2004.

Constitution of Pakistan (1973)---

----Art.199---Offences of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/11---Constitutibnal petition---Quashing of F.I.R.--- Accused had claimed that alleged abductee was his legally wedded wife and their. Nikahnama had been verified by Investigating Officer to be genuine---Alleged abductee in her statement recorded under S. 161, Cr.P.C. also had stated that she being sui juris had contracted her Nikah with accused with her own sweet will and that she was putting with him being his legally wedded wife---F.I.R. against accused was quashed, in circumstances.

Rao Jamshed Ali Khan for Petitioners.

Altaf Ibrahim Qureshi for Respondent.

MLD 2004 LAHORE HIGH COURT LAHORE 1644 #

2004 M L D 1644

[Lahore]

Before Ali Nawaz Chowhan, J

S.M. ISMAIL---Petitioner

Versus

C.D.A. and others---Respondents

W.P. Nos.346 and 491 of 2004, heard on 30th June, 2004.

(a) Capital Development Authority Ordinance (XXIII of 1961)---

----S. 49(b)---Islamabad Rent Restriction Ordinance (IV of 2001), Ss. 4, 17(1), 1(2), 2(k) & (3)---Constitution of Pakistan (1973), Art. 199--- Constitutional petition---Ejectment of lessee---Plot leased to the petitioner had been given by the Capital Development Authority to the Welfare Committee of the CDA's employees so that the income derived from the plot be utilized for welfare purposes and said Committee was plenipotentiary with respect to all the day to day matters relating to the said plot---Contention of the petitioner, who had obtained the lease from the Staff Welfare Committee, was that action of ejecting him from the plot had been taken at the end of the CDA without any proper decision in connection with re-letting of the plot to the petitioner by the Welfare Committee---Petitioner had further alleged that the authorities in the CDA under the influence of certain political figures were trying to grab the plot in question and would lease out the same surreptitiously to someone whom the authorities had been directed to accommodate--Validity---Property undoubtedly belonged to the Capital Development Authority and had been given over for welfare purposes to the Welfare Committee, CDA, therefore same had some role in the matter and it was possible that CDA was used in ousting the petitioner at the relevant time after the notice---Welfare Committee was working within the Capital Development Authority and as such was an agency as the CDA being its component same could not be said to be alien to the Body---CDA had delegated certain powers to the Committee with the functional role to deal with plot in hand and use its funds for the purposes of welfare of the Staff---Constitutional petition against the Welfare Committee, therefore was maintainable---Welfare Committee being incharge of the plot in question having not acted independently in respect of any action which was required to. be taken with respect to the renewal of lease of the plot, High Court, directed that the matter be first referred to the Welfare Committee who shall hear the petitioner afresh without prejudice to any past litigation for renewal of the said lease of the plot and shall take a decision on the question of renewal of the lease within three weeks from the announcement of the judgment by the High Court---Status quo, however, was ordered to be maintained during such three weeks, but in case the Committee failed in taking any action in this behalf, the petitioner shall be put in possession of the plot---In the meanwhile until the committee decided the fate of renewal of the lease on such terms which were reasonable, according to the market value, genuine and not meant to defeat the rights of the petitioner through deceit or circumvention of procedure in law---Committee shall also ascertain as to what assets of the petitioner were lying at the plot (Petrol pump) at the time its possession was taken over and will take measures for safeguarding his rights in respect of those assets in accordance with law.

Raja Hassan Ali Khan v. Additional District Judge, Islamabad and 2 others 2003 CLC 1819; Abdul Haq and 2 others v. The Resident Magistrate, Uch Sharif Tehsil Ahmadpur East, District Bahawalpur PLD 2000 Lah. 101; Sikandar and 2 others v. Muhammad Ayub and 5 others PLD 1991 SC 1041; Syed Mehdi Hasnain v. Muhammad Ayub and another 1970 SCMR 434; Muhammad Aslam v. Station House Officer and others 1993 MLD 152; Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division., Lahore and 2 others PLD 1971 SC 61; Zaman, Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others 2002 SCMR 312; Khalid Saeed v. Shamim Rizwan and others 2003 SCMR 1505; Rahamat Khan v. Abdul Razzaq 1993 CLC 412; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 and Muhammad Sharif through Legal Heirs and 4 others v. Sultan Hamayon and others 2003 SCMR 1221 ref.

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

----Art. 199---Constitutional petition---Maintainability---Staff Welfare Committee of a Statutory Body working with the said Statutory Body being its component and as much as an agency of the Body could not be said to be alien to the said Body and therefore Constitutional petition against the said Staff Welfare Committee was maintainable.

Abdur Rehman Lodhi and Mujeeb-ur-Rehman Kiani for Petitioners.

Muhammad Nawaz, Ch. Muhammad Tariq and Zaheer Bashir Ansari for Respondents.

MLD 2004 LAHORE HIGH COURT LAHORE 1654 #

2004 M L D 1654

[Lahore]

Before Mian Muhammad Akram Baitu, J

ASGHAR ALI---Petitioner

Versus

A.D.G. and others---Respondents

Writ Petition No.848 of 2001, decided on 11th February, 2004.

Constitution of Pakistan (1973)---

----Art. 199---Penal Code (XLV of 1860), Ss. 337-A(i)/337-A(ii)/337-F (i)/337-F(iii)/337-F(vi)/337-L(ii)/324/452/148/149---Criminal Procedure Code (V of 1898), S. 356---Constitutional petition---Quashing of proceedings---Preliminary statements of complainant and his witnesses were not recorded by Magistrate himself, but were recorded by his Reader and that fact had been admitted by Magistrate in comments submitted by him---Claim that preliminary evidence recorded by Reader was at the dictation of Magistrate was not proved---Magistrate had not shown his inability for recording evidence himself nor he had made any memorandum in that respect in view of relevant provisions of S. 356(4), Cr.P.C.---Preliminary evidence not recorded by Magistrate himself, would amount to illegality and abuse of the process of the Court---Allowing Constitutional petition, orders passed by Courts below were set aside by High Court and proceedings before Trial Court were quashed.

Munshi Khan and others v Maulvi Abdul Hanan 1987 PCr.LJ 2499; 1999 PCr.LJ 1725; 1990 MLD 2073; Abdul Hameed v. The State 1982 PCr.LJ 949 and Jan Muhammad and others v. Gaman Khan 1995 PCr.LJ 1371 ref.

Mian Arshad Latif for Petitioners.

Muhammad Sarwar Bhatti, A.A.-G. for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1657 #

2004 M L D 1657

[Lahore]

Before ljaz Ahmad Chaudhry, J

Syed MEHBOOB AHMAD SHAH---Petitioner

Versus

MEPCO through Chairman WAPDA Lahore and 3 others---Respondents

W.P. No.336 of 2004, decided on 22nd April, 2004.

Electricity Act (IX of 1910)----

----S.24---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Grievance of the petitioner was that he was refused electricity connection at his premises by the Authorities on the ground that the predecessor occupant of the said premises was defaulter against the electricity connection provided by the Authorities---Objection of the Authorities that they cannot provide electricity meter to the petitioner as he was the successor of the predecessor occupant and according to explanation provided under S.24 of Electricity Act, 1910, any person who inherited the property sold by way of sale, gift, exchange lease or any other mode to the new incumbent, was bound to pay the defaulted amount---Validity---Record showed that the predecessor possessee of the said premises was an illegal occupant and the Authorities had given the electricity connection to him without obtaining necessary documents or verifying whether he was the owner, therefore, the Authorities could not refuse the new electricity connection to the petitioner on the ground of arrears of electricity charges against the said illegal occupant---Petitioner could -not be burdened due to the misdeeds of the Authorities themselves---Predecessor possessee of the premises being an illegal occupant, the Authorities could not take advantage of the explanation provided under S.24 of the Electricity Act, 1910---Constitutional petition was allowed in circumstances.

Syed Hamad Raza Bokhari the Petitioner.

MLD 2004 LAHORE HIGH COURT LAHORE 1661 #

2004 M L D 1661

[Lahore]

Before Mian Hamid Farooq, J

HAJVERY COLLEGE through Chief Executive, Lahore---Appellant

Versus

Mst. MASOODA BEGUM-Respondent

S.A.O. No.60 of 2004, decided on 30th April, 2004.

(a) New plea---

----Litigant cannot be allowed to raise a different plea before the appellate forum, which was not agitated before the Courts below.

Amir Shah v. Ziarat Gul 1998 SCMR 593 and Anwar Ali and others v. Manzoor. Hussain and another 1996 SCMR 1770 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13(6)---Non-compliance of rent deposit order, effect of-- Contention of the tenant was that the Rent Controller, without resolving the controversy about starting date of tenancy, passed the rent deposit order, so the same was without substance and that the said order of the Rent Controller was non-specific, vague 9.nd uncertain---Validity---When an order under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 was tentatively passed, it enured till the final decision of the ejectment petition---Said controversy could have been decided after framing the issues, if the tenant had complied with the terms of rent deposit order, however, the tenant by its acts or omissions, did not allow the case to reach that stage---Rent Controller had passed a clear, certain and unambiguous order, directing the tenant to deposit the arrears of rent as well as future monthly rent as such, the deposit order was not only in accordance with record of the case but the same was also in consonance with the law on the subject.

----S.13(6)---Non-compliance of rent deposit order, effect of---Provisions of 'S.13(6) West Pakistan Urban Rent Restriction Ordinance, 1959, mandatory nature of---Tenant had failed to comply with the terms of order passed by the Rent Controller, under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, therefore, the Rent Controller in exercise of its powers, after coming to the conclusion, that the tenant had committed default in compliance with the terms of order had rightly struck off the defence of the tenant and consequently accepted the ejectment petition---Provisions of S.13(6) of the Ordinance are mandatory in nature and if the Rent Controller comes to the conclusion that a default in compliance with the order passed under the said provisions has been committed, he has no discretion to decide whether or not he would enforce the said clause---Rent Controller, in circumstances was bound to abide by the provisions of law and had to strike-off the defence of the tenant---In case of default of terms of order passed under S.13(6) of the Ordinance, the Rent Controller had no discretion to condone it.

Muhammad Yousaf v. Muhammad Bashir and others 1990 SCMR 557 and Syed Muhammad Zaman v. Abdul Khaliq 1991 SCMR 1982 ref.

Hassan Masood v. S.M. Ahsan 1987 SCMR 655; Mst, Razia Begum and another v. Senior Civil Judge (Rent Controller) Charsadda and others PLD 1996 Pesh. 8 and Tauqeer Shahid v. A.D.J. and others 1993 CLC 2435 distinguished.

MLD 2004 LAHORE HIGH COURT LAHORE 1671 #

2004 M L D 1671

[Lahore]

Before Ch. Ijaz Ahmad, J

KHALID JAVAID---Petitioner

Versus

GOVERNMENT OF THE PUNJAB, through Chief Secretary Punjab, Civil Secretariat, Lahore and 10 others---Respondents

W.P. No.8088 of 2004, decided on 27th May, 2004.

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

----Art.199---Civil Procedure Code (V of 1908), Preamble---Constitutional petition---Principles of Civil Procedure Code, 1908 are applicable to Constitutional proceedings.

Hussain Bukhsh's case PLD 1970 SC 1 ref.

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

----O.1, R.8---Constitution of Pakistan (1973), Art.199-Constitutional petition---Maintainability---Filing petition in representative capacity---Where the petitioner filed a Constitutional petition in the representative capacity without fulfilling the mandatory requirements of O.I, R.8, C.P.C. the same was not maintainable.

Anjuman Arian Bhera v. Abdul Rashid PLD 1973 Lahore 500 ref.

----S.24-A---Constitution of Pakistan (1973), Art.4---Duty and obligation of the public functionaries is to decide the applications of the citizens without fear, favour and nepotism as is envisaged by Art.4 of the Constitution and S.24-A of General Clauses Act, 1897.

Messrs Airport Support Service v. The Airport Manager, Karachi, Airport 1998 SCMR 2268 ref.

(d) Administration of Justice---

----No one should be penalized by the inaction of the public functionaries.

Ahmad Lateef Qureshi v. Controller of Examinations PLD 1994 Lah. 3 ref.

S. Mehmood Hussain Bukhari for Petitioner.

MLD 2004 LAHORE HIGH COURT LAHORE 1677 #

2004 M L D 1677

[Lahore]

Before Ch. ljaz Ahmad, J

ABDUL HAMEED and 3 others---Petitioners

Versus

Mst. NASIBAN BIBI and 4 others---Respondents

W.P. No.8232 of 2004, decided on 31st May, 2004.

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

----S.12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for declaration filed by the respondents against the petitioners was decreed---Application filed under S.12(2) C.P.C. by the petitioners against the said decree was dismissed---Revision petition filed by the petitioners against the said dismissal of application was also unsuccessful---Constitutional petition was filed by the petitioners---Contention of the petitioner was that the gift deed on the basis of which the suit of the respondents was decreed, was executed by fraud and misrepresentation---Validity---Fraud and misrepresentation under S.12(2), C.P.C. must be committed by a party with the Court or during the proceedings in the Court---Both the Courts, in the present case, had given concurrent findings of the facts against the petitioners and no fraud and misrepresentation had been committed by the respondents with the Court, therefore, the scope of S:12(2), C.P.C. could neither be extended beyond the ground of fraud, misrepresentation and defect of jurisdiction enumerated therein---Constitutional petition was dismissed, in circumstances.

Mst. Nasira Khatoon and others v. Mst. Aisha Bibi and others 2003 SCMR 1050; Muhammad Vikil v. Muhammad Yasin 1986 CLC 1530; State through D.A.G. v. Banda Gull and 2 others 1993 SCMR 311; Mst. Mamudi Begum v. Malik Muhammad Ashraf 1997 SCMR 1608; Allah Wasaya v. Irhad Ahmed 1992 SCMR 2184 and Abdur Rahim and others v. State-through Border Area Committee 1993 SCMR 668 ref.

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

----S. 12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application under S.12(2), C.P.C.---Alternate_ remedy, availability of---Petitioners challenged the decree of the trial Court under S.12(2), C.P.C. on the ground that' it decided the case against the petitioners without application of judicial mind and without proper appreciation of evidence on record and in violation of law Validity-_ Such ground was not sufficient to file an application under S.12(2). C.P.C.---Petitioners, in circumstances, had alternative remedy t challenge the judgment and decree in appeal.

----S.12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application under S.12(2), C.P.C., dismissal of---Where an application under S.12(2), C.P.C. appeared to be improper, mala fide and having been made only to protract the proceedings and to abuse the process of the Court, the same could be dismissed without framing of any issue or recoding of evidence of the parties---Both the Court below, in the present case, had given concurrent findings of facts and decided the matter after application of judicial mind and proper appreciation of record, therefore, in such a situation, the trial Court as well as revisional Court was justified not to frame the issue.

Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662; Mst. Hussina Khatoon v. United Bank Ltd. 1993 MLD 1088; Ali Asghar v. Muhammad Ramzan Gauri and others 1996 MLD 530 and Mst. Nasira Khatoon and others Mst. Aisha Bibi, and others 2003 SCMR 1050 ref.

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

----Art.199---Constitutional jurisdiction of High Court---Scope---High Court has no jurisdiction to substitute its own findings in place of findings of Courts below while exercising powers under Art.199 of the Constitution.

Syed Azmat Ali v. The Chief Settlement and others PLD 1964 SC 260 and Board of Intermediate and S.E. v. M. Mussadaq Naseem PLD 1973 Lah. 600 ref.

(e) Administration of justice---

----Each and every case is to be decided on its own pecull circumstances and facts.

Trustees of the port of Karachi v. Muhammad Saleem 1994 SCMR 2213 ref.

MLD 2004 LAHORE HIGH COURT LAHORE 1682 #

2004 M L D 1682

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD ASLAM PARVEZ---Petitioner

Versus

Mst. WAHEEDA ANWAR and others---Respondents

C.R. No.445-D of 2004/BWP, decided on 19th April, 2004.

Civil Procedure Code (V of 1908)---

---S.115---Specific Relief Act (I of 1877), S.12---Revision petition-maintainability of---Suit for specific performance of contract filed by the plaintiff on the basis of agreement to sell was decreed by the trial Court---Appeal preferred by the defendants against the said decree was allowed---Revision petition was filed by the plaintiff---Contention of the defendants was that the plaintiff in the revision petition was bound to append all those documents, which were produced by him in the trial Court, and as he failed to do so, therefore, the requirements of S.115 of Civil Procedure Code, 1908, were not complied with and the petition was not maintainable---Validity---According to provision to subsection (1) of S.115, C.P.C. the person who was to file an application under the said .section was bound to furnish copies of documents and order of the subordinate Court---Plaintiff had failed to append all the documents with his revision petition and had tried to defend himself by stating it as an act of inadvertence---Courts do not use their discretion in favour of indolent litigants---Required documents were very well in the knowledge of the plaintiff and were produced in evidence during the trial stage---Ground of inadvertence could not be attracted as the person who came to the Court in order to get its discretionary power exercised in his favour under S.115, C.P.C., must show his bona fides especially when the period of limitation had already expired in filing of the revision within the period of which, the said documents were to be filed---Revision petition was dismissed, in circumstances.

Ch. Muhammad Sharif-ul-Hassan for Applicant/Petitioner.

MLD 2004 LAHORE HIGH COURT LAHORE 1685 #

2004 M L D 1685

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD HUSSAIN---Petitioner

Versus

MEMBER, BOARD OF REVENUE (COLONIES) PUNJAB, LAHORE-Respondent

W.P. No.12298 of 1980, heard on 5th April, 2004.

(a) Thal Development Authority Act (XV of 1949)-

----Ss. 30(3)(a) & 66---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Sheep and Poultry Breeding Scheme---Eviction from Colony land---Petitioner was one of the applicants for the allotment of land reserved for Sheep and Poultry Breeding Scheme---Disputed land was allotted to respondent in the year 1955 but he did not take possession of the land---Petitioner took over the possession with the impression that his application would be accepted--Unauthorized possession of the petitioner had been admitted by Board of Revenue, Tawan (fine) was imposed upon him and it was also decided by the Board that the proprietary rights be conferred against payment of present market price plus 10% surcharge on account of sale by private treaty-Subsequently on the basis of second application of the respondent, the Board of Revenue passed an order for eviction of the petitioner from the land---Plea raised by the petitioner was that he could not be ejected under the provisions of S.66 of Thal Development Authority Act, 1949-- Validity---Authorities had been accepting the lease money on yearly basis from the date of possession of the petitioner over the lot in dispute while the petitioner committed no fault in depositing the same and no dues or price was outstanding against him--Board of Revenue while passing ejectment order did not point out breach of any of the statement of conditions issued under S.30(3)(a) of Thal Development Authority Act, 1949--After deposit of sale price, the land had come out of the ambit of Revenue/Colony Authorities and the petitioner had become full owner thus the land under his possession was not liable to resumption---After expiry of about five decades it would not be appropriate and in the interest of justice to oust the petitioner from the lot and deprive him of his livelihood---Fundamental responsibility/obligation of Islamic State was to provide bread and butter to all its subjects and if the petitioner was ejected from the land at such stage, it would revert to the Provincial Government or the Authority and ultimately it would be allotted to some eligible citizen of the country---Ends of justice demanded that if the land was to be allotted to some other citizen, it should remain with the present occupant who had already spent most of the time of his life in cultivating and increasing the category of the land---Ejectment order passed by Board of Revenue against the petitioner was set aside---Petition was allowed in circumstances.

Faiz Ali represented by Noor Jan and others v. Mst. Rafia Jan and 2 others PLD 1956 Lahore 94; Ibrahim v. Mst. Rajji and others PLD 1956 Lab. 609; All Muhammad v. Mst. Rabia Bibi and 3 others PLD 1971 B.J. 38; Sh. Muhammad Sharif v. Inspector-General of Prisons, Punjab, Lahore and 3 others PLD 1978 Lahore 15 and Bashir Ahmad and others v. Member Board of Revenue and others PLD 1978 Lahore 1146 ref.

(b) Thal Development Authority Act (XV of 1949)---

----Preamble---Sheep and Poultry Breeding Scheme---Import, object and scope---In the year 1952, the scheme was enforced and the Thal Development Authority invited the farmers and the tenants for their settlement in the vicinity of the Authority for the purpose of rearing up sheep and poultry.

---Rr.4 & 6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of order---Review jurisdiction of Board of Revenue---Rescinding of earlier order by Board of Revenue-- Unauthorized possession of the petitioner had been admitted by Board of Revenue and it was decided by the Board that the proprietary rights be conferred upon the petitioner---Subsequently on the basis of second application of the respondent, the Board of Revenue rescinded its earlier order and passed an order for eviction of the petitioner from the land-- Validity-Board of Revenue was empowered to hear an appeal only on point of law, when the order was passed by the Administrator or the Commissioner as a delegates or otherwise or Chairman---Board had rescinded its earlier order which meant that the Board had reviewed its order and neither in Thal Development Authority Act, 1949, nor in Thal Development Authority (Colonization) (Appeals and Revision) Rules, 1973, such requirement was provided-Recalling of its earlier order by Board of Revenue tantamounts to review which was excess exercise of powers by the Authority and such like order was barred being without jurisdiction, and without lawful authority and was not maintainable---Order passed by Board of Revenue was quashed in circumstances.

Ch. Abdul Sattar Goraya for Petitioner.

Muhammad Qasim Khan, A.A.-G. with Muhammad Ibrahim litigation Clerk for Respondent.

MLD 2004 LAHORE HIGH COURT LAHORE 1693 #

2004 M L D 1693

[Lahore]

Before Sh. Hakim Ali, J

Haji RASHEED AHMAD---Petitioner

Versus

TEHSILDAR-Respondent

W.P. No.5523 of 2001/BWP, decided on 7th April, 2004.

West Pakistan band Revenue Act (XVII of 1967)---

---S.82---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Warrant of arrest for recovery of an amount was issued against the petitioner by Thesildar on the ground that the former had collected land revenues on behalf of the Government from the land owners, and had not deposited the same---Constitutional petition was filed by the petitioner to avoid the arrest---Contention of the-petitioner was that he was never appointed as permanent or temporary Lambardar so the issuance of warrant of arrest against him was illegal and without lawful authority---Reply of Tehsildar was that the petitioner was appointed and had been working as a temporary Lambardar and this fact was admitted by the petitioner himself earlier---Validity--Determination of disputed questions whether petitioner was a temporary Lambardar or was empowered by competent authority to collect land revenue, or whether the said admission made by the petitioner under coercion or duress fell within the domain of factual inquiry which required proper evidence, which was to be avoided under Constitutional jurisdiction---Petitioner, in the circumstances, was directed to seek and adopt the proper remedy for the redressal of his grievances.

Jam Gul Muhammad v. Government of West Pakistan through Collector, Rahimyarkhan and 2 others PLD 1975 Baghdad-ul-Jadid 1 and Malik Abdul Karim v. Collector, Rahim Yar Khan and others PLD 1978 BJ 22 ref.

Rana Sardar Ahmed for Petitioner.

MLD 2004 LAHORE HIGH COURT LAHORE 1699 #

2004 M L D 1699

[Lahore]

Before Muhammad Akhtar Shabbir, J

RAB NAWAZ KHAN and another---Petitioners

Versus

Mst. WAZIRAN MAI and 6 others---Respondents

Civil Revision Nos. 2225 to 2235 of 2003, heard on 26th April, 2004.

Specific Relief Act (I of 1877)---

----S.42---Contract Act (IX of 1872), S.23---Transfer of Property Act (IV of 1882), S.52---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Relinquishment of right of inheritance---Contract against public policy---Principle of lis pendens-Applicability-Plaintiff being sister of defendants denied execution of any relinquishment deed in favour of the defendants and assailed the mutation of inheritance whereby sisters were excluded from the inheritance--Trial Court granted interim injunction only to the extent of further alienation of the suit-land---Appeal against the order passed by the Trial Court was dismissed by Appellate Court---Plea raised by the defendants was that on the basis of registered relinquishment deed mutation of inheritance was rightly attested in their favour---Validity--Under the relinquishment deed all the mutations of inheritance were reviewed and re-sanctioned which showed that the sisters were persuaded by the brothers to relinquish their share in other property left by their father-Relinquishment of right of inheritance was against the public policy, morality and undue influence which concepts were to be decided on the basis of Islamic teachings and principles---Plaintiff could not opt or contract out of such protection and the act of relinquishment by a sister was void and ineffective and her inheritance having accrued in her favour on her father's death remained intact at all the relevant times__ Since the relinquishment deed had been declared void and againSt the public policy and the same having no presumption of truth, therefore, the plaintiff had been able to establish a prima facie case in her favour-Balance of convenience was also in her favour and in case the property was transferred by the defendants to some other persons, the plaintiff would suffer irreparable loss and according to the principle of lis pendens, the plaintiff had to indulge herself in complicated litigation---High Court declined to interfere with the concurrent judgments passed by two Courts below---Revision was dismissed in circumstances.

Marghub Siddiqi v. Hamid Khan and 2 others 1974 SCMR 519; Muhammad Sharif v. Chief Administrator, Auqaf and others 1975 SCMR 104; Nasarud Din v. Haji Ghulam Nabi 1989 MLD 1368 and Feroze v. Sher and others PLD 1985 SC 254 distinguished.

Muhammad Bashir v. Mst. attar Bibi PLD 1995 Lah. 321; Abdul Hameed v. Muhammad Hanif and others 2003 MLD 201; Irshad Hussain v. Province Punjab PLD 2003 SC 344; Azam Khan and another v. Mst. Naushaba Begum and 3 others 1999 CLC 1003; Syed Ahmad Shah v. Lal Khan and others 1999 CLC 1044 and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others 2000 SCMR 346 and Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431 rel.

Syed Muhammad Kaleem Ahmad Khurshid for Petitioner.

Imran Mehmood Khan and Shahid Mehmood Khan for Respondent No. 1.

Malik Ehaz Hussain for Respondents Nos.2 to 5.

Bashir Ahmad Khan for Respondent No.7.

MLD 2004 LAHORE HIGH COURT LAHORE 1706 #

2004 M L D 1706

[Lahore]

Before Syed Zahid Hussain, J

RASHID AHMAD through Legal Heirs and others---Petitioners

Versus

NAZIR AHMAD and another---Respondents

C.R. No.1246 of 2003, decided on 6th May, 2004.

Specific Relief Act (I of 1877)-

--S.42---West Pakistan Land Revenue Act (XVII of 1967), S.45--- Declaration of title-Co-sharers-Limitation---Mutation of inheritance was assailed by the plaintiffs on the ground that the same had been got sanctioned through devious, deceitful and fraudulent means to deprive them of their share---Suit was dismissed by Trial Court but Appellate Court allowed the appeal and decreed the suit---Plea raised by the defendants was that the suit was barred by limitation as mutation of inheritance sanctioned in year 1989 was assailed in year 2000---Validity--As it was proved that the mutation was got sanctioned through devious, deceitful and fraudulent means to deprive plaintiffs of their share, therefore, the Appellate Court was justified to reverse the findings of Trial Court and rightly decreed the claim of the plaintiffs---On the death of the predecessor-in-interest of the parties, succession opened immediately and his estate vested automatically in his heirs---Plaintiffs had become co-sharers alongwith the defendants notwithstanding their exclusion from the disputed mutation---Question of limitation was not Court of any significance-Judgment and decree passed by the Appellate was maintained and High Court declined to interfere with the same--- Revision was dismissed in circumstances.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Mst. Fa al Jan v. Roshan Din and 2 others PLD 1992 SC 811 rel.

Ch. Muhammad Munawar Virk, Advocate.

MLD 2004 LAHORE HIGH COURT LAHORE 1713 #

2004 M L D 1713

[Lahore]

Before Muhammad Ghani, J

NASEER AHMED---Petitioner

Versus

Mst, SHAZIA---Respondent

Writ petition No.8991 of 2003, decided on 17th October, 2003.

West Pakistan Family Court Act (XXXV of 1964)---

----Ss. 5, Sched & 14---Constitution of Pakistan (1973), Art. 1997-- Constitutional petition---Suit for recovery of dowry articles---Family Court decreed suit after determining amount of dowry articles and Appellate Court upheld judgment and decree passed by Family Court---Appellate Court which was final Court of appeal had not independently re-examined evidence available on record for arriving at its own conclusion---Appellate Court had misdirected itself while holding that defendant had concealed some dowry articles in his written statement---Absence of second appeal in family matters had added further responsibility on the Appellate Authority to discharge sacred duty of administering justice after carefully examining and analysing every bit of evidence that had been brought on record by both the parties---High Court with the consent of parties allowing Constitutional petition, declared decision of Appellate Court to be illegal and without lawful authority holding that appeal filed by defendant would be deemed to be pending and would be decided on merits afresh after affording full opportunity of hearing to parties and examining entire material brought on record by them.

Altaf-ur-Rehman for Petitioner.

Hafiz Khalil Ahmed for Respondent No. 1.

MLD 2004 LAHORE HIGH COURT LAHORE 1719 #

2004 M L D 1719

[Lahore]

Before Sh. Hakim Ali, J

Mst. RAZIA BIBI and 2 others---Appellants

Versus

IFTIKHAR AHMED and another---Respondents

R.S.A. No.2 of 1996/BWP, decided on 19th September, 2003.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13---Suit for pre-emption---Superior right of pre-emption and

making of Talbs---Proof---Suit was filed by two pre-emptors claiming

superior right of pre-emption on the basis of being Shafi-Shreek, Shafi-Khaleet and Shafi Jar and they had also claimed making of Talbs---Out of said two plaintiffs only one appeared in the Court as witness, but he nowhere stated that other plaintiff who had not appeared in the Court had superior right of pre-emption---Said plaintiff had not said a single word with regard to performing of Talbs by other pre-emptor---No iota of evidence was brought by other plaintiff who had not appeared in the Court with regard to his superior right of pre-emption or for performance of Talbs---When both plaintiffs had prayed for decree of possession on basis of pre-emption jointly, absence of evidence from one of them, had become fatal to the case of both plaintiffs---Judgment and decree passed by Appellate Court below, was set aside and suit filed by plaintiffs was dismissed, in circumstances.

Falak Sher Khan v. Mir Qalam Khan 1995 CLC 1077 ref.

Ch. Abdul Sattar and Mian Muhammad Saleem Akhtar for Appellants.

Mian Muhammad Saeed for Respondents.

MLD 2004 LAHORE HIGH COURT LAHORE 1747 #

2004 M L D 1747

[Lahore]

Before Nasim Sabir Ch., J

SHAFQAT NAZEER---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.3067-B of 2003, decided on 1st December, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/148/149---Bail, grant of---Further inquiry---All co-accused had already been declared innocent---Police record had revealed that at the time of occurrence, accused's age was about 16 years, 8 months and 20 days according to school leaving certificate---Case of accused, in circumstances was separated for his trial under Juvenile Justice System Ordinance, 2000--Accused was empty-handed and allegation against him was that he was sitting on the chest of deceased whereas other co-accused were giving kick and fist blows to deceased and said co-accused had already been declared innocent, but accused was not given the same treatment which had made case of accused that of further inquiry-- Accused_ was behind the bars since his arrest and no useful purpose would be served by keeping the minor behind the bars and being minor his case fell under first proviso to S. 497, Cr.P.C. entitling him to be released on bail---Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Syed Altaf Hussain Bukhari for the State.

Sardar Abdul Qayyum Khan for the Complainant.

MLD 2004 LAHORE HIGH COURT LAHORE 1749 #

2004 M L D 1749

[Lahore]

Before Maulvi Anwarul Haq and Mian Muhammad Akram Baitu, JJ

RAHIM BUX---Petitioner versus

ADDITOINAL DISTIRCT JUDGE, MUZAFFARGARH and 2 others---Respondents

W.P. No.4583 of 2003, heard on 14th June, 2004.

West Pakistan Family Courts Act (XXXV of 1964)

---S. 14(2)(c)---Decree granting maintenance @ Rs.1000 per month---Appeal by child for enhancement of such . maintenance-- Maintainability-Nature of S.14(2) of West Pakistan Family Courts Act, 1964 is in nature of proviso to generality of subsection (1) thereof---Intention.of Legislature by providing such proviso was to avoid challenge by a person to decree granting maintenance to a wife or child at Rs.1,000 or less per month---Bar to an appeal by child or wife seeking enhancement of maintenance would not be read into such proviso---Such appeal was competent.

Government of Pakistan and others v. Messrs Hashwani Hotel Ltd. PLD 1990 SC 68; The Punjab Province v. Malik Khizar Hayat Khan Tiwana PLD 1956 Federal Court 200; Allied Bank of Pakistan Ltd. v. Khalid Farooq 1999 SCMR 599; Muhammad Talib v. Additional District Judge and others 2004 YLR 583; Khalid and others v. The Sate 2003 YLR 1948; Hassan Usmani, Sole Proprietor and another v. T.F. Pipes Limited through Managing Director 2003 YLR 1075; Dr. Neelam Hussain v. Dr. Razia Parveen Qureshi and 2 others 2003 PLC (C.S.) 1222; Raja Muhammad Shoaib, Deputy Director Planning v. Azad Jammu and Kashmir Government through Chief Secretary and 6 others 2002 PLC (C.S.) 1138; Commissioner Income-Tax, Azad Jammu and Kashmir, Muzaffarabad v. Messrs Haji Ali Khan & Co. Forest Lessee Havelian PLD 1985 SC (AJ&K) 62 and Riaz Hussain and others v. Muhammad Akbar and others 2003 SCMR 181 ref.

Mst. Neelam Nosheen and others, v. Raja Muhammad Khaqaan and others 2002 MLD 784; Saeeda Alia v. Syed Ghulam Mursalin Naqvi and another 2004 MLD 306; Government of Pakistan and others v. Messrs Hashwani Hotel Ltd. PLD 1990 SC 68; Statutory construction (Crawford Edition p. 270); The Punjab Province v. Malik Khizar Hayat Khan Tiwana PLD 1956 Federal Court 200; Ibrar Hussain and others v Government of N.-W.F.P. through Secretary Board of Revenue and others 2001 SCMR 914; Statutory Construction by Crawford in the 1940 Edition and Sh. Liaqat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504 rel.

Malik Waqar Haider Awan for Petitioner.

Tahir Mehmood for Respondent No.3.

MLD 2004 LAHORE HIGH COURT LAHORE 1755 #

2004 M L D 1755

[Lahore]

Before Mian Hamid Farooq, J

ABDUL KHALIQ and 3 ethers---Petitioners

Versus

MUHAMMAD MALIK and 3 others---Respondents

C.R. No.1877 of 2003, heard on 8th April, 2004.

Punjab Pre-emption Act (IX of 1991)--- .

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Suit having been decreed by Trial Court, defendants filed appeal -against judgment and decree of Trial Court---Appellate Court accepting appeal, set aside judgment and decree of Trial Court and dismissed suit---Validity---Trial Court had failed to decide issues in accordance with evidence on record and law on the subject and had committed legal errors in arriving at the findings---Appellate Court had considered every aspect of the case, appreciated evidence on record in its true perspective and while taking into consideration the facts of the case and law on the subject, had rightly concluded that plaintiffs did not make necessary demands/Talbs in accordance with law---Appellate Court below after properly embarking upon all issues, had rendered the reasoned judgment, which was not only in accordance with record of the case, but same was also in consonance with the law on the subject and thus could not be interfered with.

Khan Mir Daud Khan and others v. Mahrullah and others PLD 2001 SC 67; Ahmad Nawaz and others v. Mst. Sultan Bibi 2002 MLD 1184; Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Kar. 202; Ilamuddin through legal heirs v. Syed Sarfraz Hussain through legal heirs and 5 others 1999 CLC 313 and Aasa v. Ibrahim 2000 CLC 500 ref.

Malik Waqar Saleem for Petitioners.

Ch. Abdul Ghaffar for Respondents.

MLD 2004 LAHORE HIGH COURT LAHORE 1760 #

2004 M L D 1760

[Lahore]

Before Ijaz Ahmad Chaudhry, J

PERVAIZ---Petitioner

Versus

THE STATE---Respondent

Cr1. Misc. No.659-B of 2004, decided on 19th April, 2004.

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---Accused appeared to have been involved in case with mala fide intention as his father was a witness in a criminal case registered against the relative of complainant---Complainant had contracted Nikah with co-accused with her free-will and consent---Story of complainant seemed to be doubtful as she appeared to be a consenting party---Lady had been allegedly taken to different places by accused, but she never raised any alarm---Case of accused due to said circumstances fell within the purview of further inquiry---Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Tahir Iqbal Malik for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1767 #

2004 M L D 1767

[Lahore]

Before Tassaduq Hussain Jillani and Muhammad Sayeed, Akhtar, JJ

Chaudhry AHMAD NAWAZ---Appellant

Versus

SUPERINTENDENT CUSTOMS, ANTI-SMUGGLING ORGANIZATION, MIANWALI and 2 others---Respondents

Custom Appeal No.75 of 2003, decided on 22nd April, 2002.

Customs Act (IV of 1969)---

----Ss. 16, 168 & 1937-Impounding of vehicle on suspicion that it was a smuggled item---Appeal---After initial investigation vehicle was sent to Forensic Science Laboratory which reported that Chassis Number of vehicle had been tampered with---Since appellant could not produce ownership documents, vehicle was seized in terms of S. 168 of Customs Act, 1969 for violating S. 16 of said Act---Deputy Collector Customs relying on affidavit given by a private person, came to the conclusion that vehicle had met with an accident and that no tampering was made with Chasis Number and no case for contravention of any provision of Customs Act, 1969 was made out---Collector of Customs and Central Intelligence, challenged order of Deputy Collector in appeal which was allowed by Customs, Excise and Sales Tax Appellate Tribunal on the ground that concurrent findings of two Forensic Laboratories' Reports could not be controverted which were to the effect that Chassis Number of vehicle had been tampered with---Appellant had never challenged concurrent reports of Forensic Science Laboratories on basis of which impugned order was passed---Affidavit given by private person could not rebut findings of a Scientific Laboratory---No question of law having been raised which could merit interference in appeal, appeal was not maintainable.

Muhammad Akram Nizami for Appellants.

Mian Qamar-ud-Din for Respondents.

MLD 2004 LAHORE HIGH COURT LAHORE 1769 #

2004 M L D 1769

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

MUSTAHSAM MAHMOOD---Appellant

Versus

THE STATE---Respondent

Cr1. Appeal No.1165 of 1999, heard on 26th May, 2004.

Penal Code (XLV of 1860)-

----Ss. 302 & 394---Appreciation of evidence---Eye-witnesses of occurrence had no previous enmity against accused and their relationship with deceased would not render their testimony as untrustworthy-Was not believable that eye-witnesses would let off the actual culpri s to implicate accused falsely in the case---Even though crime e nsic mpties were Science not found wedded with the pistol as per report of Fore Laboratory, but as the recovery of weapon of offence was merencelyif a a corroborative piece of evidence, it would not make any differe weapon of offence was not at all recovere ditnesses of or if recovery occurrence were was not found wedded with crime empties---Eye-w subjected to lengthy cross-examination, but, they could not abeev shaken Ocular account in the case was fully corroborated bdence-GivMg up of effect medical idence- Defence version of accused did not inspire third eye-witness by prosecution would not have any adversect for on the prosecution story because it es wain the case---s not necessary Trial Court, the prosecution to examine all eye-witness on evidence on record, had rightly held accused guilty, but as the proof of the offence of Qatl-i-Amd liable to Qisas as required under S. 304, P.P.C. was not available in the case conviction of accused was converted from S. 302(a) to S. 302(b), P.P.C. maintaining sentence of death on two counts as awarded by Trial Court and murder reference was 17751 A, B & C answerred in affirmative.

Ms. Roshan Ara for Appellant.

Mrs. Erum Sajjad Gul for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1775 #

2004 M L D 1775

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD ASHRAF and another---Petitioners

Versus

ELECTION TRIBUNAL, TEHSIL KHARIAN through Additional District and Sessions Judge and 2 others---Respondents

W.P. No.22160 of 2001, decided on 7th May, 2004.

Punjab Local Government Elections Rules, 2000---

----Rr. 70, 72 & 77---Civil Procedure Code (V of 1908), O.VI, R.15___ Constitution of Pakistan (1973), Art. ,199-Constitutional petition-- Dismissal of election petition for non-attestation of its verification by Oath Commissioner---Verification of election petition, should be signed by petitioner as in a case of a plaint in suit, who was required to sign verification only---No requirement of law existed, which could make it mandatory that such verification should also be attested by Oath Commissioner-Election Tribunal dismissed election petition under R. 77 of Punjab Local Government Elections Rules, 2000 for non-attestation of verification of election petition by Oath Commissioner---View taken by Election Tribunal in dismissing election petition, being erroneous and illegal was set aside---Case was remanded to Election Tribunal for its decision in accordance with law.

S.M. Masud for Petitioners.

Khalid Ikram Khatana for Respondents.

2004 M L D 1815

[Lahore]

Before Ch. Ijaz Ahmad, J

Mian TARIQ MEHMOOD---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law, Justice and Human Rights Division, Islamabad and 2 others---Respondents

W.P. No.10656 of 2004, decided on 30th June, 2004.

(a) Establishment of the office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)--

----Art. 32---Constitution of Pakistan (1973), Art.199---Constitutional petition---Representations to the President---Petitioner filed a complaint before the Wafaqi Mohtasib-e-Aala, who rejected the same---Petitioner filed representation to the President, which was rejected---Validity--Principles of natural justice must be read in each and every Statute unless and until the same was prohibited by the wordings of the Statute itself---Article 32 of the Establishment of the Office of the Wafqi Mohtasib (Ombudsman) Order, 1983 did not contain any prohibition qua providing proper hearing by the President---President having not provided personal hearing, his order was against the principles of natural justice, and was thus set aside.

Commissioner of Income Tax v. Fzalur Rahman PLD 1964 SC 410; Pakistan Chrome Mines v. The Enquiry Officer PLD 1983 SC 1208; Pakistan and others v. Public at Large PLD 1987 SC 304 and University of Dacca v. Zakir Ahmad PLD 1965 SC 90 rel.

Federation of Pak. v. Muhammad Tariq Pirzada 1999 SCMR 2189; Federation of Pak. v. Muhammad Tariq Pirzada 1999 SCMR 2744 and Mst. Nusrat Imtiaz v. Government of Pakistan NLR 2000 Civil 54 ref.

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

----Arts. 189 & 190---Precedent---Obiter dictum---Judgments of Supreme Court are binding on each and every organ of the State.

----Art. 5(2) & (4)---Trichotomy-Social binding contract---Constitution is based on trichotomy and is a social binding contract between the organs of the State and people of Pakistan.

Ch. Zahoor Elahi's case PLD 1975 SC 383 and Manzoor Elahi's case PLD 1975 SC 66 ref.

(d) Precedent--

--Judge's previous decision on specific law point to be accepted by Judge as binding on him on subsequent occasion.

Muzaffar Khan's case PLD 1959 SC 9 rel.

Nazeer Ahmad Qureshi for Petitioner.

MLD 2004 LAHORE HIGH COURT LAHORE 1818 #

2004 M L D 1818

[Lahore]

Before ljaz Ahmad Chaudhry, J

MUHAMMAD YASEEN and 2 others---Petitioners

Versus

THE STATE---Respondent

Cr1. Misc. No.1118-B of 2004, decided on 28th April, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 302---Bail, grant of---Further inquiry---Accused were not named in F.I.R., but subsequently complainant in his statement had shown suspicion upon 11 persons including accused persons that they had murdered deceased---During investigation conducted by different police officers, eight co-accused were let off and accused were sent to judicial lock-up on the insistence of complainant party---Only evidence available against accused was that they had made extra-judicial confession before the complainant and other. witnesses---Doctor in post-mortem examination had not found any external inquiry on the person of deceased and according to report of Chemical Examiner no poison was detected in viscera of the deceased--- Case of accused, in circumstances, was of further inquiry covered by subsection (2) of S. 497, Cr.P.C.---Accused were admitted to bail, in circumstances.

James Josef for Petitioners.

Sh. Imtiaz Ahmad for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1820 #

2004 M L D 1820

[Lahore]

Before Ch. ljaz Ahmad, J

MUHAMMAD QASIM---Appellant

Versus

TAHIR SALEEM and another---Respondents

F.A.O. No.108 of 2004, decided on 29th June, 2004.

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

----O.XXXIX, R. 4---Temporary injunction---Ex parte order---Trial Court had ample power under Order XXXIX, rule 4 to discharge, vary or set aside injunctive order which is not confined only to case of ex parte injunctive order passed before issuance of notice.

Muhammad Yousuf v. Mst. Sabira A. Muhammad and others 1990 CLC 1127 rel.

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

----O.XXXIX, R. 4---Natural justice, principles of---Applicability---Once a Court had decided a matter after giving to each side an opportunity of being heard, its order was final and could not be re-opened except on presentation of some new material not available when the original order was passed.

Sind Madrasatur Islam Board Society v. Shamim 1982 CLC 2242 and Muhammad Inarn v. Dr. Muhammad Safdar 1988 CLC 230 rel.

----O.XX, R.5---Speaking order---Court had decided the case without application of mind which was a condition precedent---Order was set aside in circumstances and case remanded for fresh decision after hearing both the parties.

Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 rel.

(d) General Clauses Act (XI of 1997)---

----S. 24-A---Speaking order---Duty is cast on public functionaries to decide a controversy after application of mind with reasons.

Messrs Airport Support Service's case 1998 SCMR 2268 rel.

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

----O.XLIII, R. 1(r) & O.XXXIX, R.4---Natural justice, principles of---Appealable order---Trial Court passed the order in absence of a party, without hearing the party---Such order was in violation of principle of natural justice and was not sustainable in law---Order was appealable under Order XLIII, rule 1---Appeal was accepted and order was set aside with a direction to Trial Court to decide same afresh.

Mian Irshad Ali. v. Government of Pakistan and others PLD' 1975 Lah. 7 and Trustee Board's case's 1994 SCMR 2213, rel.

District Council Haripur v. Zaheerullah Khan PLD 1994 Pesh. 228; Poineer Pakistan Seed Ltd. v. United Distributors 1998 CLC 61; Shah Jehan Khan v. Fazal-ur-Rehman Khan and others 2001 CLC 1695 and Haji Abdul Ghafoor Akhtar v. Malik Tahir Mtikhtar 2001 CLC 1721 ref.

Abdul Razaq Mirza for Appellant.

Ch, Muhammad Akhtar Ail Gorya for Respondent No.l.

MLD 2004 LAHORE HIGH COURT LAHORE 1827 #

2004 M L D 1827

[Lahore]

Before Mian Saqib Nisar, J

SIKANDAR HAYAT and others---Petitioners

Versus

Mst. INAYAT KHATOON and others---Respondents

C.R. No.63 of 1999, decided on 8th January, 2003.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement of sale---Plaintiffs could not produce strict, positive and independent evidence to prove execution of alleged agreement to sell and payment of consideration---One of the witnesses produced by plaintiffs had conceded that he did not know the defendant personally who was a Parda Nashin lady-Delivery of possession under agreement of sale had also not been proved-No physical change in possession was brought about on account of alleged agreement to sell---Appellate Court below,/ in circumstances had rightly I dismissed suit filed by plaintiffs.

PLD 1990 SC 1 ref.

Mehr Ghulam Rasool for Petitioners.

MLD 2004 LAHORE HIGH COURT LAHORE 1830 #

2004 M L D 1830

[Lahore]

Before Ch. Ijaz Ahmad, J

REHAM BAZ---Petitioner

Versus

MUHAMMAD ANWAR and 3 others---Respondents

W.P. No.20467 of 2002, decided on 1st July, 2004.

Constitution of Pakistan (1973)---

----Arts. 199 & 4---General Clauses Act (X of 1897), S. 24-A---Civil Procedure Code (V of 1908), S. 11---Constitutional petition--- Maintainability---Res-judicata, principal of---Applicability---Petitioner filed second Constitutional petition for protection against harassment---Principles of S.11, C.P.C. being applicable to the Constitutional proceedings, second Constitutional petition qua the same subject-matter and relief was not maintainable---Public functionaries were duty bound to decide the applications of citizens without fear, favour or nepotism---D.C.O. concerned was directed by the High Court to constitute a Committee and probe into the matter in question.

Hussain Bakhsh's case PLD 1970 SC 1; Pir Bakhsh's case PLD 1987 SC 145 and M/s Airport Support Services' case 1998 SCMR 2268 rel.

Arshad Hussain Bhutta for Petitioner.

MLD 2004 LAHORE HIGH COURT LAHORE 1832 #

2004 M L D 1832

[Lahore]

Before Nasim Sabir Ch., J

KAMRAN MASIH---Petitioner

Versus

THE STATE---Respondent

Cr1. Misc. No.240-B of 2004, decided on 28th January, 2004.

Criminal Procedure Code (V of 1898)---

----S.497(2)--Penal Code (XLV of 1860), Ss. 324/337-F(v)/337-F(i)/34---Bail, grant of---Further inquiry---Injuries allegedly caused by accused, being not on the vital part of the body of the victim, it could not be said with certainty that accused had intention to kill injured prosecution witness---Would be seen at the trial stage, after recording of evidence, as to whether S. 324, P.P.C. was attracted or not---Case.was of two contradictory versions---Accused had been alleged to have caused fire-arm injury on person of victim, whereas according to Medico-legal report injuries caused to victim were by a blunt weapon---Police had already declared accused innocent, which had weakened the stand of prosecution---Case against accused fell within the ambit of further inquiry entitling him to be released on bail---Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Rana Shakeel Ahmad for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1834 #

2004 M L D 1834

[Lahore]

Before Muhammad Muzammal Khan, J

SAKHAWAT HUSSAIN---Petitioner

Versus

FARZAND BIBI and 6 others---Respondents

Writ Petition No.1721 of 2004, decided on 17th June, 2004.

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

----S.5 & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Interim maintenance, grant of---Family Court as an interim measure directed the petitioner to provide the maintenance allowance to respondents at the rate of Rs. 3000 per month---Validity--- Judge Family Court was competent to grant interim maintenance---Other objections could be decided after recording of evidence-Amount of maintenance was not found excessive, order was neither arbitrary nor fanciful, Constitutional petition was dismissed in limine in circumstances.

Commissioner, Khairpur Division Khairpur and another v. Ali Sher Sarki PLD 1971 SC 242 and Muhammad Sarwar v. Sughran Bibi and 2 others 1996 MLD 1057 rel.

2004 M L D 1844

[Lahore]

Before Ch. Ijaz Ahmad, J

ASHIQ HUSSAIN---Petitioner

Versus

Prof. MUHAMMAD ASLAM and 9 others---Respondents

C.R. No.350 of 1999, decided on 3rd June, 2004.

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

----S. 54---Joint property---Injunction against co-sharers---Plaintiff filed suit for permanent injunction against co-sharers---Suit was decreed by the Trial Court---Appellate, Court dismissed the suit---Validity---Mere reading of the plaint showed that the plaintiff had not impleaded all the co-sharers as defendants---Appellate Court was justified to non-suit the plaintiff in circumstances.

Khaleeq Ahmad v. Abdul Ghani and others PLD 1973 SC 214 quoted

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

----S. 54---Joint property---Suit for permanent injunction against the other co-sharers was not maintainable except by bringing a suit for partition of joint property. [p. 1848] B

Muhammad Shafi's case 1979 CLC 230 quoted.

Mst. Resham Bibi's case 1999 SCMR 2325 and Munshi and 2 others v. Muhammad Shafi and 30 others 1966 Law Notes (Lahore) 58 ref.

--S. 115---Revision---Scope---Appellate Court had reversed the findings of the Trial Court after proper appreciation of evidence on record---Appellate Court could competently reverse the findings of the Trial Court on question of fact in issue---Findings on question of fact or law however, erroneous, recorded by competent Court of law, could not be interfered in revisional jurisdiction unless such findings suffered from jurisdictional defect, illegality or material irregularity.

N.S.-Venkatagiri Ayyangar and another v. The Hindu Religious Edowments Board Madras PLD 1949 Privy Council 26 and Board of Intermediate and Secondary Education Lahore v. Syed Khalid Mahmood 1985 CLC 657 ref.

MLD 2004 LAHORE HIGH COURT LAHORE 1849 #

2004 M L D 1849

[Lahore]

Before Muhammad Farrukh Mahmood, J

Mst. NUSRAT BIB1---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.1 of 2003 in Cr. A No.187 of 2003, decided on 19th February, 2004, Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), S. 302(b)134---Suspension of sentence-Role assigned to accused female was that she was seen holding hair of deceased---Petitioner/accused, admittedly had not caused any injury to deceased who lost his life due to Asphyxia caused by strangulation attributed to co-accused---Considering role assigned to accused and that she being a woman, her sentence was suspended and she was admitted to bail.

Ghazanfar Ali Khan for Petitioner.

Ch. Muhammad Afzal Pansota for the Complainant.

Abdul Ghani for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1851 #

2004 M L D 1851

[Lahore]

Before Abdul Shakoor Paracha, J

Haji JAMAL DIN---Appellant

Versus

Haji MUHAMMAD NAZIR---Respondent

R.F.As. Nos.119 and 120 of 1999, heard on 10th February, 2004..

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

----O. XXXVII, Rr. 1 & 2---West Pakistan Civil Courts Ordinance (II of 1962), Ss. 6(2) & 15---Jurisdiction---District Judge-Additional District Judge---Additional District Judge discharges such functions of the District Judge as the District Judge may assign to him and in discharge of those functions he exercises the same powers as the District Judge---District Judge by written order can distribute any civil business cognizable by his Court---Objection that Additional District Judge cannot hear cases under Order XXXVII had no validity.

Abdul Samad v. Muhammad Ali and another PLD 1977 Lah. 687 and Mst. Sajida Perveen v. The Additional District Judge, Rawalpindi and 2 others 1991 MLD 745 quoted.

Beguth Akhtar Akhlaque Hussain and another v. Saghir Ahmad and 12 others 1980 CLC 1892 distinguished.

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

----O.XXXVII, Rr. 2, 3 & S. 100---Qanun-e-Shahadat (10 of 1984), Art. 84---Recovery suit---Leave to appear and defend-Appreciation of evidence---Comparison of signatures by Court---Receipt produced by the defendant was not mentioned in application for leave to defend---Fraud and coercion were pleaded in application for leave to defend---Trial Court had rightly observed that in a case where there was fraud, there could be no coercion and if it was case of coercion, there could be no fraud---High Court compared the signatures on the receipt and plaint and found them dissimilar---Trial Court having rightly passed judgment and decree, appeal against same was dismissed.

Messrs Waqas Enterprises and others v. Allied Bank of Pakistan and 2 others 1999 SCMR 85 quoted.

Taki Ahmad Khan for Appellant.

Rana Shahid Amin for Respondent.

MLD 2004 LAHORE HIGH COURT LAHORE 1859 #

2004 M L D 1859

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

MUHAMMAD ARIF---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.3016-B of 2003, decided on 20th January, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9 & 21---Bail, grant of---Further inquiry---Bail was thed by accused on .grounds; firstly that Assistant Sub-Inspector of POlice who had conducted the raid, recovered goods and conducted investigation, was totally unauthorized because of S. 21 of Control of Narcotic Substances Act, 1997 and that case itself would not be maintainable in law; secondly that actual contents, of opium were never measured nor could those be measured; thirdly that people of village concerned usually take straws of Poppy for medication purposes and that no mens rea was attracted nor accused was peddler---Such grounds had made the case against accused one of further inquiry entitling him to grant of bail.

Khalid Nawaz v. The State 1999 PCr.LJ 391 and Nasrullah v. The State PLD 2001 Pesh. 152 ref.

Ch. Abdul Ghaffar for Petitioner.

Rai Kabeer Ahmad Kharal for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1860 #

2004 M L D 1860

[Lahore]

Before Sardar Muhammad Aslam, J

GHULAM FARID and 5 others---Petitioners

Versus

MEHMOOD AKHTAR and 3 others---Respondents

Civil Revision No.281-D of 1998, heard on 20th May, 2004.

Punjab Pre-emption Act (I of 1913)-

----Ss 21 & 21-A---Land Reforms Regulation 1972 (MLR 115), Para. 25 ---Pre-emption by collaterals and co-owners---Right of pre-emption of tenant---Sinker, doctrine of---One of the vendee defendant was a tenant who had joined other three defendants in the sale transaction---Other three vendees defendants had transferred the land after institution of suit but before the limitation for filing the suit had expired---Vendee defendant had pleaded superior right on basis of being a tenant---Suit was dismissed by Trial Court but Appellate Court decreed the same---Validity---Defendant was a tenant and on purchase of land he became the owner of the suit property and had joined with persons having no right of pre-emption---Doctrine of sinker was applicable--- Appellate Court had rightly decreed the suit---Conclusion arrived at was confirmed and revision was dismissed in circumstances.

Bakhshan and others v. Haji and others PLD 1954 Baghdad-ulJadid 48 and Mst. Fateh Bibi v. Ahmad Khan and 6 others PLD 1971 Lah. 17 distinguished.

Sawar Muhammad Sharif and 2 others v. Makhmool and others 1991 SCMR 1419 ref.

Ahmed and others v. Ghulam Haider 1972 SCMR 357 and Mirza Adam Khan v. Muhammad Sultan PLD 1975 SC quoted.

Muhammad Bashir and 2 others v. Board of Revenue and 5 others 1983 CLC 930; Talib Hussain v. Mir Muhammad Khan and 2 others PLD 1985 Rev. 35 and Mithoo v. Member, Board of Revenue, Punjab, Lahore and 7 others PLD 1988 Lah. 277 rel.

Nasir Saeed Sheikh for Petitioners.

Zaheer Ahmad Qadri for Respondents.

MLD 2004 LAHORE HIGH COURT LAHORE 1866 #

2004 M L D 1866

[Lahore]

Before Rustam Ali Malik, J

SHAFQAT NAJEEBULLAH and 2 others---Petitioners

Versus

THE STATE---Respondent

Crl. Misc. No.445-B of 2004, decided on 23rd February, 2004.

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

----S. 498---Penal Code (XLV of 1860), Ss. 440/365/337- H(ii)/511/148/149---Pre-arrest bail, refusal of---Investigating Officer during investigation could not give a definite finding about abduction of alleged abductee by accused persons, but it was stated that accused alongwith some of his companions had indulged in firing at the spot---Accused, in circumstances was not entitled to extraordinary concession of pre-arrest bail---Bail application to the extent of co-accused was accepted and interim pre-arrest bail already granted to them, was confirmed.

Ch. Waseem Ahmed Gujjar for Petitioners.

Maqsood Buttar, Muhammad Ashiq A.S.-I. and Aish Bahadur Rana for the Complainant.

MLD 2004 LAHORE HIGH COURT LAHORE 1868 #

2004 M L D 1868

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

SHAUKAT ALI alias SHAUKAT HAYAT and another---Petitioners

Versus

MUHAMMAD HANIF and others---Respondents

C.R. No.1064 and 1065 of 2000, decided on 2nd June, 2004.

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

--S.12---Qanun-e-Shahadat (10 of 1984), Arts. 78 & 79---Suit for specific performance of agreement to sell---Document, proof of---Proof of signatures---Execution of agreement to sell and transfer of possession of the property was found by Trial Court to be proved---Suit was dismissed on the ground that plaintiff had failed to deposit the balance amount---Inference, .drawn by Trial Court was reversed by the Appellate Court on the ground that order to deposit balance amount was conditional order to the extent of issuance of temporary injunction, neither it was a condition for performance of agreement nor it could be made the basis for deciding the suit---Payment of advance money was proved---Appellate Court accepted the appeal and decreed the suit---Validity--Non-deposit of remaining amount had resulted in vacation of interim injunction---Such fact; however, would not affect the appraisal of evidence, legality of execution of agreement to sell basing on consideration and delivery of possession---Findings of Trial Court were not challenged in cross-objections---Signatures on agreement were admitted---One witness and scribe were sufficient to prove execution----Judgment of Appellate Court was confirmed in circumstances.

Muhammad Ishtiaq. Hussain and another v. Zulfiqar Ali 1992 MLD 1699; Lt. Col. Ch. Jan Muhammad v. Lt. Col. M.A. Sattar and 8 others 1980 SCMR 682; Muhammad Sahrif v. Mst. Sardaran Bibi and others 2002 MLD 1002 and Abdul Wali Khan though Legal heirs and others v. Muhammad Saleh 1998 SCMR 760 quoted.

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

----Ss.12 & 22---Suit for specific performance of agreement to Discretionary relief---Court can decline discretionary.relief where it is convinced that plaintiff was exercising unfair advantage or there was fraud or misrepresentation on his part or contract involved some hardship on defendant.

Muhammad Khan v. Mst. Rasul Bibi PLD 2003 SC 676 and Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others 1999 SCMR 1362 quoted.

Ch. Muhammad Yaqoob Sindhu for Petitioners.

Rafiq Ahmad Qureshi for Respondents No.1.

MLD 2004 LAHORE HIGH COURT LAHORE 1877 #

2004 M L D 1877

[Lahore]

Before Syed Sakhi Hussain Bukhari, J

KHALID and another---Petitioners

Versus

THE STATE---Respondent

Cr1. Misc. No.1379-B of 2004, decided on 17th March, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 380/342/447/109/148/ 149/337-F(i)/337-F(iii)---Bail, grant of---Prosecution case was that accused along with 36 other persons while armed with different weapons reached the place, of occurrence to forcibly occupy land owned by complainant party and gave them beating, but during investigation said 36 persons were found to be innocent---Accused were in judicial lock-up since their arrest, but trial had not commenced-Offence against accused did not fall within prohibitory clause of S. 497, Cr.P.C.---Case against accused was fit for grant of bail to them---State had not opposed bail application of accused---Accused were admitted to bail, in circumstances.

Rai Muhammad Tufail Khan Kharal for Petitioners.

Syed Muhammad Asghar Naeem for the Complainant.

Ishfaq Ahmad for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1879 #

2004 M L D 1879

[Lahore]

Before Muhammad Muzammal Khan, J

ABDUL RASHEED and 3 others-Petitioners

Versus

SAJJAD AMJAD alias SAJJAD AHMED and another---Respondents

C.R. No.253 of 2004, decided on 31st May, 2004.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Civil Procedure Code (V of 1908), S. 115---Making of "Talbs"---Dispute raised by the defendants was with regard to fulfillment of conditions of "Talbs"---No discrepancy existed in depositions regarding performance of "Talbs" by the plaintiffs---Minor discrepancy regarding number of cots and places of sitting of different persons at that time were not of much substance---Such discrepancies normally occur by passage of time.

Abdul Qayum (deceased) through LRs. V. Musk-e-Alam and another 2001 SCMR 798 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Talb-e-Ishhad---Notices, postal receipts and acknowledgment receipts with a statement that they were signed by the defendants in his presence were produced by a plaintiff's witness---Such' witness was not cross-examined about acknowledgment receipts---Appellate Court had rightly held that "Talbs" were proved.

----S. 115---Judgments at variance---When judgments were at variance, appellate Judgment was to be given preference until found tainted with any illegality or irregularity of misreading and non-reading of evidence.

Madan Gopall and 4 others v. Maran Bupari and 3 othen PLD 1969 SC 617; Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Kar. 202; Abdul Nabi and 29 others v. Jan Muhammad and 26 others 1998 CLC 1842 and Ilamuddin through legal heirs v. Syed Sarfraz Hussain through legal heirs and 5 others 1999 CLC 312 rel.

Zafar Iqbal Chohan for Petitioners.

MLD 2004 LAHORE HIGH COURT LAHORE 1883 #

2004 M L D 1883

[Lahore]

Before Asif Saeed Khan Khosa, J

NAWAZ AHMAD and 4 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1 of 2004 in Crl. A. No.1900 of 2003, decided on 15th March, 2004.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 302/34---Suspension of sentence---Accused had not caused any injury to any of deceased and accused had only been saddled with responsibility of causing a fire-arm injury on the neck of prosecution witness, but that prosecution witness was not produced before Trial Court as a witness and had been givenup by prosecution as having been won over---Trial Court had itself concluded that it was a case of a sudden occurrence without any premeditation---Six .accused persons had themselves received injuries during said incident which injuries had been completely suppressed in F.I.R. and had not been explained by prosecution before Trial Court-- Question regarding sharing of common object by accused with his co-accused as also the question regarding his vicarious liability for the offences allegedly committed by his co-accused, in peculiar circumstances, were questions which would require serious consideration at the time of hearing of appeal---Allowing petition, sentence of imprisonment passed against accused by the Trial Court, was suspended and accused was admitted to bail.

Ch. Imran Raza Chadhar for Petitioners.

Khawaja Shaukat Ali for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1885 #

2004 M L D 1885

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD RIAZ---Appellant

Versus

Mst. SANDAL BEGUM and others---Respondents

R.S.A. No.61 of 2003, decided on 23rd April, 2004.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17, 79, 82 & 84--- Contract Act (IX of 1872), S. 16---Document required by law to be attested---Proof of document and signature---Visual comparison---Proving an unattested agreement---Undue influence-Fiduciary relationship---Parda Nasheen lady---Onus to prove---Denial of execution of document---Onus to prove the same shifted to its beneficiary--- Plaintiff filed suit for specific performance of agreement allegedly executed by his father's landlady---Agreement was written in the District other than where the property was situated---Scribe and one marginal witness who was close relation of plaintiff were produced to prove the execution-Possession was claimed to be under agreement to sell---Trial Court had dismissed the .suit and appeal failed---Validity---Agreement was required by law under Article 17(2)(a) of the Qanim-e-Shahadat to be attested by two male witnesses and under its Article 79 it could be proved by producing two marginal witnesses or same could be proved. under Article 82 of the Qanun-e-Shahadat---Plaintiff had not filed---application in Trial Court for summoning the marginal witness as Court witness---Such witness could be declared hostile and cross-examined---Scribe though had stated- that he had read over the agreement to the parties but there was no such certificate on the document---Executant was an old lady and was protected under section 16' of the Contract Act, 1872---No evidence was produced showing that she was not unduly influenced and fiduciary relationship was not exploited and she had access to independent advice---High Court examined the thumb-impression and found it to be indiscernible---Both the Courts had not misread any part of the record and their judgments were neither arbitrary nor fanciful---Second appeal was dismissed in circumstances.

Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832; Sanaullah and another v. Muhammad Manzoor and another PLD 1996 SC 256 and Mst. Rasheeda Begum and 3 others v. Muhammad Ypusaf and others 2002 SCMR 1089 ref.

Mst. ilasheeda Begum and 3 others v. Muhammad Yousaf and others 2002 SCMR 1089 quoted.

Mst. Farid-un-Nisa v. Munshi Mukhtar Ahmad and another AIR 1925 P.C. 204; Sree Sree Gopal Jeo Bigraha and others v. Mst. Mahmuda Begum and others PLD 1968 Dhaka 265; Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others 1984 SCMR 890; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642;. Mst. Fazal Jan v. Roshan Din and 2 others PLD 1990 SC 661; Mst. Hassan Bibi v. Ghulam Siddique and others 1992 CLC 402 and Baggu v. Mst. Rahman Bibi 1996 MLD 377 rel.

Ch. Muhammad Zafar for Appellant.

Rana Rashid Akram for Respondent No.l.

MLD 2004 LAHORE HIGH COURT LAHORE 1893 #

2004 M L D 1893

[Lahore]

Before Muhammad Muzammal Khan, J

DILSHAD AHMAD---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.173-B of 2004/BWP, decided on 17th March, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 497---Penal Code (XLV of 1860), Ss. 302/380/458---Bail, grant of---Accused was not named in the F.I.R.---Accused after his arrest remained on a long physical remand, but no recovery was made from him---No identification parade, connecting accused with alleged offence was conducted---Investigating Officer reported false involvement of accused and recommended his discharge vide his report prepared by him under S. 173, Cr.P.C.---Illaqa Magistrate while disagreeing with said report of Investigating Officer, had no material before him on the basis of which it could be said that accused was really involved in the alleged crime---Supplementary statement involving the accused, without any incriminating material, prima facie had no worth---No case was pending in which accused had been convicted of theft of goats, as claimed by prosecution and mere verbal assertion of his being a law offender, was not sufficient to refuse him the concession of bail---Accused was not a history sheeter---Person of accused was no more needed for investigation purposes and prosecution case would not be advanced by his further detention in a case in which he was not named---Prosecution witnesses were kith and kin of complainant---No probability of accused's tampering with prosecution evidence---Accused had been challaned in Column No. 2---Accused was granted bail, in circumstances.

Muhammad Rafique v. The State 1997 SCMR 412; Abdul. Saleem v. The State 1998 SCMR 1578 and Tahir Abbas v. The State 2003 SCMR 426 ref.

A.R. Tayyab for Petitioner.

M.A. Farazi for the State.

Shamsher Iqbal Chughtai for the Complainant.

MLD 2004 LAHORE HIGH COURT LAHORE 1895 #

2004 M L D 1895

[Lahore]

Before Tanvir Bashir Ansari, J

TOYOTA TSUSHO CORPORATION---Petitioner

Versus

Dr. SHER AFGAN KHAN NIAZI and 4 others---Respondents

Civil Revision No.646 of 2003, heard-on 19th May, 2004.

Civil Procedure Code (V of 1908)---

----O.1, R. 10(2)---Striking' out name of parties---Plaintiff in suit for damages through an application under Order I, rule 10, C.P.C. had got impleaded the defendants with permission of the Court---Defendant company filed application under Order I, rule 10(2) for striking out its name which was dismissed by the Trial Court---Validity---Two defendants had already moved such application which was dismissed up to Supreme Court on similar grounds---Defendant had 25 % shares in company equity and was its basic component---Status of the defendant was strikingly congruent with the other defendants and did not deserve a different treatment---Revision was dismissed in circumstances.

Nadeem Hassan and Yousaf Saeed for Petitioner.

Mushtaq Hussain and Sh. Zameer Hussain for Respondent.

MLD 2004 LAHORE HIGH COURT LAHORE 1899 #

2004 M L D 1899

[Lahore]

Before Asif Saeed Khan Khosa, J

NADIM MASIH---Petitioner

Versus

THE STATE---Respondent

Cr1. Misc. No.1136-B of 2004, decided on 8th March, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/337-A(i)/34---Bail, grant of---Further inquiry---F.I.R. in the case had been lodged with a delay of one day---Perusal of F.I.R. itself prima facie had shown that occurrence was a result of a sudden flare-up at the spot starting with a verbal altercation and degenerating into causing of injuries---Element of premeditation or pre-concert prima facie, was absent in the case, in circumstances---Accused had not caused any injury to deceased and accused stood saddled with responsibility of causing one injury with a 'Pava' to prosecution witness only---Accused had no motive to commit murder of deceased and in peculiar circumstances of case, question regarding sharing of common intention by accused with his co-accused as also the question regarding his vicarious liability for the offence of murder, allegedly committed by his co-accused, were question which required further probe---Injury allegedly caused by accused to prosecution witness had attracted an offence under S. 337-A.4), P.P.O which was bailable---Challan had already been submitted after. completion of investigation---Continued custody of accused in jail, in circumstances, was not likely to serve any beneficial purpose---Case against accused calling further inquiry into his guilt, he was admitted to bail.

Muhammad Shakeel Tarique for Petitioner.

Miss Nina Zukova for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1910 #

2004 M L D 1910

[Lahore]

Before Syed Sakhi Hussain Bukhari, J

RIAZ and another---Petitioners

Versus

THE STATE---Respondent

Crl. Misc. No.1609-B of 2004, decided on 11th May, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324/337-F(iii)/109/148/149---Bail, grant of---Allegation against accused was that he caused injury on the lower part of left leg of prosecution witness and Medical Officer had declared said injury as 'ghayr jaifah mutlahma which was punishable under S. 337-F(iii), P.P.C.---Accused was in judicial lock-up since his arrest and trial had not commenced---Case against accused was fit for grant of bail to him---Accused was admitted to bail, in circumstances.

Muhammad Afsar v. The State 1994 SCMR 2051 ref.

Muhammad Azeem Sheikh for Petitioners.

Khan Muhammad Vehniwal for the Complainant.

S.A. Irshad for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1912 #

2004 M L D 1912

[Lahore]

Before Ch. Ijaz Ahmad, J

Syed ASGHAR ALI SHAH---Petitioner

Versus

ELECTION TRIBUNAL/ADDITIONAL DISTRICT AND SESSIONS JUDGE, FEROZEWALA and 13 others---Respondents

Writ Petition No.3902 of 2003, heard on 22nd June, 2004.

(a) Punjab Local Government Elections Rules, 2000---

----Rr. 14(i), 16(4), 18 & 70---Constitution of Pakistan (1973), Art. 199---Constitutional petition---6eclaration of assets---Petitioner had not declared assets standing in the name of his wife in his declaration Form XIX---Nomination papers of petitioner were accepted without objection---Petitioner contested, election and was declared successful---Respondent's objection on the point before the Election Tribunal in the Election petition against the petitioner was found correct---Petitioner was deseated by the Election Tribunal---Validity---Election Tribunal after proper appreciation of evidence had given finding of fact against the petitioner---High Court had no jurisdiction to substitute its own findings in place of the findings of the Tribunal while exercising its Constitutional jurisdiction.

Board of Intermediate and Secondary Education v. M. Masaduq Nasim PLD 1973 Lah. 600; Syed Azmat Ali v. Chief Settlement Commissioner and others PLD 1964 SC 260; Qaisar Shafi Ullah's case 1994 SCMR 859 and Haji Alam Sher's case PLD 2003 Lah. 12 rel.

(b) Punjab Local Government Elections Rules, 2000---

----R. 16---Constitution of Pakistan (1973), Art. 199--Constitutional petition---Petitioner was deseated by Election Tribunal for concealing his assets---Contention that nomination papers were filled by his Advocate had no force---Findings of Election Tribunal were in accordance with law.

Roshan Din Shah's case 2002 MLD 36 and Syed Abuzar Hussain Bokhari's case 2001 PLR 1082 rel.

----R. 70---Constitution of Pakistan (1973), Art.199---Constitutional petition-Non-framing of issues by the Election Tribunal-EffectContention of deseated returned candidate was that Election Tribunal had not framed the issues---Evidence was led by the parties and petitioner was in no way prejudiced---Civil Procedure Code, 1908 being not strictly applicable, only its principles were to be followed.

Mehmood ul Hassan Babar v. Liaqat Ali karim 2002 YLR 2227 and Fazal Mahmood Bhatti v. Mst. Saeeda Akhtar 1993 SCMR 2018 ref.

(d) Punjab Local Government Elections Rules, 2000-

----R.16---Civil Procedure Code (V of 1908), O. VI---New plea--- Petitioner had not taken the plea, before Election Tribunal that his wife Was not dependent on him---Petitioner was not allowed to raise new plea in Constitutional petition.

Mst. Murad Begum v. Muhammad Rafiq PLD 1974 SC 322 rel.

(e) Punjab Local Government Elections Ordinance (V of 2000)--

----S. 14(i)---Punjab Local Government Elections Rules, 2000, R.16(4) & Form XIX---Constitution of Pakistan (1973), Art. 199--- Constitutional petition---Election---Declaration in Form XIX---Petitioner had failed to declare the assets of his wife in Form XIX and had not proved that his wife was independent---Election Tribunal after proper appreciation of evidence and law had decided the election petition in consonance with law laid, down by superior Courts---Constitutional petition was dismissed in circumstances.

Hafiz Abdul Rehman Ansari for Petitioner.

Iqbal Mehmood Awan for Respondent No.13.

Rana Aaish Bahadar for Respondent No.l.

MLD 2004 LAHORE HIGH COURT LAHORE 1921 #

2004 M L D 1921

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD JAMAL alias JAMALI-Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.135-B of 2004/BWP, decided on 18th February, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 392---Bail, grant of---Matter was reported to police after a delay of four weeks---No incriminating material was recovered from accused during investigation---Incomplete challan had been submitted before the Court and rest of accused were yet to be arrested---No likelihood was in circumstances of commencement of trial in near future---Accused was admitted to bail, in circumstances.

Ch. Abdul Ghaffar Bhutta for Petitioner.

Tanvir Ahmad Bhutta for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1923 #

2004 M L D 1923

[Lahore]

Before Muhammad Farrukh Mahmud and Syed Sakhi Hussain Bukhari, JJ

ATTA MAI---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No.120 of 2001/BWP, decided on 16th April, 2003.

Criminal Procedure Code (V of 1898)---

---Ss. 417 & 421---Penal Code (XLV of 1860), S. 302134---Appeal against acquittal---Appellant/Complainant remained unable to point out any misreading or non-reading of record on part of the Trial Court---Reasons advanced by Trial Court for recording acquittal of accused were neither arbitrary nor perverse---Conclusions arrived at by Trial Court were such that any reasonable Court could have arrived at the same conclusions after assessment of evidence---Acquittal of accused recorded by Trial Court could not be interfered with by High Court in appeal in absence of any illegality or irregularity.

MLD 2004 LAHORE HIGH COURT LAHORE 1927 #

2004 M L D 1927

[Lahore]

Before Jawwad S. Khawaja, J

BATA PAKISTAN LTD.---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No.19717 of 2002, heard on 1st July, 2004.

Punjab Urban Local Council Immovable Property Tax Rules, 1999---

----R.45---Punjab Local Government Ordinance (XIII of 2001), Ss.110, 117, 118 & 185---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Demand of property tax by City District Government---Requirements---City District Government being merely a collecting agent in accordance with the terms of S.118, Punjab Local Government Ordinance, 2001 having limited duty, set out in the said section, had no power, at all, either to make an assessment or to determine the rate of tax to be levied---Provisions of S.185, Punjab Local Government Ordinance, 2001, which, to a certain degree, had saved taxes which were being levied previously, had no application in the present case---Notice under R.45, Punjab Urban Local Council Immovable Property Tax Rules, 1999, having been issued without any lawful authority was illegal.--Constitutional petition was accepted accordingly.

Faisal Zaman Khan for Petitioner.

Fauzi Zafar A.A.-G. for Respondents.

Kh. Muhammad Afzal for City District Government of Punjab.

Syed Riaz Hussain Shah, Litigation Office, Excise Department.

MLD 2004 LAHORE HIGH COURT LAHORE 1933 #

2004 M L D 1933

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD ASLAM---Petitioner

Versus

THE STATE---Respondent

Cr. Misc. No.883-B of 2003, decided on 25th September, 2003.

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

---S. 497---Penal Code (XLV of 1860), S. 364---Bail, refusal of--- Abscondence of accused--Accused had been absconding for one year and three months which was his own act on which he could not be granted concession---Act of abscondence of accused could not grant him any benefit as he was fugitive from justice which would give adverse presumption qua his innocence---Case before Trial Court had already commenced and was near to completion---Such grant of bail, at such a stage, would hamper trial of case which was stated to be running smoothly.

Hakim Ali Zardari v. The State and another PLD 1998 SC 1; Muhammad Saeed Mandi v. The State and 2 others 2002 SCMR 282; Akhtar Khan v. The State 1989 PCr.LJ 2354; Zaheer Ahmad v. The State 1983 PCr.LJ 2600 and The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322 ref.

(b) Criminal trial--

----Object of---Object of criminal trial was to make accused face the trial and not to punish under-trial prisoner.

----S. 497---Bail, grant of---Principles---Each case had to be considered upon its own facts.

Mian Muhammad Tayyib for Petitioner.

Mirza Muhammad Nadeem Asif for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1940 #

2004 M L D 1940

[Lahore]

Before Muhammad Muzammal Khan, J

ADIL FAHEEM RIZVI---Petitioner

Versus

THE STATE-Respondent

Crl. Misc. No.182-B of 2004/BWP, decided on 11th March, 2004.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss. 409/420/467/468/471/109--Prevention of Corruption Act (II of 1947), S. 5(2)---Bail, grant of---Further inquiry---Bills showing delivery of wheat in question by accused were not denied to have been issued by employees of Food Department---Prosecution had collected no evidence incriminating accused with alleged offence or showing any connivance or conspiracy among accused and employees of Food Department---Prima facie there appeared to be no evidence showing involvement of accused in the false and fake preparation of bills on basis of which case was registered against him---Accused was found innocent by Investigating Officer and case of accused was of further inquiry as quantity of wheat claimed to be missing/misappropriated, was discrepant to one mentioned in F.I.Rs--- Accused was arrested and he, after joining police investigation, had been remitted to judicial lock-up---Accused would face the sentence, if ultimately convicted in case at the conclusion of the trial---Accused was admitted to bail, in circumstances.

Ch. Abdul Ghaffar Bhutta for Petitioner.

Ghazanfar Ali Khan for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1947 #

2004 M L D 1947

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

Syed ABDUS SALAM---Petitioner

Versus

THE STATE-Respondent

Crl. Misc. No.6018-B of 2003, decided on 9th December, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 409/420/468/471--- Prevention of Corruption Act (II of 1947), S. 5--Bail, grant of---Further inquiry---Accused was taken into custody after more than three and a half years from registration of case against him---Departmental inquiry was conducted against accused with regard to the loan obtained by him and he was exonerated by Inquiry Officer, but later on after lapse of almost two years case was registered against him---Investigation of case was complete and accused was no more required for said purpose---Evidence relied upon by prosecution to connect accused with the commission of offence was in the form of documentary evidence which was in the custody of agency and there was no possibility of tampering with the same, if accused was released on bail---Case against accused, in circumstances was of further inquiry entitling him to concession of bail---Accused was admitted to bail, in circumstances.

Muhammad Shakeel Tariq for Petitioner.

Tariq Ismail Mayo for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1962 #

2004 M L D 1962

[Lahore]

Before Muhammad Muzammal Khan, J

Ch. MUHAMMAD LATIF---Petitioner

Versus

THE SECRETARY, ELECTION COMMISSION JAMMU AND KASHMIR COOPERATIVE HOUSING SOCIETY and 2 others---Respondents

Writ Petition No.1325 of 2004, decided on 15th June, 2004.

(a) Co-operative Societies Act (VII of 1925)---

----S. 18---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Petitioner alleged that he was member of Jammu and Kashmir Housing Society---Petitioner was aggrieved of the election Schedule issued by the Election Commission of the said Society as short date for the filing of nomination papers was fixed in order to deprive him of his right of franchise or to participate in the election---Respondents had alleged that petitioner was not an aggrieved person and entire process of election was completed by declaration of the result---Remedy by way of appeal existed for redressal of grievance---Validity---Rules provided remedy by way of appeal to Registrar Co-operative Societies---Constitutional petition was not maintainable in circumstances.

Syed Match Company Ltd. through Managing Director v. Authority Under Payment of Wages Act and others 2003 SCMR 1493 and ,Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400 ref.

(b) Co-operative Societies Act (VII of 1925)---

---S. 17(b)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Election of Managing Committee of the Society---Petitioner was not proved to be the member of the Society---Interference in election process through Constitutional petition prayed on flimsy stands was neither fair nor permissible.

Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396 and Haji Muhammad Saifullah Khan v. The Federation of Pakistan and others 1989 SCMR 22 rel.

Muhammad Nawaz Bhatti for Petitioner.

Muhammad Bashir Kiyani for Respondent No.2.

MLD 2004 LAHORE HIGH COURT LAHORE 1970 #

2004 M L D 1970

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD ASHFAQ---Petitioner

Versus

THE STATE---Respondent

Cr1. Misc. No.1117-B of 2004, decided on 5th March, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 420/467/468/471---Bail, grant of---Earlier accused was on pre-arrest bail, but he having disappeared, his bail was cancelled by Trial Court---Statedly accused was abducted by some Pathans and was taken to uncontrolled area of North-West Frontier Province from, where it was not possible for accused to come back---Accused after procuring his release from said Pathans when came back to territorial jurisdiction of. Court, he was arrested by police---Accused in support of his arguments had produced two copies of applications moved by his father seeking help of police in recovery of accused---Explanation for non-appearance of accused before Trial Court, seemed to be genuine and reasonable---High Court without dilating upon factual aspect of case, admitted accused to bail.

Saif-ul-Haq Zai for Petitioner.

Ch. Imtiaz Ahmad for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1973 #

2004 M L D 1973

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, TAHIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1 of 2004, in .Crl. A. No.61 of 2004, decided on 4th May, 2004.

Criminal Procedure Code (V of 1898)---

----S. 426---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4---Suspension of sentence---Sentence awarded to accused was short and hearing of appeal of accused against his conviction and sentence was not in sight---Without dilating upon factual aspect of the case, sentence of accused was suspended and he was admitted to bail.

Muhammad Qadeer Asif Toor for Petitioner.

Sheikh Muhammad Junaid for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1978 #

2004 M L D 1978

[Lahore]

Before Tassaduq Hussain Jilani, J

SHAHID MAHMOOD---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.2814-B of 2004, decided on 13th May, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 13 & 14---Bail, grant of---Three co-accused had already been allowed bail---Allegation against accused was not of committing Zina, but that they were allegedly preparing for said offence---Challan of case had already been submitted in the Trial Court---None of the women co-accused were subjected to Medico-Legal report as they did not give consent for the same---Accused was not involved in any other criminal case---Prima facie it was, repellant to common sense that the owner of the house and accused would keep the doors open while committing the kind of offence which was alleged against them---No medical evidence was produced to support prosecution case---Accused was a young man of 20/22 years and he was no more required for further investigation---Accused was admitted to bail, in circumstances.

Amjad Nazir, Vice-Counsel for Petitioner.

Ch. Muhammad Tauqeer Sadiq for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 1987 #

2004 M L D 1987

[Lahore]

Before Sardar Muhammad Aslam, J

Mst. SARDARAN BIBI and 7 others---Petitioners

Versus

ASHIQ ALI---Respondent

C.R. No.1070 of 2002, decided on 11th May, 2004.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17, 79 & 84---Suit for specific performance of agreement to sell---Document---Proof of document-Attestation-Visual comparison---Plaintiff filed suit for specific performance of two agreements to sell---Defendant had denied the execution of document and had alleged fraud---Defendant had explained that plaintiff was his brother and he had thumb-marked the blank paper to be used for redemption purpose---Suit was dismissed by the Trial Court, but was decreed by Appellate Court---Validity---Oral evidence was discrepant---Two marginal witnesses were not produced to meet the requirement of Article 79 of the Qanun-e-Shahadat as the document was required to be attested by at least two male witnesses under Article 17 of the Qanun-e-Shahadat-Agreement was allegedly executed in the compound of District Courts---Entire payment had been made---Plaintiff in the ordinary course , of things would have required him to execute sale-deed-No reason for non-delivery of possession was given---Agreements of such nature, in the absence of special, circumstances were doubtful---High Court visually compared the signatures of the defendant on the agreements and found them as dissimilar---Discretionary relief was refused to plaintiff---Judgment of Appellate Court was set aside, and that of the Trial Court was restored in circumstances.

Mst. Rasheed Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089 rel.

Sana Ullah and another v. Muhammad Manzoor and another PLD 1996 SC 256 ref.

Ch. Muhammad Shafique for Petitioners.

Pir Syed Kaleem Ahmad Khurshid for Respondent.

MLD 2004 LAHORE HIGH COURT LAHORE 1996 #

2004 M L D 1996

[Lahore]

Before Asif Saeed Khan Khosa, J

RAFIQUE HUSSAIN SHAH---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. Nos.3007-B and 3037-B of 2004, decided on 7th May, 2004.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 324/109/34-Pre-arrest bail, grant of---Occurrence had taken place during the dead of night and F.I.R. in respect of alleged incident had been lodged after a delay of about two and a half days---F.I.R. itself showed that the culprits perpetrating alleged offences at the spot, had remained unidentified and accused were not present at me scene of crime at the relevant time--- . Only an allegation of hatching a conspiracy and providing behind the scene abetment; had been levelled against accused, but complainant had not mentioned day, time or place of hatching of conspiracy or providing abetment by accused---No legally admissible evidence was available on record to substantiate allegation of hatching the conspiracy and providing abetment---In view of an ongoing bitterness between the parties, assertion of accused regarding his mala fide implication in the case, was not entirely without any substance or foundation---Accused had already joined investigation, nothing was to be recovered from the possession of accused and physical custody of accused was not required for purpose of investigation---Both the parties were public servants and there was little likelihood of their absconsion ih case of their admission to bail by the Court---Ad interim pre-arrest bail already allowed to accused, was confirmed, in circumstances.

Mazahar Ali Akbar Naqvi, Muhammad Din Ansari and Muhammad Akram for Petitioners (in person).

Ishfaq Ahmad Chaudhry for the State.

Ch. Abdul Rashid for the Complainant.

MLD 2004 LAHORE HIGH COURT LAHORE 2002 #

2004 M L D 2002

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD IDREES and 2 others---Petitioners

Versus

MUHAMMAD YOUNUS and 15 others---Respondents

Civil Revisions Nos.1049 and 1017 of 1999, heard on 20th April 2004.

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

----S. 42---Civil Procedure Code (V of 1908), S. 115, O. II, R. 11 & O. XXIII, R. 1(2)(b), (3)---Relinquishment---Withdrawal of suit---Plaintiff's suit for declaration and injunction was dismissed by the Trial Court while Appellate Court had decreed the same---Validity---Plaintiff had filed suit for permanent injunction against the defendants about the same property---Previous suit was dismissed and revision petition was pending in the High Court---Plaintiff had withdrawn the revision petition without permission to file the fresh suit---Subsequent suit was barred as in every suit there is implied prayer for declaration---Suit for injunction thus included implied declaration.

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

----S. 42---Civil Procedure Code (V of 1908), S. 115---Non-reading of evidence---Misreading---Suit for declaration---Revision---Appellate Court had misquoted the order of Settlement and Rehabilitation CommissionerT-No specification was given in Permanent Transfer Deed about the height of shops to ceiling and in absence of any such specification in PTD, the transfer would be considered from ground to sky.

Nazir and others v. Syed Israr Ahmad and others 1981 SCMR 829 rel.

----Ss. 14, 17, 32, 33 & 39---Specific Relief Act (I of 1877), S.42--- Suit for declaration---Award---Rule of. Court---Arbitration agreement--- Validity---Arbitration Act, 1940 is a complete code and award and judgments/orders passed thereunder, are appealable---No suit lies for setting aside amending or modifying award.

Muhammad Yasin v. Sheikh Hanif Ahmad and others 1993 SCMR 437 fol.

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

----S. 42---Arbitration Act (X of 1940), Ss. 21 & 22---Arbitration agreement---Parties executed an agreement for deciding their dispute through arbitration, when civil revision about the same dispute was pending in the High Court---Validity---Parties were obliged to have the arbitration by intervention of the Court under section 21 of the Arbitration Act, 1940---Sections 21 and 22 of the Arbitration Act, 1940 were mandatory, award rendered without intervention of the Court, in circumstances, was void, illegal unauthorized and coup not be made rule of the Court, in circumstances.

Province of Punjab through Collector, Jhang and 2 others v. Messrs Sher Muhammad & Co. and 23 others 2001 CLC 613; Haji Anwar Ali and others v. Bashir Ahmad 2002 CLC 421 and Abdul Mateen and 3 others v. Yusuf Bilal and 4 others PLD 1985 Kar. 422 quoted.

Hashmat Bibi v. Muhammad Rafi and another 1980 CLC 967 and Asmatennessa Bibi v. Arju and another PLD 1967 Dacca 603 ref, Mian Nisar Ahmad for Petitioners.

Ghulam Haider Al-Ghazali for Respondents Nos.4 to 7 and Respondents Nos.1 to 3 and 8 to 15 were proceeded ex parte vide order dated 24-10-2000.

MLD 2004 LAHORE HIGH COURT LAHORE 2020 #

2004 M L D 2020

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD RIAZ---Petitioner

Versus

THE STATE--Respondent

Crl. Misc. No.2857 of 2004, decided on 13th May, 2004.

Criminal Procedure Code (V of 1898)-

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/34---Bail, grant of---Further inquiry---F.I.R. showed that the accused though was present along with other accused, but no injury to the deceased was attributed to him---One of the main accused had been allowed bail---No recovery of weapon of offence had been effected from accused---No crime empty of .7 mm rifle was recovered and only nine crime empty of .222. rifle was recovered---Case of accused was of further inquiry falling under subsection (2) of S. 497, Cr.P.C.--- Bail was allowed to accused.

Syed Karamat Ali Naqvi for Petitioner.

Ch. Imtiaz Ullah Warraich for the State.

MLD 2004 LAHORE HIGH COURT LAHORE 2024 #

2004 M L D 2024

[Lahore]

Before Ch. Ijaz Ahmad, J

JAFAR HUSSAIN---Petitioner

Versus

MEMBER (JUDICIAL IV), BOARD OF REVENUE OF PUNJAB, LAHORE and 3 others---Respondents

Writ. Petitions Nos.10449 and 10450 of 2004, decided on 28th June, 2004.

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

--S. 182-West Pakistan Land Revenue Rules, 1968, R. 17--- Constitution of PakiStan (1973), Art. 199---Constitutional petition---Village Headman---Lamberdar---Appointment of ---District Collector had not exercised the discretion by adverting to the parameters prescribed by the Legislature in Rule 17 of the West Pakistan Land. Revenue Rules, 196S-Commissioner had not applied his mind and had merely countersigned the order of the Collector---Remand order by the Member Board of Revenue was not interfered with in Constitutional jurisdiction-Constitutional petition was dismissed in circumstances.

Ghulam Mohy-ud-Din's case PLD 1964 SC 829; Risaldar Abdul Majid' Khan v. Captain Daood -Khan and another 1968 SCMR 77; Federation of Pakistan v. Haji Muhammad Saifullah Khan PLD 1989 SC 166 and Khawaja Muhammad Sharif v. Federation of Pakistan PLD 1988 Lah. 725 rel.

(b) Constitution of Pakistan (1973)-

---Art. 199-Constitutional petition-Maintainability-Remand order--Constitutional petition was not maintainable against the remand order.

Muhammad Ilyas Khan v. Muhammad and others 1986 SCMR 251; Ghulam Rasul and others v. Khudai Dad and others PLD 1986 Quetta 130; Ramzan v. Rehabilitation Commissioner, Sargodha PLD 1963 Lah. 461 and Mst, Kaniz Fatima and 3 others v. Member Board of Revenue PLD 1973 Lah. 495 rel.

----Art. 199---General Clauses Act (X of 1897), S. 24-A---Public functionaries had to decide the controversy after proper application of mind.

Messrs Airport Support Service v. The Airport Manager Karachi, Airport 1998 SCMR 2268 and Zain Yar Khan v. The Chief Engineer CRBC WAPDA and others 1998 SCMR 2419 ref.

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

----Art. 199---Constitutional petition-Laches-Order was passed on 13-4-2004---Petition filed on 26-6-2004 suffered from laches.

Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304 rel.

Muhammad Nawaz for Petitioner.

Pakistan Bar Council

MLD 2004 PAKISTAN BAR COUNCIL 683 #

2004 M L D 683

[Pakistan Bar Council]

Before Malik Rab Nawaz Noon, Ch. Muhammad Ashraf Wahlah and Abdul Rahim Kazi, Members

JAMSHED HUSSAIN KHOKHAR, PRESIDENT, DISTRICT BAR ASSOCIATION---Appellant

versus

GHAZANFAR ALI CHOUDHARY and 5 others---Respondents

Appeal No.259 of 2002, decided on 30th May, 2003.

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

----S.47---Election of District Bar Association---Provincial Bar Council allowing certain members to cast their votes---Validity---Order of the Provincial Bar Council had to be backed by reasons so that it may not be termed as mere bald order---Such order, being judicial order, had to be a speaking order and must be such as to enable the higher forum to have an idea of the grounds of disposal and indicate to non-suited party that questions raised by him were considered---Such treatment was necessary not only to show that mind had been applied to the contentions raised but would also help the appellate forum---Any deviation from such course would make the order unsatisfactory---Principles.

Date of hearing: 30th May, 2003

Peshawar High Court

MLD 2004 PESHAWAR HIGH COURT 57 #

2004 M L D 57

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

ROZI KHAN‑‑‑Petitioner

Versus

TAZA KHAN and others‑‑‑Respondents

Civil Revision No. 137 of 2000, decided on 19th May, 2003.

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

‑‑‑‑S.115‑‑‑Revisional jurisdiction of High Court‑‑‑Scope‑‑‑Record of the present case showed that dispute between the parties was essentially in respect of the shares of the sons of the deceased‑‑‑Daughters of the deceased‑were not impleaded as parties, which necessitated the remand, of the suit by the Appellate Court‑‑‑Legal heirs of the daughters, on remand of the case, waived their rights in favour of the petitioner and respondents and as such the Trial Court maintained its earlier judgment and decree and decreed the suit‑‑‑District Judge, on appeal, concurred with the trial Judge and upheld the judgment and decrees passed by, the Trial Court‑‑‑Contention of the petitioner was that the judgment' and decrees of the Courts below, suffered from serious misreading and nonreading of, evidence as the Trial Court; on remand, maintained its previous judgment and decree without application of mind and in total disregard to the remand order made by the Appellate Court‑‑‑Validity‑‑Both the Courts‑below had given a concurrent verdict/finding of fact regarding entitlement of the parties in the legacy of their father, which could not be disturbed by High Court in its revisional jurisdiction, unless the lower Courts while recording findings of facts were shown to have either misread the evidence or ignored any material piece of evidence on record or the same was perverse‑‑‑Contention of the petitioner was repelled in circumstances.

Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 fol.

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

‑‑‑‑S.115‑‑‑Revisional jurisdiction of High Court‑‑‑Scope.

The scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. is very limited. The High Court while examining the legality of the judgment and decree in exercise of its power under section 115, C.P.C. cannot upset a finding of fact, however erroneous it might be and take different view unless such Courts have misread the evidence on record or while assessing or evaluating the same have omitted from consideration some important piece of evidence which had direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under section 115, C.P.C. if the approach of the Courts below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below on the basis of the evidence on record.

Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 fol.

‑‑‑‑S.115‑‑‑Revision‑‑‑Concurrent finding of facts by Courts below‑‑Interference by High Court in revision, when justified‑‑‑Concurrent findings of facts by the competent Courts below were supported by actual evidence on record‑‑‑Examination of evidence for upsetting a concurrent finding of facts in exercise of powers under S.115, C.P.C. was neither permissible nor warranted by law‑‑‑Interference with a finding of fact by the Courts below by the High Court in exercise of its revisional jurisdiction, would only be justified if such finding was found to be suffering from misreading of evidence or non‑consideration of important and material evidence or the finding was the result of perverse appreciation of evidence on record‑‑‑Fact that another view of evidence was possible could not be a ground for interference with concurrent finding of facts by the High Court in , exercise of its revisional jurisdiction.

Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 fol.

Atlas Khan Dagai for Petitioner.

Abdus Sattar Khan for Respondents.

Date of hearing: 9th May, 2003.

MLD 2004 PESHAWAR HIGH COURT 69 #

2004 M L D 69

[Peshawar]

Before Talaat Qayum Qureshi and Ijaz‑ul‑Hassan Khan, JJ

Mst. SHABNAM‑‑‑Petitioner

Versus

LIAQAT ALI and 3 others‑‑‑Respondents

Writ Petition No. 1018 of 2003, decided on 19th September, 2003.

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

‑‑‑‑S.5‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Concurrent findings of fact recorded by the Courts below‑‑Suit for recovery of dower and payment of maintenance filed by wife was dismissed by both the Courts below‑‑‑Contention of the wife was that evidence in support of her claim had been totally ignored by the Courts below‑‑‑Validity‑‑‑Concurrent finding recorded by Family Court and affirmed by Appellate Court could not be assailed in Constitutional jurisdiction unless the Court below was found to have exceeded jurisdiction, acted without jurisdiction or findings were shown to have been based on no evidence or mis-appreciation of evidence‑‑‑High Court declined to interfere with judgment and decree passed by a Court of competent jurisdiction for the reason that it was within the exclusive jurisdiction of Family Court to believe or disbelieve the evidence and the Court had given reasons in support of the conclusion drawn by it‑‑‑Constitutional petition was dismissed in limine.

Sajjad Ahmad v. Mst. Naeema Shafiq and 3 others 2003 CLC 1420 and Abdul Fahim v. Mst. Shahnaz Begum and another 2003 CLC 1450 ref.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑Appreciation of evidence‑‑‑Substituting finding of facts recorded by Courts of competent jurisdiction in Constitutional jurisdiction‑‑Validity‑‑‑Such findings cannot be interfered with simply on the ground that another view possible on the same evidence‑‑‑High Court in its Constitutional jurisdiction cannot sit as a Court of appeal and cannot substitute findings of facts recorded by the Courts below on such matters.

Miss Farhana Marwat for Petitioner.

Nemo for Respondents.

Date of hearing: 19th September, 2003.

MLD 2004 PESHAWAR HIGH COURT 134 #

2004 M L D 134

[Peshawar]

Before Talaat Qayum Qureshi, J

SHER ASLAM KHAN‑‑‑Petitioner

Versus

DISTRICT COLLECTOR and others‑‑‑Respondents

Civil Revision No.531 of 2000, decided on 21st April, 2003.

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

‑‑‑‑S.172(2)(xi) & (xii)‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Jurisdiction of Civil Court was excluded in matters falling within the jurisdiction of the Revenue Officers‑‑-Plaintiff, who was directed to pay huge amount by the Revenue Officer allegedly received by him from the landowners, but not' deposited in the Government treasury, had sought declaration that he was not defaulter and, was not liable to pay Abyana and Malia for those the list of whom he had already submitted to the Tehsildar‑‑‑Validity‑‑‑Question of determination of amount or liability of any person to pay any cess, fees, fines, costs or other charges imposed under West Pakistan Land Revenue Act, 1967 and the amount of such items, or their liability therefore, or any other revenue assessed or to be assessed and any claim connected with any process for the recovery of land revenue, fell within the domain of the Revenue Courts only and such question could be raised by the plaintiff before the Revenue Court of competent, jurisdiction and not before the Civil Courts.

Rukunuddin v. Abdul Wahid and another 1984 CLC 511 ref.

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

‑‑‑‑S.172(2)(xv)‑‑‑Scope and application of S.172(2)(xv), West Pakistan Land Revenue Act, 1967.

By section 172, West Pakistan Land Revenue Act, 1967 the jurisdiction of the Civil Court is barred where the claim relates to, or arises out of the collection by Government or enforcement of Government of any process for recovery of land revenue or any sum recoverable as arrears of land revenue. Section 172 (2) (xv), West Pakistan Land Revenue Act, 1967 is not wide enough to cover all matters relating to recovery of land revenue or any sum recoverable as land revenue. It can be invoked when any collection is made by Government or any process for recovery of land revenue or sum recoverable as arrears of land revenue is enforced by the Government. If anyone makes any claim relating, to, or connected with such collection, recovery of process, or challenges the same, then the jurisdiction of the Court to entertain such action will be barred.

Rukunuddin v. Abdul Wahid and another 1984. CLC 511 quoted.

Lal Jan Khan Khattak for Petitioner.

Tariq Javed, D.A.‑G. for Respondents.

Date of hearing: 21st April, 2003.

MLD 2004 PESHAWAR HIGH COURT 145 #

2004 M L D 145

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

GUL MALI KHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.547 of 2003, decided on 17th October, 2003.

Penal Code (XLV of 1860)‑‑‑

----Ss. 489‑B & 489‑C‑‑‑Appreciation of evidence‑‑‑Mere possession of forged currency notes was not an offence punishable under Ss.489‑B and 489‑C, P.P.C. unless there was evidence on record to show that accused knew or had reason to believe that same were forged‑‑‑In order to bring a case within the purview of S.489‑C, P.P.C. it was not only necessary to prove that accused was in possession of forged notes, but it should be further established; that at the time of his possession he knew the notes to be forged or had reason to believe them to be so and that he intended to use them as genuine or that they might be used as genuine‑‑‑Onus lay on the' prosecution to prove circumstances which led clearly, indubitably and irresistibly to the inference that accused had the intention to foist the notes on the public.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.489‑B & 489‑C‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑‑‑Appreciation of evidence‑‑‑Recovery of forged notes from possession of‑ accused had not been controverted‑‑‑Defence plea was that the notes in question were given to accused by his father in order to start business in his village and that accused had no knowledge or reason to, believe that same were forged, but defence plea had not been believed by Trial Court and rightly so‑‑‑Claim of, accused that he had no knowledge regarding true nature of currency notes, stood belied by a host of circumstances and. did not appeal to reason‑‑‑Accused had kept forged notes in his possession for sinister purpose and element of mens rea was present‑‑‑Plea of accused that he had no knowledge or reason to believe that notes were forged, had, not been taken by accused during course of investigation and he remained mum throughout‑‑‑Accused could not be allowed, to agitate said plea at such belated stage as .such plea appeared to be an afterthought and far‑fetched‑‑‑Accused could not produce valid licence or permit regarding pistol recovered from his possession‑‑‑Prosecution having established its case against accused beyond any shadow of doubt, there was no reason to interfere it the conclusion arrived at by the Trial Court in conviction recorded against accused and sentences awarded to him.

Muhammad Asghar v. The State 1993 PCr.LJ 1909. Abdul Ghafoor Bhatti v. The State 1993 PCr.LJ 1128; Zahoor Ahmed v. The State 1995 PCr.LJ 1715; Azmat Khan v. The State 2000 PCr.LJ 1461 ; and Imran Saeed v. The State, 2001 PCr. LJ 1365 ref.

Zafarullah Khan for Appellant.

Muhammad Jameshed Khan for the State.

Date of hearing: 17th October, 2003.

MLD 2004 PESHAWAR HIGH COURT 157 #

2004 M L D 157

[Peshawar]

Before Tariq Parvez and Ijaz‑ul‑Hassan Khan, JJ

STATE through Advocate‑General, N.‑W.F.P., Peshawar‑‑‑Appellant

Versus

SALAMAT KHAN and another‑‑‑Respondents

Criminal Appeal No. 15 of 1993, decided on 14th May, 2003.

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

‑‑‑‑S.417‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Appeal against acquittal‑‑‑Finding of acquittal is not sacrosanct if the reasons given by 'the Trial Court are speculative or of artificial nature or the same is based on no evidence or is the result of misreading or misinterpretation of evidence or is perverse resulting in miscarriage of justice‑‑‑Such finding can be interfered with in appropriate cases in the light of the principles laid down by the Supreme Court regarding appreciation of evidence.

(b) Penal Code (XLV of 1860)‑‑‑

---S.302/34‑‑‑Criminal Procedure Code (V of 1898), S.417(1) ‑‑‑ Appeal acquittal‑‑‑No eve‑witness was available in the case which rested essentially on circumstantial evidence furnished by the complainant and his brother who had improved their version at the trial in order to bring it in line with the medical evidence and recovery of crime empties from the spot‑‑‑Medical evidence itself without further corroboration could not connect, the accused with the crime‑‑‑Existence of motive, incriminating recoveries from the spot and abscondence of accused, had been ignored by the Trial Court for cogent reasons‑‑‑Finding of acquittal recorded by the Trial Court was neither perverse nor erroneous and the same was maintained in circumstances‑‑‑Appeal was dismissed accordingly.

Elahi Bakhsh v. Rab Nawaz and another 2002 SCMR 1842; Muhammad Yunas and another v. The State and others 1990 SCMR 1272; Mst. Roheeda v. Khan Bahadur and another 1992 SCMR 1036; The State v. Muhammad Sharif and 3 others 1995 SCMR 635; Saifullah and 5 others v. The State 1986 PCr.LJ 2794 and Masood Ahmad and 3 others v. The State 1995 SCMR 127 ref.

‑‑‑S.417‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Appeal against acquittal‑‑‑Appreciation of evidence‑‑‑Principles‑‑‑Marked difference exists between appraisal of evidence in an appeal against conviction and in an appeal against acquittal‑‑‑Appraisal of evidence in appeal against conviction is done strictly, but in appeal against acquittal the same rigid method is not applied as there is already a finding of acquittal given by Trial Court after proper analysis of evidence.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑Medical evidence‑‑‑Medical evidence itself without further corroboration cannot connect an accused person with, the crime as it only establishes death and does not indicate at all as to who had a hand in the commission of the offence.

Akhtar Naveed. A.A.‑G. for Appellant.

Ajmal Khan and M. Hussain Khan for Respondent's.

Date of hearing: 14th May, 2003.

MLD 2004 PESHAWAR HIGH COURT 166 #

2004 M L D 166

[Peshawar]

Before Shah Jehan Khan and Ijaz‑ul‑Hassan Khan, JJ

KHAN ZADA‑‑‑Appellant

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.238 of 2003, decided on 31st July, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑‑Matter had been reported to the police without any loss of time by the deceased herself who was brought to the police station in an injured condition and she died of the fire‑arm injury later on‑‑‑Accused was directly nominated in the F.I.R. with a specific role of firing at the deceased‑‑‑Definite motive had been assigned to accused actuating him to commit the offence‑‑‑Medical evidence was in line with prosecution version‑‑‑Close relationship of the eye‑witnesses with the deceased was not enough, to discard their testimony who lived in the locality where the occurrence had taken place and their presence at the venue of incident could not be doubted‑‑‑Eyewitnesses had no motive for false implication of accused in the case‑‑Unexplained abscondence of accused for more than a month after the occurrence was indicative of his guilt when considered in conjunction with ocular and circumstantial evidence‑‑‑Ocular evidence was independent, reliable and trustworthy‑‑‑Conviction of accused was maintained in circumstances‑‑‑Fact that the accused had fired a single shot on the lower part of the body of deceased, lady had brought his case out of the ambit of intention of murder‑‑‑Sentence of death awarded to accused was reduced to imprisonment for life accordingly.

Muhammad Younas Khan v. The State 1992 SCMR 545; Rab Rakhio and others v. The State 1992 SCMR 793; Allah Dad and another v. The State 1995 SCMR 142; Sardar Khan and 3 others v. The State 1998 SCMR 1823; Muhammad Fayaz v. The State PLD 1993 Pesh. 138; Alim Dad alias Khan v. The State 2002 PCr.LJ 1785; Muhammad Muslim v. Mazhar Malik 1999 SCMR 103; Jafar Shah v. Mian Yahya Shah 1999 SCMR 20 and Mst. Raheela v. Khan Bahadur and another 1992 SCMR 1036 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑‑Related witnesses ‑‑‑Principle‑‑‑Mere relationship between the' witnesses and the deceased is not enough to discard their evidence unless they have‑a motive to falsely implicate the accused in the case.

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑‑Abscondence of accused‑‑Principle ‑‑‑Abscondence by itself is not sufficient to convict an accused person, but it is a strong piece of corroborative evidence of the direct and circumstantial evidence in the case.

Mst. Raheela v. Khan Bahadur and another 1992 SCMR 1036 ref.

Mazullah Barkandi for Appellant.

Tariq Javed, D.A.‑G. for the State.

Muhammad Younas for the Complainant.

Date of hearing: 24th July, 2003.

MLD 2004 PESHAWAR HIGH COURT 200 #

2004 M L D 200

[Peshawar]

Before Shah Jehan Khan and Ijaz‑ul‑Hassan Khan, JJ

MUNAWAR SHAH‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.248 of 2003, decided on 22nd July, 2003.

(a) Anti‑Terrorism Act (XXVII of 1997)‑‑‑--

‑‑‑S.7‑‑‑Pakistan Arms Ordinance (XX of 1965), S.13‑A‑‑‑Appreciation of evidence‑‑‑Prosecution evidence did not suffer from any major discrepancy or contradiction‑‑‑Prosecution witnesses had given a truthful version of the occurrence and no good reason was available to disbelieve them‑‑‑Magistrate had recorded the confessional statement of accused after fulfilling all the legal requirements and giving sufficient time to him to think over‑‑‑Recording of the confession after five days of the accused being in police custody, by itself, did not devalue the prosecution version which was sufficiently corroborated by other material on record‑‑Recovery had been proved through a police official who was as good witness as any other citizen against whom no mala fide was established‑‑Plea raised by accused in his defence was not established on record and mere assertion made by him was of no consequence‑‑‑Huge quantity of arms and ammunition could not be believed to have been accused who was proved on record fully involved smuggling/transporting the same for sabotage and Conviction and sentence of accused were upheld m circumstances.

1995 PCr.LJ 455; 1995 MLD 1532; 1992 MLD 614; 1998 PCr.LJ 1293; PLD 1977 Kar. 484; PLD 1997 Kar. 484; PLD 1975 SC 407; PLD 1975 SC 607 and PLD 1990 Kar. 275 ref.

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

‑‑‑‑S. 103‑‑‑Search to be made in presence of respectable inhabitants of the locality‑‑‑Non‑compliance of provisions of S.103, Cr.P.C. would not vitiate the proceedings unless there was either miscarriage of justice or the accused was prejudiced in his trial or defence.

‑‑‑‑‑S.103‑‑‑Search to be made in presence of respectable inhabitants of the locality‑‑‑Requirement of S.103, Cr.P.C. is not absolute in the sense that failure to comply with it will make the search illegal.

PLD 1977 Kar. 484; PLD 1997 Kar. 484; PLD 1975 SC 407; PLD 1975 SC 607 and PLD 1990 Kar. 275 ref.

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

‑‑‑‑S.103‑‑‑Search to be made in presence of respectable inhabitants, of the locality‑‑‑Police officials are as good witnesses as any other citizen unless any mala fides is established against them‑‑‑Deposition of police officials cannot be brushed aside simply on the bald allegation that they belonged to the Police Department.

(e) Criminal trial‑‑‑

‑‑‑‑Defence plea‑‑‑Burden of proof‑‑‑Principles‑‑‑When an accused at a criminal trial takes a specific plea, the onus invariably shifts on him requiring him to prove the same by producing evidence, or at least his plea should be supported by the attending circumstances and it should not be unfounded altogether.

Safirullah Khan for Appellant.

Jamil Qamar for the State.

Date of hearing: 22nd July, 2003.

MLD 2004 PESHAWAR HIGH COURT 208 #

2004 M L D 208

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

FIRDAUS AHMAD KHAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.556 of 2003, decided on 16th September, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S.497(2,)‑‑‑Penal Code (XLV of 1860), Ss.420/468/471‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Amount allegedly drawn by accused illegally, was paid back by accused and loss if any had been made good‑‑‑Said fact alone would make the case against accused doubtful and necessitated for an inquiry to determine guilt of accused‑‑‑Accused being a public servant, there was no apprehension of his tampering with prosecution case and also there was no likelihood of his abscondence‑‑‑Entire evidence collected by prosecution was based on documents which were in possession of the prosecution‑‑‑Bail was opposed mainly on the ground that accused might tamper with evidence if enlarged on bail‑‑‑If accused would abuse bail granted to him, State could prosecute its remedies in the Court concerned, but at bail stage, in absence of evidence in support of said allegation, bail could not be refused to the accused‑‑‑Involvement of accused in commission of offence, was yet to be established at the time of trial‑‑‑Accused having succeeded to make out a prima facie case in his favour he was enlarged on bail.

Saeed Ahmad v. The State 1995 SCMR 170; Shamrez Khan v. The State 2000 SCMR 157; Anwar Zada v. The State 2001 PCr.LJ 730; Abdul Qudus v. The State 2002 PCr.LJ 430 and Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

Abdul Latif Afridi for Petitioner.

Syed Manzoor Ahmed for the State.

Date of hearing: 15th September, 2003.

MLD 2004 PESHAWAR HIGH COURT 212 #

2004 M L D 212

[Peshawar]

Before Shahzad Akbar Khan and Ijaz‑ul‑Hassan Khan, JJ

NOOR NAWAZ KHAN and another‑‑‑Petitioners

Versus

NOORUL AHAD and 3 others‑‑‑Respondents

Writ Petition No. 119 of 2002, heard on 24th March, 2003.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court under Art. 199 of the Constitution‑‑‑Scope‑‑‑Such jurisdiction is extraordinary and the same can be invoked only to meet extraordinary situations‑‑‑Jurisdiction of High Court under Art.199 of the Constitution is never meant to be treated as an additional or as "another" remedy provided by law.

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

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Pre‑condition in every such case, the prime question is the availability of having or not having any other adequate remedy to the person who resorts to the Constitutional jurisdiction of High Court.

‑‑‑‑Ss.63, 154, 169, 190 & 551‑‑‑Registration of F.I.R.‑‑‑Remedies available to accused under the provisions of Criminal Procedure Code, 1898 discussed.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Factual controversy‑‑‑High Court in exercise of such power does not ordinarily embark upon an exercise to determine intricate, contested and complicated questions of fact‑‑‑Resolution of such controverted issues is ordinarily left to the proper forums prescribed by any given law because indulging in such an exercise would have the effect of pre‑empting and encroaching upon the jurisdiction lawfully vesting in the competent officers and Courts.

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

‑‑‑‑Art.199‑‑Jurisdiction of , High Court under Art. 199 of the Constitution‑‑‑Scope‑‑Quashing of F.I.R.‑‑‑Pendency of civil suit between complainant and accused petitioners ‑‑‑F.I.R. sought to ' be quashed prima facie disclosed commission of cognizable .offence which required investigation to be conducted in order to find out the truth‑‑Such investigation could not be stifled or killed in Constitutional petition‑‑‑High Court declined to utilize its powers vested under Art. 199 of the Constitution so as to interfere in the ordinary course of criminal proceedings‑‑‑Prima facie, criminal offences had been made out against the accused petitioners; it could not be said in Constitutional petition that either the accused petitioners were innocent or there was no possibility of any conviction‑‑‑Institution of civil suit posed no insurmountable obstacle in the way of complainant and the same had no nexus with the present case‑‑‑High .Court declined to quash the F.I.R.‑‑‑Petition was dismissed in circumstances.

Javed Akhtar for Petitioners.

Muhammad Wazir Khan and Sardar Shaukat Hayat, Addl. A.‑G for Respondents.

Date of hearing: 24th March, 2003.

MLD 2004 PESHAWAR HIGH COURT 218 #

2004 M L D 218

[Peshawar]

Before Talaat Qayum Qureshi, J

MUHAMMAD ZAFAR alias ZAFAR IQBAL‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.842 of 2003, decided on 28th August, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Emigration Ordinance (XVIII of 1979), Ss. 18‑B & 22‑B‑‑Bail, grant of‑‑‑Accused who neither were Overseas Employment Promoters nor authorized agents of Overseas Employment Promoters, by misrepresenting themselves to be so, were charged for fraudulently inducing 67 persons to emigrate to Saudi Arabia and thereby fraudulently received amount from each said persons‑‑‑Accused had not only deprived number of people of their passports which were secured by them by hectic efforts, but poor persons were also deprived of amount for "Protector" and medical charges for which accused were not lawfully authorized to receive‑‑‑Strong prima facie case existed involving accused in the commission of offence because 67 persons in their' statements under S.161, Cr.P.C. had charged them‑,‑Contention that two alternate punishments having been provided under Ss. 18‑B & 22‑B of Emigration Ordinance, 1979, case against accused did' not fall under prohibitory clause of S.497, Cr.P.C., was repelled‑‑‑Accused, in circumstances., could not be released on bail.

Muhammad Shafi Mansoori v. The. State 2001 PCr.LJ 588 ref.

Muhammad Asif for Petitioner.

Salahuddin Khan, Deputy Attorney‑General for the State.

Date of hearing: 28th August, 2003.

MLD 2004 PESHAWAR HIGH COURT 224 #

2004 M L D 224

[Peshawar]

Before Talaat Qayum Qureshi, J

BISMILLAH KHAN‑‑‑Accused‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.782 of 2003, decided on 1st September, 2003.

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

‑‑‑‑S.497‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑‑‑ Explosive Substances Act (VI of 1908), S.5‑‑‑Bail, grant of‑‑‑Not a .single independent witness was associated at the time of recovery‑‑ Investigation in case was complete and accused was no more required for the same and challan had also been submitted in the Court‑‑‑Question as to whether accused was a saboteur or subverter and whether circumstances were such as to give rise to reasonable suspicion that accused was not‑making or did not have allegedly recovered Kalashnikov and explosive substances in his possession or under his control for lawful object, would be determined after recording of evidence‑‑‑Accused was released on bail, in circumstances.

Muhammad Atlas Khan for Petitioner.

Khalid Tanveer Rohaila for the State.

Date of hearing: 1st September, 2003.

MLD 2004 PESHAWAR HIGH COURT 267 #

2004 M L D 267

[Peshawar]

Before Nasir ul Mulk and Shahzad Akbar Khan, JJ

THE STATE through Advocate‑General‑‑‑Appellant

Versus

SHER BAHADAR‑‑‑Respondent

Criminal Appeal No.74 of 1990, heard on 17th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.417 & 492‑‑‑Penal Code (XLV of 1860), S.307‑‑‑Notification No.1002‑LD.dated 23‑4‑1937‑‑‑Appeal against acquittal ‑‑‑Competency‑--Competency of appeal filed by Advocate‑General after due sanction of Provincial Government, was objected to by the accused on the ground that appeal against acquittal could only be presented by Public Prosecutor on direction of Provincial Government and Advocate‑General having no been appointed as Public Prosecutor under S.492, Cr.P.C., could no present the said appeal‑‑‑Validity‑‑‑Notification No. 1002‑LD dated 23‑4‑1937 had provided that Governor of North‑West Frontier Province had appointed Advocate‑General, North‑West Frontier Province to be Public Prosecutor for the said Province‑‑‑All laws in force in undivided India had been provided continuity by S.292 of Government of India Act, 1935‑‑‑All Notifications and other legal instruments that had come into force since coming into force of Government of India Act, 1935, had been provided continuity until repealed‑‑‑Notification No.1002‑L.D dated 23‑4‑1937 whereunder Advocate‑General was appointed as Public Prosecutor having not been repealed or substituted, same was still in force‑‑‑Objection regarding competency of appeal against acquittal filed by Advocate‑General, was overruled, in circumstances.

Qadir Bakhsh v. The Crown PLD 1955 F C 79; State v. Hanif Ahmad 1994 SCMR 749; The State v. Nooro 1998 PCr.LJ 35; State v. Muhammad Nasim 1998 PCr.LJ 1842 and State v. Muhammad Salim 2001 PCr.LJ 1465 ref.

Lal Jan Khattak, D.A.‑G. for Appellant.

Abdul Latif Afridi and Lal Jan Khattak for Respondents.

Date of hearing: 17th June, 2003.

MLD 2004 PESHAWAR HIGH COURT 290 #

2004 M L D 290

[Peshawar]

Before Abdul Rauf Khan Lughmani and Muhammad Qaim Jan Khan, JJ

SANA GUL‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.214 of, 2003, decided on 14th November, 2003.

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

‑‑‑‑S.9‑-‑Criminal Procedure Code (V of 1898), S.221‑‑‑Appreciation of evidence ‑‑‑Hujra wherefrom contraband Charas had allegedly been recovered was a joint one belonging to all three brothers of accused and same was accessible to every body‑‑‑Contraband had been recovered under a double bed lying on the earth from a room which was situated in a joint Hujra belonging to all three brothers‑‑‑Investigating Officer had stated that on the same day a case of narcotics had also been registered against one brother of the accused‑‑‑Contraband had not been sent to the Laboratory on the same day, but was sent after one day of its alleged recovery‑‑‑Accused having been, allegedly previous convict, it was bounden duty of prosecution to have followed S.221, Cr.P.C. while framing charge, but that had not been done in accordance with law‑‑‑No certified copy of previous judgment or F.I.R. had been placed on record to prove previous conviction of accused‑‑‑Prosecution case in circumstances being highly doubtful, benefit of same must go to accused‑‑‑Conviction and sentence recorded against the accused by Trial Court were set aside and accused was acquitted of the charge.

Sajjad Afzal Khan for Appellant.

Muhammad Ayub Khan, D.A.‑G. for the State.

Date of hearing: 14th November, 2003.

MLD 2004 PESHAWAR HIGH COURT 293 #

2004 M L D 293

[Peshawar]

Before Qazi Ehsanullah Qureshi, J

ABDUL WAHAB and others‑‑‑Petitioners

Versus

GHULAM MUHAMMAD ‑‑‑Respondent

Civil Revision No.335 of 2002, decided on 7th July, 2003.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XX, R. 5 & O.XLI, R.23‑‑‑‑Remand of case‑‑‑Failure to give issue‑wise finding‑‑Suit for partition was dismissed by the Trial Court‑‑Appellate Court allowed the appeal and remanded the case to Trial Court for decision afresh as no issue‑wise finding was given by Trial Court‑‑Validity‑‑‑Trial Court had disposed of crucial issue in evasive manner without any reference to material on record‑‑‑Trial Court failed to discuss the nature of the disputed property whether the same was commercial or agriculture and whether the earlier decisions were made pertaining to the same disputed property or not‑‑‑Case was dealt with the matter of rights of the, parties in the valuable property which could have been dealt with greater concentration and care and not in offhanded manner‑‑‑Appellate Court had rightly remanded the case for issue‑wise finding‑‑‑Revision was dismissed accordingly.

Muhammad Aman Khan for Petitioners.

M. Alam Khan and S. Yunus Jan for Respondent.

Date of hearing: 2nd June, 2003.

MLD 2004 PESHAWAR HIGH COURT 298 #

2004 M L D 298

[Peshawar]

Before Ijazul Hassan and Malik Hamid Saeed, JJ

THE STATE through Advocate‑General, N.‑W.F.P., Peshawar‑‑‑Appellant

Versus

MOHI‑UD‑DIN‑‑‑Respondent

Criminal Appeal No. 139 of 1994, decided on 30th October, 2003.

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

‑‑‑‑S.417‑‑‑Appeal against acquittal‑‑‑Scope‑‑‑Appraisal of evidence in appeal against conviction is done strictly, but in appeal against acquittal it is not done so rigidly, as a finding of acquittal given by Trial Court after proper analysis of evidence already exists on record‑‑‑Interference in appeal against acquittal is made only when gross misreading of evidence amounting to miscarriage of justice appears to have been done by the lower Court‑‑‑High Court in an appeal against acquittal would not, in principle, ordinarily interfere and instead would give due weight and consideration to the findings of the Court acquitting the accused‑‑Court would not interfere with the acquittal merely because on reappraisal of evidence it could come to the conclusion different from that of the Court acquitting the accused, provided both the conclusions are reasonably possible.

Yar Muhammad and 3 others v. The State 1992 SCMR 96 ref.

(b) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑‑S.302/34‑‑‑Delayed F.I.R.‑‑‑Effect‑‑‑Undue, unreasonable and unexplained delay in filing F.I.R. leads to suspicion and reflects on the truth of the prosecution case‑‑‑Early information of crime is required to be supplied to the police in order to avoid criticism of the report as being manipulated and result of deliberation or consultation‑‑‑Delay in lodging the F.I.R. no doubt, is not always fatal to a case, but the prevalent circumstances are to be kept in mind and then its effect is to be assessed in the case.

‑‑‑‑S.302/34‑‑‑Criminal Procedure Code (V of 1898), S.417(1)‑‑‑Appeal against acquittal‑‑‑Delay of one and a half hours in lodging the F.I.R. having not been explained by the prosecution, a reasonable inference would be that the accused had been substituted and falsely implicated in the case‑‑‑Sole eye‑witness in the case had stated at the trial that after the occurrence that the deceased in an injured condition was brought to the house and then he was shifted to the hospital and the possibility of consultation and outside prompting could not be excluded in the circumstances‑‑‑Medical evidence was in conflict with ocular account in material particulars and had negated the claim of the 'eye‑witness of having seen the occurrence‑‑‑Motive for, the incident had been changed at the trial‑‑‑Venue of the occurrence had not been established and the crime did not, appear to have been committed at the place alleged by the prosecution‑‑‑Contention that the statement of the victim amounted to dying declaration and Trial Court was not legally justified to discard the same and insist for corroboration, was misconceived‑‑‑Dying declaration was only a corroborative piece of evidence which would support the ocular testimony and its veracity, authenticity and reliability would vary from case to case‑‑‑One year's abscondence of accused alone could not be a substitute for real evidence and could not form a basis for his conviction‑‑‑Prosecution story was unnatural, improbable and unreliable‑‑‑Impugned judgment was not perverse, illegal or ridiculous and also was not the result of misreading of evidence leading to miscarriage of justice‑‑‑Reasons advanced by Trial Court for acquittal of accused were convincing and cogent and did not call for any interference‑‑‑Appeal filed by State was dismissed accordingly .

Yar Muhammad and 3 others v. The State 1992 SCMR 96 and Wisal Qamar v. Noor Dad Khan and another 2000 PCr.LJ 2038 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑‑Dying declaration‑‑‑Dying declaration is only a corroborative piece of evidence which supports the ocular testimony given by the eye‑witnesses‑‑‑No hard and fast rule can be laid down about the standard of the dying declaration as its veracity, authenticity and reliability varies from case to case.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence ‑‑‑Abscondence‑‑‑Abscondence of accused alone cannot be a substitute for real evidence‑‑‑No conviction can be recorded on the sole ground of abscondence.

Wisal Qamar v. Noor Dad Khan and another 2000 PCr.LJ 2038 ref.

Malik Ahmed Jan, D.A.‑G. for the State.

Yousaf Shah for Respondent.

Complainant in person.

Date of hearing: 30th October, 2003.

MLD 2004 PESHAWAR HIGH COURT 314 #

2004 M L D 314

[Peshawar]

Before Nasir ul Mulk and Talat Qayum Qureshi, JJ

Pir MIAN JAN SAID and others‑‑‑Petitioners

Versus

LAND ACQUISITION COLLECTOR, DISTRICT COLLECTOR, MARDAN and 10 others‑‑‑Respondents

Writ Petition No.367 of 2003, decided on 2nd October, 2003.

(a) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑S.30‑‑‑"Dispute"‑‑‑Object and scope‑‑‑Word "dispute" is to be taken in wide and not in literal sense and it implies any controversy as to title, whether between the actual claimants or as appearing from the documents made available to the acquiring officials‑‑‑When State machinery exercises its power of eminent domain and acquires property, public funds have to be utilized for the payment of compensation to the true owners‑‑‑If a dispute arises as to who was the true owner and was entitled to receive the compensation, such dispute, even if the controversy is with regard to the title of the parties, is to be made to the Court enabling the party claiming to be the true owner to establish the title and its entitlement to receive compensation amount.

(b) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑S.30‑‑-Reference to Court‑‑‑Stage‑‑‑If application is given under S.30 of Land Acquisition Act, 1894, before disbursement/payment of compensation amount, the Collector may without paying the amount to either of the parties refer the same to the competent Court‑‑‑If such application is given afterwards the provision of S.30 of Land Acquisition Act, 1894, cannot stand in the way of reference which the Collector may like to make to the Court for determination.

‑‑‑‑S.30‑‑‑Dispute as to apportionment‑‑‑Reference to Court‑‑‑Scope‑‑Word "apportionment" to be given liberal construction‑‑‑Reference of dispute under S.30 of Land Acquisition Act, 1894, includes the cases where the Court has to decide between the rival claimants as to the entire compensation.

Mst. Khalida Bibi v. Mst. Daryai Khunam and others 1994 MLD 2339; Mangaldas Girdhardas Parekh v. The Assistant Collector of Prantij Prant Ahmadabad First Appeal No.124 of 1917; The State of Madras v. B.V. Subramania Iyer AIR 1962 Mad. 313; Pir Muhammad Salim Gilani v. S. Muhammad Ashraf Shah Gilani PLD 1963 Azad J&K 66 and Nanak Chand v. Piran Ditta AIR 1941 Lah. 268 ref.

(d) Land Acquisition Act (I of 1894)‑‑‑‑

‑‑‑‑S.30‑‑‑Reference to Court‑‑‑Limitation‑‑‑No period of limitation has been prescribed for filing of objection petition under S.30 of Land Acquisition Act, 1894‑‑‑‑Collector can refer the dispute at any time.

Mst. Khalida Bibi v. Mst. Daryai Khunam and others 1994 MLD 2339 ref.

(e) Land Acquisition Act (I of 1894)‑‑‑‑

‑‑‑‑S.30‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑ Acquisition of land‑‑‑Dispute as to apportionment‑‑‑Grievance of the petitioners was that the land acquired by the Authorities was owned by them and compensation was wrongly given to the respondent‑‑Authorities dismissed the objection petition of petitioners as barred by limitation without referring the same to the Court‑‑‑Validity‑‑‑Question regarding entitlement to receive the compensation required determination which would only be determined by the Referee Court because no other forum had been provided for the determination‑‑incumbent upon the Authorities to have referred the application of the petitioners to the Referee Court which was not done‑‑‑No period of limitation having been prescribed for filing of objection petition, same was wrongly rejected by the Authorities as time‑barred‑‑‑Order passed by the Authorities was set aside and the case was remanded for referring the same to the Referee Court‑‑‑Petition was allowed accordingly.

Saadullah Jandoli for Petitioners.

Muhammad Aman Khan for Respondents.

Date of hearing: 15th September, 2003.

MLD 2004 PESHAWAR HIGH COURT 324 #

2004 M L D 324

[Peshawar]

Before Mian Shakirullah Jan, C.J. and Shahzad Akbar Khan, J

MATIUL HAQ and others‑‑‑ Appellants

Versus

LAND ACQUISITION COLLECTOR, SWABI‑‑‑Respondent

Regular First Appeal No.40 of 1997, decided on 25th June, 2003.

(a) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss. 4, 6 & 30‑‑‑Acquisition of land‑‑‑Insufficient compensation‑‑‑Aust Yak Sala (one yearly average) formula‑‑‑Onus to prove‑‑‑Landowners disputed the compensation of award being insufficient‑‑‑Objection petition was filed before the Referee Court on the ground that the Authorities had not considered the compensation price of other land in the same vicinity acquired for some other purposes‑‑‑Landowners failed to produce evidence to substantiate their objection and the petition was dismissed by the Court‑‑‑Validity‑‑‑landowners were under the burden to produce some party to the transaction on which they relied to prove the factum of genuineness and bona fides of the transaction‑‑‑Mere production of such mutation in evidence was insufficient for establishing the bona fides and genuineness of the transaction relied upon by the landowners‑‑‑Referee Court, after evaluation of evidence and revenue papers including the Aks Shajara Kishtwar, had rightly passed the judgment and the same did not suffer from legal infirmity.‑‑‑Landowners failed to prove through positive evidence that during the relevant days the price of land in the vicinity was higher than what was determined by the Authorities by applying the formula of one yearly average‑‑‑Compensation was rightly calculated by the Authorities in circumstances.

PLD 1976 Pesh. 50 rel.

(b) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑Ss.4 & 6‑‑‑Qanun‑e‑Shahadat (10 of 184), Art.114‑‑‑Acquisition of land ‑‑‑Compensation‑‑‑Estoppel, principle of‑‑Applicability‑‑Landowners disputed the award of compensation being insufficient‑‑‑One of the landowners had received the compensation without any protest‑‑Effect‑‑‑Such receipt of compensation was considered as an estoppel in the way of landowners.

Abdul Sattar Khan for Appellants.

Malik Ahmad Jan, D.A.‑G. for Respondent No. 1.

M. Alam Khan for Respondent No.2.

Date of hearing: 21st May, 2003.

MLD 2004 PESHAWAR HIGH COURT 335 #

2004 M L D 335

[Peshawar]

Before Talaat Qayum Qureshi, J

NAZIR GUL and another‑‑‑Petitioners

Versus

ZAR GUL and another‑‑‑Respondents

Criminal Miscellaneous No. 1042 of 2003, heard on 19th November, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑‑Case against accused was of two versions, one being that the deceased woman had committed suicide and the other one advanced subsequently by her father that she had been murdered by the accused due to her strained relations with them‑‑‑F.I.R. was based on suspicion which howsoever strong could not take the place of proof to warrant conviction‑‑Occurrence was an un-witnessed one‑‑‑No incriminating article, except one rope, was recovered from the spot‑‑‑Evidence of the deceased having been last seen in the company of the accused could not form the basis for refusal of bail because the deceased being the daughter‑in‑law of the accused, they were living in one and the same house‑‑‑Accused being old and infirm and one of them being a woman, their case fell within the first proviso to S.497(1), Cr.P.C.‑‑‑Motive howsoever strong could not be substituted for substantive evidence‑‑‑Case against accused needed further probe‑‑‑Accused were admitted to ball in circumstances.

Sahabzada Asadullah for Petitioners.

Murad Ali for the Complainant.

Sardar Shoukat Hayat, D.A.‑G. for the State.

Date of hearing: 19th November, 2003.

MLD 2004 PESHAWAR HIGH COURT 341 #

2004 M L D 341

[Peshawar]

Before Talaat Qayum Qureshi, J

BAKHT BAIDAR and another‑‑‑Petitioners

Versus

NAIK MUHAMMAD and. another‑‑‑Respondents

Civil Revisions Nos.307 and 308 of 2003, decided on 29th September, 2003.

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

‑‑‑‑O.XLI, R.31‑‑‑Judgment of Appellate Court‑‑‑Appellate Court was to state the points for determination, give its decision thereon alongwith the reasons for the said decision‑‑‑If Appellate Court would chalk out a point of controversy and give its findings thereon which were duly supported by reasoning, then Appellate Court would be said to have given its judgment in accordance with provisions of O.XLI, R.31, C.P.C.‑‑Appellate Court in the present case on receipt of remand order, not only had dealt with the points of controversy which it had earlier formulated but it also gave its findings on the additional point‑‑‑Judgment and decree on all said points having been given by Appellate Court by application of its conscious mind after discussing entire evidence on record, said judgment and decree of Appellate Court were in accordance with provisions of O.XLI, R.31, C.P.C.

Umar Din v. Ghazanfar Ali and 2 others 1991 SCMR 1816; Mst. Husna Bano v. Faiz Muhammad Magsi and another 2000 CLC 709; Iqbal Khan through Legal Heirs and 2 others v. Muhammad Ilyas and 5 others 1998 CLC 1216; Karim Bux v. Province of Sindh and others, 1908 CLC 27 and Ghulam Hussain and another v. Muhammad Hussain 1986 CLC 770 ref.

(b) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S.6‑‑‑Suit for pre‑emption ‑‑‑Superior right of pre‑emption‑‑‑Claim of plaintiff was that he had superior right of pre‑emption being Shafi Jar' andShafi Khalit' as he was owner of contiguous property and was sharing amenities of suit property‑‑‑Plaintiff by producing evidence on record not only had proved that he was owner of contiguous property, but he had also proved that property in dispute was situated between his house and land whereupon a Petrol Station was built up and that he was using said property for his, passage from his house to said Petrol Station‑‑‑Such fact was also admitted in evidence of defendants‑‑Superior right of pre‑emption in respect of suit property, in circumstances, was established.

‑‑‑‑Party was bound by evidence produced by it‑‑‑Party producing a witness was bound by whatever deposition, the witness had made‑‑‑Said party could not turn around and say that adverse statement given by his witness should be excluded from consideration, particularly when his witness was not declared hostile.

Wali Muhammad v. Sarwar Bibi 2001 SCMR 871 and Allah Dad v. Government of Pakistan and others 1989 CLC 1571 ref.

(d) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑Ss.6 & 13‑‑‑Suit for pre‑emption ‑‑‑Making of Talbs‑‑‑Plaintiff by producing evidence on record had fully proved that he had made Talb‑i-Muwathibat and Talb‑i‑Ishhad in time on receiving information with regard to transaction of suit‑land‑‑‑Contention that Talb‑i‑Muwathibat as well as Talb‑i‑Ishhad were made much before the sale of suit property, was repelled.

Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235; Mst. Kashmira Jan v. Mahtab Shah and 2 others PLD 1977 Pesh. 27; Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1959 (W.P.) Pesh. 81; Rameshwar Singh and another v. Bajit Lal Pathak and others AIR 1929 PC 95 and Sardar Gurbakhsh Singh v. Gurdial Singh and another AIR 1927 PC 230 ref.

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

‑‑‑‑O.VI, R.15‑‑‑Verification of pleadings‑‑‑Pleadings by virtue of amendment introduced by Law Reforms Ordinance, 1972 and S.6 of Oaths Act, 1873, were required to be verified on oath‑‑When pleadings were verified on solemn affirmation or on oath, same still would have no legal value if its, deponent did not make himself available for cross‑examination‑‑‑Written statement, in such circumstances, would lose all its force as a probative piece of evidence and it could not be used as substantive piece of evidence in a case.

Mst. Khairul Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25; Muhammad Ishaq v. Erose Theatre and others PLD 1977 SC 109; Muhammad Nawaz v. Jiand Rai and 2 others 1981 CLC 867; Muhammad Yousaf Ishaqui (represented by Legal Heirs) v. Abdul Majid Khan and 5 others 1984 CLC 243; Muhammad Noor Alam v. Zair Hussain and 3 others 1988 MLD 1122; Syed Muhammad Saleem v. Ashfaq Ahmad Khan and another 1989 CLC 1883; National Bank of Pakistan v. Alam Industries Ltd., Karachi and 5 others PLD 1992 Kar. 295; Zafar Mirza v. Mst. Naushina Amir Ali PLD 1993 Kar. 775; Zahid Ali Khan v. Darul Uloom Naeemia Trust 1994 MLD 871 and Mst. Zareena and 5 others v. Syeda Fatima Bi PLD 1995 Kar. 388 ref.

(f) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss.6 & 13‑‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for preemption ‑‑‑Both Courts of competent jurisdiction had rightly appreciated evidence available on record while decreeing the suit of plaintiff/preemptor‑‑‑In absence of any misreading/non‑reading of evidence or any material irregularity or any jurisdictional error or defect, judgments and decrees could not be interfered with in revisional jurisdiction of High Court.

Abdul Sattar Khan for Petitioner.

Shaikh Wazir Muhammad for Respondents.

Date of hearing: 22nd September, 2003.

MLD 2004 PESHAWAR HIGH COURT 357 #

2004 M L D 357

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

TAJ MUHAMMAD ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Bail Application No.903 of 2003, decided on 7th November, 2003.

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

‑‑‑‑S.497(1)‑‑‑Bail in non‑bailable offences falling in prohibitory clause of S.497(1), Cr.P.C.‑‑‑Practice and procedure‑‑‑Bail in the cases of commission of non‑bailable offences and particularly falling in the prohibitory clause in S. 497(1), Cr.P.C. is not to be granted as a matter' of course with a simple sentence that it is a case of further inquiry and without keeping in view the entire provisions of S.497, Cr.P.C.

(b) 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), S.412‑‑Anti‑Terrorism Act (XXVII of 1997), Ss.6/7‑‑‑Bail‑-‑Accused alongwith others had been correctly picked up and identified as one of the culprits during the identification parade‑‑‑Identifiers had fully supported the prosecution version and charged the accused and his accomplices for taking part in the robbery committed by them on the night of occurrence in the house of the complainant‑‑‑Accused was stated to be the ring leader of a gang' of dacoits involved in many cases of similar nature‑‑Criminal act of accused was designed to create a sense of fear or insecurity in the minds of the general public disturbing even tempo of life and tranquillity of society‑‑‑Challan having been submitted in the Court, conclusion of trial was not very far‑off‑‑‑Accused on the basis of the' material` available on record was, pima facie, connected with the alleged offence‑‑‑Bail was declined to accused in circumstances.

Abdul Karim and another v. The State 1996 PCr.LJ 503; Zameen Gul v. The State 1996 PCr.LJ 662; Ahmad Sher and another v. The State PLD 1995 20; Tariq Aziz and another v. State 2001 YLR 1425 and Tanveer Ahmad v. The‑State 1999 PCr.LJ 590 ref.

Hussain Ali for Petitioner.

Khalid Tanveer Rohaila for the State.

Abdul Latif Afridi for the Complainant.

Date of hearing: 7th November, 2003.

MLD 2004 PESHAWAR HIGH COURT 394 #

2004 M L D 394

[Peshawar]

Before Shah Jehan Khan and Ijaz‑ul‑Hassan Khan, JJ

FAZAL REHMAN‑‑‑Appellant

Versus

SHOAIB and another‑‑‑Respondents

Criminal Appeal No. 285 and Murder Reference No. 16 of 2003, decided on 12th November, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b)/34 & 324/34‑‑‑Appreciation of evidence‑‑‑Complainant, real brother of the deceased, on whose solitary statement the prosecution case rested was not found to be present on the spot at the time of occurrence and to have witnessed the same‑‑‑Medical evidence had negated the ocular testimony of the complainant‑-‑F.I.R. having been lodged after preliminary investigation had no sanctity and, thus, mentioning of the names of the accused therein with the roles attributed to them could not be taken into account as a first hand information‑‑Despite a large number of co‑villagers of the complainant having seen the occurrence, no independent and disinterested witness from the locality had been produced at the trial in support of the prosecution case‑‑‑Motive against the accused for taking the life of the deceased was not satisfactorily proved‑‑‑Crime empties recovered from the spot had not been sent to Fire‑arms Expert and such omission by the Investigating Officer in the absence of his explanation was highly fatal to the prosecution case‑‑‑Abscondence of accused alone could not be a substitute for real evidence‑‑‑Statement of the complainant had no material support or corroboration from any independent source‑‑Impugned judgment was based on misreading and non‑reading of evidence resulting in grave miscarriage of justice‑‑‑Accused was acquitted in circumstances.

Allah Bakhsh v. Shammi and others PLD 1980 SC 225; Muhammad Siddique and 3 others v. The State 1971 SCMR 659; Nazir v. State PLD 1962 SC 269 and Wisal Qamar v. Noor Dad Khan and another 2000 PCr.LJ 2038 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b)/34 & 324/34‑‑‑Appreciation of evidence‑‑‑Conviction can be based on the evidence of a solitary witness provided it rings true and inspires confidence.

‑‑‑‑Ss.302(b)/34 & 324/34‑‑‑Abscondence of accused alone cannot be a substitute for real evidence and no conviction can be based thereon.

Wisal Qamar v. Noor Dad Khan and another 2000 PCr.LJ 2038 ref.

M. Zahoorul Haq, M. Assadullah Khan Chamkani and Nek Niaz Khan Awan for Appellant.

M. Tamesh Khan for the State.

Saadullah Khan for the Complainant.

Date of hearing: 23rd October, 2003.

MLD 2004 PESHAWAR HIGH COURT 594 #

2004 M L D 594

[Peshawar]

Before IjaZ-ul-Hassan Khan, J

Sayed MUHAMMAD KHAN---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.524 of 2003, decided on 17th February, 2004.

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

----S.497---Bail, grant of---Principles---Before releasing accused on bail, the Court was required to apply its mind keeping in view the provisions contained in subsections (1) & (2) of 5.497, Cr.P.C. in its totality---Sine qua non for releasing an accused on bail was that the Court should come to the conclusion that no reasonable grounds were available to believe that accused had committed a non-bailable offence as provided in subsections (1) & (2) of S.497, Cr.P.C., or to prevent the abuse of the process of Court or to do justice, 4keeping in view the particular facts of each case---Bail in case of commission of a non-bailable offence and particularly falling in the prohibitory clause in subsection (1) of S.497, Cr.P.C. was not to be granted as a matter of course, with the simple -sentence that it was a case of further inquiry and without keeping in view the entire provisions of S.497, Cr.P.C.---At bail granting stage, the material available on record was to be sifted thoroughly in order to examine as to whether prima facie accused could be connected with the crime in question---No detailed inquiry was to be made by the Court.

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

----S.497---Penal Code.(XLV of 1860), S.302/34---Bail, grant of--Accused was directly named in the promptly lodged report for the commission of crime and a specific role of firing had been attributed to him---Medical evidence, recoveries and witnesses of the spot, fully supported the charge against accused---Submissions made by accused which touched the merits of the case, could not be gone into at the stage of bail-Bail application of accused was dismissed in circumstances.

Mazhar Mehmood v. Basit and another 1997 SCMR 915; The State v. Shandi Gul 1990 SCMR 323; Liaqat Ali v. The State PLD 1994 SC 172; Nasir Ahmad v. The State PLD 1997 SC 347; Khial Gul and another v. The State and another 2002 PCr.LJ. 1054 Pesh. and Safirullah v. The State and another 2003 PCr.LJ 1691 Pesh. ref.

Gauhar Zaman Kundi and Khawaja Nawaz Khan for Petitioner.

Shaukat Hayat Khan, D.A.-G. for the State.

Noor Raza Ali Khan for the Complainant.

Date of hearing: 17th February, 2004.

MLD 2004 PESHAWAR HIGH COURT 608 #

2004 M L D 608

[Peshawar]

Before Shahzad Akbar Khan, J

MUHAMMAD TARIQ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 189 of 2003, decided on 27th January, 2004.

Penal Code (XLV of 1860)--

----Ss.204 & 419---Prevention of Corruption Act (II of 1947), S.5(2)--Appreciation of evidence---Report of audit party could be taken as material to- indicate that some amount was misappropriated, but who had done it, could not be established by report of audit party---No other document was highlighted by prosecution which could link the accused with alleged misappropriation---Mere report of audit party not substantiated by any document, could not be considered sufficient for recording conviction of accused---Accused was not confronted in his statement made under S.342, Cr.P.C. with any document to show that he had received any amount under his handwriting or signature--Prosecution having not been able to prove its case against accused, order about his conviction and sentence passed by Trial Court, was set aside.

Muhammad Muzaffar Khan Swati for Appellant.

Muhammad Ayub Khan D.A.-G. for the State.

Date of hearing: 27th January, 2004.

MLD 2004 PESHAWAR HIGH COURT 633 #

2004 M L D 633

[Peshawar]

Before Abdul Rauf Khan Lughmani, J

Mst. GUL ZEB---Petitioner

versus

TAHIR IQBAL and others---Respondents

Writ Petition No. 116 of 2003, decided on 24th September, 2003.

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

----S.5 & Sched.---Dissolution of marriage on ground of Khula'---Right from the beginning differences and incompatibility of temperament existed between parties---Family Court had tried to resolve the controversy twice, but failed---High Court also made serious effort to iron out the differences between the parties, but plaintiff struck to her allegation of maltreatment, cruelty of husband and she had expressly stated her inability to live with him within the limits prescribed by God---Plaintiff wife, in circumstances, was entitled to separation by way of Khula'---Degree for dissolution of marriage was granted on basis of Khula`, in circumstances.

S. Hafizur Rehman Affersi for Petitioner.

Tauqeer Rehman for Respondent.

Date of hearing: 24th September, 2003.

MLD 2004 PESHAWAR HIGH COURT 644 #

2004 M L D 644

[Peshawar]

Before Talaat Qavum Qureshi, J

MUHAMMAD SADIQ---Petitioner

versus

ABDULLAH JAN and others---Respondents

Criminal Miscellaneous No.270 of 2003, decided on 12th January, 2004.

Criminal Procedure Code (V of 1898)---

---S.497(5)---Penal Code (XLV of 1860), S.302/140P149 --- offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11/19---Bail cancellation of--- Accused had not played any active role in the commission of the offence and they allegedly had only raised a "Lalkara" on which their co-accused had attacked the complainant side- Trial Court was yet to determine the effect of the said "Lalkara" after recording the evidence---Impugned order passed by Sessions Court granting bail to accused was based on right appreciation of legal position arid was neither perverse '.nor fanciful nor arbitrary--Application was dismissed accordingly.

Tariq Zia v. State 2003 SCMR 958 ref.

Fazl-e-Haq Abbasi for Appellant.

Shad Muhammad Khan for Respondents.

Date of hearing: 12th January, 2004.

MLD 2004 PESHAWAR HIGH COURT 655 #

2004 M L D 655

[Peshawar]

Before Mrs. Khalida Rachid, J

Mst. SAID KAZABAN and others---Petitioners

versus

MOMIN KHAN and others--Respondents

Civil Revision No.443 of 1995,'decided on 9th May, 2003.

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

----S.42---Suit for declaration---Plaintiff had claimed that he was owner of suit-land on the basis of unregistered sale-deed executed in his favour by predecessors-in-interest of defendant and that inheritance mutation in respect of suit-land in favour of defendant was illegal, wrong and ineffective upon his rights---Plaintiff who was in possession of the land had proved by producing Halqa Patwari and Jamabandi that predecessors-in-interest of defendant who were allotted said land had sold out same in his favour and allotment amount was paid by plaintiff to the Revenue Authority and it was proved by him that predecessors-in-interest of defendants executed sale-deed in respect of suit-land in favour of plaintiff which deed was duly verified by marginal witness and that possession of suit-land was obtained by vendees/predecessors-in-interest of plaintiff---Defendants could not produce any evidence to prove that suit=land was as alleged was mortgaged by their predecessors-in-interest in favour of plaintiff and no suit for redemption of mortgaged property was ever filed by defendant---Suit was rightly dismissed by Courts below.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Art.79---Transfer of Property Act (IV of 1982), S.54---Suit for declaration---Attestation of sale-deed under S.68 of Evidence Act, 1872---Examination of one attesting witness was the requirement of law to prove execution of document/sale-deed whereas under Art.79 of Qanun-e-Shahadat, 1984 at least two attesting witnesses were required for the purpose of proving execution of document/sale-deed ---Suit for declaration was filed in the year 1983 prior to the promulgation of Qanun-e-Shahadat, 1984---Execution of sale-deed in circumstances was to be proved in the light of S.68 of Evidence Act, 1872 and not under Art.79 of subsequently promulgated in Qanun-e-Shahadat, 1984---Contentier that sale-deed being not proved by two attesting Witnesses in terms of Art.79 of Qanun-e-Shahadat, 1984 was repelled being misconceived.

Ghulam Naqashband Khan for Petitioner.

Gulsadbar Khan for Respondent.

Date of hearing: 9th May, 2003.

MLD 2004 PESHAWAR HIGH COURT 675 #

2004 M L D 675

[Peshawar]

Before Talaat Qayum Qureshi, J

ZULFIQAR AHMED ---Petitioners

versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos.358 and 387 of 2003, decided on 13th January, 2004.

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

----S.497---Penal Code (XLV of 1860), Ss.400/401/411/412/109--Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Accused persons though were riot charged in the F.I.R., but non-mentioning the names of accused in the F.I.R. in dacoity matters was immaterial because it could not be expected that at the time of incident accused would disclose their names and identity---Recovered articles mentioned in the F.I.R. were identified by the complainant---Contention of accused that they had no knowledge that recovered articles were stolen, was repelled, firstly because accused were unable to explain as to how the recovered items came into their possession; secondly giving opinion at bail stage to the effect that accused had no knowledge that property was stolen in a dacoity, would amount to deeper appreciation of evidence whereas the Court seized of jurisdiction for examining question of bail should make only tentative assessment of facts without making detailed reference to the merits Accused were twice identified in identification parade by the complainant---Holding of identification test though was not the requirement of law, but it was one of the methods to test the veracity of evidence of an eye-witness who had an occasion to see accused and claimed to identify them---Written report was immediately lodged by the complainant to Station House Officer of Police concerned---Robbed articles which found mention in the F.I.R., not only were recovered from the possession of accused on their pointation, but were picked up in identification test---Record did not show any enmity of prosecution witnesses with the accused---No ill-will of police officials with accused had also been pointed out---Sufficient material was available on record to prima facie connect accused with commission of offence which was heinous affecting the entire society, which had not only ruined the safety of life and property of law-abiding citizens, but had also created a sense of insecurity among the public at large---Punishment provided in the relevant law was applicable to the present case which fell within prohibitory clause of S.497(1), Cr.P.C.---Accused could not be enlarged on bail in circumstances.

2001 YLR 1425; 2001 YLR 293; 1999 PCr.LJ 1315; 1995 SCMR 127 and Muhammad Shahid v. The State 2002 SCMR 247 ref.

(b) Qanuri-e-Shahadat (10 of 1984)---

----Art.22---Identification parade---Holding of identification test, though was not a requirement of law, but it was one of the methods to test the veracity of evidence of an eye-witness who had an occasion to see accused and claimed to identify him.

Muhammad Akbar v. The State 1998 SCMR 2538 and Gudoo alias Zulfiqar v. The State 2000 PCr.LJ 1212 ref.

Malik Manzoor Hussain for Petitioners.

Muhammad Ayub Khan D.A.-G. for the State.

Fazal-e-Haq Abbasi for the Complainant.

Date of hearing: 13th January, 2004.

MLD 2004 PESHAWAR HIGH COURT 687 #

2004 M L D 687

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

GUL NAWAZ---Petitioner

versus

THE STATE---Respondent

Criminal Revisions Nos.4, 5 and 6 and Criminal Miscellaneous Nos. 24, 25 and 32 of 2004, decided on 18th February, 2004.

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

----S.514---Penal Code (XLV of 1860), Ss.302/324/427/148/149--Forfeiture -of bail bond and recovery of the amount of the bond--Accused for whom petitioner stood surety having absconded Trial Court, forfeited' surety bond of the surety and ordered him to deposit surety amount---Validity---Petitioner who became surety of accused was under legal obligation to discharge his liability himself and could not say that on account of his financial condition, he could not pay the amount of bond executed by him and stood surety of accused out of benevolence and without any monetary gain---No legal embargo existed to the effect that amount of bail bond could not be forfeited in full---Where accused had jumped the bail bond; the entire surety- amount became liable to confiscation---Petitioner/surety was liable to produce accused in Court in view of his undertaking---Trial Court having already taken a lenient view by reducing the amount of surety bond from Rupees one lac to Rupees fifty thousands, no good reason was available to further reduce the amount of surety---Order of Trial Court being correct, proper and legal, would not call for interference of High Court.

Amanullah and others v. The State 1997 PCr.LJ 1927; Muhammad Khan v. The State 1986 PCr.LJ 2028; Muhammad Shah and others v. The State 1995 PCr.LJ 1254 Lah.; Zehsan Kazmi v. The State PLD 1997 SC 267; Faqir Khan v. Muhammad Safeer and the State 1999 PCr.LJ 1172 ref.

Hamidullah Khan Khattak for Petitioner.

Shaukat Hayat Khan D.A.G. for the State.

Date of hearing: 18th February, 2004

MLD 2004 PESHAWAR HIGH COURT 693 #

2004 M L D 693

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

PIR GHULAM---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.369 of 2003, decided on 16th February, 2004.

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

----S.497---Bail, grant of---Principles,--To consider the bail matter of an accused involved in a non-bailable offence, if there appeared reasonable grounds for believing that the accused was guilty of such offence, he would not be released on bail unless case was covered by any of the provisions: in subsection (1) of S.497, Cr.P.C.---If it appeared to the Court at any stage of the investigation, inquiry or trial that no reasonable grounds existed were, but there were sufficient grounds for further inquiry into the guilt of accused, he would be released on bail under subsection (21 of S.497, Cr.P.C.---Power conferred by S.497, Cr.P.C. was not arbitrary power. it had to be exercised by reference to, material placed before the Court---Such material should consist of accusation made in report to the police, nature and credential of evidence which prosecution proposed to lead in the case and all other relevant circumstances surrounding the occurrence, including the evidence produced by accused and bail had to be allowed or refused on the bases of that material---Court had to make a tentative assessment in order to decide a bail application as'S.497, Cr.P.C. did not in terms contain any restriction on the Court's power to assess evidentiary value of the material produced before it---Court; in the bail matter, had only to see whether accused was connected with commission of crime or not and for that purpose only tentative assessment of evidence was to be made and deeper appreciation was not called for---Mind of the Court had to be satisfied that case under its consideration was fit case for grant of bail.

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

----S.497---Penal Code (XLV of 1860), S.302/34---Bail, grant of--Accused had confessed his guilt---Crime weapon "Chhuri" was recovered from water channel at the pointation of accused---Site plan was also prepared at instance of accused---Legality and propriety of confessional statement of accused could be determined at trial and not at stage of bail---Role assigned to co-accused was quite distinguishable from the role attributed to accused---Sufficient material was on record to connect accused with murder of deceased, a young boy of 22 years of age---Accused could not be released on bail, in circumstances.

Zahid Hussain v. The State 1979 SCMR 38; Rehman v. Ghulam Qadir Khan alias Qadir Khan and another 1992 PCr.LJ 1513 (Peshawar) and Ghulam Abbas and another v. The State 1995 PCr.LJ 1125 (Karachi). ref.

Sanaullah Khan Gandapur for Petitioner.

Shaukat Hayat Khan, D.A.-G. for the State.

Muhammad Karim Anjum for the Complainant.

Date of hearing: 16th February, 2004.

MLD 2004 PESHAWAR HIGH COURT 1029 #

2004 M L D 1029

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

MUHAMMAD ISLAM‑‑‑Petitioner

Versus

AMIR SHER BAHADUR‑‑‑Respondent

Civil Revision No.5 of 2000, decided on 16th February, 2004.

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

‑‑‑‑S. 115 [As amended by Code of Civil Procedure (Amendment) Act (VI of 1992)]‑‑‑Limitation Act (IX of 1908), S.12(2)‑‑‑Revision petition‑‑‑Limitation for‑‑‑Benefit of S.12(2) of Limitation Act, 1908, was available only in cases where there was an appeal, an application for leave to appeal or an application for a review of judgment‑‑Subsection (2) of S.12 of Limitation Act, 1908 had nowhere mentioned revision applications‑‑‑Omission ' of words `revision application' in said subsection (2) of S.12 of Limitation Act, 1908 was not accidental, but said subsection had restricted its application to merely two kinds of applications, namely; application for leave to appeal and application for review of judgment only‑‑‑Benefit of subsection (2) of S.12 of Limitation Act, 1908 was not attached to revision applications‑‑‑Limitation for filing revision, however had been provided by amended S.115, C.P.C. whereby period prescribed for filing a revision was 90 days‑‑‑Petitioner, in present case had filed revision beyond period of 90 days and petitioner neither had filed application for condonation of delay nor had verbally prayed for condonation of delay‑‑‑Revision petition filed beyond prescribed period of limitation, being not maintainable was dismissed.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Ss. 5, 12 & 14‑‑‑Civil Procedure Code (V of 1908), S. 115‑‑Limitation‑‑‑Enlarging period of limitation‑‑‑Applicability of Limitation Act, to revision petition‑‑‑In judicial system, Law of Limitation had got its own significance relating to the period prescribed for instituting proceedings‑‑‑Limitation Act, 1908 contained in its fold remedial provisions like Ss.5, 12, 14 which empowered the Courts to enlarge period of limitation in peculiar circumstances of each case and in absence of application of said provisions of law, the Court on its own would not be competent to make applicable provisions of said sections‑‑‑Under Civil Procedure Code various provisions existed where S.5 of Limitation Act, 1908 had expressly been made applicable to condone delay in filing proceedings, if sufficient cause existed in favour of party who sought condonation of delay‑‑‑Section 5 of Limitation Act, 1908, however, had not been made applicable to revision under S.115, C.P.C.

Sanaullah Shamim Gandapur for Petitioner.

Sardar Allah Nawaz Khan Sodozai for Respondents.

Date of hearing: 16th February, 2004.

MLD 2004 PESHAWAR HIGH COURT 1051 #

2004 M L D 1051

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

IMRANULLAH and others‑‑‑Petitioners

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous Bail Applications Nos.97 and 110 of 2004, decided on 16th April, 2004.

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

‑‑‑‑S. 497‑‑‑Penal Code (V of 1860), Ss.457/324/380/148/149‑‑‑Bail, grant of‑‑‑Accused who was in jail since his arrest, had not been named by his co‑accused in their statements recorded under S.161, Cr.P.C. wherein they had taken the entire responsibility on their shoulders exonerating accused‑ ‑‑Investigation was almost complete and accused was no more required for purpose of investigation‑‑‑Accused, in circumstances was ordered to be released on bail ‑‑‑Co‑accused stood directly involved in case and prosecution was in possession of adequate material connecting them with commission of offence‑‑‑Bail application of said co‑accused was dismissed.

Ghulam Habib, v. The State PLD 1994 Pesh. 84 and Ali Akbar, v. Esa Khan and another 2003 YLR 1284 ref.

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

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Principles of‑‑‑Was not the rule of law that in each and every case which was not punishable with death, imprisonment for life or ten years, bail must be granted to accused without considering the gravity of offence‑‑‑If that would have been the intention of Legislature, then an amendment would have been introduced in the law by law makers through Legislation‑‑‑Courts could not be oblivious to the material collected by prosecution and after looking into it and making tentative assessment of evidence, if the Court would come to the conclusion that a prima facie case was made out, Court could refuse bail even in cases which were not punishable with death, imprisonment for life or ten years.

Muhammad Waheed Anjum for Petitioner.

Muhammad Sharif Choudhry D.A.‑G. for Respondents.

Complainant in person.

Date of hearing: 16th April, 2004.

MLD 2004 PESHAWAR HIGH COURT 1130 #

2004 M L D 1130

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

Nawabzada SAADAT KHAN‑‑‑Petitioner

Versus

MILITARY ESTATE OFFICER, KOHAT CIRCLE KOHAT CANTT. KOHAT and 7 others‑‑‑Respondents

Civil Revision No.53 of 2002, decided on 16th April, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXXIX, Rr.1 & 2‑‑‑Grant or refusal of temporary injunction‑‑Principles‑‑‑Principles for grant or refusal of temporary injunctions were; Firstly, whether plaintiff had made out a prima facie good legal case; Secondly, whether balance of convenience lay in favour of grant of injunction and Thirdly, whether plaintiff would suffer irreparable loss if injunction was refused to him‑‑‑Trial Court while considering application for grant of temporary injunction, formed the view that plaintiff bad failed to make out a prima facie case and said view was upheld in appeal‑‑‑Plaintiff had complained that by giving such a finding, Trial Court had virtually disposed of suit‑‑‑Such observations could not have been avoided by Court while dealing with application for grant of temporary injunction, if question involved in application for grant of temporary injunction was inextricably linked with suit itself‑‑‑Essential ingredients for grant of temporary injunction being missing in case, plaintiff was rightly held not entitled for relief of temporary injunction concurrently by Courts below.

2004 SCMR 103 ref.

Saleemullah Khan Ranazai for Petitioner.

Salahuddin Khan Gandapur for Respondents.

Date of hearing: 6th April, 2004.

MLD 2004 PESHAWAR HIGH COURT 1148 #

2004 M L D 1148

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

ALAM NOOR and another‑‑ ‑Appellants

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.67 of 2003, decided on 23rd February, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.377 & 506‑‑‑Appreciation of evidence‑‑‑Most significant statement in sodomy cases, would be that of the victim and subsequently it would be seen as to whether it had been corroborated by other convincing material or otherwise‑‑‑Corroboration of evidence need not be direct evidence, but it should be independent evidence of such a character which would connect accused directly or indirectly with alleged offence‑‑‑Victim/complainant, in the present case, had narrated the episode in a truthful manner and his deposition was amply corroborated by ocular testimony of prosecution witness, who was brother‑in‑law of complainant‑‑‑Both complainant and said prosecution witness were subjected to fairly long and searching cross‑examination, but nothing material could be elicited to favour the accused‑‑‑Delay in lodging of F.I.R. had been satisfactorily explained, even otherwise delay per se was not fatal in such cases‑‑‑Identification parade was conducted in the case in which accused were correctly picked up and identified by complainant‑‑‑No serious enmity was shown between the families of accused and complainant‑‑‑Explanation offered by accused in their statements under S.342, Cr.P.C. was not convincing‑‑‑Complainant who had come from another city (from Punjab) to meet his sister who was married to prosecution witness, a resident of Province of N.‑W.F.P. had no reason to charge accused with false motive and bring bad name to his family‑‑‑Deposition of complainant was inspiring confidence and in no way complainant could be termed a witness acting under spell of animus and allegation of enmity was only hearsay and had no foundation at all and was an afterthought to save the accused‑‑Medicolegal report and report of Chemical Examiner had fully corroborated prosecution case‑‑‑Prosecution having successfully proved charge against accused under S.377, P.P.C., they were rightly convicted‑‑‑Prosecution having not been able to prove case against accused persons under S.506, P.P.C., they were acquitted of charge under said section.

Waqarul Islam and another v. The State 1997 PCr.LJ 1107; Muhammad Riaz v. The State 1997 PCr.LJ 1114 Federal Shariat Court; Arif Maseeh and another v. The State PLD 2001 SC 398; Haji Ahmad v. State 1975 SCMR 69 and Shahid Malik v. State 1984 SCMR 908 and Ehsan Begum v. State PLD 1983 FSC 204 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 22‑‑‑Identification parade‑‑‑Delay in holding of ‑‑‑Effect‑‑Identification parade was held properly in jail premises, all legal formalities were complied with and no prejudice seemed to have been caused to accused‑‑‑Mere long interval in holding test parade and identification of accused would not itself be sufficient to discard said testimony when testimony with regard to it was also not challenged by accused in cross‑examination.

Slaeemullah Khan Ranazai for Appellants.

Shoukat Hayat Khan D.A.‑G. for the State.

Rahat Khan Complainant (in person).

Date of hearing: 23rd February, 2004.

MLD 2004 PESHAWAR HIGH COURT 1301 #

2004 M L D 1301

[Peshawar]

Before Qazi Ehsanullah Qureshi, J

MUHAMMAD KHAN‑‑‑Petitioner

Versus

MUHAMMAD JAMIL and others‑‑‑Respondents

Civil Revision No. 138 of 2004, decided on 7th May, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.IX, R.13‑‑‑Ex parte decree‑‑‑Setting aside of‑‑‑Address of defendant as given by plaintiff in the plaint was of other district and that too was very vague‑‑‑No personal service had been effected upon defendant‑‑‑Son of defendant though used to appear before the Court and was requesting for time, but appearance of son of defendant, who even himself did not know the whereabouts of his father as he had gone abroad in illegal manner in search of job, could not be treated as service upon defendant‑‑‑Party would not be thrown out of the Court just on technicalities as question of valuable rights were always involved‑‑Dispute in the present case was regarding partition of suit property‑‑Defendant and plaintiff were interested parties contesting for their rights‑‑‑Even otherwise Courts were not supposed. to grant ex parte decree straightaway in the light of plaint‑‑‑The Courts, in ex parte cases were duty bound to grant ex parte decree on available record and evidence on file strictly on merits‑‑‑Dispute between parties was of inheritance and until and unless it was brought on the record that other party had availed his due share, he could not be deprived of his right in the property falling to his share from his predecessor‑‑‑Ex parte decree had been granted by Court without applying judicious mind and without following basic ingredients which were a must in ex parte cases‑‑‑Ex parte decree concurrently passed against defendant was set aside and case was remanded to be decided on merits strictly in accordance with law.

Mian Saadullah Jandoli for Petitioner

Roohul Amin for Respondents.

Date of hearing: 7th May, 2004.

MLD 2004 PESHAWAR HIGH COURT 1325 #

2004 M L D 1325

[Peshawar]

Before Talaat Qayum Qureshi and Muhammad Qaim Jan Khan, JJ

SHAHID RAZA‑‑‑Petitioner

Versus

Dr. FAUZIA SHAHEEN and 3 others‑ ‑‑Respondents

Writ Petition No.399 of 2004, decided on 1st April, 2004.

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

‑‑‑‑S.5 & Sched‑‑‑Suit for recovery of maintenance to children‑‑Determination of amount of maintenance‑‑‑Court had to determine the amount of maintenance to be paid by father to his children taking into consideration the social standing of the parties and the extent of father's means of income‑‑‑Grant of maintenance to the children was not ex gratia grant, but father was bound to maintain his children‑‑‑Quantum of maintenance, pertained to the realm of facts, which could be properly appreciated by the Courts below on analysing the evidence produced by the parties.

2000 YLR 956 ref.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑High Court to exercise of its Constitutional jurisdiction, could not interfere with the findings of fact, even if on appraisal of evidence it was possible to reach a different conclusion, unless it was shown that such findings by lower Court suffered from misreading/non‑reading of record which had affected the findings on merits.

Export Promotion Bureau and others v. Qaiser Shafiullah 1994 SCMR 859 and Abdul Wali Khan through Legal Heirs and others v. Muhammad Salch 1998 SCMR 769 ref.

Fazal Karim for Petitioner.

MLD 2004 PESHAWAR HIGH COURT 1337 #

2004 M L D 1337

[Peshawar]

Before Ejaz Afzal Khan, J

AFTAB AHMAD‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.13 of 2003, decided on 10th October, 2003.

Explosive Substances Act (VI of 1908)‑‑

‑‑‑‑Ss.4 & 5‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑‑Anti‑Terrorism Act (XXVII of 1997), Ss.7‑A & 21‑H‑‑‑Appreciation of evidence‑‑‑Accused were arrested long before date of alleged occurrence‑‑‑Recovery of hand‑grenades from possession of accused was not witnessed by any independent witness‑‑ ‑Police officials, no doubt were as good witnesses as any other from the public, but when in a case the very occurrence on the alleged date and spot was highly doubtful, recovery of incriminating material in the absence of independent witness, had to be looked askance at‑‑‑Alleged confessional statement of accused though had been recorded after fulfilling all legal formalities, but same having been recorded by a police officer, would cast a serious doubt on its voluntariness despite its admissibility under S. 21‑H of Anti Terrorism Act, 1997‑‑‑Ouestion was not merely of admissibility or otherwise of a confessional statement, but the question was of its voluntariness or otherwise before a person who could never be thought to be independent, impartial, non‑partisan and separated from those who were entrusted with the job of investigation‑‑‑Confessional statement of accused, was of no help to prosecution as same was net voluntary‑‑‑Prosecution having failed to prove its case against accused beyond any shadow of doubt, their conviction and sentence recorded by Trial Court, were set aside and they were set free.

Allah Nawaz Khan for Appellant.

Salahuddin Khan D.A.‑G for the State.

Date of hearing: 10th October, 2003.

MLD 2004 PESHAWAR HIGH COURT 1368 #

2004 M L D 1368

[Peshawar]

Before Tariq Parvez, J

FAZAL‑UR‑REHMAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Cr. A. No. 153 of 2004, decided on 7th May, 2004.

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

‑‑‑‑S.5(2)‑‑‑Penal Code (XLV of 1860), S.161‑‑‑‑Appreciation of evidence‑‑‑Statement of accused which should have been recorded under S.164, Cr.P.C. by Raiding Magistrate immediately after the raid, had not been recorded‑‑‑No recovery memo was prepared through which `Fardat' were taken into possession and neither Circle Officer nor Magistrate in their statements had referred to taking into possession through memo, said 'Fardat' which were photocopies, and did not carry date of their preparation‑‑‑Prosecution witness had admitted that he was standing on the road side with the Circle Officer and had not seen passing of currency notes nor had heard conversation which had taken place between the complainant and the accused‑‑‑Investigating Officer had failed to prepare sketch map of scene of crime‑‑‑Complainant and Magistrate admitted that at the time of raid two or three other persons were also present at the place of occurrence, but no one was examined as prosecution witness‑‑‑Prosecution witness who was investigating Officer, stated that raid report was prepared by Magistrate on the spot who himself recorded it, whereas other prosecution witness had stated that it was recorded in handwriting of Investigating Officer‑‑Statement of complainant recorded after raid was not signed by Special Judge and memo. of taking into possession tainted currency notes, did not carry the signature of Special Judge‑‑‑Prosecution in circumstances had failed to prove its case against accused‑‑‑Conviction and sentence awarded to accused by Trial Court, were set aside and accused was acquitted of the charge.

Qazi Muhammad Jamil and Mian Mohibullah Kakakhel for Appellants.

Akhtar Naveed, D.A.‑G. for the State.

MLD 2004 PESHAWAR HIGH COURT 1408 #

2004 M L D 1408

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

AZIZ KHAN‑‑‑Petitioner

Versus

THE STATE and 2 others‑‑‑Respondents

Cr. M.B.C.A. No.514 of 2003, decided on 2nd Jun, 2004.

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

‑‑‑‑S.497(5)‑‑‑Bail, grant/cancellation of‑‑‑Considerations for‑‑Considerations for grant of bail and cancellation of bail, were absolutely different‑‑‑Once an accused had been released on bail, his liberty could not be interfered with lightly.

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

‑‑‑‑S.497(5)‑‑‑Bail, cancellation of‑‑‑Occurrence was of two versions one narrated by accused in his report and other given by complainant‑‑‑Which of the versions was correct, was a question which could be determined at the trial after recording evidence‑‑‑Case of accused was rightly found arguable for the purpose of bail and accused had been rightly extended the concession of bail‑‑‑Impugned order of grant of bail to accused was based on solid footings and warranted no interference by High Court.

Sajid and 2 others v. The State 1998 PCr.LJ 1455 Lahore; Muhammad Ismail v. Muhammad Rafiq and another PLD 1989 SC 585; Abdul Haq v. The State PLD 1996 SC 1; Muhammad Sharif v. Shafqat Hussain and another 1999 SCMR 338; Liaqat Ali v. The State 2000. SCMR 1438; Imran v. The State 1998 PCr. LJ 1022 and Usman v. Muhammad Azam and another 2001 PCr.LJ 1461 Peshawar ref.

Saleemullah Khan Ranazai for Petitioner.

Abdul Latif Khan Baloch for Respondents

Muhammad Sharif Chaudhry D.A.G. for the State.

Date of hearing: 2nd June, 2004.

MLD 2004 PESHAWAR HIGH COURT 1437 #

2004 M L D 1437

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

AURANGZEB KHAN‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Cr. Misc. Bail Petition No. 143 of 2004, decided 9n 2nd June, 2004.

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

‑‑‑‑S.497‑‑‑Bail, grant of‑‑‑Principles‑‑‑Question of grant/refusal of bail, was to be determined judiciously having regard to the facts and circumstances of the case‑‑‑Where the prosecution satisfied the Court that reasonable grounds were there to believe that accused had committed offence falling in the first category, the Court must refuse bail‑‑Where accused satisfied the Court that no reasonable grounds existed to believe that he was guilty of such offence, the Court must release him on bail‑‑For arriving at such conclusion. the Court would not conduct a preliminary inquiry/trial, but would only make tentative assessment i.e. would take all the material collected by the police for and against accused and be prima facie satisfied that some tangible evidence could be offered which, if left unrebutted, could lead to the inference of guilt‑‑Deeper appreciation of evidence and circumstances appearing in the case was neither desirable nor permissible at bail stage‑‑‑Court would' not minutely examine the merits of the case of plea of defence at such stage.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/324/34‑‑‑Bail, refusal of‑‑‑In view of express allegations in the F.I.R., nomination of petitioner as an. accused in the case and specific role attributed to him with motive, recovery of empties from the spot, apparently no case for grant of bail had been made out‑‑‑Courts below, in circumstances had rightly declined bail to accused.

Omer Khan and another v. Khalid Mehmood and another 2003 PCr.LJ 1110 Peshawar ref.

Muhammad Shahnawaz Khan Sikandri for Petitioner.

Muhammad Sharif Chaudhry, D.A.G. for the State.

Muhammad Shahab Khan for the Complainant.

Date of hearing: 2nd June, 2004.

MLD 2004 PESHAWAR HIGH COURT 1448 #

2004 M L D 1448

[Peshawar]

Nasir‑ul‑Mulk and Ijaz‑ul‑Hassan Khan, J

ABDUL KARIM ‑‑‑Appellant

Versus

PAK STATE and another‑‑‑Respondents

Cr. Appeal No.65 of 2003, decided on 19th April, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑‑Prosecution evidence suffered from infirmities and improbabilities which could not be made basis of conviction of accused‑‑‑Prosecution case mainly revolved on solitary statement of complainant which stood belied by host of circumstances and did not connect accused with commission of crime in any manner‑‑Presence of complainant at the spot at relevant time was doubtful for, had he been with the deceased at the relevant time, he would not have been spared by volley of shots attributed to Accused and co‑accused‑‑Solitary statement of a witness though would be sufficient to base conviction of accused if it rang true, but solitary statement of related chance witness was seldom relied upon in a case involving capital charge, unless such witness inspired confidence by furnishing plausible and convincing explanation for his presence at a place where he was ordinarily not expected to be present at a given time‑‑‑Complete absence of motive was conspicuous‑‑‑If prosecution case was based on direct evidence, absence of motive would not matter, but ocular version in the present case suffered from material contradictions, discrepancies and inconsistencies who had made the prosecution version incredible and unreliable ‑‑‑Abscondence of accused was meaningless because it could neither remove the defects of oral evidence nor by itself was sufficient to bring home guilt to accused ‑‑‑Abscondence of accused was not a proof of his guilt though, it could create suspicion against him, but suspicion, after all, was only suspicions‑‑‑Disappearance of a person named as a murderer after occurrence, was but natural, whether named rightly or wrongly‑‑‑Complainant did not witness occurrence and after hearing reports of fire shots, he rushed to the place of incident and after consultation and deliberations, he charged accused‑‑‑Prosecution had failed to prove case against accused beyond doubt as ocular account of complainant did not inspire confidence‑‑‑Occurrence though had taken place in which deceased had lost his life, but not in the manner asserted by prosecution‑‑‑No corroborative evidence was available to supplement ocular evidence‑‑‑Prosecution sought support from motive, medical evidence, recoveries and abscondence of accused, but each‑piece of evidence was defective and failing in intrinsic value and not fit for reliance to corroborate ocular version which itself was defective‑‑Conviction and sentence awarded to accused by Trial Court, were set aside and he was acquitted of charge and was released.

Riaz Hussain v. The State 2001 SCMR 177; Mir Mat Khan alias Matokai v. The State 2002 PCr.LJ 1914; Muhammad Ilyas and 3 others v. The State 1989 PCr.LJ 226; Shah Pasand v. The State 1989 PC r.LJ 1966 and Mehboob Ali alias Maqbali v. The State 2000 PCr.LJ 823 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Benefit of doubt‑‑‑Accused had only to show a dent having created in. case of prosecution and he would be entitled to benefit of even a single doubt found in evidence of prosecution, and that he had not to show that case against him suffered from more than one doubt‑‑‑Any eye‑witness who claimed his presence at the spot must satisfy the mind of the Court through physical circumstances or through some corroborative evidence about his presence at the spot.

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑‑Solitary statement of a witness‑‑‑Evidentiary value‑‑‑Solitary statement of a witness though was sufficient to base conviction of accused provided it rang true, but solitary statement of related chance witness was seldom relied upon in a case involving capital charge unless such witness inspired confidence by furnishing plausible and convincing explanation for his presence at a place where he was ordinarily not expected to be present at a given time.

(d) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑‑Conviction on sole testimony of a witness‑‑‑Case involving capital punishment‑‑‑Court would not base conviction on the sole testimony of a witness whose credibility was not free from doubt‑‑‑Court, for safe dispensation of justice in criminal cases, would look for some independent corroboration.

1998 SCMR 25; Din Muhammad v. Crown 1996 SCMR 777 and ‑ Iqbal alias Bhala v. State 1994 SCMR 1 ref.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Abscondence of accused‑‑‑Abscondence of accused person was not a proof of their guilt, it could, however, create suspicion against accused, but suspicions; after all, were suspicions‑‑‑Disappearance of a person named as a murderer after occurrence, was but natural, whether named rightly or wrongly.

Aminullah y. The State PLD 1976 SC 632 ref.

(f) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S.302(b)‑‑‑Evidence furnished by interested witness‑‑‑Evidence furnished by interested witness related to victim or deceased, could not be discarded merely because he had relationship with the victim‑‑‑Efforts must be made to seek corroboration from other evidence available on record‑‑Not necessary that corroboration should come from independent source, but anything in circumstances which could satisfy the Court to believe that witness had spoken the truth could safely be considered as corroborative evidence‑‑‑In absence of any other corroborative 'evidence, the evidence even if found convincing would not be sufficient by itself to warrant conviction of accused on charge of murder.

(g) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑‑One piece of tainted evidence, could not corroborate another tainted piece of evidence.

Haji Khawaja Muhammad Khan for Appellant.

Malik Hameshgul for the State.

Mansoor Abbas for Complainant.

Date of hearing: 191h April, 2004.

MLD 2004 PESHAWAR HIGH COURT 1484 #

2004 M L D 1484

[Peshawar]

Before Muhammad Qaim Jan Khan, J

SAMEEN KHAN‑‑‑Appellant

versus

THE STATE and another‑‑‑Respondents

Jail Cr. A. No.243 of 2003, decided on 14th April, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑No direct ocular evidence was available and whole case was hanging upon confessional statement of accused last seen evidence recoveries of incriminating articles coupled with medical evidence‑‑‑Confessional statement of accused which had been retracted by him was of no avail as its voluntary nature was doubtful and said confessional statement was totally negated by medical evidence‑‑‑Such confessional statement could not sustain conviction of accused‑‑‑Story about last seen evidence seemed an after‑thought and appeared to be the result of police advice‑‑‑Recoveries of incriminating articles were of no help to prosecution as witnesses of recovery were threatened by police to be made accused in the case if they would not give statements favourable to prosecution case and after their assurance they were made prosecution witnesses‑‑‑Neither any empty nor any blood‑stained earth had been recovered from the spot‑‑‑Other recoveries like clothes of deceased and bullet was of no help to prosecution‑‑.Conduct of police in case was also not above‑board‑‑‑Prosecution having failed to establish its case against accused, conviction and sentence awarded to them by Trial Court were set aside and they were acquitted of the charge.

Aftab Khan for Appellant.

Obaidullah Anwar A.A.‑G. for the State.

Nadar Ali Khan for the Complainant.

Date of hearing: 14th April, 2004.

MLD 2004 PESHAWAR HIGH COURT 1492 #

2004 M L D 1492

[Peshawar]

Before Shah Jehan Khan and Talaat Qayum Qureshi, JJ

TARIQ MEHMOOD QURESHI‑‑‑Petitioner

versus

Mst. ZAHIDA PARVEEN and others‑‑‑Respondents

W. P. No. 1122 of 2002, decided on 8th June, 2004.

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

‑‑‑‑S. 5 & Sched‑‑‑Civil Procedure Code (V of 1908), O.XVII, R. 3‑‑Suit for recovery of dower and dowry articles‑‑‑Closing of evidence and striking off defence of defendant‑‑‑Defendant was given many opportunities to adduce evidence, but despite such opportunities including last opportunity and adjournments on payment of costs, he neither adduced evidence nor paid costs‑‑Evidence of defendant was rightly closed and his defence was rightly struck off.

Mian Gul Shahzad Aman Room and others v. Kameen Mian and others PLD 2003 Pesh. 60; Muhammad Nawaz v. Barkat Ali PLD 2004 Lah. 21; Muhammad Sharif v. Sarfaraz Ali and 2 others 2003 MLD 234: Raiz Hussain v. Sardar Raiz Hussain and others 200? MLD 1252; Muhammad Sarwar v. Judge Family Court No. II Sadiqabad, District Rahimyar Khan and another 1999 CLC 1578 and 1999 YLR 830 ref.

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

‑‑‑‑Ss.5, Sched & 12‑‑‑Suit for recovery of dower and dowry articles‑‑Pre‑trial and post trial reconciliation‑‑‑Defendant had contended that Trial Court having committed illegality by not holding pre‑trial and post trial reconciliation proceedings which were mandatory in nature, judgment and decree passed by Trial Court against him were illegal‑‑Contention was repelled because order sheet had clearly revealed that Trial Court had fixed case for reconciliation proceedings, but defendant absented himself and did not attend the Court on that date and even after that date‑‑‑Conduct of defendant had shown that there existed no possibility of reconciliation‑‑‑Trial Court, in circumstances had rightly struck off defence of defendant.

Rashid Tariq Khan v. Additional District Judge, Lahore and others 1986 SCMR 1557 ref.

‑‑‑‑S. ‑1 & Sched‑‑‑Constitution of Pakistan (1973), Art., 199‑‑ Constitutional petition‑‑‑Suit for recovery of dower and dowry‑‑‑Dower deed and Nikahnama produced on record clearly, showed the details of properties which had been given by defendant to plaintiff wife in lieu of her dower‑‑‑Decree for recovery of dower, in circumstances had validly been passed and in absence of any illegality same could not be interfered with‑‑‑Plaintiff placed on record copy of list of dowry articles and said list was not objected to by defendant‑‑‑Defendant in his lengthy examination‑in‑Chief did not deny having received dowry articles mentioned in said list‑‑‑Defence of defendant was that dowry articles received by him, had been returned to plaintiff through the efforts of Jirga Members to one who was heading Jirga for onward handing over same to plaintiff after she would give birth to a child‑‑‑Defendant could not produce or examine person to whom dowry articles were given to be handed over to plaintiff ‑‑‑Factum of handing over said articles to plaintiff having not been proved by defendant, suit for recovery of dowry articles, was also rightly decreed by Trial Court‑‑Courts below had properly appreciated evidence available on record‑‑‑In absence of any illegality in concurrent findings of Courts of competent jurisdiction, same could not be interfered with by High Court in exercise of its Constitutional jurisdiction‑‑‑High Court in exercise of its Constitutional jurisdiction, could not substitute its own findings in place of findings given by Courts of competent jurisdiction.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 90, 91 & 92‑‑‑Constitution of Pakistan (1973), Art. 199‑‑ Constitutional petition‑‑‑Admission of document‑‑‑Objection to‑‑‑Once a document was admitted in evidence without any objection from 'other' side, later on objection against its admission could not be allowed at appellate stage or during Constitutional proceedings.

Rashid Tariq Khan v. Additional District Judge, Lahore and others 1986 SCMR 1557; Malik Din and another v. Muhammad Aslam PLD 1969 SC 136; Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140; Muhammad Akram v. Syed Imrao Ali Shah 1988 CLC 2228; Abdul Hamid Khan v. Muhammad Zameer Khan and 2 others 1990 MLD 1617; Sheikhupura Central Co‑operative Bank v. Tawakalullah and others PLD 1977 Lah. 763; Bhupal Das v. Sheri Takerji AIR 1943 P.C. 83; National Bank of Pakistan v. Sayed Ali 1987 CLC 1103; Muhammad Yousaf Khattak v. S.M. Ayub and 2 others PLD 1972 Pesh. 175 and Aminul Haq v. Abdul Wasai and others 2004 CLC 555 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Exercise of‑‑‑Even if High Court formed another view on re‑appraisal of record available, before it, same was not sufficient to justify interference and substitute its own bindings in place of findings given by Forums/Tribunals of competent jurisdiction, unless same were found arbitrary and capricious.

Export Promotion Bureau and others v. Qaiser Shafiullah 1994 $CMR. 859; Ghazanfar Abbas v. Additional District Judge Jhang and 3 others 2001 YLR 644; Siraj Din and 17 others v. Member (Judicial‑I) Board of Revenue, Punjab Lahore and others 2003 MLD 772; Khuda Yar v. M.B.R. and others 2003 MLD 1075 and Abdul Wali Khan through Legal Heirs v. Muhammad Saleh 1998 SCMR 760 ref.

Mazullah Barkandi for Petitioner.

Mian Muhibullah Kakakhel for Respondents

Date of hearing: 8th June, 2004.

MLD 2004 PESHAWAR HIGH COURT 1504 #

2004 M L D 1504

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

SAIFULLAH KHAN‑‑‑Petitioner

Versus

JAMEEL KHAN and another‑‑‑Respondents

Cr. M.B.C. No. 156 of 2003, decided on 10th June, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, cancellation of‑‑‑No allegation was found in the application filed for cancellation of bail or in arguments of applicant that accused had misused the. concession of bail by making some efforts to hamper investigation or to tamper with evidence or that he had used violence against prosecution witnesses‑‑Grounds given by Trial Court in granting bail to accused were convincing and cogent and same were neither fanciful, artificial or perverse, warranting inference‑‑‑No extraordinary circumstances thus compelled the High Court to cancel bail granted to accused by competent Court of law.

Abdul Latif Khan Baloch for Petitioner.

Sanaullah Khan Gandapur for Respondents.

Muhammad Sharif Chaudhry D.A.G. for the State.

Date of hearing: 10th June, 2004.

MLD 2004 PESHAWAR HIGH COURT 1516 #

2004 M L D 1516

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

KHALID USMAN‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Cr.M.B. No. 105 of 2004, decided on 10th June, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, refusal of‑‑Accused was nominated in F.I.R. and specific role was attributed to him‑‑‑Apprehension of accused at the spot, positive report of fire‑arms Expert and motive, led to the incident‑‑‑While dealing with bail application all that was to be seen was whether sufficient reasons existed to connect accused with commission of alleged offence‑‑‑Court had not to go into details of evidence nor could the evidence be sifted at bail stage‑‑‑Accused had not been able to point out any special circumstance so as to convince the Court that his case was fit for grant of bail‑‑‑In absence of any special circumstance, prima facie reasonable grounds existed to believe accused's involvement in offence alleged against him and case was not fit for admission of accused to bail.

H. Mirza Ali Khan for Petitioner.

Muhammad Sharif Chaudhry D.A.G. for the State.

Sultan Shaheryar Khan Marwat for the Complainant.

Date of hearing: 10th June, 2004.

MLD 2004 PESHAWAR HIGH COURT 1523 #

2004 M L D 1523

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

SAKHI JAN-‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Cr. A. No.35 of 2004, decided on 7th June, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 324/353‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss. 7/25‑‑‑West Pakistan Arms Ordinance (XX of 1965), S. 13‑‑‑Appreciation of evidence‑‑‑Police officials had claimed to have taken part in encounter and arrested accused with rifle of 7.62 bore and live rounds of same bore‑‑‑Testimony of' said witnesses consistently established the acts perpetrated by accused‑‑‑Version of witnesses was consistent on major facts with, of course,, discrepancies. on major points, but they had absolutely no reason to tell a lie to implicate the accused‑‑‑Nothing had come on record to suggest that Investigating Agency had a motive to‑ set up witnesses to depose against accused falsely‑‑‑Truthfulness of ocular testimony could not be questioned for small contradictions‑‑‑Accused had also produced defence witnesses, but when judged in juxtaposition with each other, prosecution evidence seemed more weighty and confidence inspiring‑‑‑Rifle recovered from possession of accused and empties were sent to Fire Arms Expert for opinion and according to his report (fourteen), 7.62 MM bore crime empties were found to have been fired from said rifle‑‑‑Similarly another piece of evidence was connecting accused with commission of crime‑‑‑Accused could not point out any misreading or non‑reading of evidence or contradictions in statements of prosecution witnesses resulting into miscarriage of justice‑‑‑Prosecution had succeeded to establish its case and accused had failed to prove his innocence‑‑‑Prosecution having established its case against accused beyond any shadow of reasonable doubt no reason was to interfere in conclusion arrived at by the Trial Court in recording conviction and sentence against accused.

Saleemullah Khan Ranazai for Appellant.

Muhammad Sharif Chaudhry, D.A.G. for the State.

Date of hearing: 7th June, 2004.

MLD 2004 PESHAWAR HIGH COURT 1535 #

2004 M L D 1535

[Peshawar]

Before Talaat Qayum Qureshi, J

SWAB GUL---Petitioner

Versus

THE STATE---Respondent

Cr. Misc. No.455 of 2004, decided on 28th April, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 380, 411 & 457-Bail, refusal of-Accused had confessed his guilt, he had not only stated the reason for committing the theft, but also had mentioned the manner in which theft was committed and stolen property was transported---After arrest of accused three fans were recovered from him---Plea that recovered property was not put to identification, had no force in view of clean breast confession of accused that the fans recovered from him were stolen from the place which was pointed by him---Strong prima facie case connected the accused with commission of offence---Theft was committed in Municipal Inter College for Girls and nine ceiling fans were stolen by accused depriving students of fans in such a scorching heat---Such people needed to be dealt with iron hands---Bail was refused in circumstances.

Sahibzada Riazatul Haq for Petitioner.

Muhammad Saud Addl. A.-G. for Respondent.

MLD 2004 PESHAWAR HIGH COURT 1715 #

2004 M L D 1715

[Peshawar]

Before Fazlur Rehman Khan, J

TAJ and another---Petitioners

Versus

MUHAMMAD IRSHAD and others---Respondents

Criminal Misc. No.41 of 2004, decided on 31st May, 2004.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/337-L/34---Bail, grant of---No active role had been attributed to accused in commission of offence---Injury on the person of injured was attributed to co-accused--Bail was granted to the accused.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/337-L/34---Bail, refusal

of---Co-accused was charged in F.I.R. for giving a blow to prosecution

witness with a stone with which she received injury on her back, which injury though was simple in nature, but case being of murder and hurt, co-accused could not escape vicarious liability under S. 34, P.P.C.---Co-accused was not entitled to grant of bail---His bail application was rejected.

Tehmas Khan Jadoon and Sardar Hafeez-ur-Rehman Abbasi for Petitioners.

Qazi Abdul Jalil and Ghulam Mujtaba Khan Jadoon for Respondents.

MLD 2004 PESHAWAR HIGH COURT 1778 #

2004 M L D 1778

[Peshawar]

Before Talaat Qayyum Qureshi and Malik Hamid Saeed, JJ

MUHAMMAD IMRAN BASHEER---Petitioner

Versus

ASSOCIATED INDUSTRIES LTD., NOWSHERA and another---Respondents

W.P. No.102 of 2004 with C.M. No.39 of 2004, decided on (sic) January, 2004.

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

--O. VII, R. 11---Rejection of plaint---Scope---Plaint could be rejected under O. VII, R. 11, C.P.C., if it did not disclose any cause of action or where the claim was undervalued and plaintiff on being required by the Court to correct the valuation within a time fixed by the Court had failed to do so or where the relief claimed was properly valued, but plaint was written upon paper insufficiently stamped and plaintiff on being required by the Court to supply requisite stamp paper within a time fixed by the Court, had failed to do so and where suit appeared from the statement in the plaint to be barred by any law.

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

----O. VII, Rr. 2, 3, O.VII., Rr. 11, 15 & O. XXIX, R. 1---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for recovery of amount---Verification of pleadings in a suit filed by or against torporation-Rejection of plaint---Suit was filed by plaintiff, which was a private limited company---Plaint was sought to be rejected by defendants on the ground that suit was barred and not maintainable as Special Resolution of Board of Directors of the Corporation had not been attached with the plaint---Under provisions of O. XXIX, R. 1, C.P.C. any pleadings in a suit filed by or against Corporation could be verified . on behalf of Corporation by the Secretary or by any Director or any other principal officer of Corporation who was able to depose the facts of the case---Present suit had been filed by Executive Director of the Corporation who was fully conversant with the facts of the case---Defendants in their written statement had not raised objection that suit was filed by unauthorized person---Where objection regarding the authority of person filing suit was not raised at the earliest, it would not be entertained belatedly---Courts below had rightly appreciated said position---In absence of any illegality warranting interference in concurrent judgments of Courts below, Constitutional petition filed against such judgments was dismissed.

Messrs Master sons through its Partner v. Messrs Ebrahim Enterprises and another 1988 CLC 1381 and National Bank of Pakistan and others v. Karachi Development Authority and, others PLD 1999 Kar. 260 ref.

A. W. Butt for Petitioner.

MLD 2004 PESHAWAR HIGH COURT 1925 #

2004 M L D 1925

[Peshawar]

Before ljaz-ul-Hassan Khan, J

SHER NAWAZ and another---Petitioners

Versus

THE STATE---Respondent

Criminal Revisions Nos.13 and 14 of 2004, decided on 21st September, 2004.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of surety bond---Recovery of amount of bail bond---Accused for whom petitioners stood sureties by furnishing surety bond had absconded and failed to appear before the Trial Court---Petitioners having expressed their inability to produce accused, surety amount was reduced from rupees one lac to rupees ten thousands each-- Subsequently accused having been produced by petitioners in the Court, petitioners had contended that once they had produced accused before Court in compliance with its orders, their liability stood discharged and taking further action against them was not warranted by law---Trial Court had allowed time to petitioners to produce accused---Order allowing time to petitioners/sureties for production of accused, tacitly applied suspension of order of forfeiture of surety bond because a person could not be held liable at one time for both producing accused and paying amount of surety---So far as petitioners were made liable for production of accused and were granted time for that purpose, they no longer remained liable to pay surety amount, until time allowed to them was over and they failed to produce accused within time---Petitioners having acted in compliance with the orders of the Court which allowed them time for production of accused, they were not liable to pay surety amount after they had actually produced accused in the Court-- Impugned orders of Trial Court, were set aside and petitioners were relieved of liability to pay amount of surety bond.

Ghulam Qadir Siyal v. The State 1997 PCr.LJ 554 ref.

Gohar Zaman Khan Kundi for Petitioners.

Muhammad Sharif Chaudhry, D.A.-G. for the State.

MLD 2004 PESHAWAR HIGH COURT 1931 #

2004 M L D 1931

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

Mst. TEHMEENA BIBI---Petitioner

Versus

ASLAM and another---Respondents

Criminal Miscellaneous Bail Cancellation Petition No.48 of 2004, decided on 17th September, 2004.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), Ss.354/452---Bail, cancellation of---Considerations for---Considerations for cancellation of bail are different from considerations for grant of bail---Section 497(5), Cr.P.C. would not command the Court to cancel bail even when offence was punishable with death or imprisonment for life and even if grant of bail was prohibited under S.497(1), Cr.P.C. as discretion was left in the Court under S.497(5), Cr.P.C. which was pari meteria with the principles which applied to setting aside the orders---Trial Court in granting bail to accused in the present case had properly exercised discretion vested in it because S.354, P.P.C. was bailable whereas punishment for offence under S.452, P.P.C. did not fall within prohibitory limb of S.497, Cr.P.C.---Bail had been granted to accused for valid reasons---Once bail had been granted to an accused, very strong and exceptional grounds were required for cancellation of the same which were lacking in the case---No allegation of misuse of concession of bail was found against the accused---Petition for cancellation of bail was dismissed in circumstances.

Usman v. Muhammad Azam and another 2001 PCr.LJ 1461 Pesh. and Nasir and others v. The State NLR 1991 Criminal 527 Lah. ref.

Sultan Sheheryar Khan Marwat for Petitioner.

Abdul Latif Khan Baloch for Respondents.

Muhammad Sharif Chaudhry, D.A.-G.

MLD 2004 PESHAWAR HIGH COURT 1944 #

2004 M L D 1944

[Peshawar]

Before Malik Hamid Saeed, J

THE STATE through Advocate-General N.-W.F.P.---Petitioner

Versus

KOTAY---Respondent

Criminal Revision No.94 of 2003, heard on 24th May, 2004.

(a) Penal Code (XLV of 1860)---

----Ss.53/299/302/324/34---Appreciation of evidence---Payment of Diyat---'Qasama', meaning and applicability of---Accused, in order to take revenge, had committed occurrence through hired assassins and though .family of deceased as well as other people present on the spot knew the culprits, but they were intentionally not charging them-- Police, in circumstances, recommended that case should be decided on "Qasama"---"Qasama" was the third mode to be adopted in a criminal case under 'Sharia' when no direct or circumstantial evidence was available---Under Sharia when State was burdened with payment of Diyat amount in an un-traced case of murder, certain essential conditions were, to be fulfilled by the Trial Court before passing an order of such like nature---Such conditions were as to whether place where dead body was found was a thoroughfare and whether in such conditions the voice of deceased could not be heard/could be heard by residents of nearby area and whether place where dead body was found, had got some beneficiary value to local residents---Except the fact that alleged occurrence took place on a general thoroughfare, no other condition had been satisfied by Trial Court---Each and every case which was either untraced or in which legal heirs of deceased would not intentionally charge an assailant, could not be treated a case in which Diyat amount should be paid by the State---Occurrence in the present case had taken place in a broad-daylight in presence of so many people, injured witnesses had seen the occurrence with their own eyes, they could identify the culprits if brought before them, how the State could be directed in such a situation to pay Diyat amount---Decision of Trial Court being not in conformity with relevant provisions of law, same was set aside.

Abid Hussain and another v. Chairman, Pakistan Bait-ul-Mal and others PLD 2002 Lah. 482 ref.

(b) Words and phrases--

----"Qasama"---Connotation.

Abdul Rauf Gandapur for Petitioner.

Nek Nawaz Khan for Respondent.

MLD 2004 PESHAWAR HIGH COURT 1967 #

2004 M L D 1967

[Peshawar]

Before Tariq Parvez Khan and Muhammad Qaim Jan Khan, JJ

TARIQ---Appellant

Versus

THE STATE---Respondent

J. Cr. A. No.373 of 2004, decided on 21st July, 2004.

(a) Penal Code (XLV of 1860)---

----Ss.324/353/34---Anti-Terrorism Act (XXVII of 1997), S.7---West Pakistan Arms Ordinance (XX of 1965), S.13---Explosive Substances Act (VI of 1908), S.5---Appreciation of evidence---Effectiveness of the shot allegedly fired by accused, was not certain because four persons were said to have fired which had caused one entry wound each on the person of two constables---Said two constables who sustained, fire arm injuries though appeared in Court, but to prove their injuries, no doctor was examined by the prosecution---Conviction and sentence recorded against accused, in circumstances, would not be maintainable and was liable to be set aside.

(b) Penal Code (XLV of 1860)-

----Ss.324/353/34---Anti-Terrorism Act (XXVII of 1997), S.7---West Pakistan Arms Ordinance (XX of 1965), S.13---Explosive Substances Act (VI of 1908), S.5---Appreciation of evidence---Accused belonged to different village, could not tender any plausible explanation about his presence in the vicinity of the crime nor he had in any manner successfully challenged statement of Investigating Officer and two police constables, but he had been found injured and arms ammunition was recovered from him---Accused who was in custody since 5-3-1997, had undergone his substantive sentences of imprisonment---Accused was confined in jail for non :payment of fine imposed on him---As conviction and sentence of accused under S.324/34, P.P.C. had been set aside, his retention for non-payment of fine would be illegal---Accused was fined Rs.1,Q00 under S.353, P.P.C. and Rs.3000 under S.13 of West Pakistan Arms Ordinance, 1965, but as he had already undergone more than substantive period of his imprisonment, said fines were remitted on all charges---Superintendent Jail was directed to check and if found that accused had already undergone his sentence, he should be released forthwith.

Aftab Khan for Appellant.

Obaidullah Anwar Addl.A.-G. for Respondent.

MLD 2004 PESHAWAR HIGH COURT 1980 #

2004 M L D 1980

[Peshawar]

Before Qazi Ehsanullah Qureshi, J

LAL ZADA ---Petitioner

Versus

THE STATE and another---Respondents

Cr. Misc. No.930 of 2004, decided on 17th September, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/109/34---Bail, grant of---No direct evidence was available against the accused---Absconding accused who was brother of the accused had accepted responsibility of killing the deceased---Accused was not directly charged for murder of deceased who was his wife, but was charged for abetment and actual culprit charged for the offence was his absconding brother---Abetment was a charge which required a thorough probe and simply on allegation of abetment a person could not be detained behind the bars for indefinite period---Accused was released on bail in circumstances.

Nek Nawaz Khan Awan for Petitioner.

Arbab Muhammad Usman Addl. A.-G for the State and Muhammad Zahoor Qureshi for the Complainant.

MLD 2004 PESHAWAR HIGH COURT 1982 #

2004 M L D 1982

[Peshawar]

Before Tariq Pervez, WARIS KHAN and others---Petitioners

Versus

THE STATE and another---Respondents

Cr. A. No.861 of 2003, decided on 26th July, 2004.

(a) Penal Code (XLV of 1860)---

----S.324/34---Appreciation of evidence---Injured prosecution witness had stated that co-accused who were sons of main accused did not fire at him except the main accused and that said co-accused had fired afterwards and that too in the air---Thirteen empties recovered from the spot though were sent to Fire-Arms Expert, but no opinion was given by him to show whether those were fired from one weapon or more---Keeping in view the role attributed to co-accused by complainant and injured witness which had put the presence of complainant himself into doubt it was not safe to maintain conviction and sentence of two co-accused; their conviction and sentences were set aside and they were acquitted of the charge and were set free.

PLD 2003 Quetta 77 and NLR 1987 Cr. Cases 32 ref.

(b) Penal Code (XLV of 1860)---

----S.324/34---Criminal Procedure Code (V of 1898), S.161---Appreciation of evidence---Non-examination of witness under. S.161, Cr.P.C.---Effect---Out of four accused persons, one had already been acquitted by Trial Court and two had been acquitted by High Court in appeal---Main accused who was father of acquitted accused persons was charged for effective firing which had caused fire-arm injury on the head of injured prosecution witness---Bald statement of victim/injured witness that he remained unconscious for five months, was not supported by Medical evidence---Victim had admitted to be working as driver abroad, which meant that he had not lost any "Udw" and "Salahiyyat-i-Udw" nor he was incapacitated in his day to day working---Accused had contended that non-examination of injured witness under S.161, Cr.P.C. had caused prejudice to him---Contention of the accused was repelled because in the very F.I.R. and at the time of surrender/arrest accused knew that he was charged for causing fire-arm injuries to injured who was still living--- Accused was presumed to be in the knowledge that injured would appear against him and would give evidence---Neither any prejudice was caused to defence/accused as he was not taken by surprise nor on ground of non-examination of injured by police---Accused who was father of acquitted accused persons, was a man of advance age---Nature of enmity and its extent had not been highlighted by prosecution---Except statement of injured that he remained unconscious for five months, no medical evidence was available to the effect that he remained unconscious for such a long time---Injured had sustained single fire arm injury though on his head but he was pursuing his regular life---Appeal of main accused was partially allowed---Conviction of the accused was maintained but sentence of eight years awarded to him by Trial Court was reduced to five years' R.I. accordingly.

----S .161---Non-examination of witness by pol ice -Effect-- -Non-examination under S.161, Cr.P.C. could be attributed to.incompetence of police for which complainant would not suffer---Even otherwise, it was not mandatory that statement of a witness would, in all cases, be recorded under S.161, Cr.P.C.---Had it been mandatory, it would have been provided under S.161, Cr.P.C. itself that unless a person was examined under said section, he could not appear as a witness.

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

----S.265-F---Evidence for prosecution---Provisions of S.265-F, Cr.P.C. would cater for a situation where the Court could ascertain from the complainant the name of any person likely to be acquainted with the facts of the case and to be able to give evidence for prosecution.

Masood Kausar and Fakhar Azam for Petitioners.

Akhtar Naveed, D.A.-G. for the State.

Ishtiaq Ibrahim and Abdul Fayyaz are present for the Complainant.

MLD 2004 PESHAWAR HIGH COURT 2000 #

2004 M L D 2000

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

AHMAD ALI---Petitioner

Versus

THE STATE and another---Respondents

Cr. Misc. Bail Petition No.128 of 2004, decided on 6th September, 2004.

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

----S.497(2)---Bail, grant of---Further inquiry---Entitlement to discretionary relief of bail---Accused would only be entitled to discretionary relief of bail when on tentative assessment of material brought before Court, Court would reach the conclusion that no reasonable grounds existed for believing that accused was guilty of a non-bailable offence or an offence punishable with death, imprisonment for life or imprisonment for ten years---In absence of any such finding the Court was debarred to hold that case was of further inquiry entitling accused to bail within the meaning of S.497(2), Cr.P.C.---Deeper appreciation of evidence at bail stage, no doubt was not the requirement of law pertaining to bail matters, but cases regarding bail, were not and could not be decided in vacuum---Court had to form a view by assessing evidence on record tentatively.

Dilawar Khan v. The State and another 2004 YLR 431; Ansar Shah v. The State 2004 YLR 2262; Abdul Ghaffar v. The State 2004 YLR 2361; Safirullah v. The State and another 2003 PCr.LJ 1691; Mst. Parveen Akhtar v. The State and others 2002 SCMR 1836 and Waheed Murad v. Ajmal Khan and another 2000 PCr.LJ 1951 ref.

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

----S.497---Bail, refusal of---Accused was directly nominated in report for commission of offence---Specific role of firing had been attributed to accused which resulted in injury to complainant who due to his precarious condition and nature of injury was referred to hospital where he remained for more than six months---Role of accused was distinguishable qua the role assigned to co-accused who was attributed, proverbial role of Lalkara whereas accused was charged for effective firing---Principle of consistency was not attracted in the case---Accused, prima facie, being associated with crime, his bail application was dismissed.

Gohar Zaman Khan Kundi for Petitioner.

Muhammad Sharif Chaudhry, D.A.-G for the State.

Muhammad Yaqoob Khan Marwat for the Complainant.

MLD 2004 PESHAWAR HIGH COURT 2022 #

2004 M L D 2022

[Peshawar]

Before ljaz-ul-Hassan Khan, J

HABIB-UR-REHMAN alias GHULAM HABIB---Appellant

Versus

THE STATE and another---Respondents

Cr. A. No.60 with Cr. Misc. No.223 of 2004, decided on 10th September, 2004.

Criminal Procedure Code (V of 1898)---

----S.417(2)(a)---Penal Code (XLV of 1860), S.324/34---Appeal against acquittal---Prosecution had not been able to prove its case satisfactorily against accused and no misreading and non-reading of evidence on the part of Trial Court, rendering judgment of trial Court as unsustainable, had been pointed out---Evidence in the case had been appreciated in right direction and no illegality or infirmity had been pointed out in the judgment of acquittal passed by Trial Court---Appeal filed against acquittal was hopelessly barred by time and said delay was not satisfactorily explained---Mere assertion of appellant/complainant that delay was on account of his ailment, without a positive attempt on his part to substantiate the same, was of no consequence---Trial Court had advanced valid and cogent reasons for passing order of acquittal of accused---hnpugned judgment being unexceptionable, would not call for interference of High Court in appeal.

MLD 2004 PESHAWAR HIGH COURT 2030 #

2004 M L D 2030

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

ABDUL QAYYUM---Appellant

Versus

MUHAMMAD RAMZAN and 5 others---Respondents

Criminal Appeal No.10 of 2003, decided on 17th September. 2004.

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

----Ss.410 & 417(2-A)---"Appeal against conviction" and "appeal against acquittal"---Distinction---Standards of assessing evidence in appeal against acquittal were quite different from those laid down for appeal against conviction---Marked difference was between appraisal of evidence in the appeal against conviction and in the appeal against acquittal---Appraisal of evidence in appeal against conviction was done strictly and in appeal against acquittal, such rigid method of appraisement was not to be applied as there was already finding of acquittal given by Trial Court after proper analysis of evidence on record---In acquittal appeal interference was made only when it appeared that there had been gross misreading of evidence which amounted to miscarriage of justice---Ordinary scope of appeal against acquittal of accused was considerably narrow and limited.

Muhammad Usman and 2 others v. The State 1992 SCMR 498 and The State v. Muhammad Sharif and others 1995 SCMR 635 ref.

(b) Penal Code (XLV of 1860)

----Ss.447/427/148/149---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---No date, month or year of occurrence had been mentioned by complainant in his report which had reflected mala fides on the part of complainant---When complainant was not sure about exact date of occurrence, how could prosecution witnesses produced by him could tell about same---Prosecution witnesses being closely related to complainant, were interested witnesses---Complainant had thrown a wide net to implicate all male members of one family--- Was unbelievable that accused had installed doors in the property owned by complainant and he was unaware of the same---In view of facts and circumstances of case it could be said that case of complainant was totally false and unbelievable and accused had rightly been acquitted of the charge extending them benefit of doubt---Conclusion of Trial Magistrate was neither arbitrary and fanciful nor artificial in nature--- Judgment of acquittal passed by Trial Court being well reasoned, hardly called for interference by High Court in its appellate jurisdiction Appeal against acquittal being devoid of merits, was dismissed.

Gul Raza v. The State and 4 others 2004 PLD Pesh. 219; 2004 PCr.LJ Pesh. 1068 and 2004 PCr.LJ Lah. 1151. ref.

Muhammad Waheed Anjum for Appellant.

Abdullah Khan Gandapur for Respondents.

Farooq Akhtar for the State.

MLD 2004 PESHAWAR HIGH COURT 2037 #

2004 M L D 2037

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

MUHAMMAD ZAMAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Misc. Bail Petition No.152 of 2004, decided on 13th September, 2004.

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

----S.497---Bail grant of---Principles---"Further inquiry"---Accused would only be entitled to the discretionary relief of bail when ori the tentative assessment of material brought before it, the Court reached the conclusion that no reasonable grounds were for believing that accused was guilty of a non-bailable offence or an offence punishable with death, imprisonment for life or imprisonment for ten years---In absence of any such finding the Court was debarred to hold that case was of "further inquiry" entitling accused to bail within the meaning of S.497(2), Cr.P.C.---Deeper appreciation of evidence at bail stage, no doubt was not the requirement of law pertaining to bail matters, but cases regarding bail could not be decided in vacuum---Court had to form a view by assessing evidence on record tentatively.

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

----S.497---Penal Code (XLV of 1860), Ss.302/109---Bail, refusal of-- Accused stood directly involved in promptly lodged report for commission of offence and a specific role of firing had been attributed to him which resulted in death of deceased---Accused was arrested red-handedly when making attempt to make good his escape---Medical evidence and witnesses of the spot fully supported the charge---No case for grant of bail, in circumstances, had been made out---Bail application was rejected with direction to prosecution to submit, ,challan against accused in the Court within specified period and Trial Court would conclude case as expeditiously as possible.

Sultan Shehryar Khan Marwat for Petitioner.

Muhammad Sharif Chaudhry, D.A.-G. for Respondents.

Abdul Latif Khan Baloch for the Complainant.

Quetta High Court Balochistan

MLD 2004 QUETTA HIGH COURT BALOCHISTAN 1474 #

2004 M L D 1474

[Quetta]

Before Akhtar Zaman Malghani, J

ABDUL REHMAN, SECRETARY, CRICKETER ASSOCIATION OF BALOCHISTAN and others‑‑‑Petitioners

versus

PAKISTAN CRICKET BOARD through Coach Raj Hans and others‑‑‑Respondents

Civil Revision Petitions Nos.38 and 43 of 2004, decided on 12th March 2004.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction‑‑‑Exercise of‑‑‑Jurisdiction vested in High Court under S. 115, C.P.C., primarily was meant for correction of errors made by Subordinate Courts in exercise of their jurisdiction and not those which were made in their discretion, unless it was shown that discretion so vested in them had been exercised arbitrarily or fancifully.

PLD 1970 SC 139 ref.

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

‑‑‑‑Ss. 42 & 54‑‑‑Civil Procedure Code (V of 1908), S. 115 & O.XXXIX, Rr. 1 & 2‑‑‑Suit for declaration and permanent injunction‑‑‑Interim injunction‑‑‑Grant of‑‑‑Revision petition‑‑‑Both Courts below, after considering all aspects of case, granted interim injunction restraining defendants Nos.2 to 7 from participating in the tournament as prima facie they were found having not been selected in accordance with rules and procedure‑‑‑Court below, however, refused to grant injunction in respect of other 19 players who were duly ‑‑selected for the team from 52 players who initially were nominated for trial and they had also participated in the tournament for final selection‑‑‑Said 19 players were also not made party to suit‑‑‑‑Interim injunction passed against said 19 players would amount to restraining them from participating in the tournament and such order which adversely affected them could not be passed behind their back‑‑‑Concurrent orders passed by Courts below were just and appropriate in the light of peculiar facts and circumstances of the case and could not be termed as arbitrary or fanciful warranting interference by High Court in exercise of its revisional jurisdiction.

1999 CLC 66; PLD 1996 Lah. 442; PLD 1970 SC 139 and 2001 CLC 713 ref.

‑‑‑C. VII, R. 7‑‑‑Grant of relief not specifically claimed‑‑‑Courts were not precluded to grant any relief though not specifically claimed, which Court would think to be just and appropriate‑‑‑Courts were also empowered to mould and grant relief appropriate in the circumstances of the case.

PLD 1968 SC 1 ref.

M. Jamshed Malik for Petitioners.

Ch. Mumtaz Yousaf for Respondents.

Date of hearing: 11th March, 2004.

Supreme Court Azad Kashmir

MLD 2004 SUPREME COURT AZAD KASHMIR 451 #

2004 M L D 451

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed and Chaudhry Muhammad Taj, JJ

MUSHTAQ AHMED and 4 others‑‑‑Appellants

Versus

CUSTODIAN, EVACUEE PROPERTY, AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 11 others‑‑‑Respondents

Civil Appeal No.43 of 2003, decided on 23rd December, 2003.

(On appeal from the judgment of the High Court dated 6‑5‑2003 in Writ Petition No.27 of 2000).

(a) Oaths Act (X of 1873)‑‑‑

‑‑‑‑Ss.8, 11 & ‑13‑‑‑Counsel for the petitioners stated at the bar that if the contesting respondent shall state on oath that he had not committed any forgery for securing the allotment of disputed shop, the petitioners would not press their writ petition‑‑‑Offer to take oath was competently made by the counsel of the petitioner, because his power of attorney was neither cancelled nor withdrawn‑‑‑Record showed that one of the petitioners who was prosecuting the writ petition on behalf of the rest of the petitioners and pro forma respondents before the High Court, was present in the Court, when the counsel made the offer‑‑‑Statement of the petitioner, who was present in the Court was recorded by the Court as he had no power of attorney on behalf of the rest of the petitioners and pro forma respondents and in support of his statement the statement of the counsel for the remaining petitioners, was recorded by the Court‑‑Petitioners did not urge that oath was not administered by the Court in terms the offer was made by the petitioners and their counsel and had not disputed that the respondents had not accepted the offer and made the statement on Holy Qur'an to the effect that he had not secured the allotment of the disputed shop by committing any forgery, their objection was that the statement was not recorded by the Court‑‑‑Validity‑‑Statement given on oath must be recorded by the Court‑‑‑Oath was to be recorded in writing either by the Judge himself or any other person in his presence and under his guidance which is also to be signed by the Judge‑‑‑Presiding Officer of the Court under the Scheme of law must consciously participate in all the proceedings from beginning to the end‑‑‑Case was remanded and High Court was directed by the Supreme Court to decide the dispute after recording the statement of the respondent on special oath in accordance with law.

Abdul Hameed v. Muhammad Najeeb Civil Appeal No.37 of 2000 fol.

Abdul Hameed v. Muhammad Najeeb Civil Appeal No.37 of 2000; Muzaffar Ali and 2 others v. Ch. Asghar Ali 1991 CLC 2110; Ramzan and others v. Gopal Das and others AIR 1932 Lah. 414; Kamal Din and others v. Mst. Nawab Bibi and others PLD 1988 Lah. 281; Nasrullah Jan v. Rastabaz Khan 1996 SCMR 108 and Muhammad Siddique v. Noor Muhammad and 2 others 1996 CLC 695 ref.

(b) Oaths Act (X of 1873)‑‑‑

‑‑‑‑Ss.8 & 11‑‑Civil Procedure Code (V of 1908), Preamble‑‑If any party offers to give an evidence on oath the Court may administer such oath‑‑-Word "evidence" having been used in Ss. 8 & 11 of the Oaths Act, 1873, provisions contained in C.P.C. are to be followed‑‑‑Evidence is to be recorded in writing either by the Judge himself or any other person in his presence and under his guidance which is also to be signed by the. Judge‑‑‑Presiding Officer of the Court under the Scheme of law must consciously participate in all the proceedings from beginning to the end.

Raja Muhammad Siddique, Advocate for Appellants.

Abdul Majeed Mallick, Advocate for Respondents.

Date of hearing: 22nd October, 2003.

MLD 2004 SUPREME COURT AZAD KASHMIR 510 #

2004 M L D 510

[Supreme Court (A J&K)]

Present: Muhammad Yunus Surakhvi, C.J. and Chaudhry Muhammad Taj, J

Mst. NASIM BASHIR‑‑‑Appellant

Versus

ABDUL JABBAR‑‑‑Respondent

Civil Appeal No. 7 of 2001, decided on 12th December, 2003.

(On appeal from the judgment of the Shariat Court dated 23‑10‑2002 in Civil Appeal No.15 of 2002).

Azad Jammu and Kashmir Family Courts Act, 1993‑‑‑

‑‑‑‑S.14‑‑‑Civil Procedure Code (V of 1908), S.2(2)(9)‑‑‑Appeal to Shariat Court against the order recorded by the Judge Family Court for restoration of the suits was not competent‑‑‑Principles.

A bare reading of the provisions of section 14, Azad Jammu and Kashmir Family Courts Act, 1993 for filing of appeal before the Shariat Court shows that it is only a decision or a decree which had been made appealable to the Shariat Court. The intention of the Legislature while enacting this law has been given in the preamble that the same was legislated for expeditious settlement and disposal of disputes relating to marriage and family affairs, therefore, to avoid protracted litigation no appeal or revision is provided against the interim orders. Even otherwise there were certain decrees which have not been made appealable before the Shariat Court which further supports the above view. Though a decision or a decree has not been defined in this Act and the application of the provisions of the Evidence Act and the Civil Procedure Code have been excluded. However, Court can seek guidance from the other statutes where the decision and decree have been defined. The word `decree' has been defined in Civil Procedure Code, 1908 in subsection (2) of section 2 dealing with the definitions.

A decree means an order by one in authority, a judicial decision. The decisions given by the Courts of law can either be decrees or orders. Both must be formally expressed and be in precise and deliberate language. Ordinarily, an appeal lies from every decree. The orders on the other hand are appealable only if so provided in law. A decree conclusively determines the rights of the parties while an order does not necessarily do so. The word adjudication' refers to a judicial determination of a matter in controversy. Ajudgment' means the judicial decision of a Court or Judge. A judgment not necessarily deals with all the matters in issue in a suit but may determine only those issues the decision whereof will have the effect of adjudicating all the matters in controversy or will result in. a final disposal of the suit. Every statement of grounds will not be a judgment but will be so only if such decision can result in a decree or order.

Therefore, keeping in view the phraseology employed in use of words decision' ordecree' in section 14 of the Azad Jammu and Kashmir Family Courts Act, 1993 in the light of dictionary meaning one can safely arrive at a conclusion that interlocutory matters which do not finally dispose of the cases are not appealable before the Shariat Court. It follows that the appeal filed before the Shariat Court against the order recorded by the Judge Family Court for restoration of the suits was not competent. Therefore, the order passed by the Shariat Court was not maintainable as such same was set aside by accepting the appeal. Consequently, the suits shall proceed in the trial Court.

Zafar Ullah v. Mst. Razia Bibi and others 2000 CLC 1208; Kh. Ghulam Qadir and another v. Muhammad Sharif and 11 others 2000 MLD 2047; AJ&K Government and 10 others v. Abdul Rashid and 5 others 2002 CLC 1662; Qurban Ali and another v. The State PLD 1984 SC (AJ&K) 104; Chairman, AKLASC and 2 others v. Abdul Hameed Siddique and another 2002 PLC 163; Muhammad Hanif v. Baqa Muhammad PLD 1979 SC (AJ&K) 120; Sardar Muhammad Ibrahim Khan v. Azad Jammu and Kashmir Government PLD 1990 SC (AJ&K) 23 and Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and another 1986 SCMR 1736 distinguished.

Abdul Rashid Abbasi, Advocate for Appellant.

Syed Nazir Hussain Shah Kazmi, Advocate for Respondent.

Date of hearing: 5th December, 2003.

MLD 2004 SUPREME COURT AZAD KASHMIR 822 #

2004 M L D 822

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, J

MUHAMMAD KHALIQ KHAN‑‑‑Petitioner

Versus

Mst. ULFAT JAN‑‑‑Respondent

Civil Petition for Leave to Appeal No.211 of 2001, decided on 12th February, 2002.

(On appeal from the judgment of the Shariat Court dated 27‑10‑2001 in Criminal Revisions Nos. 13 and 14 of 2001).

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

‑‑‑‑S. 14(5)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(12)‑‑‑Dower‑‑‑Shariat Court taking a lenient view of the matter had already reduced instalments of dower amount‑‑‑No legal question of public importance being involved in the case and petitioner having failed to make out case for grant of leave to appeal against judgment of Shariat Court, petition for leave to appeal was dismissed in circumstances.

Sardar Muhammad Sadiq Khan and Sardar Muhammad Habib Zia, Advocates for Petitioner.

Date of hearing: 12th February, 2002.

MLD 2004 SUPREME COURT AZAD KASHMIR 832 #

2004 M L D 832

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

STATE LIFE INSURANCE CORPORATION OF PAKISTAN‑‑‑Appellant

Versus

MUHAMMAD RAZZAQ and 2 others‑‑‑Respondents

Civil Appeal No.57 of 2000, decided on 2nd February, 2001.

(On appeal from the judgment and decree of the High Court dated 24‑3‑2000 in Civil Appeal No. 10 of 1994).

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑--

‑‑‑‑S. 42(12)‑‑‑Appeal to Supreme Court‑‑‑Remand of case‑‑‑Points which went to the root of the case and which had been argued in High Court had not been adverted to by the High Court‑‑‑Question of jurisdiction of the Court, limitation as well as the question whether Corporation could be sued without relevant functionaries, were of vital importance and needed probe in view of relevant law in the present case‑‑‑Question whether judgments of District Judge and High Court were sustainable on merits or not, would also be decided when question of proper constitution of suit, would be decided one way or the other‑‑‑Case was remanded to High Court to rehear arguments and decide the same afresh in accordance with law and in view of the observations of Supreme Court.

Abdul Aziz Chaudhry, Advocate for Appellant.

Ch. Lal Hussain, Advocate for Respondents Nos.1 and 2.

Date of hearing: 30th January, 2001.

MLD 2004 SUPREME COURT AZAD KASHMIR 844 #

2004 M L D 844

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

AZAD J&K GOVERNMENT and others‑‑‑Appellants

Versus

Ch. ABDUL MAJEED and others‑‑‑Respondents

Civil Appeal No.40 of 2001, decided on 20th April, 2001.

(On appeal from the judgment of, the High Court dated 17‑1‑2001 in Writ Petition No.639 of 2000).

Civil Miscellaneous Petition No.30 of 2001 decided on 20th April, 2001.

(Application for suspension of the judgment of the High Court dated 17‑1‑2001 in Writ Petition No.639 of 2000).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑--

‑‑‑‑S.44‑‑‑Writ jurisdiction, exercise of‑‑‑Preparation of Development Scheme‑‑‑Government had to prepare Development Scheme and a citizen or a member of Legislative Assembly had no vested right to insist that a particular Development Scheme submitted by him should have been implemented‑‑‑Government or its functionaries were bound to perform their functions within four corners of law when it was shown by an aggrieved person that an act of Executive Authority was tainted with mala fides or same offended against law, such an act was open to review by Supreme Court in exercise of its Constitutional jurisdiction‑‑Executive order, if shown to be violative of law, could not be protected on the ground that Authority concerned had the jurisdiction to pass the same and, thus, was immune from challenge by invoking writ jurisdiction.

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

‑‑‑‑O.VIII, Rr.3, 4 & 5‑‑‑Written statement‑‑‑Denial of averment made in plaint‑‑‑Not sufficient to simply deny in written statement an averment made in plaint or the writ petition, but facts showing that averments made in suit or writ petition were untrue must be stated‑‑Simply mentioning 'denied' in written statement, would not amount to denial of allegation made in the plaint.

‑‑‑‑Ss.4(15) & 12(1)(4)‑‑‑Rules of Business of Azad J&K Government, 1985, R.10(2)‑‑‑Equality before law‑‑‑Decision taken by Cabinet, challenge to‑‑‑Decision taken by Cabinet could not be challenged by Prime Minister alone‑‑‑Even if decision of Cabinet did not have the force of law, Development Schemes were to be prepared within four corners of law which would mean that all citizens were to be treated as equal before law‑‑‑Arbitrary exclusion of Schemes on the pretext that Development Schemes proposed by Member of Legislative Assembly were excluded in the "public interest", would not protect the course adopted by Government.

Muhammad Mushtaq v. Muhammad Fiaz Abbasi 1994 SCR 95 ref.

Raja Muhammad Hanif Khan, Advocate for Appellants.

Sardar Rafique Mahmood Khan, Advocate for Respondents.

Date of hearing: 16th April, 2001.

MLD 2004 SUPREME COURT AZAD KASHMIR 867 #

2004 M L D 867

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

GHULAM RASOOL and 2 others‑‑‑Petitioners

Versus

MINISTER FOR REHABILITATION and 3 others‑‑‑Respondents

Civil Appeal No.79 of 2000, decided on 10th January, 2001.

(On appeal from the judgment of the High Court dated 23‑5‑2000 in Writ Petition No. 11 of 1992).

(a) Pakistan (Administration of Evacuee Property) Act (XII of 1957)‑‑‑

‑‑‑‑S. 18(7)‑‑‑Allotment, cancellation of‑‑‑Power of Government‑‑Government had the power to cancel an allotment if it was found by Rehabilitation Authorities on inquiry that same was surrendered by concerned allottee in view of the subsection (7) of S.18 of Pakistan (Administration of Evacuee Property) Act, 1957, which had been made operative retrospectively‑‑‑Presumption would be that official act of cancellation of allotment of allottee, who had surrendered his rights of allotment, was performed according to law while it was otherwise proved.

Sher Ahmad v. Custodian of Evacuee Property PLD 1983 SC (AJ&K) 78; Bashir Ahmad Khan v. Custodian, Evacuee Property Azad Jammu and Kashmir, Muzaffarabad PLD 1987 SC (AJ&K) 118; Muhammad Sharif v. Custodian of Evacuee Property Civil Appeal No. 7 of 1993 and Muhammad Rafiq v. Haji Muhammad Shafi Khan PLD 1991 SC (AJ&K) 47 ref.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑--

‑‑‑‑S.44‑‑‑Writ jurisdiction, exercise of‑‑‑Party which did not come with clean hands could not be given relief in exercise of writ jurisdiction.

Raja Muhammad Hanif Khan, Advocate for Appellants.

Farooq Hussain Kashmiri, Advocate for Respondent No. 2.

Syed Nazir Hussain Shah Kazmi, Advocate for Respondent No.4.

Date of hearing: 21st December, 2000.

MLD 2004 SUPREME COURT AZAD KASHMIR 884 #

2004 M L D 884

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed, J

MUHAMMAD RESHAM KHAN‑‑‑Petitioner

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT and 6 others‑‑‑Respondents

C.P.L.A. No.59 of 2002, decided on 15th May, 2002.

(On appeal from the judgment of the High Court dated 9‑3‑2002 in Writ Petition No.225 of 2001).

Interpretation of statutes‑‑‑--

‑‑‑‑Courts were meant to interpret the law and were not supposed to add or subtract anything in the relevant provision of law‑Legislature could not be questioned.

Sagheer Ahmed and others v. Azad Government and others Writ Petition No.85 of 1999; Zaheer Baber Chughtai v. Azad Government and others Writ Petition No.544 of 1999; Raja Muhammad Sohrab v. AJ&K Government and 6 others 2002 PLC (C.S.) 1138 and Institute of Engineers, Pakistan Engineering Center v. Pakistan Engineering Council and another 1996 CLC 129 ref.

Ashfaque Hussain Kiani for Petitioner.

Raja Muhammad Hanif Khan for Respondents.

Date of hearing: 13th May, 2002.

MLD 2004 SUPREME COURT AZAD KASHMIR 905 #

2004 M L D 905

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, C.J. and Khawaja Muhammad Saeed, J

MUHAMMAD ANWAR ‑‑‑Appellant

Versus

MAQSOOD AHMAD MINHAS and 7 others‑‑‑Respondents

Civil Appeal No.94 of 2001, decided on 18th November, 2002.

(On appeal from the judgment of the High Court dated 12‑6‑2001 in Writ Petition No. 141 of 1999).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑--

‑‑‑‑S.42‑B‑‑‑Decision of Supreme Court, binding force of‑‑‑All Courts including High Court, were bound by the judgment of Supreme Court‑‑Directions recorded by Supreme Court not to be overlooked or bypassed as that would amount to violation of the Constitution and Supreme Court Rules.

Abdul Qadeer and 148 others v. Azad Jammu and Kashmir University and another 2000 SCR 22 ref.

(b) Administration of justice‑‑‑

‑‑‑‑ Practice and procedure‑‑‑Violation of‑‑‑While recording judgment, directions of Supreme Court were ignored by High Court and settled practice was, flouted‑‑‑Case was reserved for judgment by Division Bench, but judgment was written and signed by Chief Justice who announced the same and directed the office that result of litigation be communicated to the counsel for the contesting parties‑‑‑Record was sent alongwith the judgment by Chief Justice to the other member of Bench, which practice was not recognized by law‑‑‑Before the judgment was announced through short or comprehensive order, same must contain the signatures of the members of the Bench, but in the present case procedure was adopted contrary to the High Court Procedure Rules as well as settled practice of the Court‑‑‑Judgment of High Court was set aside and case was remanded to be decided afresh according to law.

Abdul Rashid Abbasi, Advocate for Appellant.

Raja Muhammad Hanif Khan, Advocate for Respondents.

Date of hearing: 5th November, 2002

MLD 2004 SUPREME COURT AZAD KASHMIR 927 #

2004 M L D 948

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J., and Muhammad Yunus Surakhvi, J

AZAD GOVERNMENT‑‑‑Appellant

Versus

Ch. MUHAMMAD MANSHA and 10 others‑‑‑Respondents

Civil Appeal No. 150 of 1999, decided on 2nd February, 2000.

(On appeal from the judgment of the High Court dated 17‑3‑1999 in Writ Petition No. 11 of 1999).

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)--

‑‑‑‑S.44‑‑‑Writ of prohibition‑‑‑Issuance of scheme of building of primary school was approved by concerned Authority and nothing was on record to show that any policy was made by Government that more than two lacs of rupees could not be sanctioned for construction of building of primary school‑‑‑Government could sanction a larger amount for construction of a primary school building or sanction an amount more than rupees two lacs for such construction‑‑‑Authorities having not acted illegally, in the absence of any allegation of mala fides writ of prohibition could not be issued.

Raja Muhammad Hanif Khan, Advocate for Appellant.

Abdur Rashid Abbasi, Advocate for Respondents.

Date of hearing: 31st January, 2000.

MLD 2004 SUPREME COURT AZAD KASHMIR 960 #

2004 M L D 960

[Supreme Court (AJ&K)]

Present: Chaudhary Muhammad Taj, J

MUHAMMAD ASLAM and others‑‑‑Petitioners

Versus

CUSTODIAN EVACUEE PROPERTY and others‑‑‑Respondents

Civil Petition for leave to appeal No.237 of 2002 and Civil Miscellaneous No. 201 of 2002, decided on 12th December, 2002.

(On appeal from the judgment of the High Court dated 8‑10‑2002 in Writ Petition No.308 of 2002).

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

‑‑‑‑Ss.2 & 3‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(12)‑‑‑Petition for leave to appeal‑‑‑Review petition before Custodian of Evacuee Property‑‑‑Order passed by Supreme Court wits regard to allotment of land having attained finality, petitioners could not re‑agitate the matter through another review petition before the Custodian‑‑‑Petition for leave to appeal would have no substance particularly when in previous two rounds of litigation petitioners, remained unsuccessful‑‑‑Respondents were allotted land in year 1971 and were also conferred proprietary rights‑‑‑No illegality having been found in order of allotment in the names of respondents, petition for leave to appeal was dismissed.

Raja Muhammad Hanif Khan, Advocate for Petitioners.

Kh. Muhammad Nasim, Advocate for Respondents Nos. 2 and 3.

Date of hearing: 11th December 2002.

MLD 2004 SUPREME COURT AZAD KASHMIR 1624 #

2004 M L D 1624

[Azad J&K]

Be ore Sardar Muhammad Nawaz Khan, J

MUHAMMAD HUSSAIN and 2 others ---Petitioners

Versus

MUHAMMAD ASGHAR and 2 others ---Respondents

Civil Revision No.84 of 2003, decided on 24th April, 2004.

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

----O.XL, R.1---Appointment of receiver---Object and purpose of Powers of Court to appoint receiver -Scope -Object and purpose of appointment of a receiver was preservation of the subject-matter of litigation pending adjudication of the rights of the parties thereto---Provisions of O.XL, R.1, C.P.C. Were to safeguard the interest of all parties as well as property which was the subject of litigation -Petitioner seeking appointment of receiver was under legal obligation to make out a prima facie case in that respect so as to persuade the Court to reach such conclusion -One who had sought appointment of receiver, was required to satisfy the Court that the protection and preservation of subject-matter was necessary because of expected waste or peril to such property -Appointment of receiver by dispossessing a party, was a very harsh action which should not be resorted to lightly unless a strong case of damage or waste to the property was made out---Receiver was a representative of the Court and not of any of the parties to the litigation---Appointment of receiver was always made to protect property for equal benefit of those who were interested in its distribution and to keep the property within the control of the Court---Said power available to a Court was to be exercised only when petitioner would establish a special equity in his favour, but where the title of a party in possession was established, then certainly petition for appointment of receiver would not lie---Appointment of receiver was made in exceptional circumstances where the interest of the party seeking appointment of a receiver was exposed to manifest peril -Party seeking such appointment had to show emergency or danger or loss to the property demanding immediate action---Element of danger was the important consideration and the Court could not act on mere possibility of danger to property -Bona fide possession of a person of property, should not be disturbed unless there was an allegation of waste, mismanagement of the property or apprehension of irreparable loss and injury -Such power was sparingly used by the Court and if the interest of any party could be protected by another means, the Court should abstain from appointing a receiver under O.XL, R.1, C.P.C.- Where petitioner failed to establish specific instances of alleged waste, mismanagement and misappropriation, the Court would refuse to appoint receiver.

1992 CLC 2460; PLD 1977 Kar.280; PLD 1980 Kar.1093; 1994 CLC 247 and 1993 CLC 605 ref.

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

---S.9---Suit for possession----Person who was found to be in possession of a property in his own right and title, should not be lightly dispossessed unless some peculiar circumstances or instance of waste and damage to property was shown.

---O.XL, R.1 -Appointment of receiver -Trial Court did not appoint receiver himself, but directed Tehsildar to appoint receiver of the property, which was quite illegal -While appointing receiver under O.XL, R.1, C.P.C., Trial Court was under legal obligation to appoint a receiver himself by conferring upon him all such powers as to bringing and defending suits and for realization, management, protection, preservation and improvement of property alongwith collection of rents and profit thereof or any other power as the Court would think fit---All said legal requirements having been violated in the case, impugned order was not maintainable.

Sardar Muhammad Anwar Khan for Petitioners.

MLD 2004 SUPREME COURT AZAD KASHMIR 1762 #

2004 M L D 1762

[Azad J&K]

Before Syed Manzoor Hussain Gillani, CJ.

IDREES KIANI and others---Petitioners

Versus

THE STATE through Advocate-General---Respondent

Criminal Revision No.2 of 2004, decided on 9th March, 2004.

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

----Ss. 173 & 561-A---Penal Code (XLV of 1860), Ss. 302/324/ 142/147/149---West Pakistan Arms Ordinance (XX of 1965), S. 15-- Submission of report by police officer---Quashing of orders---Two counter cases under two F.I.R.'s were registered at Police Station concerned on the report of parties against each other---Both cases culminated into two challans---Contention of the petitioners was that report under S. 173, Cr.P.C. on the basis of one F.I.R. having been filed, subsequent report could not be filed on the basis of other F.I.R.--- Contention was repelled because reports were filed by two adversaries stating their own version of occurrence, each blaming and accusing other for the occurrence---Each of the two reports disclosed commission of cognizable offence, alleging each other as responsible for offence---None of the counter-versions could be declared false without investigation and once the facts narrated in information report were supported by the evidence, Investigating Officer was bound to file the report on the basis of F.I.R. before the Court under S. 173, Cr.P.C.---If, however, after investigation, counter report was found to be false, it could be cancelled and police could initiate proceedings under provisions of S. 182, P.P.C. for false report.

PLD 1963 AJ&K 33 and PLD 1987 (SC) AJ&K 55 ref.

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

----Ss. 173 & 561-A---Penal Code (XLV of 1860), Ss. 302/324/ .142/147/149-West Pakistan Arms Ordinance (XX of 1965), S.13--- Counter-cases under two F.I.Rs.---Submission of report by Police Officer---Quashing of orders---Two different and opposite versions were put up by adversaries against each other wherein the manner of commission of offence and other details differed from each other---Police, in circumstances was justified to report and place both the versions before the Court to decide as to which of the versions was false or correct or which of accused persons were responsible and liable to be held guilty---Court under circumstances was bound to put up in juxtapo9ition both the versions and then come to the conclusion---When F.I.R. was registered and report under S. 173, Cr.P.C. was filed on the basis of that F.I.R., other version would not become redundant or not actionable-Both the parties, as alleged in the report, had suffered injuries and each of the parties gave its own version regarding injuries---Police, in circumstances, had rightly filed separate reports and the Court below was bound to hear both the cases simultaneously-court below, in circumstances had rightly issued the process on the basis of report filed under S. 173, Cr.P.C.

----Ss. 173 & 265-D---Framing of charge---Essentials---Submission of report by Police Officer---While framing the charge, Court had to consider not only F.I.R. and report under S. 173, Cr.P.C., but all other documents and statements filed by prosecution under S.265-D, Cr.P.C.---Report under S. 173, Cr.P.C. or F.I.R. alone were not the documents which would show the commission of offence, but prosecution case as a whole, was to be seen, which would include, the recovery memo, the site plan, the statement of the witnesses under Ss. 161 & 164, Cr.P.C.---Framing of charge would mean, commencement of trial of accused---Object of charging accused was to make him aware, abreast and alert about the allegations and the basis on which allegations were levelled against him---Same would enable accused to know the precise accusation against him which he was required to meet before commencement of evidence of prosecution.

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

----Ss. 242, 243 & 244---Framing of charge---Object---Primary object of proceedings prescribed under S. 242, Cr.P.C., was to determine whether accused pleaded guilty to the charge or demanded to be tried---An opportunity was provided under S. 242, Cr.P.C. to accused to state anything he liked in his defence in explanation of the charges framed against him---Accused was at liberty to take up any plea---Provisions of alleged offence had to be explained to accused so that he knew what the charge against him was, which he had to face in trial to defend himself---If accused would admit the charge, he was liable to conviction under S. 243, Cr.P.C. and if he denied the charge, provisions of S. 243, Cr.P.C. would become inoperative and the Court thereafter had to proceed under S. 244, Cr.P.C. by hearing complainant and his evidence and afterward accused and his evidence-Court charging accused under S. 242, Cr.P.C. had to be careful in recording statement of accused, if he pleaded guilty and admitted the charge---If accused was convicted on the basis of improperly framed charge and allegations levelled against him by prosecution under S. 173, Cr.P.C. were not properly put to him, the defective charge would vitiate the trial and conviction-Incorporation of certain evidentiary circumstances in the charge, which were already not a part of F.I.R. or report under S. 173, Cr.P.C., would not prejudice accused.

Ishfaq Hussain Kiani for Petitioners.