MLD 2005 Judgments - Pakistan Legal Archive

Courts in this Volume

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

Bar Council Tribunal Nwfp

MLD 2005 BAR COUNCIL TRIBUNAL NWFP 820 #

2005 M L D 820

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

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

RASOOL KHAN KHATTAK and others---Appellants

versus

HAMID KHAN AFRIDI and another---Respondents

Appeal No.T/B/34 and T-B/26 of 2001, decided on 12th April, 2003.

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

----Ss. 41, 42, 43 & 44---Professional misconduct---Withdrawal of complaint---Imposition of costs---Appeal to Bar Council Tribunal---On complaint filed by appellants against certain alleged criminal activities and professional misconduct of respondent, Disciplinary Committee initiated proceedings against respondent, but before filing written statement by respondent, one of the complainants recorded his statement and other filed application for withdrawal of complaint with the request that respondent be exonerated from the charges against him---Members of Disciplinary Committee allowed withdrawal of complaint with costs of Rs.5000 imposed on each complainant vide impugned order---Complainant filed appeals against said order---Validity---When a Tribunal or Disciplinary Committee of Bar Council would come to the conclusion that complaint filed by complainant was false, frivolous or vexatious, it could impose cost on complainant not exceeding Rupees five hundred while deciding complaint---No provision, however, existing any law or Statute Book governing misconduct cases providing that misconduct once alleged against a person could be washed away on basis of compromise---Settled principle of law was that cases of misconduct had to reach their logical end either in punishing the wrong doer or his exoneration, if found innocent---Tribunal accepting appeals set aside impugned order and remanded case to Members of Disciplinary Committee of Bar Council to decide the same on merits.

Muhammad Amir v. M. Asghar Kokar Advocate for 1992 CLC 1556; Irshad Khan v. Gohar Rehman Khattak Advocate 2000 MLD 1264; Wajid Ali v. Zafar Khalil Advocate 2000 MLD 1275 and Ali Rehman v. Zaheeruddin Baber Advocate MLD 2001 895 ref.

Appellant in person.

Respondents in person.

Akhtar Naveed A.A.-G. for Government of N.-W.F.P.

MLD 2005 BAR COUNCIL TRIBUNAL NWFP 844 #

2005 M L D 844

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

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

Mst. RAHAM BIBI---Appellant

versus

AZMAT HAYAT KHATTAK, ADVOCATE---Respondent

T.A. No.39 of 2002, decided on 25th January, 2003.

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

----Ss. 41, 42 & 43---Complaint against counsel---Appeal before Tribunal---Complainant, who was real mother of respondent/accused Advocate had alleged that she engaged him as counsel in her civil suit which he conducted and was decreed in her favour, but said counsel subsequently challenged said decree alleging it fictitious and forged---Complainant had alleged in her complaint that respondent being her counsel could not challenge vires of decree passed in her favour by Court in which respondent appeared as her counsel and by doing so respondent Advocate had violated the canon of professional conduct prescribed for Advocates---Complainant had prayed for stern legal action against the Advocate---Parties submitted written arguments and members of Disciplinary Committee of Bar Council considered said written arguments and data available on record and adjourned complaint sine die vide impugned order against which appeal had been filed by complainant---Respondent Advocate by challenging vires of a decree secured by complainant in which he was counsel, admittedly had violated the norms of Professional ethics and the rules framed under provisions of Legal Practitioners and Bar Councils Act, 1973 Advocate enjoyed a very high position in the society, and the Courts of law as well general public reposed great trust in Advocates---Advocates were expected to maintain the dignity of legal profession and not to betray sacred trust in them---Advocate, in the present case, had acted in a very irresponsible and callous manner with his own mother who was his client---Advocate having been found guilty of professional misconduct, he was suspended from profession for a period of five years with the costs of proceedings.

Dr. Nazeer Afridi v. Maqsood Baig, Advocate Abbotabad 1995 MLD 1982; Hafiza Begum v. Abdul Sattar Advocate 2001 MLD 841; Iftikhar Ahmed v. Abdul Raziq Advocate 2002 MLD 1316; M. Aslam Bajwa v. Federation of Pakistan PLD 1974 Lah. 545(f); M. Ishfaq v. The State PLD 1973 SC 368; Barrister/Advocate's case AIR 1934 Lah. 251(g) Mst. Surriya Bibi v. Sohail Khan Advocate Peshawar PLJ 1999 Tri Cases 425 and Mst. Hassan Zari v. Said Farosh Ex-Advocate Dagger Bunir 2000 CLC 433 ref.

Waqar Ahmed Seth for Appellant.

Muhammad Rafiq for Respondent.

Akhtar Naveed Deputy Advocate-General.

High Court Azad Kashmir

MLD 2005 HIGH COURT AZAD KASHMIR 1392 #

2005 M L D 1392

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, J

GOVERNMENT OF PAKISTAN through Military Estate Officer, Hazrara Circle Abbottabad and another---Appellants

Versus

Syed GHULAM HAIDER SHAH and 4 others---Respondents

Civil Appeal No.49 of 2004, decided on 6th June, 2005.

Land Acquisition Act (I of 1894)---

----Ss. 4, 12, 18, 19 & 54---Acquisition of land---Determination of amount of compensation-Reference to referee Court---Limitation---Appeal---Collector had categorically stated that application for reference to Court was time-barred---Reference to Court being clearly beyond prescribed period of limitation, there was no occasion for the Collector to refer same to District Judge for further proceedings after holding same as time-barred---Collector was duty bound to apply his mind whenever, on a reference, he was requested to refer same for determination of the Court---Such power had been delegated to him by the Statute and same had to be exercised with open eyes in the manner postulated by the provisions of law---For exercise of power of reference conditions to be present and complied with were that there must be an interested party before the Collector; that application should have been filed by such person for the resolution of disputes covered by S.18 of Land Acquisition Act, 1894 and that application should be within prescribed period of limitation---For proper reference Collector had to comply with conditions enumerated in S.19 of Land Acquisition Act, 1894---Collector was supposed to see as to whether reference had been filed within prescribed period of limitation---If reference/application was not filed within prescribed period, then it was enjoined upon the Collector to reject the same forthwith---Limitation period in S.18 of Land Acquisition Act, 1894 must be strictly adhered to---After decision of Collector that reference was time-barred, there was no occasion for District Judge to proceed with the matter and refusal on his part could not be held illegal---Where reference was void ab initio, then assumption of jurisdiction would equally be a nullity in the eye of law---Even if it be presumed that reference could not be rejected on question of limitation, even then same could not be maintainable, because Collector had not been arrayed as party to the reference, who was necessary party---Reference was not maintainable for having been filed by an incompetent Authority and power of attorney filed on behalf of appellants had not been signed by any of officers competent to sign and initiate proceedings on behalf of Federation of Pakistan.

Fazal Karim's case PLD 1998 SC (AJK) 26; Rashid Khan v. State 1972 SC 272; Azad Government of the State of Jammu and Kashmir v. Muhammad Shafi PLD 1971 AJK HC 33; Muhammad Hasnuddin's case AIR 1979 SC 404 and M/s. Swatantra Land and Finance Private Ltd. v. The State of Haryana AIR 1975 Punjab and Haryana 52 (FB) ref.

Syed Nazir Hussain Shah for Appellants.

Syed Azad Hussain Naqvi for Respondents.

Karachi High Court Sindh

MLD 2005 KARACHI HIGH COURT SINDH 8 #

2005 M L D 8

[Karachi]

Before M. Hussain Adil Khatri and Dr. Ghous Muhammad, JJ

RAFIQUE --- Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.85, 90, 91 and J/96 of 1994, decided on 30th September, 1996.

Penal Code (XLV of 1860)---

----Ss.365-A & 395---Appreciation of evidence---F.I.R. was lodged with delay of three days, for which no plausible explanation had been offered---Two co-accused having been acquitted on same evidence, conviction of accused, in circumstances was based on mis-appreciation of evidence---Non-examination of one of alleged abductees had given rise to presumption against prosecution---Two identification tests were held in case, first was held after 3-1/2 months of incident while second was held after 9 months and said identification tests were not held in accordance with law and Police Rules---One of the Mashirs on the point of identification had not supported prosecution---Identification, in circumstances could safely be termed as illegal---Nothing was recovered from four accused---No allegation was there to the effect that alleged abduction was made for ransom and no allegation was against any of accused that they demanded amount of ransom---None of abductees was recovered from anyone of accused and no allegation was of payment to anyone by way of ransom---No eye-witness of alleged dacoity of Pejaro Jeep by accused was available and no Pejaro Jeep was said to have been taken away by accused or had been recovered' from any of the said accused---Owner of Pejaro had not lodged F.I.R. and no details of alleged Pejaro had been given in F.I.R.---Fact of dacoity of Pejaro Jeep by accused had not been supported by any independent evidence---Allowing appeal, conviction and sentence recorded against accused by Trial Court, were set aside.

PLD 1982 Kar. 250; PLD 1995 Kar. 315; 1995 SCMR 127; PLD 1995 Lah. 440; 1995 PCr.LJ 1388; PLD 1985 SC 11; 1994 SCMR 1148; NLR 1993 Cr.(DB) Kar. 342; 1996 SCMR 3013; PLD 1995 SC 526; PLJ 1996 Cr. Cases Kar. (DB) 12; 1976 PCr.LJ (DB) Kar. 243; 1997 PCr.LJ 694; PLD 1981 SC 42; 1995 SCMR 412; 1993 SCMR 585; 1995 PCr.LJ 1430; 1996 PCr.LJ 73; PLD 1991 SC 447; 1992 SCMR 2088; PLD 1996 Kar. 246; 1996 PCr.LJ 1410; 1989 PCr.LJ 1555; PLD 1995 Kar. 315; 1995 PCr.LJ 1394; PLD 1995 Kar. 16; 1995 PCr.LJ 1388; PLD 1996 Kar. 159 and 1996 PCr.LJ 503 ref.

S. Madad Ali Shah for Appellant.

Dhani Bux Dayo for the State.

Allah Bachayo Soomro for Appellants (Cr.A. No.90 of 1994).

Dhani Bux Dayo for Respondent (in Cr.A. No.90 of 1994).

Shoaib Shibli for Appellants (in Cr.A. No.91 of 1994).

Dhani Bux Dayo for Respondents in C.A. No.91 of 1994).

Superintendent Central Prison tot Appellant (in Cr.A. No.J/96 of 1994).

Dhani Bux Dayo for Respondent (in Cr. A. No.J/96 of 1994).

Date of hearing: 30th May, 1995.

MLD 2005 KARACHI HIGH COURT SINDH 51 #

2005 M L D 51

[Karachi]

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

MUHAMMAD AMIN MUHAMMAD BASHIR LTD. ---Petitioner

Versus

GOVERNMENT OF PAKISTAN through the Secretary Ministry of Finance Central Secretariat, Islamabad and 3 others---Respondents

C.P. No.D-511 of 1992, heard on 12th August, 2004.

Constitution of Pakistan (1973)---

----Art.199---Constitutional jurisdiction under Art. 199 of the Constitution-- Scope---Court of judicial review would not sit in judgment over exercise of power by an administrative functionary and would not normally enter, into resolution of factual controversies--When such statutory functionary would act in perverse, arbitrary or capricious manner in the performance of his duties, a Court of judicial review could always step in to direct him to do what the law required to be done or to declare his action without lawful authority.

Passco Hardware Company v. Government of Pakistan PLD 1989 Kar. 621 and Collector of Customs Karachi v. New Electronics (Pvt.) Ltd. PLD 1994 SC 363 ref.

Munib Akhtar for Petitioner.

Haider Iqbal Wahniwal for Respondent No.3.

Raja M. Iqbal for Respondent No.4.

Date of hearing: 12th August, 2004.

MLD 2005 KARACHI HIGH COURT SINDH 69 #

2005 M L D 69

[Karachi]

Before Ata-ur-Rehman and Amir Hani Muslim, JJ

IMAMUDDIN SHAH through Attorney- --Petitioner

Versus

DEPUTY DISTRICT OFFICER (REV.) AND LAND ACQUISITON COLLECTOR SANGHAR and another---Respondents

C.P.D. No.220 of 2004, decided on 16th September, 2004.

Land Acquisition Act (I of 1894)---

----Ss.4, 28-A & 34---Constitution of Pakistan (1973), Art.199---Constitutional petition---Laches---Acquisition of land---Payment of amount of compensation as per award---Claim for amount of solutiums--Grievance of petitioner was that though he had received amount of compensation of the acquired land from the Authorities, but such compensation did not include amount of Solutiums under Ss.28-A & 34 of Land Acquisition Act, 1894---Authorities had not disputed the fact that award did not include amount of Solutiums, but Constitutional petition of petitioner was resisted on ground that it was hit by laches--Validity---Law required the Collector to deposit amount of compensation in Court, which had not been done in the case---As long as the amount ,was unpaid by Acquiring Agency to the party entitled to be compensated, question of limitation or laches would not come in way of said party---Petition was allowed with direction to Collector to calculate Solutiums under Ss.28-A & 34 of Land Acquisition Act, 1894 from the date of Notification under S.4 of said Act till the last payment was made within specified period.

Imran Qureshi for Petitioner.

Masood A. Noorani, Addl. A.-G. along with Muhammad Chuttal, Executive Engineer, Thar Division and Nadeem-ur-Rehman Memon, DDO(R)/LAO, Sanghar.

MLD 2005 KARACHI HIGH COURT SINDH 78 #

2005 M L D 78

[Karachi]

Before Amanullah Abbasi, J

SULLEMAN---Applicant

Versus

THE STATE---Respondent

Cr. B.A. No.595 of 1999, decided on 8th November, 1999.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324/337-F(ii)/334/504/34---Bail, grant of---Offence against accused was not likely to fall within the prohibitory clause of S.497, Cr.P.C.---Person who was stated to have used knife according to F.I.R., had not been challaned---Case against accused in circumstances was one where further inquiry was required---Bail was granted to accused, in circumstances.

1994 SCMR 2051 and PLD 1995 SC 34 ref.

Syed Madad Ali Shah for Applicant.

2005 M L D 147

[Karachi]

Before Muhammad Afzal Soomro, J

MAZAN---Applicant

Versus

THE STATE---Respondent

Cr. B.A. Nos.597 of 2004, decided on 20th October, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/324/337-A(i)/337-L(ii)/ 337-F(i)/337-F(v)/504/147/148/149---Bail, grant of---Accused had been involved in the case on account of old enmity and under suspicion---Accused remained in custody for a period of about two and half years without any fault on his part and in said continuous custody only the charge had been framed---On two dates witnesses were in attendance but case could not proceed for want of case property---Deceased was killed as a result of one shot---No other material was connecting the accused with commission of crime--Accused having been able to make out a case for bail, same was granted to him, in circumstances.

Abdul Rasool Abbasi for Applicant.

Muhammad Ismail Bhutto for the State.

MLD 2005 KARACHI HIGH COURT SINDH 164 #

2005 M L D 164

[Karachi]

Before Muhammad Afzal Soomro, J

AHMED ALI ---Applicant

Versus

THE STATE---Respondent

Crl. B. A. 598 of 2004, decided on 20th October, 2004.

Criminal Procedure Code (V of 1898)---

---S.497---Penal Code (XLV of 1860), Ss.302/324/504/34---Bail, grant of---Accused had been involved in case in the background of enmity and suspicion---Accused remained in custody for a period of one- year---Only role attributed to accused was an ineffective firing---Main accused whose fire hit deceased resulting in death, had not applied for bail--Accused having been able to make out a case for bail, was granted bail.

Abdul Rasool Abbasi for Applicant.

Muhammad Ismail Bhutto for the State.

MLD 2005 KARACHI HIGH COURT SINDH 176 #

2005 M L D 176

[Karachi]

Before Amir Hani Muslim, J

Mst. SHAHEEN BEGUM Applicant

Versus

S.H.O. (ACLC) and others -Respondents

Cr. Revision Application No.50 of 2004, decided on 30th July 2004.

(a) Provincial Motor Vehicles Ordinance (XIX of 1965)---

----S.35---Cancellation of registration of motor vehicle---Excise and Taxation Officer who was Registration Authority, could order cancellation of registration when motor vehicle had been destroyed or had been rendered permanently incapable of use or, if Excise and Taxation Officer was satisfied that motor vehicle had been permanently removed out of the Province---Section 35 of Provincial Motor Vehicles Ordinance, 1965 which dealt with cancellation of registration of Motor Vehicles, had not authorized Excise and Taxation Officer to cancel registration of a vehicle in favour of a purchaser once vehicle had been transferred in terms of S.32 of the Ordinance---Power of cancellation of registration under S.35 of Provincial Motor Vehicles Ordinance, 1965 was limited and could only be exercised under conditions provided therein---Even the authority of cancellation could not be exercised by Excise and Taxation Officer under the garb of S.34(e) of Provincial Motor Vehicles Ordinance, 1965.

(b) Provincial Motor Vehicles Ordinance (XIX of 1965)---

----Ss.32, 34 & 35---Sale of motor vehicle---Cancellation of registration of motor vehicle---Transaction of sale of vehicle was dependant upon the contract between the parties and if one party defaulted or committed breach of contract by selling a vehicle to a stranger on the basis of open letter alleged to have been signed by previous owner, Excise and Taxation Officer, had no authority to nullify, such a contract by cancelling registration---Party claiming commission of breach of contract and/or trust was obliged in law, to file a civil suit; but could not seek redress of its grievance under the garb of 5.34 or S.35 of Provincial Motor Vehicles Ordinance, 1965---Exercise of powers of Excise and Taxation Officer cancelling registration was, ex-facie, abuse of authority as he did not have such power once vehicle had been transferred in terms of S.32 of Provincial Motor Vehicles Ordinance, 1965 in name of its purchaser---If previous owner had any claim that he had never sold the vehicle to purchaser and vehicle was with someone else who committed breach of trust and had sold it to purchaser on strength of open letter, then issue of the nature would fall outside the purview of provisions of Provincial Motor Vehicles Ordinance, 1965---Previous owner could have initiated proceedings against one who had committed breach of contract, but a person, who was bona fide purchaser of vehicle without notice, could not be deprived of such vehicle under the garb of order of Excise and Taxation Officer.

----S.516-A---Custody or Superdari of property---Scope of S.516-A, Cr.P.C. was limited and the Court in normal course would restore possession to the party from whose possession vehicle was recovered and question of title would be left open to be decided by Civil Court.

(d) Administration of justice---

---- Courts while determining rights of parties, should not travel beyond their jurisdiction to reach a conclusion, in absence of evidence at interlocutory stage of proceedings.

Sikandar Khan for Applicant.

Anwar Mansoor Khan, Fazlur Rehman Awan, SSP ACLC, Hussain Ashgar, PDSP, A. Ghaffor Khoso, Inspector Deedar Ali Farooqui, S.H.O. ACLC (Operations) and S.I. Jamal Sadiq ACLC (I.O.), PI Abdul Wahab, S.I. Aslam Baloch and S.I. M. Hameed and Munir Ahmed, Excise and Taxation Officer.

MLD 2005 KARACHI HIGH COURT SINDH 210 #

2005 M L D 210

[Karachi]

Before Anwar Zaheer Jamali and Syed Zawwar Hussain Jaffery, JJ

ZULJAN‑‑‑Appellant

Versus

TARIQ AHMED and another‑‑‑Respondents

H. C. A. No. 146 of 1993, decided on 15th October, 2004.

Fatal Accident Act (XIII of 1855)‑‑‑

‑‑‑‑S.1‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑High Court appeal‑‑‑Fatal accident‑‑‑Determination and entitlement of amount of compensation‑‑‑Evidence on record had fully proved that car involved in accident was owned by defendant and was being driven in rash and negligent manner by the other defendant which had resulted in accident of deceased and his consequent death‑‑‑Findings of Single. Judge of High Court that car was not owned by defendant and that same was not being driven by the other defendant in a rash and negligent manner at time of occurrence, were based on misreading of evidence and same were liable to be reversed and said two points were to be answered in affirmative‑‑‑Fact that deceased had left behind him his father, mother, widow, daughter and one son who was born after death of deceased remained un controverted‑‑‑Deceased at time of his death was aged 25 years‑‑Keeping in view his expected remaining life and his average income, amount of compensation was determined‑‑‑Impugned judgment and decree passed by Single Judge was set aside and suit was decreed accordingly‑‑‑Upon realization, shares of two minors would be deposited with Nazar of the Court who would invest same in some profit bearing Government saving Scheme for the benefit of minors.

Nasir Maqsood for Appellant.

Nemo for Respondents.

MLD 2005 KARACHI HIGH COURT SINDH 223 #

2005 M L D 223

[Karachi]

Before Rahmat Hussain Jafferi, J

MUHAMMAD ARAB‑‑‑Applicant

Versus

NOOR AHMED and 5 others‑‑‑Respondents

Cr. Transfer Application No.67 of 2002,decided on 26th February, 2003.

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

‑‑‑‑S. 526‑‑‑Penal Code (XLV of 1860), Ss.337‑F(i)/337‑A(i)/504/114/147/148/149‑‑‑Transfer of case‑‑‑Application for‑‑‑Complainant in his application had sought transfer of case pending in Court at place 'D' to Court at place K' on the ground that parties were residing in placeK'‑‑‑Territorial jurisdiction of Police Station concerned was within Court at place D'‑‑‑Accused party had strongly opposed to transfer of case because of their enmity. with some persons at placeK' where case was sought to be transferred‑‑‑No justification existed for transfer of case, in circumstances.

Nisar Ahmed G. Abro for Applicant.

Shafi Muhammad Memon for Respondent.

MLD 2005 KARACHI HIGH COURT SINDH 231 #

2005 M L D 231

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

ABDUL KARIM and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Cr. B.A. No.600 of, 2004, decided on 18th October, 2004.

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

‑--‑‑Ss. 497 & 345(2)(6)‑‑‑Application for grant of bail‑‑Compromise proceedings‑‑‑Accused had filed certified true copy of diary of Trial Court along with application under S.345(2)(6), Cr.P.C. for seeking permission to compound matter and acquittal of accused‑‑‑Said applications were pending in Trial Court for passing necessary orders‑‑‑Counsel for accused was required to place certified true copy of order passed by Trial Court in respect, of application moved by legal heirs and accused for effecting compromise‑‑‑Case was adjourned for the purpose.

Shafi Muhammad Memon for Applicants.

Raizuddin Siddiqui State Counsel.

MLD 2005 KARACHI HIGH COURT SINDH 246 #

2005 M L D 246

[Karachi]

Before Rahmat Hussain Jafferi and Maqbool Baqar, JJ

MADAD ALI and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Crl. Appeals Nos.73, 74 and 75 of 2003, decided on 18th February, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b)/337‑H(ii)‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(a)‑‑West Pakistan Arms Ordinance (XX of 1965), S.13(e)‑‑‑Qanun‑e-Shahadat (10 of 1984), Art. 133‑‑‑Appreciation of evidence‑‑Examination‑in‑chief of three eye‑witnesses in case was recorded and their cross‑examination was reserved, but subsequently they did not appear before the Court for cross‑examination because they had absconded‑‑‑Under provisions of Art. 133 of Qanun‑e‑Shahadat, 1984 it was the right of accused to conduct cross‑examination of said witnesses, but prosecution had failed to produce them before the Court‑‑‑Valuable and vested right given to accused under the law, had been denied to them, in circumstances‑‑‑Statements of said eye‑witnesses without cross examination, could not be termed as complete statements within meaning of Art. 133 of Qanun‑e‑Shahadat, 1984 and could not be termed as legal statements‑‑‑Said statements having lost their evidentiary value, could not be considered for any purpose‑‑‑Statement of complainant in the present case was full of exaggerations, discrepancies and contradictions of the statement made by him in F.I.R.‑‑‑Major improvement was in prosecution story‑‑‑Complainant had exaggerated facts in his examination‑in‑chief so as to fit in the circumstances of case‑‑‑Said improvements in evidence of complainant had clearly indicated that same were made so as to change the story mentioned by him in the F.I.R. and to make the prosecution case strong‑‑‑Such contradictions and improvements in the evidence of complainant had created doubt about his veracity and such contradictory statement could not be relied upon‑‑Evidence of complainant was also contradictory to medical evidence‑‑Recorded enmity existed between complainant party and accused party as several cases were filed against each other‑‑‑Complainant who was maternal uncle of deceased was not only interested witness, but was highly inimical and hostile to accused; his evidence required strong and independent corroboration, which was lacking in the case‑‑‑Prosecution, in circumstances had failed to prove its case through ocular evidence‑‑‑In absence of substantive evidence, conviction could not be made merely on corroborative evidence of recoveries which recoveries were of no help to prosecution‑‑‑Case of prosecution being highly doubtful, accused were entitled to benefit of doubt which accordingly was granted to them and they were acquitted of charge.

Syed Saeed Muhammad v. State 1993 SCMR 550; .Taj Muhammad v. Rehman Khan 1986 SCMR 823; Ghulsher v. State 1968 SCMR 756; Hamida Bano v. Ashiq Hussain PLD 1963 SC 109; Haji Rab Nawaz v. State 1998 SCMR 25; Nazir Muhammad v. State PLD 1974 Kar. 274; State v. Bashir PLD 1997 SC 408; Imran Ashraf v. State 2001 SCMR 424 and Siraj v. Crown PLD 1956 FC 123 ref.

Syed Mushtaque Hussain Shah for Appellants.

Imdad Ali Awan for the Complainant.

Abdul Ghafoor Pirzada for the State.

2005 M L D 353

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

KETNO‑‑‑Petitioner

Versus

JUDGE, ANTI‑TERRORISM COURT, SPECIAL COURT FOR ATA and another‑‑‑Respondents

Constitution Petition No. D‑1093 and C. M. A. No. 1163 of 2000, heard on 2nd April, 2001.

(a) Juvenile Justice System Ordinance (XXII of 2000)‑‑‑--

‑‑‑‑Ss.2(b), 4, 5, 6 & 14‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.6‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Bifurcation/separation of case of minor accused from adult co‑accused‑‑Petitioner had sought bifurcation/separation of his case from co‑accused on the ground that he was minor and could not be tried jointly with co accused who were adults‑‑‑Petitioner was examined by a Board of Medical Officers and after physical, chemical as well as radiological examination it had issued a certificate showing that accused appeared to be 15 to 17 years of age‑‑‑Petitioner also produced school leaving certificate showing his age 16 years on date of alleged incident‑‑Application of petitioner was resisted by complainant on the ground that as the petitioner was facing trial before Anti‑Terrorism Court, provisions of Sindh Children Act, 1955 as well as those of Juvenile Justice System Ordinance, 2000 were not applicable to him‑‑‑Validity‑‑‑Nowhere in Anti‑Terrorism Act, 1997, it was specifically provided that Juvenile Courts constituted under Juvenile Justice System Ordinance, 2000, having jurisdiction for the trial of the case of a child who, was sent up under Anti‑Terrorism Act, 1997, were devoid of jurisdiction‑‑‑Provisions of S.4 of Juvenile Justice System Ordinance, 2000 had shown that Anti‑Terrorism Court was not specified as a Juvenile Court ‑‑‑Anti Terrorism Act, 1997 had no overriding effect over provisions of Juvenile Justice System Ordinance, 2000‑‑‑Juvenile Court had been established in the Province and powers had been conferred upon Presiding Officers of the Court‑‑‑Contention of complainant that since petitioner/accused had been sent up before the Court dealing with Anti‑Terrorism cases, he could not be tried by a Juvenile Court, was misconceived‑‑‑Constitutional petition was allowed and it was ordered that case of petitioner be separated from case of co‑accused and sent to Juvenile Court having jurisdiction in the matter for trial according to law.

Jamshed v. Agha Suhail and another PLD 1998 Kar. 142: Suhail Iqbal v. The State 1993 SCMR 2377; Yousuf v. The State 1975 PCr.LJ 936; Bachoo alias Abdul Jabbar v. The State 1981 PCr.LJ 299; Ghulam Rasool v. Ali Akbar and others PLD 1965 SC 363; Muhammad Jamil and others v. The State 2000 P.Cr.R. 399 and Pir Jalal Shah v. The State PLD 1982 Kar. 567 ref.

(b) Juvenile Justice System Ordinance (XXII of 2000)‑‑‑--

‑‑‑‑Ss.4, 5 & 6‑‑‑Establishment and procedure of Juvenile Court‑‑‑Trial of a minor‑‑‑Trial of a minor (any person who had not attained age of 18 years) could not be conducted by any Court until and unless Provincial Government in consultation with Chief Justice of High Court, established one or more Courts for the trial of juvenile offenders‑‑‑Courts specified in S.4 of Juvenile Justice System Ordinance, 2000 had exclusive jurisdiction for the trial of cases where a child was accused of commission of offence‑‑‑All cases pending before Trial Court in which a child was accused of offence, would stand transferred to Juvenile Court having jurisdiction.

Imdad Ali Awan for Petitioner.

A.R. Farooq Pirzada for the Respondent.

Shaikh Abdul Ghani, D.A.‑G and Ghulam Dastagir Shahani, Addl. A.‑G. for the State.

Date of hearing: 2nd April, 2001.

MLD 2005 KARACHI HIGH COURT SINDH 389 #

2005 M L D 389

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

SAEED SHAH and others‑‑‑Appellants

Versus

THE STATE and others‑‑‑Respondents

Criminal Appeal No. 123 and Criminal Revision Application No. 106 of 1997, decided on 8th October, 2003.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.121‑‑‑Criminal trial‑‑‑Plea of grave and sudden provocation‑‑Burden of prove‑‑‑Principle‑‑‑Accused is required under Art.121 of Qanun‑e‑Shahadat, 1984, to prove his plea of sudden and grave provocation.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 121‑‑‑Defence plea‑‑Grave and sudden provocation‑‑‑Proof‑‑‑Accused did not examine any witness in support of his defence nor any thing had come on record through prosecution witnesses to support the defence or to give any indication or impression that the incident took place as alleged by the accused‑‑‑Effect‑‑‑Accused failed to prove the plea of sudden and grave provocation in circumstances.

‑‑‑‑Ss.302 & 304‑‑‑Appreciation of evidence‑‑‑Plea of grave and sudden provocation‑‑‑Conviction, modification of‑‑‑Sudden occurrence‑‑Accused and deceased were members of police force and some altercation took place between them‑‑‑In spite of intervention of complainant and other prosecution witnesses, the accused fired at the deceased as the accused had already declared that he would kill the deceased‑‑‑Trial Court convicted the accused under S.304 P.P.C. and sentenced him to life imprisonment‑‑‑Plea raised by the accused was that it was a case of grave and sudden provocation‑‑‑Validity‑‑‑There was no sudden or grave provocation to the accused from any act of deceased‑‑Case of the accused did not fall within the ambit of sudden and grave provocation so as to make out the offence fall within the ambit of S.302(c) P.P.C.‑‑‑If the Trial Court applied wrong section of the Code while convicting the accused, then the same could be corrected at the appellate stage‑‑‑High Court in exercise of appellate jurisdiction converted the conviction under S.304 P.P.C. recorded by Trial Court to S.302 (b), P.P.C.‑‑‑Accused had committed murder without premeditation in heat of moment as it was a sudden occurrence, therefore, it was not a case of capital punishment of death‑‑‑High Court maintained the sentence of life imprisonment awarded by Trial Court‑‑Appeal was disposed of accordingly.

State v. Taus Khan 2001 SCMR 1416; Muhammad Mumtaz Khan v. State 1999 SCMR 837; Manzoor Hussain v Nadeem 2003 SCMR 459; Wali Muhammad v. State 2003 PCr.LJ 694; Sharq v. Crown PLD 1994 FSC 141 and Ali Muhammad v. Ali Muhammad PLD 1996 SC 274 distinguished.

Fazal Ilahi's case 1971 SCMR 647 and Ijaz Ahmed's case 1989 SCMR 151 rel.

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

‑‑‑‑S.544‑A‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Murder trial‑‑Compensation to legal heirs of deceased‑‑‑Trial Court did not award the compensation as required under S.544‑A, Cr.P.C.‑‑‑Effect‑‑‑High Court in exercise of appellate jurisdiction directed to pay the fine to the injured and the heirs of the deceased under S.544‑A, Cr.P.C., it realized.

Sarfraz Khan Tanoli for Appellant.

Shahdat Awan for Applicant (in Cr. Revision Appl. No.106 of 1997).

Jawaid Akhtar for the State Counsel.

Date of hearing: 8th October, 2003.

MLD 2005 KARACHI HIGH COURT SINDH 401 #

2005 M L D 401

[Karachi]

Before Anwar Zaheer Jamali, J

Mst. FARZANA SHABBIR and others‑‑‑Plaintiffs

Versus

ISLAMIC REPUBILC OF PAKISTAN through Secretary Ministry of Defence and others‑‑‑Defendants

Suits Nos.264, 298, 312 of 1995 and 611 of 1994, decided on 20th December, 2004.

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

‑‑‑‑S.1‑‑‑Fatal accident‑‑‑Suit for compensation‑‑‑Determination of amount of compensation‑‑‑Mashirnama of place of occurrence and site sketch produced on record .by Police Officer concerned had confirmed that manner in which accident occurred was same as was pleaded by plaintiffs in their plaint‑‑‑Evidence of witness, who was injured in accident had fully proved beyond any doubt that it was due to sheer rash and negligent driving of defendant driver of truck that accident had occurred which resulted in death of deceased‑‑‑Narration of accident given on behalf of defendants/owners of truck concerned in their written statement, was concocted in an attempt to avoid liability of payment of compensation to plaintiffs for which plaintiffs could be entitled under Fatal Accidents Act, 1855‑‑‑Death of deceased was caused on account of negligence of driver of the truck‑‑‑Quantum of compensation to which plaintiffs could be justly, equitably and lawfully entitled under Fatal Accidents Act, 1855, was determined taking into consideration average expected age of deceased, his earning capacity, damages to be suffered by wife and children of deceased, funeral expenses and other losses etc.‑‑‑Total claim of compensation as worked out taking into consideration all said losses and damages would be distributed amongst plaintiffs as per Hanafi Law of Inheritance‑‑‑To secure the interest of minor legal heirs of deceased, their share would be deposited with Nazir of the Court which would be invested in some profit bearing Government Saving Scheme.

Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Habib and another 1993 SCMR 848; Qazi Arifuddin and another v. Government of Sindh and others PLD 1991 Kar. 291; Syed Afzal Hussain v. Karachi Transport Corporation and another PLD 1997 Kar. 253; Ameena v. Government of Pakistan, Ministry of Defence and another 1995 MLD 1922; Mst. Shamim Akhtar v. Javedan Cement Limited 1997 CLC 955; Kulsoom v. Jalil Ahmad Khan and another PLD 1964 Kar. 72; Muhammad Usman v. Muhammad Iqbal and others PLD 2000 Kar. 364; Punjab Road Transport Board v. Abdul Wahid Usmani and others PLD 1980 Lah. 584; Sri Manmatha Nath Kuri v. Maulvi Muhammad Mukhlesur Rahman PLD 1969 SC 565; Saghir Ahmed Ansari v. KESC 2001 YLR 788 and Raghunath v. Gip Rly. Co. AIR 1968 Bombay 269 ref.

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

‑‑‑‑S. l‑‑‑Fatal accident‑‑‑Suit for compensation‑‑‑Determination of amount of compensation‑‑‑Principles‑‑‑No mathematical formula could be evolved for determination of compensation which could be evenly applied in each case, but only a rough assessment for such compensation was possible looking to peculiar facts and circumstances of each case‑‑Nevertheless, by way of legal precedents, some guidelines/principles could be deduced which could be followed/taken into consideration in each case for determining more rational and appropriate amount of compensation

Sri Manmatha Nath Kuri v. Maulvi Muhammad Mukhlesur Rahman PLD 1969 SC 565 ref.

Nasir Maqsood for Plaintiffs.

Syed Tariq Ali for Defendants.

Dates of hearing: 5th November, 18th August, 2003 11th June, 13th and 16th December of 2004.

2005 M L D 446

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD RAMZAN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Crl. Bail Application No.952 of 2004, decided on 8th October, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.302/34/148/149‑‑‑Protective bail, grant of‑‑‑Accused had contended that he had been falsely involved in the case due to enmity and that police was making strenuous efforts to cause his arrest Being in complicity with complainant party‑‑‑Accused had also submitted that he apprehended imminent arrest and, that in case he was arrested he would be maltreated with likely danger to his life‑‑Accused had further submitted that he tried to approach the Court of Session for seeking pre‑arrest bail, but police had surrounded the premises of the Court in order to cause his arrest‑‑‑Without dilating upon the merits or de merits of the case, accused was admitted to protective bail by the High Court.

Abdul Ghaffar Samo for Applicant.

MLD 2005 KARACHI HIGH COURT SINDH 452 #

2005 M L D 452

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

MOULADAD alias BABA‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Crl. B.A. No.909 of 2004, heard on 5th November, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9(b)‑‑Bail, grant of‑‑‑Specimen which was to be received by Chemical Examiner on same day or at the most on next day, was delivered to him after 40 days; as to where said specimen remained during that period and what was its safe custody, remained unexplained‑‑‑Accused deserved concession of bail on account of such delay coupled with plea that offence against accused did not fall within prohibitory clause of S.497, Cr.P.C.

Abdul Ghaffar Samo for Applicant.

Habib Ahmed, A.A.‑G. along with I.O.

S.I.P Anwar Akbar.

Date of hearing: 5th November 2004.

MLD 2005 KARACHI HIGH COURT SINDH 458 #

2005 M L D 458

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD SIDDIQ‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.363 of 2002, decided on 10th September, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.345‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Compromise‑‑Compromise between accused and legal heirs of deceased‑‑‑Compromise was arrived at between accused and brother and daughter of deceased during pendency of appeal‑‑‑State counsel had raised no objection to the compromise arrived at between the parties‑‑‑Appeal against conviction and sentence awarded to accused by Trial Court, was accepted in terms of compromise and accused were acquitted and released, accordingly.

Muhammad Hanif v. The State 1993 PCr.LJ 166 ref.

Mehmood A. Qureshi for Appellant No. 1.

Nemo for Appellant No.2.

Habibur Rasheed for State.

Date of hearing: 10th September, 2004.

MLD 2005 KARACHI HIGH COURT SINDH 466 #

2005 M L D 466

[Karachi]

Before Saiyed Saeed Ashhad, C.J. and Syed Zawwar Hussain Jaffery, J

HIRA FAROOQ and another‑‑‑Petitioners

Versus

PAKISTAN INTERNATIONAL AIRLINE through Managing Director, Office at PIA Head Office Quaid‑e‑Azam International Airport Karachi and 2 others‑‑‑Respondents

Constitution Petition No.D‑639 of 2003, decided on 3rd September, 2004.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Aggrieved person‑‑‑Person cannot file Constitutional petition to espouse the cause of another person, who was not an aggrieved person.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Constitutional obligations between parties‑‑‑Determination‑‑‑Scope‑‑‑Grievance arising out of contractual obligations between private parties could neither be agitated in a Constitutional petition nor could be redressed in such jurisdiction.

Messrs Airport Support Services v. The Airport Manager, Quaid‑e‑Azam International Airport, Karachi and others 1998 SCMR 2268 fol.

Syed Muhammad Nehal Hashmi for Petitioner.

Amir Malik for Respondent No. 1.

Bashir Ahmed for Respondent No.3.

MLD 2005 KARACHI HIGH COURT SINDH 472 #

2005 M L D 472

[Karachi]

Before Wahid Bux Brohi, J

KAMAL ‑‑‑ Applicant

Versus

THE STATE‑‑‑Respondent

Crl. B.A. No. 266 of 2004, decided on 21st July, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.380/457/34‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14‑‑‑Bail, refusal of‑‑‑Accused was seen committing theft in the house of complainant and complainant grappled with the accused just at the entrance of the house and accused was apprehended soon after theft along with stolen bullock and a pistol was secured from him‑‑‑Co-villagers had also supported the version of complainant‑‑‑Bail application was dismissed, in circumstances.

Ahsan Ahmed Memon for Applicant.

Muhammad Ismail Bhutto for the State.

Safdar Ali Bhutto for the Complainant.

MLD 2005 KARACHI HIGH COURT SINDH 477 #

2005 M L D 477

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

HASSAN SHAH‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Crl. Jail Appeal No.98 of 2003, decided on 17th September, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Sentence, reduction in‑‑Prosecution case rested upon ocular testimony and extra‑judicial confession of accused‑‑‑Ocular testimony consisted of complainant and prosecution witnesses who were brothers‑‑‑Complainant gave same detail of incident as was given in F.I.R. and by other witnesses and statement of complainant was corroborated by prosecution witnesses‑‑‑Evidence on record had established that accused had caused hatchet injuries to deceased who died on account of said injuries‑‑‑All witnesses were cross-examined by accused, but nothing came on record to discredit their evidence‑‑‑All three witnesses though were related inter se, but accused was also related to complainant party, as he was brother of the wife of complainant‑‑‑Dispute alleged by accused in his statement recorded under S.342, Cr.P.C. though was admitted, but same was not such where complainant and his brothers would try to implicate their own kith and kin in heinous murder case leaving the real culprit of the crime‑‑Ocular testimony, in circumstances was confidence‑inspiring and there was no reason to disbelieve same‑‑‑Prosecution had also proved extra-judicial confession of accused who disclosed to witness of extra‑judicial confession that he had committed murder of deceased who was wife of his brother‑‑‑Said witness was cross‑examined by accused, but did not challenge that piece of evidence in the cross‑examination‑‑‑No enmity whatsoever was found between witness of extra‑judicial confession and accused nor any enmity was suggested between them‑‑‑Material available on record had fully proved that accused had committed murder of deceased‑‑‑Accused, in circumstances was guilty of offence punishable under S.302(b), P.P.C.‑‑‑Occurrence, however, was not the result of pre‑concert and re meditation, but was a sudden affair which occurred due to annoyance and heat of passion of accused‑‑‑No previous enmity was noticed between the parties‑‑‑Case, in circumstances was fit where sentence of death awarded to accused, could be altered and modified to imprisonment for life‑‑‑Sentence of death awarded to accused by Trial Court was converted into imprisonment for life.

Muhammad Sharif v. State 2004 SCMR 8 ref.

Mehmood A. Qureshi for Appellant.

Sayed Sabir Hussain Cheepa State Counsel.

Date of hearing: 16th September, 2004.

MLD 2005 KARACHI HIGH COURT SINDH 501 #

2005 M L D 501

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

ZAREEF KHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.244, 257 and 290 of 2004, decided on 27th December, 2004.

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

‑‑‑‑Ss. 9(c) & 15‑‑‑Appreciation of evidence‑‑‑Prosecution had stated that six packets of samples were sent to Chemical Analyzer, whereas report of Chemical Analyzer had shown that he had received only two packets‑‑‑Property received by Chemical Analyzer, in circumstances did not tally with the property sent by Investigating Officer to him‑‑‑Neither the number of packets nor the weight of Charas received by Chemical Analyzer was tallying with the number and weight of Charas sent by Customs Officers‑‑‑Property received by Chemical Analyzer was not proved to be the same property which was sent by Investigating Officer, which had adversely affected prosecution case‑‑‑If report of Chemical Analyzer was taken out of consideration being in respect of different property from the property of the case, then there was no report of Chemical Analyzer to show that property secured from the container, was Charas‑‑‑Without any piece of evidence on the point of conspiracy or abetment, connecting accused with commission of crime they could not be held responsible if somebody else. had put Charas in the consignment on the way after tampering with container‑‑‑Prosecution had not alleged that export documents were forged or were not in proper order nor they had alleged that when cartons were stuffed in the container at the Dry Port, those contained Charas‑‑‑Case of prosecution on the contrary was that when cartons were loaded in the container, at that time those were in perfect order and in accordance with export documents because same were checked by Customs officials who found the same in perfect order and container was sealed which seals were found intact at the time when container was off loaded from the ship anal the contents were inspected at Port‑‑‑Prosecutor did not properly handle case at the time of trial as he did not bring required evidence on record resulting in recording of additional evidence‑‑‑Investigating Officer also did not investigate case properly as he did not cone required evidence‑‑‑Case having become doubtful against accused, they were entitled to benefit of doubt which was according given to them.

Shafi Muhammadi, Mehmood A. Qureshi and Mirza Qaisar Hayat for Appellants.

Syed Mehmood Alam Rizvi Standing Counsel for Respondent.

Date of hearing: 22nd December, 2004.

MLD 2005 KARACHI HIGH COURT SINDH 514 #

2005 M L D 514

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

SAIFULLAH ‑‑‑ Applicant

Versus

THE STATE‑‑‑Respondent

Crl. Misc. Appl. No. 182 of 2004, decided on 12th November, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.497, 498 & 561‑A‑-‑Control of Narcotic Substances Act (XXV of 1997), S.9(b)‑‑‑Bail, grant of‑‑‑Reduction of security amount‑‑Application for‑‑‑Accused was granted bail subject to furnishing security in the sum of Rs.2,00,000 and PR bond in like amount‑‑‑Application filed by accused for reduction of security amount was dismissed by Trial Court‑‑‑Validity‑‑Accused was not involved in 15 cases, but reference to 15 cases in impugned order was with regard to precedents in another case which Was cited at the Bar‑‑‑Quantity of Charas allegedly secured from accused was only 620 grams, but amount of security was out' of proportion‑‑‑High Court in another like case, had reduced amount of surety‑‑‑High Court allowing application of accused ordered that accused be released on bail granted by Trial Court subject to furnishing security in the sum of Rs.50,000 and executing PR bond to the satisfaction of Trial Court.

Abdul Ghaffar Samo for Applicant.

Habib Ahmed, A.A.‑G. for the State.

MLD 2005 KARACHI HIGH COURT SINDH 526 #

2005 M L D 526

[Karachi]

Before Ata‑ur‑Rehman and Amir Hani Muslim, JJ

SAMIULLAH and 4 others---Petitioners

Versus

GOVERNMENT OF SINDH through District Coordination Officer and others‑‑‑Respondents

Constitution Petition No.D‑42 of 2003, decided on 24th August, 2004.

(a) Registration Act (XVI of 1908)‑‑‑

‑‑‑‑S.49‑‑‑Transfer of Property Act (IV of 1892), S.53‑A‑‑‑Sale of property‑‑‑Proof‑‑Essentials‑‑‑Law requires registration of the instrument in favour of vendee in terms of S.49, Registration Act, 1908‑‑‑Mere putting vendee in possession of the property by virtue of sale agreement would not constitute valid sale in terms of S.53‑A, Transfer of Property Act, 1882.

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

‑‑‑‑O.VI, R.17‑‑-Amendment of plaint‑‑‑Scope‑‑‑Person claiming ownership of property, if during the pendency of the proceedings loses its possession, he can seek amendment in the plaint for possession‑‑Such an amendment, when declaration regarding the ownership has already been sought, would not amount to changing the complexion of the suit.

Muhammad Mian v. Syed Shamimullah 1995 SCMR 69 ref.

‑‑‑‑O.VI, R.17‑‑‑Amendment of plaint‑‑‑Scope‑‑‑Party claiming ownership and seeking declaration of ownership if fails to seek the relief of possession at the time of filing suit cannot be debarred from seeking relief of possession by way of amendment in the plaint at a later stage of the proceedings‑‑‑If the persons enjoying possession On behalf of the plaintiff are dispossessed after four: years of the filing of the suit, plaintiffs would be entitled to claim amendment in the plaint accordingly.

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

-----O.VI, R.17‑‑‑Amendment of plaint‑‑‑Scope‑‑‑Grounds on the basis of which the amendments are sought are not required to be proved during the hearing of the amendment application‑‑‑Allowing an amendment in the pleadings would not amount to decreeing the suit‑‑‑Parties in support of their‑version on grant of amendment have to lead evidence in support of the pleadings and only then the Court, on the basis of such evidence, would give findings and pass judgment‑‑‑Delay alone in applying for amendment would not be a ground for refusing amendment in the plaint‑‑‑View that since the plaintiffs and their witnesses had been examined, the amendment sought by the plaintiffs was barred by limitation was incorrect.

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

‑‑‑‑O.VI, R.17‑‑‑Amendment of plaint‑‑‑Scope‑‑‑Assessment of evidence while deciding the application for amendment of plaint is unwarranted by law‑‑‑Court has to confine itself to the proposed amendment and has to examine only as to whether such amendment was necessary and whether same would change the nature and/or scope of the suit.

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

‑‑‑‑Art.199‑‑‑Civil Procedure Code (V of 1908), O.VI, R.17‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑If the Tribunal or the forum below has wrongly exercised the authority vested in it, High Court in exercise of Constitutional jurisdiction would cure such defect.

Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal 1987 SC 447 fol.

Noor Muhammad v. Sarwar Khan PLD 1985 SC 31 and 1974 SCMR 223 no more a good law.

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

‑‑‑‑O.VI, R.17‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑Amendment in plaint‑‑‑Scope‑‑‑Mere delay in making an application for amendment in plaint seeking consequential relief cannot be refused as such amendment was necessary and ought to have been liberally allowed‑‑‑High Court while allowing the Constitutional petition and in view of the fact that present case was an old one, specified the time/period for completing the proceedings by the Trial Court.

Gulam Bibi v. Sarsa Khan PLD 1985 SC 345 fol.

Hakim Ali Siddiqui for Petitioners.

Masood Norrani, A.A. ‑G. for Respondents Nos. 1 to 3 and 9.

Nemo for Respondents Nos.4, 6 and 7.

Naimatullah Soomro for Respondents Nos.5 and 6.

Date of hearing: 24th August, 2004.

MLD 2005 KARACHI HIGH COURT SINDH 541 #

2005 M L D 541

[Karachi]

Before Mushir Alam, J

Messrs TRADESMEN INTERNATIONAL (PVT.) LTD. through Chief Executive‑‑‑Plaintiff

Versus

FEDERATION OF PAKISTANthrough Secretary Ministry of Food Agriculture and Livestock and others‑‑‑Defendants

C.M.A. No.3247 of 2004 in Suit No.469 of 2004, decided on 4th June, 2004.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.34‑‑‑Any party bypassing arbitration agreement if approaches the Court for resolution of a dispute covered by the arbitration clause, other party to the agreement at its option, may invoke arbitration and seek stay of the suit‑‑‑Court, also in such a case, unless "sufficient reason" to it, satisfaction is shown, invariably puts the derailed party on the track of arbitration in terms agreed‑‑‑" Sufficient reasons" where the Court cowl refuse to stay the suit, illustrated.

Any party bypassing arbitration agreement if approaches the Court for resolution of a dispute covered by the Arbitration clause, other party to the agreement at its option, may invoke Arbitration and seek stay of the suit. Courts also in such cases, unless sufficient reason to its satisfaction is shown, invariably put the derailed party on the track of arbitration in terms agreed.

Existence of arbitration clause simpliciter would not oust or bar the jurisdiction of the Court, despite existence of arbitration clause. Court for sufficient reason may not deem it expedient to stay the suit and or refer the matter to arbitration. Arbitration agreement merely provides alternate forum for the resolution of the differences that may crop up between the parties and covered by the arbitration agreement. Stay of legal proceedings and reference to arbitration is subject to the objective satisfaction of the Court that there is no sufficient reason why the matter should not be referred to the arbitration.

Both in terms of section 34 of the Arbitration, Act, 1940 as well as in terms of section 3 of the Arbitration (Protocol and Convention). Act, 1937 option and discretion to invoke arbitration clause vest in the party to arbitration agreement. By invoking arbitration agreement the party who bypassed the arbitration may be driven to follow the path to arbitrate in terms agreed. Use of phrase "that such authority may make an order staying the proceedings" in section 34 of the Arbitration Act, 1940 clearly demonstrates that, discretion to stay the legal proceedings or compel a party in breach of agreement, to abide by the arbitration agreement vest in Court. Such discretion is to be exercised fairly, properly and judicially. A party bypassing arbitration clause approaching the Court, unless other party submits to the jurisdiction of the Court, has to satisfy the Court that there is "sufficient reason why the matter should not be referred in accordance with arbitration clause".

Following were considered "sufficient reasons" where the Court refused to stay the suit.

(a) The dispute falls out of the arbitration agreement, (b). That the forum selected to arbitrate or the arbitrator nominated is not likely to decide the dispute fairly and justly (c). There is personal bias or prejudice against the applicant such bias or prejudice must be demonstrated through tangible material, as a matter of fact and not merely as a matter of opinion, (d). All necessary parties to the suit are not party to the arbitration agreement and it is not possible to segregate the claim or dispute between such parties without fear of conflicting decision, (e) Where difficult and intricate questions of law are likely to 'arise, such as inevitably necessitate a reference for the opinion of the Court under section 13(b) of the Act, (f) Where the defendant invoked arbitration agreement after filing a written statement or taking any other steps in the proceedings, (g) Where it is shown that the defendant applying for stay of proceedings at the' time when the proceedings were commenced was neither ready and willing nor still willing or ready to do all things, necessary to proper conduct of the arbitration, (h), Where all the parties to the arbitration agreement are residing in Pakistan, contract was executed, breach allegedly committed and cause of action accrued in evidence is local but the seat of arbitration is foreign, then plea Pakistan, of forum inconvenience may outweigh foreign arbitration. It may be served that, grant or refusal to stay a suit is dependent upon peculiar observed facts and circumstances of each case. Above "sufficient reasons," are merely illustrative and not exhaustive.

Uzin Export and Import Enterprises v. M. Iftikhar and Co. 1993 SCMR 866; Singaran Coal Syndicate v. Balmakund AIR 1931 Cal. 772; Amanullah Piracha v. Tasneem Baig 1988 MLD 1552; Gulf Iran Co. v. Pakistan Refinery PLD 1976 Kar. 1060; Sunrise Textiles Ltd. Tomen Corporation 1994 CLC 2000; Meinck Food Processing Equipment v. Danish Butter Cokies (Pvt.) 1992'CLC 1132; Gaya Electric Supply Co., Ltd. v. State of Bihar AIR 1953 SC 182; Jivraj Lakhmsi v: Tahkandas AIR 1920 Sindh 27; Messrs G.M. Tractors v. Messrs Hema Tractors, Turkey Suit No.987 of 2003; AIR 1967 SC 249; 1997 SCMR 988; PLD 1985 Kar. 745; 1988 SCMR 310 and PLD 1989 Kar. 645 ref

(b) Arbitration Act (X of 1940)‑‑‑

----S. 34---Conditions to be met before invoking arbitration clause by any party to the agreement enlisted.

The following conditions are to be met before invoking arbitration clause by any party to the agreement;

(i) There must be an agreement, containing Arbitration clause between the parties.

(ii) Legal proceedings must be commenced by one of the parties to the agreement against the other person who is also party to the agreement.

(iii) Legal proceedings are in respect of a matter agreed to be referred to arbitration.

(iv) The party to such legal proceedings, who is also party to the before filing written statement or taking any other arbitration agreement, step in the ‑proceedings has option to seek stay of the legal proceedings.

(v) The Court, if satisfied, that there is no sufficient reason why the matter should riot be referred to the Arbitration may stay the proceedings and direct the dispute to be referred to the arbitration.

‑‑‑‑S.34‑‑Stay of suit‑‑‑Nature of the suit in the present case, was such that without fear of conflicting decision, it was not possible to segregate or bifurcate the suit between the plaintiff and defendant A on the one land and between the plaintiff and defendant B on the other‑‑Claim the suit required common evidence as against both the set of defendant referring some of the difference/dispute as between the plaintiff at defendant B to the arbitration would serve no better purpose as some the claim would still be triable by the present Court‑‑‑High Court, circumstances, declined to stay the proceedings in the suit and referred some of the disputes urged in suit as between the plaintiff and defendant B to the arbitration.

Muhammad Afzal Siddiqui and Rana Ikram for Plaintiff.

Nadeem Azher Siddiqui, D.A. ‑G. for Defendant No. 1.

Muhammad Akram Khawaja and Kazi Abdul Hameed Siddiy for Defendant No.2.

MLD 2005 KARACHI HIGH COURT SINDH 558 #

2005 M L D 558

[Karachi]

Before Wahid Bux Brohi, J

HABIBULLAH‑‑‑Applicant

Versus

THE STATE ‑‑‑Respondent

Cr. B.A. No.368 of 2004, decided on 19th July, 2004.

Criminal Procedure Code (V of 1898)‑‑-

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.324/353/411/148/149‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Identification parade of accused was held after four days of his arrest through police personnel‑‑‑Witnesses belonged to police and after arrest of accused he was kept at police Station for four days before identification test‑‑‑Genuineness of such identification test, would require further inquiry‑‑‑Record had not shown that electric wires in question were secured from exclusive possession of accused and nobody from police sustained any injury‑‑‑Accused was admitted to bail, in circumstances.

Syed Aijaz Ali Shah for Applicant.

Mushtaq Ahmed Kourejo for the State.

Date of hearing: 19th July, 2004.

MLD 2005 KARACHI HIGH COURT SINDH 568 #

2005 M L D 568

[Karachi]

Before Wahid Bux Brohi, J

ZULFIQAR ALI BAKHRANI ‑‑‑ Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 152 of 2004, decided on 26th July, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.337‑H(2)/380/459/148/149‑‑‑Bail, grant of‑‑‑Further inquiry ‑‑‑Report of complainant was recorded in Roznamcha soon after incident specifically mentioning therein that unidentified persons gave a call to complainant from outside the house and thereafter incident took place‑‑‑Fact of lodging earlier report with police was duly mentioned in the F. I. R. ‑‑‑Complainant, after two days, had come out with a changed version nominating four culprits including accused‑‑-Medical Board constituted to examine injury on person of son of complainant had opined that injury appeared to be self‑suffered suffered one‑‑‑Case was not only of two versions, but it was a case of improvement also as in the first instance, names were not given and then the names were disclosed in F.I.R.‑‑‑Such fact coupled with self‑suffered injury as opined by Medical Board had made the case of further inquiry entitling accused to grant of bail‑‑‑Accused was behind the bars for a period of more than one year and two months without trial‑‑‑Bail was allowed to accused, in circumstances.

Ali Nawaz Ghanghro for Applicant.

Mushtaque Ahmed Kourejo for the State.

Date of hearing: 26th July, 2004.

MLD 2005 KARACHI HIGH COURT SINDH 572 #

2005 M L D 572

[Karachi]

Before Wahid Bux Brohi, J

KHAIR MUHAMMAD ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Crl. Bail Appln. No.471 of 2004, decided on 4th August, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑-‑West Pakistan Arms Ordinance (XX of 1965), S.13(d)‑‑‑Bail, grant of‑‑‑Police despite spy information did not associate any independent person with it and raided the village of accused in total violation of provisions of S.103, Cr.P.C.‑‑‑Even on facts, accused had a better case‑‑‑Bail was granted to accused, in circumstances.

Atta Hussain v. Sate PLD 2002 Kar. 113; Imran Ahmed v. State 2001 MLD 986 and State v. Bashir PLD 1997 SC 408 ref.

Attar Abdul Sattar for Applicant.

M.I. Bhutto for the State.

MLD 2005 KARACHI HIGH COURT SINDH 577 #

2005 M L D 577

[Karachi]

Before Wahid Bux Brohi, J

GHULAM ALI ‑‑‑ Applicant

Versus

THE STATE‑‑‑Respondent

Cr. B.A. No.330 of 2004, decided on 19th July, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.324/337‑H(2)/353/148/149‑‑Bail, grant of‑‑‑Butt of Klashnikov was given to police official by co-accused and not by accused‑‑‑Only allegation against accused was that official rifle was secured from him‑‑‑Case of dacoity registered in respect of snatching of nine fire‑arms was being proceeded against accused separately‑‑‑Other co‑accused were granted bail‑‑‑Accused remained in custody for a period of about one year during which trial had made absolutely no progress‑‑‑Allegation of injury, was also not made against accused‑‑‑Accused, in circumstances deserved concession of bail and he was granted bail accordingly.

Ubedullah M. Abro for Applicant.

Mushtaq Ahmed Kourejo for the State.

MLD 2005 KARACHI HIGH COURT SINDH 588 #

2005 M L D 588

[Karachi]

Before Muhammad Sadiq Leghari, J

HAZRAT ALI---Applicant

versus

ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Planning and Development, having its Office at Rawalpindi/Islamabad and 2 others---Respondents

C.M.A. No.7157 of 2004 in Suit No.391 of 1997, decided on 25th January, 2005.

Fatal Accidents Act (XIII of 1855)---

----S.1---Civil Procedure Code (V of 1908), O.VIII, R.1---Fatal accident---Suit for recovery of compensation amount---Failure to file written statement---Defendants having failed to file written statement despite chances were given to them, Court passed order debarring them from filing written-statement; thereafter matter crossed the stage of filing written-statement and plaintiff filed evidence in shape of affidavit---Nearly about five years thereafter, defendants filed application for recalling order of Court debarring them from filing written statement---Application filed by defendants not only was belated one but reasons mentioned for not filing written-statement, were neither cogent nor sufficient---Defendants having failed to avail opportunity to file written-statement, could not be permitted to file the same after such an inordinate delay and also after evidence had been filed---Even otherwise party was not absolved of pursuing its matter vigilantly by merely engaging an advocate---Application filed by defendant being meritless was dismissed.

Nasir Maqsood for Plaintiff.

Abdul Rauf for Defendants Nos.1 and 2.

M. Sarfraz Sulehri for Defendant No.2.

MLD 2005 KARACHI HIGH COURT SINDH 619 #

2005 M L D 619

[Karachi]

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

SA'ADAT RIZVI---Petitioner

versus

ANJUMAN-E-FALAH-E-ITTIHAD and others---Respondents

C.P. No.2760 of 1993, heard on 29th September, 2004.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Encroachment upon a public road---Grievance of petitioner was that respondents had allowed encroachment upon a public road and enabled construction of shops and offices on such encroachment which had caused a great deal of traffic congestion, pollution and other hygienic problems---Factum of encroachment and construction of shops and offices upon public road, had not been disputed by respondents, but they had stated that some encroachments had been removed and that Provincial Minister for Local Bodies had allowed request of a number of people for raising shops in the area---High Court allowed Constitutional petition to the extent that any construction raised in violation of requirements of law would be invalid and directed the Authority to take appropriate measures for removal of encroachments strictly in accordance with law after notice to all concerned.

Khursheed Javed for Petitioner.

Mansoor Ahmed for Respondent No.2.

Ch. M. Rafiq Rajorvi, Addl. A.-G. Sindh for Respondent No.4.

Muhammad Muzaffarul Haque for Respondent No.5.

Date of hearing: 29th September, 2004.

MLD 2005 KARACHI HIGH COURT SINDH 628 #

2005 M L D 628

[Karachi]

Before Anwar Zaheer Jamali and Syed Zawwar Hussain Jaffery, JJ

KARACHI CITIZENS RIGHT PROTECTION ASSOCIATION---Petitioner

versus

KARACHI BUILDING CONTROL AUTHORITY and others---Respondents

C.P. No.D-184 of 2003, heard on 6th October, 2004.

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

----Preamble---Karachi Development Authority Order. [5 of 1957] Preamble---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Conversion of residential accommodation into commercial---Petitioners had alleged that respondents were misusing their residential accommodation into commercial---One of the respondents who did not dispute that property in question was residential one, had stated that she had moved Karachi Building Control Authority for conversion of property in her possession into commercial one---Validity---Assertion of petitioners about misuse of residential property into commercial having not been disputed, Karachi Building Control Authority was directed to perform its legal obligation strictly in accordance with law---In case of breach of any rules, regulations or bye-laws of Sindh Buildings Control Ordinance, 1979, etc. prompt action had to be taken by the Authority against the respondents---In case plot in possession of respondents which was residential, could be converted into commercial as per building bye-laws and application filed in that respect could be considered.

Muhammad Sharif and Naeemur Rahman for Petitioner.

Ahmed Pirzada, A.A.-G. Sindh for Respondent.

Date of hearing: 6th October, 2004.

MLD 2005 KARACHI HIGH COURT SINDH 636 #

2005 M L D 636

[Karachi]

Before Sarmad Jalal Osmany and Amir Hani Muslim, JJ

Messrs KAY KAY BUILDERS---Petitioner

versus

PROVINCE OF SINDH through Chief Secretary and others---Respondents

C.P. No.2108 of 2001, heard on 22nd October, 2004.

Constitution of Pakistan (1973)---

----Art. 199---Dispute with regard to title in respect of property---Petitioner had claimed that he derived title in respect of property from its previous owner which was based on an entry in the village Form VII---Authority on the other hand had claimed land in question on the basis that it was transferred to it by the Development Authority---Since title to land in dispute itself was in question, same could not be adjudicated in Constitutional jurisdiction of High Court---High Court at the most could direct petitioner to approach concerned Authority for ventilating his grievance and thereafter if he would not be satisfied, he could resort to a Civil Court for his remedy.

Zahid Marghoob for Petitioner.

Abbas Ali, Addl. A.-G.

Manzoor Ahmed for City District Government.

Date of hearing: 22nd October, 2004.

MLD 2005 KARACHI HIGH COURT SINDH 702 #

2005 M L D 702

[Karachi]

Before Shabbir Ahmad and Azizullah M. Memon, JJ

KARACHI ELECTRIC SUPPLY CORPORATION LTD.---Appellant

versus

GOVERNMENT OF SINDH through SECRETARY, IRRIGATION AND POWER, KARACHI and others---Respondents

High Court Appeal No.416 of 2003, decided on 17th February, 2005.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 42 & 54---Constitution of Pakistan (1973), Arts.4, 9, 14, 18 & 23---Suit for declaration and permanent injunction---Temporary injunction, grant of---Plaintiff company in its suit had sought declaration to the effect that defendants threatened actions of installation of overhead high tension transmission line pipe/pole along with cables within plaintiffs factory premises, would be illegal, arbitrary and without jurisdiction and violation of fundamental rights as enshrined under Arts. 4, 9, 14, 18 & 23 of the Constitution---Plaintiff also had sought permanent injunction restraining the defendants, their officers, employee etc. acting under or through them from installing said transmission line---Plaintiff also filed application under O.XXXIX, Rr. 1 & 2, C.P.C. for grant of temporary injunction---Plaintiff having made out a strong prima facie case in its favour for issuance of temporary injunction, High Court had rightly exercised its discretion for grant of temporary injunction to plaintiff under O. XXXIX, Rr. 1 & 2, C.P.C.---Appellate Court would not substitute its own discretion for that of Trial Judge except where discretion was exercised arbitrarily, perversely, contrary to legal principles and on the basis of assumption not borne out by record---High Court Appeals were dismissed, in circumstances.

Mst. Shehla Zia and others v. WAPDA PLD 1994 SC 693 and Hussain A. Haroon v. Mrs. Laila Sarfaraz and others 2003 CLC Kar. 771 ref.

Muhammad Muzaffar-ul-Haq for Appellant.

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

Abid S. Zubairi for Respondent No.2.

Date of hearing: 10th February, 2004.

MLD 2005 KARACHI HIGH COURT SINDH 725 #

2005 M L D 725

[Karachi]

Before Shabbir Ahmad and Khilji Arif Hussain, JJ

KARACHI WATER AND SEWERAGE BOARD---Appellant

versus

PROVINCE OF SINDH and others---Respondents

H.C.A. No.411 of 2003, decided on 2nd April, 2004.

Land Acquisition Act (I of 1894)---

----Ss. 4, 6, 18 & 26---Civil Procedure Code (V of 1908), Ss. 2 & 151---Acquisition of land---Award of compensation---Execution of award---Award under S. 26(2) of Land Acquisition Act, 1894 is a decree and statement of grounds of award is judgment within meaning of S. 2(2)(9), C.P.C. and is executable as Civil Court decree by same Court which had decided reference---Invocation of provisions of S. 151, C.P.C. for direction for payment of a decretal amount was unwarranted, more particularly when execution application was pending.

Abdul Karim Khan for Appellant.

M. Sarwar Khan. Addl. A.-G. for Respondent No.1.

Nemo for Respondents Nos.2 to 5.

Nadeem Azhar Siddiqui for Respondent No.6.

MLD 2005 KARACHI HIGH COURT SINDH 752 #

2005 M L D 752

[Karachi]

Before Maqbool Baqar, J

HUSAN JEHAN---Plaintiff

versus

ISLAMIC REPUBLIC OF PAKISTAN, through Secretary, Ministry of Defence, Islamabad and 2 others---Defendants

Suit No.579 of 1993, decided on 17th November, 2003.

Fatal Accident Act (XIII of 1855)---

----S.1---Fatal accident---Suit for compensation---Determination of amount of compensation---Accident in which son of plaintiff was killed had taken place when defendant who was an employee of other defendants drove truck in a rash, negligent and careless manner which rammed into yellow cab which was being driven by deceased at the relevant time---Deceased had died as a result of actionable wrong, negligence and default on part of the driver (defendant) during course of his employment with other defendants---All three defendants were liable to compensate plaintiff, the father of deceased and mother of deceased---Deceased at the time of his death was 30 years old and was a healthy man with simple habits---Father of deceased died during pendency of suit at the age of 72 years---Amount of compensation was determined taking into consideration expected remaining age of deceased, his earning capacity, damages sustained by yellow cab of deceased and funeral and other expenses payable etc.---Suit was decreed accordingly.

Nasir Maqsood for Plaintiff.

Federal Counsel Syed Tariq Ali for Defendants Nos.1 and 3.

Date of hearing: 17th November, 2003.

MLD 2005 KARACHI HIGH COURT SINDH 762 #

2005 M L D 762

[Karachi]

Before Ata-ur-Rahman, J

Mst. ANWAR BEGUM---Appellant

versus

ABDUL KHALIQ---Respondent

First Civil Appeal No.311 of 2003, decided on 15th March, 2004.

Succession Act (XXXIX of 1925)---

----Ss. 299 & 384---Issuance of letters of administration---Modification and alteration of letters of administration---Initially letters of administration in respect of properties and assets of deceased were allowed in favour of appellant who was widow of deceased, but subsequently on filing application by respondent under S. 12(2), C.P.C. letters of administration granted to appellant were modified to the extent of one Bank account of the deceased---Respondent had claimed that said Bank account was not personal account of the deceased, but was part and parcel of partnership business---Certificate issued by the Bank had clearly shown that said Bank account was in the name of deceased---Disputed Bank account having been fully established as personal account of deceased and not covered by alleged partnership of deceased and respondents, no legal impediment existed including said account number in the letters of administration issued in favour of the appellant---High Court allowing appeal directed that disputed personal account of deceased be included in letters of administration issued in favour of appellant.

Ms. Munawar Sultana for Appellant.

M.A.I. Lakhani for Respondent.

MLD 2005 KARACHI HIGH COURT SINDH 802 #

2005 M L D 802

[Karachi]

Before Sarmad Jalal Osmany, J

ABDUL WAHEED---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-382 of 2004, decided on 7th October, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Bail, grant of---Counsel for accused though had taken 2/3 adjournments, but he had been regularly attending the Trial Court---Delay in conclusion of trial was firstly due to non-production of accused and secondly to non-attendance of witnesses---No allegation was levelled against the accused who was behind the bars since his arrest, that he was a notorious, dangerous or hardened criminal---Investigation had since been concluded and accused was no more required for said purpose---Bail was granted to accused since right to a fair and efficacious trial was the fundamental right of all citizens of Pakistan.

Riazat Ali Sahar for Applicant.

Riazuddin Siddiqui for the State.

MLD 2005 KARACHI HIGH COURT SINDH 859 #

2005 M L D 859

[Karachi]

Before Anwar Zaheer Jamali, J

FAZAL-UR-RAHIM---Plaintiff

versus

ISLAMIC REPUBLIC OF PAKISTAN and others---Defendants

Suits Nos. 611 of 1994, 312, 264 and 298 of 1995, decided on 14th February, 2004.

Fatal Accidents Act (XIII of 1855)---

----S. 1-A---Civil Procedure Code (V of 1908), S.151 & O.XXII, R.3---Fatal accident---Suit for compensation---Death of the plaintiff (father of the deceased) who was only beneficiary---Effect---Plaintiff/father of deceased who died in fatal accident filed suit for recovery of amount of compensation---Plaintiff, who was only beneficiary, having died during pendency of suit, three sisters and two brothers of deceased/sons and daughters of plaintiff, after about three years of death of plaintiff, moved application to be joined as party to suit---Said application was accepted and amended plaint was filed in which sisters and brothers of deceased were arrayed as plaintiffs---Said brothers and sisters, who joined as plaintiffs were not beneficiaries under S.1-A of Fatal Accidents Act, 1855 to claim any pecuniary compensation through suit for compensation---After death of plaintiff, who was only beneficiary being father of deceased, no cause of action had survived in favour of his legal heirs who had been arrayed as plaintiffs in suit as the benefit to claim pecuniary compensation under S.1-A of Fatal Accidents Act, 1855 was personal to plaintiff as it had abated on his death---None of newly joined plaintiffs being beneficiary within meaning of S.1-A of Fatal Accidents Act, 1855, and cause of action being personal to deceased plaintiff, same had not survived in their favour to pursue the suit---Suit which had abated/having become infructuous, was dismissed in circumstances.

Sardar Muhammad Ali and others v. Pakistan PLD 1961 (W.P.) Karachi 88 ref.

Nasir Maqsood for Plaintiffs.

S. Tariq Ali for Defendants.

Dates of hearings: 13th, 15th and 16th December, 2004.

MLD 2005 KARACHI HIGH COURT SINDH 869 #

2005 M L D 869

[Karachi]

Before Ghulam Rabbani and Gulzar Ahmed, JJ

SAS CARGO (PVT.) LTD. KARACHI through Manager Transport---Applicant

versus

THE STATE---Respondent

Criminal Revision No.D-25 of 2004, decided on 24th November, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A & 439---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 74---Superdari of vehicle---Term "individual" used in S.74 of the Control of Narcotic Substances Act, 1997, would include the applicant being a private limited Company and its provision on release of the vehicle, thus, would apply to its case---Legislators could not exclude the juridical persons from the operation of the said provision of S.74 letting them to operate against the intent and purport of the same--Huge quantity of 6000 kilograms of Charas had been recovered from the container being transported on the vehicle of the applicant---Said Charas could not be shown to have been filled in the container on the way by anybody else---Oral statement of the applicant that it had no knowledge about the narcotics substance being transported in the container on its vehicle, was not supported by the documentary evidence---Trial Court had rightly refused the delivery of the vehicle in question to the applicant on Superdari in circumstances---Revision petition was dismissed accordingly.

Niaz Ullah v. State 2002 PCr.LJ 97; Abdul Hameed v. State 2002 PCr.LJ 666; Black's Law Dictionary (6th edition) and Haji Abdul Razzak v. Pakistan through Secretary, Ministry of Finance and another PLD 1974 SC 5 ref.

Abdul Salam v. State 2003 SCMR 246 fol.

Maqbool Ahmed Awan for Applicant.

Mumtaz Ali Siddiqui for the State.

Date of hearing: 5th October, 2004.

MLD 2005 KARACHI HIGH COURT SINDH 888 #

2005 M L D 888

[Karachi]

Before Wahix Bux Brohi and Muhammad Moosa K. Leghari, JJ

MUHAMMAD QASIM and 2 others---Appellants

versus

THE STATE---Respondent

Special A.T. Jail A. No.81 of 1999 and Confirmation Case No.24 of 1999, decided on 29th January, 2003.

Penal Code (XLV of 1860)---

----Ss. 302(a), 392, 397 & 398---Appreciation of evidence---Accused were not put to identification test despite they were strangers to prosecution witnesses---F.I.R. was registered on the basis of information conveyed by prosecution witness on telephone to the police---None of the two prosecution witnesses who witnessed the incident came forward to lodge F.I.R.---No credible evidence was available to connect accused with the commission of crime in absence of identification test---Alleged crime weapon T.T. Pistol was recovered after arrest of accused and fifteen days after recovery of empties from place of Wardat---Crime empties and crime weapon were sent to Fire-arm Expert after a period of more than two months and both articles were dispatched to Fire-arm Expert simultaneously---Delay in dispatching the crime empties and weapon and that too at the same time when those were secured on different dates, had rendered ballistic report of little consequence to support the case of prosecution---Case of prosecution was that two different weapons were used in commission of crime while only one T.T. Pistol was recovered and report of Fire-arm Expert had shown that two shots were fired from said pistol---Conduct of witnesses was quite unnatural and evidence of said witnesses did not lend any support to case of prosecution---In view of delay in lodging F.I.R., absence of identification of accused in the test, lack of establishment of recovery of crime weapon coupled with delay and apparent conflict in the ballistic report and prosecution version, case of prosecution was marred by serious infirmities---Prosecution having failed to bring home guilt to accused, conviction and sentence awarded to him by Trial Court, were set aside and they were acquitted of charge and released.

State through Advocate-General Sindh Karachi v. Farman Hussain and others PLD 1995 SC 1 ref.

Syed Mahmood Alam Razvi and Attaullah Khan for Appellants.

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

Date of hearing: 23rd January, 2003.

MLD 2005 KARACHI HIGH COURT SINDH 919 #

2005 M L D 919

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

MUHAMMAD SHAH and another---Applicants

versus

THE STATE---Respondent

Crl. B. A. No.131 of 2005, decided on 21st March, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Bail, grant of---Further inquiry---Contents of F.I.R. were belied by Mashirnama of arrest and place of incident---Case was that of ineffective firing and according to F.I.R. accused were apprehended at the spot and handed over to Investigating Officer, but according to Mashirnama of arrest Police Inspector arrested accused from Rural Health Center where they were already admitted---Mashirnama of place of incident had shown that no empties were recovered from the place of incident---Ineffective firing allegedly had hit at the wall, but no such sign was found on the wall at the place of incident---Case against accused appeared to be result of enmity---State counsel who had opposed the bail application had no explanation for the contradiction in F.I.R., Mashirnama of arrest and place of incident---Case against accused being of further inquiry, accused were entitled to be released on bail.

Muhammad Sharif Sial for Applicants.

Riazuddin Siddiqi State Counsel.

MLD 2005 KARACHI HIGH COURT SINDH 943 #

2005 M L D 943

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jaffari, JJ

ABDUL WAHEED---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.1187, M.As. Nos. 3978 and 3979 of 2004, decided on 23rd December, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 86, 87, 76 & 561-A---Control of Narcotic Substances Act (XXV of 1997), Ss. 16, 15 & 9(c)---Application under S. 561-A, Cr.P.C.---Applicant had been arrested in a case registered at Lahore for an offence under Ss. 16, 15 & 9(c) of the Control of Narcotic Substances Act, 1997 and a proclamation under S. 87, Cr.P.C. had been issued against the applicant in that case---Applicant was arrested at Karachi and was produced before the Judicial Magistrate who passed an order remanding the applicant to judicial custody---Procedure to be followed in the case outlined by High Court.

In exercise of the powers under subsection (1) of section 86, Cr.P.C. Judicial Magistrate had the first option to direct removal of the applicant in custody to the relevant Court at Lahore, but the aforementioned order was silent if such order was passed. No other documents had been filed to suggest if at a subsequent stage the order within the meaning of subsection (1) of section 86, Cr.P.C. was passed by the Judicial Magistrate. Then, the first proviso to section 86(1), Cr.P.C. contemplated an action in cases of bailable offence but this course was not available to the Judicial Magistrate since the offence was not bailable. Ultimately, the procedure prescribed in the second proviso to section 86(1), Cr.P.C. was the only remedy available to the applicant.

Proclamation under section 87, Cr.P.C. had already been issued by the Court at Lahore. However, second proviso to section 86(1), Cr.P.C. provided that when the offence was not bailable and no direction was endorsed under section 76, Cr.P.C., the applicant had to approach to the Sessions Judge of the Division where the arrest had been effected.

High Court directed that within the meaning of second proviso to section 86(1), Cr.P.C. the applicant may approach the relevant Sessions Court at Karachi which shall pass an appropriate order in accordance with law within the scope of the proclamation under section 87, Cr.P.C. issued by the Court at Lahore.

Walayat Khan v. The State 1993 PCr.LJ 738 ref.

M. Amin Lakhani and Naeem Qureshi for Applicant.

Date of hearing: 23rd December, 2004.

MLD 2005 KARACHI HIGH COURT SINDH 946 #

2005 M L D 946

[Karachi]

Before Muhammad Moosa K. Leghari and Khilji Arif Hussain, JJ

HARCHAND and others---Appellants

versus

THE STATE---Respondent

Crl. Spl. ATA J/Appeal No.18 of 2003, decided on 11th February, 2004.

Penal Code (XLV of 1860)---

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S.6---Appreciation of evidence---No police officer or anyone else was injured in the incident and neither empties were recovered from the place of Wardat nor same were produced in the Court---One of prosecution witnesses, who claimed to be heading the police party involved in the encounter, had admitted in his cross-examination that when the party reached the place of occurrence, there was no firing on the spot---Said witness had admitted that police encounter lasted for a short while; that accused persons (present in the Court) had started shouting that they should not be killed as they were prepared to surrender and that accused were seen by them as they had raised their hands and their weapons were lying in front of them---Such statements were sufficient to show that accused had voluntarily surrendered before police party and there was no question of deterring police party from discharging their duties or causing obstruction of any sort---Place of occurrence was surrounded by habitations, but no one from private persons was associated to witness the arrest of accused or the recovery of crime weapon---Neither any encounter had been proved nor there was any evidence to show that an attempt was made on the police party to commit their murder---Prosecution, in circumstances had failed to bring home the guilt to accused persons---Judgment of conviction recorded by Special Judge was devoid of material evidence and was bereft of cogent reasons and was not maintainable and was liable to be set aside---Conviction could not be sustained merely on basis of surmises---High Court allowing appeal, set aside impugned judgment and conviction and acquitted accused.

Allah Bachayo Soomro for Appellants.

Rasheed Qureshi Asst. A.-G. for the State.

Date of hearing: 11th February, 2004.

MLD 2005 KARACHI HIGH COURT SINDH 950 #

2005 M L D 950

[Karachi]

Before Muhammad Moosa K. Leghari and S. Ali Aslam Jaffery, JJ

ANWAR---Applicant

versus

THE STATE---Respondent

Crl. B.A. No. D-18 of 2005, decided on 18th March, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9---Bail, grant of---Further inquiry---Narcotic substance viz Charas was not recovered from actual possession of accused and according to contents of F.I.R. man had escaped from the scene and police could not arrest him---Was yet to be ascertained as to whether accused was actually possessing the alleged narcotics---F.I.R. previously registered implicated the accused on the basis of statement of co-accused---Case against accused appeared to be of further inquiry---Accused was admitted to bail, in circumstances.

Muhammad Sharif Siyal for Applicant.

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

MLD 2005 KARACHI HIGH COURT SINDH 1183 #

2005 M L D 1183

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

Haji SHABBIR and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.S-225 of 2005, decided on 26th April, 2005.

Criminal Procedure Code (V of 1898)--

----S. 498---Penal Code (XLV of 1860), Ss.324, 337-A(i), 337-F(i), 504, 147 & 149---Interim bail before arrest, confirmation of---Enmity between parties was admitted in F.I.R. and offence alleged against one of accused under S.337-A(i), P.P.C. was bailable---Other accused was not alleged to have caused any injury---Main accused had been granted bail---State counsel had no objection to the confirmation of interim bail before arrest already granted to accused----Interim bail before arrest granted to accused was confirmed accordingly.

Irfan Ahmed Qureshi for Applicants.

MLD 2005 KARACHI HIGH COURT SINDH 1200 #

2005 M L D 1200

[Karachi]

Before Ata-ur-Rehman and Zia Perwaz, JJ

ISLAMIC REPUBLIC OF PAKISTAN through Secretary and another---Appellants

Versus

HUSSAN JEHAN and another---Respondents

High Court Appeal 133 of 2004, decided on 26th January, 2005.

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

----S.1---Law Reforms Ordinance (XII of 1975), S. 3---High Court appeal---Suit for compensation---Jurisdiction of High Court---Suit was decreed by Trial Court for Rs.12,50,000---Contention of appellants was that it was less than pecuniary jurisdiction of Trial Court---Contention was repelled as it was not disputed that at the time of incident matter was within pecuniary jurisdiction of High Court and suit was instituted in competent Court---Subsequent enhancement in the jurisdiction could not be stated to have taken away the jurisdiction conferred upon High Court---Contention that suit was without sufficient evidence and relevant facts were not proved to support decree in favour of plaintiff, was also repelled because relevant facts were proved by convincing evidence---F.I.R. reporting accident, Medical Certificate confirming the cause of death of deceased and his educational degree obtained from University of Karachi were all available on record---Contention of appellants had no force---No finding contrary to record having been brought on record and no case for interference with impugned judgment having been made out, appeal was dismissed.

PLD 1981 Kar. 210 and Rimpa Ltd. v. Karachi Metropolitan Corporation 2004 CLC 1797 ref.

Nadeem Azhar Siddiqui for Appellants.

MLD 2005 KARACHI HIGH COURT SINDH 1247 #

2005 M L D 1247

[Karachi]

Before Rahmat Hussain Jafferi, J

WAJID ALI GAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.774 of 2004, decided on 8th February, 2005.

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

----S.497---Penal Code (XLV of 1860), S.302---Bail, refusal of---Supreme Court had directed the Trial Court not to proceed with the case of accused under Juvenile Justice System Ordinance, 2000---Proceedings for trial of the case and for bail. matters were covered by two different Chapters and parts of the Code of Criminal Procedure, 1898---Even otherwise, Supreme Court had stayed the proceedings of the trial under Juvenile Justice System Ordinance, 2000 which was operative against the Trial Court and there was no stay or direction to the High Court for not proceeding with the ancillary or interlocutory matter of the bail---High Court, therefore, was competent to hear and decide - the bail application---Bail had been sought only on the ground of delay amounting to hardship---Delay in disposal of the case had occurred because of legal battle between the parties on the question of the age of the accused and jurisdiction of the Trial Court which was not an abuse of process of law, as the parties were required to adopt the legal course by approaching the legal forum to redress their grievances---Delay in disposal of the case in the circumstances could not be taken as a ground for grant of bail---Bail application was dismissed accordingly.

Badlo v. State, Applications Nos. 93, 463, 464, 505, 207, 201, 338, 242, 345, 92, 277, 316, 205, 361, 362 of 2004 and 572 of 2002 and Azizullah and others v. State Criminal Bail Application No.715 of 2004 ref.

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

----S.497---Penal Code (XLV of 1860), S.302---Bail---Delay in disposal of case---Delay in disposal of the case causing an abuse of process of law alone can be taken a ground for grant of bail.

Badlo v. State, Applications Nos.93, 463, 464, 505, 207, 201, 338, 242, 345, 92, 277, 316, 205, 361, 362 of 2004 and 572 of 2002. ref.

Abdul Razak Soomro for Applicant.

Muhammad Ismail Bhutto for the State.

MLD 2005 KARACHI HIGH COURT SINDH 1261 #

2005 M L D 1261

[Karachi]

Before Rahmat Hussain Jafferi and Gulzar Ahmed, JJ

Mst. JEEJAL and another---Appellants

Versus

THE STATE-Respondent

Criminal Jail Appeal No. 91 of 2001,decided on 17th February, 2005.

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

----S.9(c)---Appreciation of evidence---Report of the Chemical Analyzer had belied the statements of the complainant and the Mashir---Different property had been sent to the Chemical Analyzer for examination and report, which did not pertain to the present case and his report, therefore, was of no help to the prosecution---Nothing was available on record to show that the material allegedly recovered from the possession of accused was Charas or opium---Evidence of recovery also suffered from material contradictions---Benefit of doubt was given to the accused in circumstances and she was acquitted accordingly.

Muhammad Anwar Durani for Appellants.

Muhammad Ismail Bhutto for Respondent.

Date of hearing: 17th February, 2005.

MLD 2005 KARACHI HIGH COURT SINDH 1267 #

2005 M L D 1267

[Karachi]

Before Rahmat Hussain Jafferi, J

NOORUDDIN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.675 of 2004, decided on 1st February, 2005.

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

----S.497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.17(2)/17(3)/17(4)---Bail, grant of---Complainant, after the occurrence went to the police station along with both the injured persons, informed the police about the incident, requested for a letter for taking the injured persons to the Hospital and stated that he would come later on and lodge the report---Such entry was made in the station diary---Police, therefore, started the investigation by issuing letter to the Medical Officer for examination of the injured witnesses---F.I.R. in the case, thus, would be the said station diary under which the complainant had narrated some details of the incident to the police---Names of the accused were not mentioned in the station diary---Complainant after getting the injured persons admitted in hospital should have gone to the police station for giving full details of the incident which could have been termed as his further statement, but he did not do so and kept silent for two days and he then went to the police station again and gave the details of the incident which were incorporated in S.154, Cr.P.C. book---Delay of these two days was not explained by the complainant---Police also did not explain the delay in recording the statements of the said two injured witnesses which had adversely affected the prosecution story---Plea of alibi taken by the accused of being admitted in the Hospital at the time of occurrence could be considered at the time of trial, but if the same was presently considered in the light of the aforesaid facts and circumstances, involvement of accused in the case would become doubtful---Bail was allowed to accused in circumstances.

Muhammad Hussain v. State 1993 SCMR 1614; Falak Sher v. State 1995 SCMR 1350 and PLD 1998 SC 97 rel.

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

----Ss.497/498---Bail-Benefit of doubt, extension of---Principles---Benefit of doubt can be extended to accused even at bail stage.

PLD 1998 SC 97 ref.

Saeed Ahmed B. Bijarani for Applicants.

Muhammad Ismail Bhutto for the State.

MLD 2005 KARACHI HIGH COURT SINDH 1278 #

2005 M L D 1278

[Karachi]

Before Amir Hani Muslim, J

ZAHEERUDDIN---Plaintiff

Versus

SAADAT HAYAT KHAN and others---Defendants

Suit No.1191 of 1998, heard on 26th January, 2005.

Specific Relief Act (I of 1877)---

----Ss. 12 & 42---Qanun-e-Shahadat (10 of 1984), Art. 17---Registration Act (XVI of 1908), S. 17-Suit for specific performance of agreement to sell and declaration---Sale agreement in addition to other exhibits, which the plaintiff claimed to have been signed by the defendant and had been produced by the plaintiff in his evidence on the basis of which transfer of plot was sought, were not specifically disputed by the defendant on the ground that they did not bear his signatures---Denial of the defendant in the written statement was confined to the admissibility of the documents---Defendant, however, at the stage of evidence made an attempt to improve his case by disputing his signatures on the different exhibits---Defendant had not specifically pleaded that the sale agreement or any other document purported to have been signed' by him was not signed by him---Plea of defendant of changing his signatures was only taken to dispute the authenticity of the sale-deed in order to establish that he did not sign the deed---Defendant had not brought any material on record to establish that the original file of the plot in issue was stolen by the plaintiff---Contention of the defendant was that contents of the agreement did not disclose it as an agreement but in tact it was to be construed as a sale-deed, inter alia, on the ground that the said agreement stated that the entire sale consideration had been paid, and, therefore, it should have been properly stamped and registered under S.17, Registration Act, 1908---Validity---Mere mention of the fact of payment of entire sale consideration in an agreement would not make it a sale-deed---Agreement of the nature could not confer a title on the party---Limitation would start from the date when the defendant had refused performance of the agreement---Plaintiff had established that the plot in question was sold to the plaintiff by the defendant with all requisite documents, for its transfer in his favour, from the Housing Authority---High Court decreed the ' suit in circumstances.

Muhammad Yousaf v. Munawar Hussain 2000 SCMR 204 fol.

Rasheeda Begum v. Muhammad Yousaf 2002 SCMR 1089; Sana Ullah v. Muhammad Manzoor PLD 1996 SC 256; Ali Rehman v. Fazal Mehmood 2003 SCMR 327; Ambrin Begum v. Dev Kishan 1991 MLD 318 and Muhammad Yousaf v. Munawar Hussain 2002 SCMR 204 distinguished.

Munib Ahmed Khan for Plaintiff.

Kabiruddin for Defendant No. 1.

Date of hearing: 26th January, 2005.

MLD 2005 KARACHI HIGH COURT SINDH 1333 #

2005 M L D 1333

[Karachi]

Before Rahmat Hussain Jafferi and Gulzar Ahmed, JJ

MUHAMMAD SHARIF and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Acq. Appeal No.S-47 of 2003, decided on 11th February, 2005.

Penal Code (XLV of 1860)----

---Ss.302/336/149/148/114---Limitation Act (IX of 1908), Ss.5, 29 & Art. 157---Criminal Procedure Code (V of 1898), S.417 (2-A)---Appeal against acquittal barred by time---Appellant had filed the appeal on 30-12-2003 from Jail under S. 417, Cr.P.C. to challenge the order of acquittal passed by the Sessions Court on 14-7-1999, which was barred by time---Section 417(2-A), Cr.P.C. had provided a specific period of 30 days for filing the appeal and normal period for filing the appeal before the High Court was six months by virtue of Article 157 of the Limitation Act---Time prescribed under S.417(2-A), Cr.P.C. being different from the time prescribed under Article 157 of the Limitation Act, S. 29 of Limitation Act, 1908 would exclude the application of S.5 of the said Act, unless the Statute specifically provided for such application---Section 5 of the Limitation Act had not been made applicable to the provisions of S.417, Cr.P.C. which were special provisions within the meaning of S.29 of the Limitation Act, 1908 and as such its S.5 was not applicable for condonation of delay---Appeal against acquittal was dismissed as time-barred in circumstances.

Abdul Kadir v. Atique Ahmed PLD 2004 Kar. 555 ref.

Appellant in person.

Habibullah G. Ghouri, Amicus Curiae.

Muhammad Bachal Tunio, Addl. A.-G.

Muhammad Ayaz Soomro for Respondents Nos.2 to 6.

Date of hearing: 11th February, 2005.

MLD 2005 KARACHI HIGH COURT SINDH 1339 #

2005 M L D 1339

[Karachi]

Before Gulzar Ahmed, J

ROSHAN LAL---Applicant

versus

THE STATE and another---Respondents

M.A. 31 in Criminal Bail Application No.6 of 2005, decided on 31st January, 2005.

Criminal Procedure Code (V of 1898)---

----S.497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11/16---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Penal Code (XLV of 1860), S.380---Bail, grant of---Complainant had not made any direct allegation of Zina against the accused---Father of the alleged abductee .in his affidavit had denied the allegation of abduction and commission of Zina with his daughter by the accused---No medical examination of the alleged abductee had been conducted---Delay of six and a half month in lodging the complaint was not validly explained---Dispute about demolition of a wall was admittedly going on between the parties---Case against accused needed further inquiry in circumstance---Accused was" admitted to bail accordingly.

2004 SCMR 425; 2004 PCr.L.J. 1179; Makoro and another v. The State 2004 P.Cr.LJ 1283; 2004 YLR 1151; Muhammad Afzal and another v. The State 1997 SCMR 278; 2002 SD 89; Mst. Nasreen v. Fayyaz Khan PLD 1991 SC 412; Rasheed v. The State 2002 SCMR 1329; 1997 PCr.LJ 115 and 1997 MLD 1345 ref.

Imdad Ali Awan for Applicant.

S. Mushtaque Hussain Shah for the Complainant.

Abdul Ghafoor Pirzada for A.-G. or the State.

MLD 2005 KARACHI HIGH COURT SINDH 1358 #

2005 M L D 1358

[Karachi]

Before Ata-ur-Rehman, J

BANK AL-FALAH LTD.---Plaintiff

Versus

BILAL SPINNING MILLS LTD.---Defendant

Suit Nos. 93 (Old No.) B-3 (New No.) of 2000, C.M.As. Nos.5858, 8115, 6679 of 2001 and 3960 of 2002, decided on 19th June, 2002.

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

----S. 152---Amendment of decree---Scope of S.152, C.P.C. is limited to the reasons for correction of the decree mentioned therein---Where no reason as mentioned in S.152, C.P.C. existed decree does not call for any correction as envisaged in S.152, C.P.C.---If the Court passes an illegal decree, the decree holder/plaintiff has a right of appeal, which he failed to avail, in the present case---Application of plaintiff for correction of decree, in circumstances, was not maintainable.

(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

---Ss. 23, 19, 9(5) & 11---Restriction on transfer of assets and properties---Scope and application of S.23, Financial Institutions (Recovery of Finances) Ordinance, 2001-Provisions of S.23(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 are applicable after publication of summons under S.9(5) of the Ordinance, while subsection (2) of S.23 of the Ordinance will come into operation after the pronouncement of judgment and decree by the Banking Court---Section 23(2) of the Ordinance will also apply when an interim decree under S.11 of the Ordinance is passed and binds all the judgment-debtors from transferring, alienating, encumbering or parting with possession of any assets or property without prior written permission of the Banking Court---Any transfer, alienation and encumbrance or other disposition of assets or property by a judgment-debtor in violation of S. 23(2) of the Ordinance is to be treated as void and of no legal effect---Section 23(2) of the Ordinance is fully applicable on properties and assets of a judgment-debtor irrespective of the fact, whether it is mortgaged property or not and will also apply on money decree---Provision of S.23(2) of the Ordinance fully protects the rights of plaintiff/decree holder to get the consent decree executed as per terms and his apprehension that the decree will be frustrated or will become in executable is misconceived because of S.23(2).

Rasheed A. Razvi for Plaintiff.

Mushtaq A. Memon for Defendant.

MLD 2005 KARACHI HIGH COURT SINDH 1409 #

2005 M L D 1409

[Karachi]

Before Rahmat Hussain Jafferi, J

IRFAN KHAN and 2 others---Plaintiffs

Versus

ISLAMIC REPUBLIC OF PAKISTAN, through Secretary, Ministry of Planning and 3 others---Defendants

Suit No.612 of 1994, decided on 16th May, 2005.

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

----S.1---Fatal accident---Suit for recovery of amount of compensation---Determination of amount of compensation---Plaintiffs, who were minors through their mother/widow of deceased, had filed suit for recovery of amount of compensation against defendants under provisions of Fatal Accidents Act, 1855---Deceased, who was driver on a Van was driving Van in which three Airhostesses were sitting met with an accident with a Trailer driven by defendant---Evidence on record had fully proved that the driver of Trailer which was owned by other defendant was driving Trailer rashly, negligently, carelessly and at a high speed with the result that accident took place and deceased died in said accident and it was a case of normally styled in the legal parlance as composite negligence--Principles of composite negligence were that the victim had a choice of proceedings against all or anyone or more than one of the wrong doers and every wrong doer was liable for the whole damage if it was otherwise made out---Authority which was getting road repaired through contractor was also responsible for said accident as it failed to make adequate arrangements to caution the traffic flow by affixing barricades, flicker lights with standby generator, diversion signboards fixed on either end of the intersection of the road for smooth flow of traffic on the road---No traffic Constable was deployed on the road--Authority in circumstances was grossly negligent in performing their public duties with the result that accident took place---Plaintiff, in circumstances had fully proved that death of deceased was caused by composite negligence and wrongful acts of defendants and the defendants were jointly and severally liable to pay compensation to plaintiffs and legal heirs of deceased---Amount of compensation was determined taking into consideration, age of deceased, his expected life, earning capacity and other relevant factors and suit was decreed accordingly.

Andhora Marine Exports (P) Ltd., v. P. Radhakirshina AIR 1984 Madras 358 and Vanguard F. & G.I. Co. v. Saitla Devi, AIR 1959 Punjab 297 ref.

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

----Arts. 132 & 133---Examination and cross-examination---If any piece of evidence was not challenged in cross-examination, then it would be presumed to be accepted to be true by other side.

Muhammad Akhtar v. Manna 2001 SCMR 1700 ref.

Nasir Maqsood for Plaintiffs.

Abdul Rauf Khan for Defendants Nos.1 and 3 and Mukhtar Ahmed Kular for Defendant No.2.

MLD 2005 KARACHI HIGH COURT SINDH 1483 #

2005 M L D 1483

[Karachi]

Before Syed Ali Aslam Jafri, J

NATIONAL BANK OF PAKISTAN---Plaintiff

Versus

Haji MUHAMMAD SHAFIQ and another---Defendants

Suit No.316 of 1997, decided on 28th March, 2005.

Civil Procedure Code (V of 1908)---

----O. IX, Rr.8 & 9---Specific Relief Act (I of 1877), Ss. 8, 12 & 54---Suit for possession, specific performance of contract and injunction etc.---Dismissal of suit for non-prosecution---Application to set aside dismissal order---Suit was dismissed on the date when it was fixed for orders on official Assignee's reference and arguments on some interlocutory application---Order of dismissal of suit was not warranted in law as suit was not fixed for final hearing or final disposal and at the most listed interlocutory application could be dismissed and not the suit as a whole---Order of dismissal of suit would be deemed to be void order for which no limitation was prescribed under the law---Order of dismissal of suit was recalled and suit stood restored to its position as was before its dismissal.

Qazi Muhammad Tariq v. Hasan Jehan and others 1993 SCMR 1949 ref.

Khaliq Ahmed for Plaintiff.

Abdul Wajid Wyne for Defendant.

Date of hearing: 28th March, 2005.

MLD 2005 KARACHI HIGH COURT SINDH 1506 #

2005 M L D 1506

[Karachi]

Before Anwar Zaheer Jamali and Ali Aslam Jafri, JJ

MURLIDHAR P. GANGWANI (ENGINEER)---Appellant

Versus

Engineer AFTAB ISLAM AGHA and others---Respondents

H.C.A. No.219 of 2004, heard on 17th December, 2004.

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

----O. VII Rr.10 & 11---Return or rejection of plaint---Determination of question of territorial jurisdiction with reference to cause of action-For examining question of maintainability of the suit with reference to or on analogy of the provisions of O.VII, Rr.10 & 11, C.P.C., averments made in plaint were to be taken as a whole and with presumption of correctness attached thereto---For determining question of territorial jurisdiction with reference to the cause of action, whether accrued wholly or in part, averments of plaint were to be read in conjunction with the relief sought by a party in the suit and such reading of plaint should be meaningful, rational to the controversy and not merely formal.

Syed Muhammad Khurshid Abbas Gardezi and 5 others v. Province of Punjab 1988 CLC 362; Anwar Textile Mills Ltd. v. Central Board of Revenue and others 1985 CLC 2799; Itehad Cargo Service, National Hotel, Lahore and 2 others v. Rana Rafaqat Ali and 3 others PLD 2002 Kar. 420; Sardar Muhammad Sarwar Khan v. Shaukat Zaman Khan 1999 CLC 954; Faqir Muhammad v. Pakistan 2000 SCMR 1312; Mirza Abdul Rahim Baig and another v. Abdul Haq Lashari and 3 others PLD 1994 Kar. 388; Mian Fazal Muhammad Nizam-ud-Din Baig & Co. v. The Province of West Pakistan and others PLD 1969 Lah. 453 and Haji Abdul Malik and 10 others v. Muhammad Anwar Khan and 26 others 2003 SCMR 990 ref.

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

----Ss. 16, 17, 20, 120, O.VII, Rr.10, 11 & O.XLI, R.3---Return or rejection of plaint---Jurisdiction of High Court---Non-applicability of provisions of Ss.16, 17, 20 & R.3 of Order XLI, C.P.C., would not deny or curtail the powers of High Court either to reject or return the plaint inappropriate cases.

M/s. Muslim Commercial Bank Limited v. M/s. Nisar Rice Mills and another 1993 CLC 1627 ref.

------O. VII, R.10---Law Reforms Ordinance (XII of 1972), S.3---Return of plaint---High Court appeal---Plaintiff whose plaint was ordered to be returned by High Court on ground of lack of territorial jurisdiction, had contended that due to passing of order of return of plaint by High Court, plaintiff would be put to heavy expenditure and doors of High Court would be closed on him forever---Validity---Territorial jurisdiction of the Court could not be extended or curtailed on compassionate ground or looking to the financial position of a party and expenses which he might have to incur in pursuing litigation before proper Court having jurisdiction in the matter---Question of maintainability of suit with reference to territorial jurisdiction vis-a-vis cause of action accrued to a party for institution of such suit, was to be judged on the basis of averments made in the plaint of each suit and no perpetual order could be passed against a party that since plaint in one suit earlier instituted by him was returned for want of cause of action then for all future times no other suit could be instituted, there even though cause of action had accrued within the territorial jurisdiction of that Court or the finding on the point of jurisdiction recorded in the earlier suit would operate as res judicata, irrespective of distinguishable facts.

Khawaja Shamsul Islam for Appellant.

Waseem Sajjad for Respondent No.1 along with Ali Hassan Sajjad.

Bilal A. Khawaja for Respondent No.2.

Nadeem Azhar Siddiqui for Respondent No.4.

Date of hearing: 17th December, 2004.

MLD 2005 KARACHI HIGH COURT SINDH 1525 #

2005 M L D 1525

[Karachi]

Before Muhammad Afzal Soomro, .l

HABIB BANK LIMITED---Petitioner

Versus

1ST ADDITIONAL DISTRICT JUDGE and others---Respondents

C.P. No.33 of 2005, decided on 5th April, 2005.

Civil Procedure Code (V of 1908)---

----S. 152---Amendment of judgments, decrees and orders---Provisions of S.152, C.P.C. were confined to the correctness of types of errors mentioned therein---Correction of any other type of error could only be obtained through appeal or review in accordance with law---Error should not be contentious in nature and should be apparent from the record---Use of word "accidental" in the provision had shown that where order was deliberate, S.152, C.P.C. was inapplicable---Where order represented the intention of the Court, it could not be said to be mistaken---Impugned order being amply clear and unambiguous and there being no Clerical and arithmetical mistake arising therein from any accidental slip or omission, provisions of S.152, C.P.C. could not be invoked in that matter.

Mazhar Jafferi for Petitioner.

Mian Mushtaq Ahmed for Respondents Nos.3 to 14.

Date of hearing: 28th March, 2005.

MLD 2005 KARACHI HIGH COURT SINDH 1556 #

2005 M L D 1556

[Karachi]

Before Rahmat Hussain Jafferi, J

Mst. FARZANA PARVEEN---Plaintiff

Versus

KARACHI ELECTRIC SUPPLY CORPORATION through Chairman---Defendant

Suit No.1664 of 1998, decided on 2nd June, 2005.

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

----S. 1---Electricity Rules, 1973, R.76---Fatal accident---Suit for recovery of amount of damages---Determination of damages---Plaintiff who was widow of deceased filed suit for recovery of amount against Electric Corporation as compensation as her husband died coming into contact with electric wires lying dangerously on the road---Cause of death of deceased as shown by Medico-Legal Officer was due to cardiorespiratory failure resulting from electric shock---Incident as alleged by plaintiff had occurred in which deceased died and Electric Corporation prove that no such incident had taken place---Evidence on record had fully proved that Electric Corporation was grossly negligent in doing public duties-Under the law Corporation was responsible for proper maintenance and looking after net-work of overhead wires, cables, poles and other electricity installations pertaining to transmission and distribution of energy---Broken lines and wires could cause death of citizens---Heavy responsibility lay upon the Corporation to take care and to maintain its installations and other related matter in a very orderly manner through periodical and timely checking---Corporation did not provide guard wires at the place of incident and incident took place, because of non-providing, guard wires by the Corporation which had shown gross negligence on its part by not conducting it in accordance with law and violation of R.76 of Electricity Rules, 1973---Under concept of "strict liability", plaintiff was required simply to prove that incident took place because of hazardous or dangerous activity of Corporation---Plaintiff having proved through convincing evidence that incident took place on account of negligence of the Corporation and defendant on the doctrine of "strict liability" was liable to compensate plaintiff and legal heirs of deceased for the damages caused to them---Amount of compensation was determined taking into consideration earning capacity of deceased, his expected life, damages to his widow and other legal heirs due to his death and said amount would be distributed among widow and his other legal heirs accordingly---Suit was decreed in above terms.

M.C. Mehta v. Union of India AIR 1987 SC 1086 and M.P. Eb v. Shakil Kumari 2002 SC Cases 162 ref.

(b) Tort---

----Strict liability rule of---If anybody undertook an activity involving hazardous and risky exposure to human life, then he was liable under the Law of Torts to compensate for the injury suffered by any other person irrespective of any negligence or carelessness on the part of the persons responsible for such undertaking---Basis of such liability was foreseeable risk inherent in the very nature of such activity---Under the law such liability was known as "strict liability" which. differed from the liability arising on account of negligence' or fault---Rule of "strict liability" laid down a principle of liability that if a person who brought on to his land and collected and kept there anything likely to do harm and such thing snapped and it caused damage to another,. he was liable to compensate for the damage so caused.

Rylands v. Fletcher and another 1968 LTR 220 rel.

Nasir Maqsood for Plaintiff.

Saeed Ahmed for Defendant.

Date of hearing: 19th May, 2005.

MLD 2005 KARACHI HIGH COURT SINDH 1575 #

2005 M L D 1575

[Karachi]

Before Ata-ur-Rehman, J

MUHAMMAD SALAHUDDIN---Plaintiff

Versus

TOOR KHAN and another---Defendants

Suit No.428 of 2005, C.M.As. Nos. 2199, 2200 of 2005, decided on 4th April, 2005.

Fatal Accidents Act (XIII of 1855)---

----S.1---Fatal accident---Suit for recovery of amount of compensation---Application for attachment of Truck---Plaintiff by his application had sought attachment of Truck of defendants apprehending that likelihood existed that defendants could. remove it from jurisdiction of the Court concerned to frustrate decree, if any passed in suit---Plaintiff had apprehended that by the time suit was decreed, Truck in question could have changed many hands and third party interest could be created---Submission of plaintiff was that Truck in question was the only tangible asset belonging to defendants which was known to plaintiff and in case defendants succeeded in removing same from jurisdiction of the Court, there would remain nothing for him to seek realization of decretal amount, if any---In view of said apprehension, as an interim arrangement, notice was issued to defendants and S.H.O. concerned was directed to attach/seize Truck in question and continue to detain the same safely at the police station till further order of the Court---Excise and Taxation Officer, Motor Registration Wing was also directed not to transfer Truck in favour of any third party till further orders.

Aamir Maqsood for Plaintiff.

MLD 2005 KARACHI HIGH COURT SINDH 1651 #

2005 M L D 1651

[Karachi]

Before Mushir Alam, J

Syed KHALID MAUDOOD ZAIDI---Plaintiff

Versus

Commandar (Retd.) MUHAMMAD FAROOQ KHAN LODHI and others---Defendants

Suit No.387 of 2003, heard on 28th March, 2005.

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

----S. 12--- Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for specific performance of agreement of sale and injunction---Limitation---Plaintiff had alleged that agreement of sale of suit property arrived at between parties was unilaterally cancelled without notice to plaintiff--Defendant had contended that earnest money had been refunded to plaintiff pursuant to such cancellation of agreement and property in question had been transferred and conveyance was registered in favour of new vendee---Return of earnest money to plaintiff was not disputed and property in question admittedly had changed hands---Since third party interest had been created, no case for injunctive relief was made out and plaintiff at the best could claim compensation and damages---Suit was also liable to be dismissed in view of inordinate delay.

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

----S. 12---Suit for specific performance of agreement---lf an agreement was not registered within stipulated time, its specific performance could not be enforced.

Arshad Iqbal, Advocate.

Syed Tariq Ali, Advocate.

Amir Ali, Advocate.

Date of hearing: 28th March, 2005.

MLD 2005 KARACHI HIGH COURT SINDH 1653 #

2005 M L D 1653

[Karachi]

Before Ghulam Rabbani, J

ALLAH DINO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-393 of 2005, decided on 28th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Police Order (22 of 2002), Art.156---Pre-arrest bail, confirmation of---Offence against accused being not punishable for more than five years, prohibition under S.497, Cr.P.C. was not attracted in his case---Nothing had been stated if there was an apprehension of repetition of crime on the part of accused and it had also not being urged that accused was likely to tamper with evidence or was likely to jump bail after being released---Nothing was available to show that after grant of interim pre-arrest bail, accused had misused concession of bail---State counsel had already stated his no objection to confirmation of interim pre-arrest bail---Interim pre-arrest bail granted to accused, was confirmed in circumstances.

Muhammad Hanif v. The State 2003 SCMR 1237; Naqar Khan v. The State 2003 PCr.LJ 789; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

Syed Madad Ali Shah for Applicant.

Anwar Ali H. Ansari for the State.

MLD 2005 KARACHI HIGH COURT SINDH 1659 #

2005 M L D 1659

[Karachi]

Before Sabihuddin Ahmed, CJ and Maqbool Baqar, J

Miss MAHWISH---Petitioner

Versus

LIAQUAT UNIVERSITY OF MEDICAL AND HEALTH SCIENCES, JAMSHORO and others---Respondents

Civil Petition Nos.D-328 and 335 of 2005, decided on 13th May, 2005.

Pakistan Citizenship Act (II of 1951)---

----S.17---Sindh Permanent Residence Rules, R.6---Permanent residence certificate, grant of---Permanent residence certificate could only be granted upon a finding of fact as to actual physical residence of applicant---Legal provisions required that Domicile of a child must follow that of his/her father or mother---"Domicile" and "permanent residence certificate" were altogether different concepts.

Abdul Majeed and Arshad Pathan for Petitioner.

Muzaffarul Haq for Respondents.

Sarwar Khan Additional Advocate-General Sindh for Respondents.

Kamaluddin Ahmed for Respondents.

Date of hearing: 13th May, 2005.

MLD 2005 KARACHI HIGH COURT SINDH 1665 #

2005 M L D 1665

[Karachi]

Before Amir Hani Muslim, J

MUHAMMAD HAROON and 8 others---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeals Nos.13 and 287 of 2005, decided on 21st July, 2005.

Criminal Procedure Code (V of 1898)-

---S. 345 - Penal Code (XLV of 1860), Ss. 302, 310, 337-A(i)(ii), 337-F(i)(ii), 504, 147 & 148---Appreciation of evidence--Compromise-Counter-cases-Case against accused was assigned to Additional Sessions Judge, whereas case lodged at the behest of accused against complainant party was assigned to Judicial Magistrate---Accused during pendency of cases, compromised the matter with complainants and parties filed compromise application in the Court of Judicial Magistrate---Compromise application was allowed by Judicial Magistrate---When matter came up for hearing before Additional Sessions Judge, complainants who had extended assurance that they would make a compromise application had backed out---Such fact had not been brought to the notice of Additional Sessions Judge who had given impugned judgment whereby accused were convicted---If parties had entered into compromise in one case, consequence would be that compromise would have effect on the counter-case as well---Since two different Courts were trying the matters, it led to conflicting judgments---Both cases should have been assigned to one and same Court for trial---Case, in circumstances was fit case for remand---Allowing appeal, impugned judgment was set aside and case was remanded to Sessions Judge for de novo trial either by himself or by Additional Sessions Judge other than the one who had decided the case---Trial Court would also give finding on compromise reached between parties.

Ali Nawaz Dheraj for Appellants.

Akthtar Sheed for the AG for the State.

MLD 2005 KARACHI HIGH COURT SINDH 1677 #

2005 M L D 1677

[Karachi]

Before Amir Hani Muslim, J

STAHEL HONG KONG LTD.---Petitioner

Versus

GENERAL IMPEX CORPORATION---Respondent

J. Misc. 20 of 1991; Suit No.1463 of 1999, Suit No.343 of 2000; Suit No.275 of 1999; Suit No.1269 of 2001 and Suit No.731 of 1998, decided on 1st February, 2005.

Court Fees Act (VII of 1870)---

----S.3 & Sched. First---Arbitration Act (X of 1940), S.20---Arbitration (Protocol and Convention) Act (VI of 1937), Ss 3 & 5(2)---Sindh Chief Court Rules, (O.S.), R.294---Levy of ad valorem court-fee---In order to levy ad valorem court-fee, provision of S.3 read with First Sched. of Court Fees Act, 1870, could not be lost sight of---Mere language of S.5(2) of Arbitration (Protocol and Convention) Act, 1937 or S.20(2) of Arbitration Act, 1940 would not justify the office to demand ad valorem court-fee on the application made under said statutes either for enforcement of awards or for setting aside of awards---In fact it was the substance of relief sought for and not form which would be determinative and valuation of payment of court-fee---Even the language of R.294 of Sindh Chief Court Rules (O.S.), had clearly suggested that application under Ss. 3 & 5 of Arbitration (Protocol and Convention) Act, 1937 would be treated as a petition and would be disposed of as miscellaneous application---Objection of office requiring applicant to pay ad valorem court-fee, was overruled as such demand was unwarranted in law.

S. Muhammad Naim Muhammad Alam v. Rauraffic and Far Eastern Ltd. AIR 1960 (sic) 146; Messrs Jugo Tetekstil Impex, 61001, Lubijana Yugoslavia v. Messrs Shams Textile Mills Ltd. 1990 MLD 857; Hassan Ali & Co. (Pvt.) v. Poly Cotton S.A. and others 1996 CLC 1812; Messrs Lachman Das Sat Lat and others v. Parmeshri Das and others AIR 1958 Punjab 258; Kamaleshwar Kishore Singh v. Paras Nath Singh AIR 2002 SC 233 and A. Meredith Jones and Co. Ltd. v. Usman Textile Mills Limited 2000 YLR 549 ref.

Ms. Sumayya Usmani for Petitioner.

Muhammad Arif for Respondent.

Samiuddin, amicus curaie.

Date of hearing: 1st February, 2005.

MLD 2005 KARACHI HIGH COURT SINDH 1681 #

2005 M L D 1681

[Karachi]

Before Shabbir Ahmed and Khilji Arif Hussain, JJ

TASNIM UDDIN---Petitioner

Versus

Messrs PRUDENTIAL DISCOUNT AND GUARANTEE HOUSE LTD.---Respondent

First Appeal No.28 of 2002, decided on 14th April, 2004.

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

----O.VIII, Rr.4 & 5---Allegation of fact in plaint---Specific denial of---If allegation of fact in plaint was not denied specifically or by necessary implication, same would be taken to be admitted.

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

----O.XXII, R.6---Death of party---Abatement of suit by reason of death of either party---Whether cause of action survived or not, no abatement of suit would be by reason of death of either party between the conclusion of hearing and pronouncing of judgment and judgment in such a case would be pronounced notwithstanding the death of a party and would have the same force and effect as if it had been pronounced before death took place---Judgment, in the present case had been pronounced by the Court after recording of evidence of parties---Judgment and decree having been pronounced after conclusion of hearing, death of deceased defendant would not abate suit or affect judgment and decree in any manner.

Anwar Muhammad for Appellant.

Miss Lubna Aman for Respondent.

Date of hearing: 14th April, 2004.

MLD 2005 KARACHI HIGH COURT SINDH 1687 #

2005 M L D 1687

[Karachi]

Before Rahmat Hussain Jaffery, J

SULTANA AHMED---Plaintiff

Versus

CALTEX OIL (PAKISTAN) LIMITED and 2 others---Defendants

Suit No.879 of 2004, decided 28th April, 2005.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration, injunction and damages---Application for grant of interim injunction---Plaintiff in his application had prayed that defendants Nos.1 and 2 should be restrained from using and operating CNG facility on suit property till disposal of suit---Alleged CNG facility which was an alternate fuel source, was in accordance with lease agreement arrived at between plaintiff and defendant No.1---CNG was installed in premises after obtaining required permission from concerned Authorities and same was provided to defendant after complying with all rules, regulations and laws---Plaintiff had failed to establish prima facie case in his favour---Balance of convenience was also not in favour of plaintiff and inconvenience would be caused to defendant No.1 if interim injunction was granted---No irreparable loss was likely to be caused to plaintiff, however loss if any, could be compensated in shape of damages---Application for grant of interim injunction having no merits, was dismissed---Even otherwise plaintiff did not want to press said application as such same was dismissed as not pressed---Defendant No.1 could rile written statement in case.

Arshad Tayebaly for Plaintiff.

Iftikhar Javed Qazi for Defendant No.1.

Masood Khan for Defendant No.2.

S.A. Samad Khan for Defendant No.3.

MLD 2005 KARACHI HIGH COURT SINDH 1694 #

2005 M L D 1694

[Karachi]

Before Ghulam Rabbani, J

MUHAMMAD YOUNIS and another---Applicants

Versus

THE STATE---Respondent

Criminal Bails Applications Nos.S-384 and S-385 of 2005, decided on 23rd June , 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.379---Bail, grant of---Further inquiry---No eye-witness of alleged theft, was available---Offence against accused did not fall within prohibitory clause of S.497, Cr.P.C.---Was yet to be determined if property recovered from accused was the one which was stolen as alleged---Case against accused requiring further inquiry, he was admitted to bail.

Syed Madad Ali Shah for Applicants.

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

MLD 2005 KARACHI HIGH COURT SINDH 1698 #

2005 M L D 1698

[Karachi]

Before Sabihuddin Ahmed and Maqbool Baqar, JJ

Mirza ASHFAQ BEG---Petitioner

Versus

FEDERATION OF PAKISTAN and another---Respondents

C.P. No.D-205 of 2005, heard on 20th April, 2005.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9, 16 & 18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Placing name on Exit Control List---Petitioner was involved in NAB Reference for alleged misuse of his authority leading to payment of exorbitant price for purchase of ships---Petitioner was convicted by Accountability Court, but upon filing appeal his conviction was set aside and he was acquitted---National Accountability Bureau filed petition for leave to appeal before Supreme Court, but no hearing of said petition had been sought---Petitioner was not issued passport on his request on ground that his name had been placed on Exit Control List at the request of the Bureau---Opposition by NAB was the sole ground for placing restriction on petitioner's right to travel abroad, and said opposition was on account of fact that petition for leave to appeal against judgment of High Court was still pending before Supreme Court---Validity---Order of acquittal of petitioner passed by High Court had taken effect for all legal purposes and had not been suspended or modified by Supreme Court---Interim restraint on petitioner's right to travel abroad had not been obtained---Even otherwise it was not possible to accept the contention that legal proceedings against petitioner were pending because judgment of High Court ought to be treated as final till such time that leave to appeal was granted by Supreme Court---Allowing petition authorities were directed to remove name of petitioner from Exit Control List.

The State v. Dosso and others PLD 1958 Supreme Court (Pak.) 533 ref.

Azizullah K. Shaikh for Petitioner.

Nadeem Azhar Siddiqui, DAG for the Respondents.

Amanullah Khan, Special Prosecutor NAB.

Date of hearing: 20th April, 2005.

MLD 2005 KARACHI HIGH COURT SINDH 1707 #

2005 M L D 1707

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

DHANIDINO---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.200 of 2003, decided on 20th May, 2005.

Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), S.231---Appreciation of evidence---Remand of case---Counsel for accused had contended that without going into the merits of case, matter should be remanded to Trial Court on account of certain irregularities committed in trial of case---Counsel for accused had pointed out that two persons were allegedly murdered by accused, but Trial Court while framing charge, referred to only murder of one---Trial Court framed amended charge, but no opportunity of recalling witnesses was provided to accused as required under S. 231, Cr.P.C., which had caused prejudice to accused because under the charge framed earlier accused was required to defend himself for murder of one person only, while under amended charge he was required to defend himself for commission of murder of two persons---Another irregularity was committed at the conclusion of proceedings when statement of accused was recorded---Columns about, the name, father's name, religion, caste, age, occupation and residence were blank in the statement of accused---At the end of the statement there was a thumb-impression, but it was not written as to whose thumb-impression was taken---Additional Advocate-General and Assistant Advocate-General had not denied said facts and impugned judgment was set aside with their consent---Case was remanded to Trial Court with directions to give opportunity to accused in terms of S.231, Cr.P.C. and if accused would make a request for recalling three witnesses named in earlier part of judgment, those witnesses would be recalled and further opportunity of cross-examination would be given to Advocate of accused---Statement of accused would be recorded thereafter afresh and after hearing Advocates of parties, fresh judgment would be given.

Syed Madad Ali Shah for Appellant.

Masood A. Noorani Addl. A.-G. and Rasheed A. Qureshi, Asst. A.-G. for Respondent.

Date of hearing: 20th May, 2005.

MLD 2005 KARACHI HIGH COURT SINDH 1716 #

2005 M L D 1716

[Karachi]

Before Ata-ur-Rehman, J

ALAM KHAN and 5 others-Applicants

Versus

THE STATE---Respondent

Criminal Transfer Application No.24 of 2005, decided on 4th July, 2005.

Criminal Procedure Code (V of 1898)---

----Ss.526 & 561-A---Penal Code (XLV of 1860), Ss.302, 324, 427 & 34---Transfer of case---Transfer application had been moved by applicants against administrative order passed by District and Sessions Judge whereby he ordered transfer of Sessions case from one Court to another Court---Main grievance of applicants was that once two transfer applications, one before Sessions Court and one before High Court were dismissed, Sessions Judge had no jurisdiction or power to transfer case from one Court to an other---Earlier two transfer applications and orders passed thereon had revealed that same were filed on grounds other than mentioned in the reference---Orders passed on said two transfer applications, would not in any way adversely affect right and jurisdiction of Trial Court to refer matter to Sessions Court and to pass an order for transferring case from one Court to another---Applicants could not produce any precedent in support of their contention nor could show that notice was necessary to be issued to them before impugned order was passed---Even otherwise, no prejudice was shown to have been caused to applicants by impugned order.

Mrs. Anisa Rehman v. P.I.A.C and another 1994 SCMR 2232 ref.

Mahmood A. Qureshi for Applicants.

Arshad Lodhi, Assistant Advocate-General, Sindh for the State.

Shahadat Awan for the Complainant.

MLD 2005 KARACHI HIGH COURT SINDH 1724 #

2005 M L D 1724

[Karachi]

Before Sarmad Jalal Osmany and Zia Perwaz, JJ

KHURSHEED AHMED JUNEJO and others---Petitioners

Versus

GOVERNMENT OF SINDH and others---Respondents

C.P. No.1500 of 2004, decided on 19th May, 2005.

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

--------Ss. 7, 2(x), 11 & 151---West Pakistan Land Revenue Act (XVII of

1967), S.6---Government of Sindh Notification No.SOA(LG)4(63)/2004, dated 22-12-2004---Constitution of Pakistan (1973), Art.199---Constitutional petition---Carving of Districts---Delimitation of constituencies---Cessation of Nazims and Naib Nazims for holding their respective offices---Validity---Provisions of Ss.7 & 2(x) of Sindh Local Government Ordinance, 2001 were to be interpreted in a harmonious manner so that effect may be given to each one without treating either of them to be redundant or surplus---Creation of a District within the meaning of S.2(x) was made independent and different from the fact of delimitation of the constituency which had been specifically provided for under S.7, Sindh Local Government Ordinance, 2001---Alteration of local areas to the extent of adjoining Union Council within a Taluka, adjoining Taluka within a District could be effected in a manner as laid down in S.11(1) by the respective Councils and by the Government under S.11(2), Sindh Local Government Ordinance, 2001 and there was a bar that such change shall come into force on the announcement of next Local Government Elections under proviso to S.11 of the Ordinance---While said bar had been expressly provided for under S.11, there was no such express bar with regard to Districts under S.7, Sindh Loeal Government Ordinance, 2001 and effect of omission of such a restriction as provided under S.11 had to be determined in the light of remaining provisions of the Sindh Local Government Ordinance, 2001 with special reference to the provisions of the sections falling under Chapter II of the Ordinance---Act of delimitation of a District had been differentiated and separated from the territorial boundaries---Mere fact of delimitation of a constituency ipso facto did not have the effect of dislodging any elected representative of the area from his office position---Fact of notification issued under S.6, West Pakistan Land Revenue Act, 1967 carving the Districts did not have the effect upon Nazims and Naib Nazims of the District ceasing to hold their respective offices---Principles.

(b) Interpretation or statutes---

----Provisions of a statute were to be interpreted in a harmonious manner so that effect may be given to each one without treating either of them to be redundant.

--Definition.

"Delimitation" is defined as the act of fixing, marking off or describing the limits of boundary line of a territory, country, authority, right, statutory exception or the like. To mark or lay out the limits or boundary line of a territory or country; to fix or to mark the limits of; to demarcate; to limit; bound.

Blacks' Law Dictionary and Walling v. Yeakley C.C.A. Colo 140 F.2d 830, 832 quoted.

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

--------Ss. 7 & 11---Delimitation of Talukas and Districts---Scope---Process of delimitation is not provided for under Sindh Local Government Ordinance, 2001 and attracts the provisions of relevant election laws---Delimitation, in the context of elections is a process aimed at determining the constituency with regard to the electorate and involves a complete procedure---Such exercise is to be undertaken prior to holding of elections in case of involving variations of boundaries of different constituencies and determination thereof--Mere fact of delimitation of a constituency ipso facto does not have the effect of dislodging, any elected representative of the area from his office position---Exercise of delimitation is solely carried on for the purposes of the next/subsequent elections---Since the delimitation of a District coincides with the territorial boundaries of a District as well, there is no necessity of inviting objections before delimitation, likewise the exercise of physical determination of the boundaries is not required and the object is achieved merely by issue of a notification as envisaged under S.7, Sindh Local Government Ordinance, 2001---Delimitation under S.7 of the Ordinance with respect to a District is not effected by the Government of the local area in same manner as provided for under S.11, Sindh Local Government Ordinance, 2001 for alternation of local areas of two or more adjoining Unions within a Taluka or adjoining Talukas within a District through a resolution passed by 2/3rd majority of total membership of each of the relevant Union Council or the Taluka Council followed by proposal to the Government and to remove any doubt as to the effect of such a resolution on the status of the elected representatives, therefore, a proviso has specifically been provided for in S.11 of the Ordinance---As a consequence of issue of notification for the purposes of delimitation under the provisions of S.7 of the Ordinance, the ward continues to exist till such time as subsequent elections are held---Since delimitation of a District does not involve any resolution as envisaged under S.11, therefore, the insertion of proviso similar to that appearing in S.11(2) is not necessary.

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

--------Ss. 7 & 186---Constitution of Pakistan (1973), Art.199---

Constitutional petition---Creation of a new District---Delimitation---Effect---Notification of undoing an electoral ward so as to result in the removal of the existing incumbents from their elected offices---Removal of Zila Nazim and Naib Nazim from their respective posts would attract the specific provision of Sindh Local Government Ordinance, 2001---By virtue of S.7 of the Ordinance a protection and safeguard provided for and regulated by the specific sections of the Ordinance cannot be taken away in an indirect manner by assumption of implied powers---Language, intention and policy of the Legislature having been made manifestly clear the question of resorting to provisions of S.186(2), Sindh Local Government Ordinance, 2001, does not arise---Elected Governments of the Unions and Taluka being in existence, there is no reason to appoint a public officer to exercise the powers of the elected Nazims.

(f) Mala fides---

----Official act---Presumption---Mere allegation of mala fides is not sufficient to arrive at a conclusion to this effect---Presumption as to official act is t6 be decided in favour of officials and their orders cannot be disturbed on mere allegations but such allegations are required to be proved.

(g) Interpretation of statutes---

----Casus omissus, supply of---Clear provisions of law cannot be allowed to be brushed aside when the policy is spelt out by the codified law---When it is apparent that the case falls within the purview of a statute, the question of supplying of casus omissus or reading down of the provisions of the statute would not be called for unless it is shown that such provisions are violative of the Constitution and a situation arises that such decision becomes necessary to save the enactment.

(h) Constitution of Pakistan (1973)---

---Art. 199---Constitutional jurisdiction---Scope---Government functionaries were bound to act justly, fairly and in furtherance of the purposes of the enactment and any action taken contrary to the principles of natural justice, unless specifically excluded by relevant law, was liable to be set aside and appropriate relief could always be allowed in such cases to meet the ends of justice.

Petrosin Products (Pvt.) Ltd. v. Federation of Pakistan 2001 CLC 1412; Messrs Noorani Traders Karachi v. Pakistan Civil Aviation Authority PLD 2002 Kar. 83; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158 1994 SCMR 1299; Zainul Abidin v. Multan Central Cooperative Bank Ltd. PLD 1966 SC 445; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan PLD 1989 Kar. 404; The Collector of Customs, Karachi v. Messrs New Electronics (Pvt.) Ltd. PLD 1994 SC 363; M.U.A. Khan v. Rana M. Sultan and another PLD 1974 SC 228; Abdul I Razzak v. K.B.C.A. PLD 1994 SC 512; Manzoor Hussain v. The State PLD 1965 Dacca 348; Muhammad Ismail v. The State PLD 1969 SC 241; Commissioner of Income Tax v. National Taj Traders AIR 1980 SC 485; Mian Muhammad Nawaz Shari(' v. President of Pakistan PLD 1993 SC 473; Jibendra Kishore Achharyya Chowdhury and 58 others v. Province of East Pakistan PLD 1957 SC (Pak.) 9; Khawaja Ahmed Hassan v. Government of Punjab and others PLD 2004 SC 694; Jamat-i-Islami Pakistan v. Federation of Pakistan PLD 2000 SC 111; Mian Manzoor Ahmed Wattoo v. Federation of Pakistan and 3 others PLD 1997 Lah. 38; Airport Support Services v. Airport Manager Quaid-e-Azam International Airport and others 1998 SCMR 2268; Raul\ Bux Qadri v. The State 2003 MLD 777; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan PLD 1997 SC 582; Aredeshir Cowasjee and 11 others v. Sindh Province 2004 CLC 1353; Nawabzada Ghazanfar Ali GuI v. Government of Punjab 1999 CLC 430; The Chittaranjan Cotton Mills Limited v, The Commissioner Naravangani Municipality and The Province of East Pakistan PLD 1958 SC 430 Messrs Amin Jute Mills Limited, Chittagong v. The Chittagong Municipality and others PLD 1970 Dacca 338; Sunshine Cotton Mills Limited Sheikhupura v. Administrator, Municipal Committee, Sheikhupura and 3 others PLD 1978 Lah. 263; Surakant Walchand Shah and others v. Shahnawaz Hanifsaheb Bokhare and others AIR 1986 Born. 5; Aftab Hussain v. Province of East Pakistan and 2 others PLD 1970 Dhaka 798; Mst. Bilquis Ismail v. Naeemuddin and 3 others PLD 1995 Kar. 552; Federation of Pakistan v. Saeed Ahmad Khan PLD 1974 SC 151; Government of Pakistan v. Indo-Pakistan Corporation Limited PLD 1979 SC 723; M.D. Tahir, Advocate v. Chief Secretary Government of Punjab, Lahore and another 1995 CLC 1687; Black's Law Dictionary; Walling v. Yeakley C.C.A. Colo., 140 F.2d 830, 832 and Pakistan Fisheries Ltd. v. United Bank Limited PLD 1993 SC 109 ref.

Abdul Hafeez Pirzada, Rasheed A. Rizvi and Abdul Mujeeb Pirzada for Petitioners.

Anwar Mansoor Khan, A.-G. and JO, Ahmed Pirzada, Addl. A.-G. and Nadeem Azhar Siddiqui DAG on Court Notice for Respondents.

Dates of hearing: 4th, 5th, 12th and 26th January, 7th, 8th, 10th 11th and 14th February, 2005.

MLD 2005 KARACHI HIGH COURT SINDH 1745 #

2005 M L D 1745

[Karachi]

Before Saiyed Saeed Ashhad, CJ and Ghulam Rabbani, J

Messrs PAKISTAN OIL MILLS (PVT.) LTD.---Petitioner

Versus

Messrs PETER SHIPPING CO. LTD. and others---Respondents

C.P. No.D-2112 of 2001, decided on 16th May, 2002.

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

----O.XXIX, R.1 & O.VII, R.2---Constitution of Pakistan 1973, Art. 199---Constitutional petition---Suit for recovery of amount by Company---Pleadings, in suits by or against a corporation, could be signed and verified on behalf of Corporation by Secretary or by any Director or other Principal Officer of Corporation who was capable to depose the facts of the case---Rule 1 of Order XXIX, C.P.C., required filing of, suit by Corporation through authorised person and plaint or appeal on behalf of Corporation could only be signed/verified by a person duly constituted in accordance with Articles of Association of Corporation---For determination whether a suit had been instituted by a person empowered to do so, reference would have to be made to Articles of Association of Corporation---Petitioner/Plaintiff in the present case, was a private limited Company incorporated under Companies Ordinance, 1984---Nothing was on record to indicate that petitioner made any attempt to satisfy the Trial Court that plaint had been signed and verified by a person who was duly authorised to do so in accordance with Articles of Association of Company---Plaint in present case was signed by one who claimed to be General Attorney of petitioner-Company---He did not file even copy of power of attorney along with plaint so as to enable Trial Court to ascertain as to whether power of attorney was executed in his favour in pursuance of a resolution passed in accordance with Articles of Association of Company---Power of Attorney in favour of alleged Attorney was executed in his favour by a Director of petitioner Company---A Director of a Corporation had no authority to execute a power of attorney in favour of another Director unless so authorised by Board of Directors---Petitioner could not produce any material on record to establish that plaint was signed and verified by a person in accordance with provisions of Order XXIX, C.P.C. and Articles of Association of Company---Suit was rightly dismissed by Trial Court in circumstances.

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

---- S.114 & O.XLVII, R.1---Review---Object---Requirements---Review application was maintainable, for enabling the Court to correct the errors---Main aim of power of review was to prevent injustice being done by a Court and was subjected to limitation provided in clauses (a)(b)(c) of R.1 of O.XLVII, C.P.C.---One of the most essential requirements for invoking review jurisdiction of a Court was that important evidence having a material bearing upon the merits of case and decision thereof was subsequently discovered which was neither in the possession nor in knowledge of aggrieved party before passing of judgment/order sought to be reviewed and such important evidence was in existence when judgment/order was made---Another requirement for maintainability of review petition was that party applying for review should establish that no negligence or carelessness was on its part and that evidence or material required to be produced was not only relevant but also of such a nature that if considered, it would affect decree or order---Review petition would not be allowed when a party had not acted diligently and cautiously in producing evidence which he wanted to bring on record subsequently.

---- S.115---Revisional jurisdiction---Scope---Interference in a judgment/order under S.115, C.P.C. could only be made if party applying under said section for revision of an order would succeed in establishing that order sought to be revised was in exercise of jurisdiction not vested in the Court; that Court had failed to exercise a jurisdiction vested in it and that it had acted in exercise of its jurisdiction illegally or with material irregularity.

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

----Art. 199---Constitutional jurisdiction---Scope---Petitioner had failed to make out a case warranting interference by High Court in exercise of its Constitutional jurisdiction as order impugned in petition did not suffer from any illegality, material irregularity or mala fides whereas presence of any of said defects in an order/judgment was necessary for interference by High Court---Constitutional petition being meritless, was dismissed.

Naveed Ahmed Khan for Petitioner.

Naeem Ahmed for the Respondent No. 2.

MLD 2005 KARACHI HIGH COURT SINDH 1804 #

2005 M L D 1804

[Karachi]

Before Rahmat Hussain Jaffri, J

Mst. HAFEEZA BIBI --- Plaintiff

Versus

ISLAMIC REPUBLIC OF PAKISTAN through Secretary Ministry of Planning and Development and 2 others---Respondents

Suit No.529 of 1996, decided on 15th August, 2005.

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

----S.1---Death of deceased caused by rash and negligent driving of vehicle owned by NLC and driven by its driver---Truck parked off the main road was being checked by deceased and his colleague after opening bonnet of its engine---Vehicle of NLC driven by its driver in a rash, negligent and reckless manner after leaving metalled road dashed stationary truck with high speed, resultantly deceased and his colleague engaged in checking of engine fell down and came wider wheels of truck and died ---Plea of defendants was that while NLC vehicle was passing near stationary truck, which suddenly started moving and jerked due to its faulty clutch, then persons working on defective truck fell down and struck with rear right side of NLC vehicle---Taking place of accident in a manner as pleaded by plaintiff was supported by owner of truck, who was eye-witness of such incident and further deposed that he had no personal interest in present case---Defendants neither challenged evidence of eye-witness nor put to him such defence in cross-examination nor led evidence to prove such defence---Defendants were, held, liable jointly and severally to pay compensation to legal heirs of deceased.

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

----S. 1---Suit for damages--- Death of deceased caused by rash and negligent driving of vehicle---Assessment of damages---Criteria---Deceased left a widow and nine children---Deceased was drawing Rs.300 per day, thus, his monthly income would be Rs. 9,000---Age of deceased was 47 years at relevant time---While taking average span of life as 70 years, deceased would have been in a funding position for next 23 years---Aggregate pecuniary benefits for 23 years would be Rs.24,84,000 Plaintiffs were awarded 20% on account of chances of increment on such aggregate income for 23 years---Deceased's personal expenditure would be taken as 1/6th o: his total income---Widow for loss of association of deceased and loneliness was entitled to compensation of Rs.1,00,000---Each child was entitled to Rs.2,00,000 as damages due to death of their father for loss of education, comfort and position in society, which they would have enjoyed if their father had lived and maintained income, which had ceased with him---Legal heirs for loss of life of deceased would be entitled to Rs.2,02,923.75 as Diyat according to Notification dated 1-7-1994 issued by Federal Government---Plaintiff would be entitled to funeral expenses of Rs.15,000---Suit was decreed with costs accordingly with 15% profit/mark-up from date of judgment till recovery of amount.

----Diyat (compensation), entitlement to---Quantum of Diyat payable to legal heirs of victim---Principles.

Under Islamic Law, if a person dies due to intentional, unintentional, unlawful, negligent act, rash or negligent driving or by mistake, then his legal heirs would be entitled to compensation, which is known as Diyat equivalent to the value of 30.630 grams of silver, which has been fixed and declared by Federal Government through Notification No.S.R.O. 647(I) of 1994, dated 1-7-1994 at Rs.2,02,923.75 as Diyat (compensation) amount.

Nasir Maqsood for Plaintiff.

Maj. (Retd.) Abdul Rauf and I.H. Zaidi for Respondents.

MLD 2005 KARACHI HIGH COURT SINDH 1827 #

2005 M L D 1827

[Karachi]

Before Sarmad Jalal Osmany and Azizullah M. Memon, JJ

TARIQ MOHSIN SIDDIQUI and 2 others---Appellants

Versus

THE STATE through NATIONAL ACCOUNTABILITY BUREAU---Respondent

Special Criminal Miscellaneous Application No. 109 of 2004, decided on 5th July, 2005.

National Accountability Ordinance (XVII of 1999)----

---Ss.9, 17 & Preamble---Criminal Procedure Code (V of 1898), S.561-A---Application under S.561-A, Cr. P. C. read with S. 17, National Accountability Ordinance, 1999 for quashing the proceedings before the Accountability Court, against a Cement Manufacturing Company on the allegation of evasion of excise duty---Validity---Cognizance of the matter by' National Accountability Bureau vis-a-vis the persons who were not holding any public office etc.---Scope and extent---Object of the Ordinance, in view of preamble of the National Accountability Ordinance, 1999 is to set up a National Accountability Bureau so as to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices and matters ancillary thereto---Provision of S.9(a) of National Accountability Ordinance, 1999 provides as to when a holder of a public office, or any other person is said to commit or to have committed the offence of corruption and corrupt practices, defined in S.9(i) to (xii) of the said Ordinance---Scope of the National Accountability Ordinance, 1999 is wider in terms and is applicable to all citizens of Pakistan and all persons including the holders of public office---Even a private citizen can be prosecuted under the Ordinance if he cannot account for his wealth---Person other than a holder of a public office can be tried under the Ordinance for any act which falls within the mischief of the Ordinance---Supreme Court, however, had granted leave to appeal to consider question i.e. "whether a person other than a public office holder but being beneficiary from such person could be tried under the National Accountability Ordinance, 1999 was just and proper or an authoritative judgment was required to be passed to reconcile the views taken by different High Courts"---High Court in view of the fact that issue in question was sub judice before the Supreme Court, adjourned the matter sine die till such time as an authoritative pronouncement was received from the Supreme Court and observed that in- the meanwhile, the proceedings in the reference pending against the applicant company before the Accountability Court, shall remain suspended.

State v. Naseem-ur-Rehman 2004 SCMR 1943; Abdul Aziz Memon v. The State 2003 YLR 617; Kabir Khan v. the State 92003 YLR 1067 and Zulfiqar Ali v. Chairman NAB PLD 2003 Lah: 593 mentioned.

Jamat-e-Islami Pakistan v. Federation of Pakistan PLD 2000 SC 111; Dyke v. Elit (1872) LR4 Privy Council 184; M. Narayanan v. State of Kerala AIR 1963 SC 1116; S. Sethi v. A.K. Churiwal AIR 2000 SC 828; Tolaram v. State of Bombay AIR 1954 SC 496; State of W.P. v. Swapan Kumar AIR 1982 SC 949; D.K. Sharma v. State of Madhva Pradesh AIR 1976 SC 133; Department for Environment, Food and Rural Affairs v. Asda Stores Ltd. 2004 1 WLR 105 House of Lords; Rosenbaum v. Burgovne 1964-2 ALL ER 988; Spicer v. Holt 1976-3 ALL ER 71; R. v. H.R. Magistrates Court 1986-2 All ER 666 QBD; R v. Charles 1976-1 ALL ER 659; Smaje v. Balmer 1965-2 ALL ER 248; Shaw v. DPP 1961-2 ALL ER 446; L.N.E.R. v. Berriman 1946-1 ALL ER 255, House of Lords; Muhammad Bashir v. ITO 1979 PCr.LJ 574, Shaikh Fazal Ellahi v. Assistant ITO 1977 PCr.LJ 538; Zafar Ahmad Khan v. The State 1975 PCr.LJ 1300; Muhammad Hussain v. State 1975 PCr.LJ 638; Bhola Nath Keshari v. State of Bihar PTD 19992374; Dr. R.P. Gupta v. Inspecting. Assistant Commissioner of Income Tax (Assessment) 1987-168 ITR 33; Swastika Metal Works v. Vimal Vashist, Inspecting Assistant Commissioner of Income Tax 1989 176 ITR 526; W.I. Kohli v. Commissioner of Income-Tax 1985-152 ITR 154 and Abdul Sattar Dero v. The State 2002 YLR 1870 ref.

Khalid Anwar for Appellants.

Shaukat Hussain Zubaidi DPG, NAB for Respondent.

Date of hearing: 8th February, 2005.

MLD 2005 KARACHI HIGH COURT SINDH 1854 #

2005 M L D 1854

[Karachi]

Before Sarmad Jalal Osmany and Muhammad Mujeebullah Siddiqui, JJ

RAMESH M. UDESHI---Applicant

Versus

THE STATE---Respondent

Cr. Acct. Rev. Application No. 189 of 2002, decided on 30th December, 2004.

National Accountability Ordinance (XVIII of 1999)---

----Ss.9 & 10---Criminal Procedure Code (V of 1898), Ss.265-K & 439---Revision---Role of the accused in the entire episode was confined to the floating of the summaries and the issuance of the formal orders for allotment of the land in favour of co-accused---No mens rea was available on the part of the accused as he had made it abundantly clear in his summary that although under the Rules the land in question had to be disposed of through public auction or private negotiation, the Chief Minister could relax the Rules under the law and as per past precedent allow the allotment at the rate of Rs.50,000 per acre, based on the legal opinion issued by the Ministry of Law; in the circumstances at best it could be said that perhaps the accused did not exercise his discretion in advising the Chief Minister against the transaction---Lack of discretion or giving of wrong advice per-se could not amount to an offence under S.9(a)(vi) of the National Accountability Ordinance, 1999, viz misuse of authority by a holder of public office so as to gain any benefit or favour for himself or for any other person or wilful failure to exercise such authority to prevent the grant or rendition of any undue benefit or favour which he could have prevented by exercising his authority---Unless there was the element of wilfulness and conscious deliberation on the part of the accused coupled with undue benefit or gain for himself or for the co-accused, no offence could be made out under S.9(a)(vi) of the National Accountability Ordinance, 1999---Accused at the most could be said to be guilty of stating the incorrect provisions of law in the summary, which would not constitute an offence per se, and might give rise to administrative action against him---Conviction of accused being impossible, it could be futile to allow his trial to proceed and the proceedings were quashed accordingly.

Saifuddin v. Muhammad Ashfaque Piracha 1986 CLC 1819; Anwer Saifullah Khan v. The State PLD 2002 Lah. 458; Tariq Javed Afridi v. The State PLD 2002 Lah. 233; Murad Ali Shah v. Government of Sindh PLD 2002 Kar. 24; Mir Munawar Ali Talpur v. the State PLD 2003 SC 46; Ramesh Udeshi v. The State PLD 2004 Kar. 224; Aftab Ahmed Khan Sherpao v. The State PLD 2001 Pesh. 80; Ramesh Udeshi v. The State PLD 2003 Kar. 423; Gahno v. The State PLD 1964 WP Kar. 437; State v. Rabnawaz PLD 1974 SC 87; PLD 1960 SC 109; Crl. Misc. Application No.274 of 1998; Shahnaz Begum v. Hon'ble Judges of the High Court and another PLD 1971 SC 677; Adamjee Insurance Company Limited v. Assistant Director Economic Enquiry Wing 1989 PCr.LJ 1921; Anwar Ahmed Khan v. The State 1996 SCMR 24 and Muhammad Latif v. Sharifan Bibi 1998 SCMR 666 ref.

Mrs. Ismat Mehdi for Applicant.

Mirajuddin Ansari, ADPGA, NAB for Respondent.

Date of hearing: 15th June, 2004.

MLD 2005 KARACHI HIGH COURT SINDH 1911 #

2005 M L D 1911

[Karachi]

Before Sarmad Jalal Osmany and Azizullah M. Memon, JJ

ASIF HUSSAIN---Appellant

Versus

THE STATE---Respondent

Spl. A. T. As. Nos. 4, 5, 8 and 11 of 2004, decided on 20th June, 2005.

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

----Ss.365-A & 344---Anti-Terrorism Act (XXVII of 1997), S.7(c)---Appreciation of evidence---Recovery witness being a chance witness, his testimony required corroboration which was not available on record---Identification of accused before the Magistrate by the prosecution witness was of no consequence as his presence at the time when the alleged ransom amount was paid to the accused, was found to be doubtful---Abductee had not identified the accused in the identification test---Record of the abductee's mobile telephone at the most could establish that during his captivity some calls were made by it at his home---Said evidence alone being circumstantial in nature in the absence of corroboration, could not in any manner connect the accused with the commission of the offence with which they were charged---Accused were acquitted in circumstances.

Khurshid Ahmed v. Qabool Ahmed PLD 1964 Kar. 356; Ishaq v. The State PLD 1985 Kar. 595; Muhammad Shaheen Tariq v. The State 1995 PCr.LJ 1717; Talib Hussain v. The State 1995 SCMR 1538; Tayyeb Hussain Shah v. the State 2000 SCMR 683 and Muhammad Imran v. the State 1993 PCr.LJ 2487 ref.

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

--Ss.365-A & 344---Anti-Terrorism Act (XXVII of 1997), S.7(c)---Appreciation of evidence---Abductee had given a detailed and graphic account of his abduction, captivity and ultimate release by the accused---abductee had not only identified the accused in the identification test before the Magistrate, but also in the Court as the person who had hit him with a pistol butt and had sat next to him in the car---Abductee had no reason to falsely implicate the accused who was unknown to him and in the heinous offence of kidnapping he would have a photographic memory of the accused---Testimony of the abductee inspired confidence on which alone conviction could be recorded as no reason was available to disbelieve him---Convictions of accused were consequently upheld---However, no harm was done to abductee and he had reached his home safely---Sentence of death of accused was converted into imprisonment for life in circumstances.

The State v. Farman Hussain PLD 1995 SC 1; State v. Nazeer Ahmed 1999 SCMR 610 and Solat Ali Khan v. The State 2002 SCMR 820 ref.

----Ss.365-A & 344---Anti-Terrorism Act (XXVII of 1997), S.7(c)---Appreciation of evidence---Principle---Conviction in a criminal case can be recorded on the basis of the testimony of a single eye-witness, if it inspires confidence.

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

----S.365-A---Appreciation of evidence---Testimony of abductee---Principle---In cases of abduction and kidnapping, abductee kidnappee has to be believed, unless strong reasons are available to discredit his testimony.

State v. Nazeer Ahmed 1999 SCMR 610 ref.

A.Q. Halepota for Appellant (in ATA No.4 d2004).

Abdul Mujeeb Pirzada for Appellant (in ATA No.5 of 2004).

Gohar Iqbal for Appellant (in ATAS Nos.8 and 11 of 2004).

Habib Ahmed, A.A.-G. for the State (in all the Appeals).

Dates of hearing: 8th, 16th, 17th, 22nd March, 2005 and 5th, 7th and 12th April, 2005.

MLD 2005 KARACHI HIGH COURT SINDH 1954 #

2005 M L D 1954

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

RIAZUR RAHMAN and others---Applicants

Versus

MUHAMMAD URS---Respondent

Revision Application No.68 of 1996, decided on 10th May, 2005.

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

----Arts. 17 & 79---Proof of execution of document required by law to be attested---Competence and number of witnesses---Held, Supreme Court had decided the case of Abdul Wali Khan v. Muhammad Saleh 1998 SCMR 760 in the light of law prevailing before the promulgation of Qanun-e-Shahadat, 1984 and, therefore, there was no justification for applying the rule decided in the said case to the cases covered under Art.79 of Qanun-e-Shahadat, 1984---Rule laid down by the Supreme Court in the said case, could not be applied without doing violence to the law of precedent which required that any finding or interpretation in the context of a particular law was not to be applied to the cases in which circumstances were not identical and the provisions of law were different---Principle of law annunciated by the Supreme Court, was in the context of the provisions contained ,in Evidence Act, 1872 and Supreme Court had not referred to the relevant sections of Evidence Act, 1872 but the apex Court had decided the case in the context of the provisions contained in Ss.67 and 68 of the Evidence Act, 1872.

Bashir Ahmad v. Akbar Ali 2005 MLD 283; Nazir Ahmed v. Muhammad Rafique 1993 CLC 257; Amanat Ali v. Riaz Hussain 1991 MLD 1037; Zafarullah Khan v. Mst. Hakam Bibi 2000 YLR 2781; Shaukat Ali v. Muhammad Hanif 2004 MLD 1868; Abdul Wali Khan v. Muhammad Saleh 1998 SCMR 760; Ghulam Hussan v. Sher Muhammad Khan 2003 MLD 428; Muhammad Sharif v. Mst. Sardaran Bibi 2002 MLD 1002; Manzoor Hussain Khan v. Mst. Asia Begum 1990 CLC 1014 analysed.

Abdul Wali Khan v. Muhammad Saleh 1998 SCMR 760 and Manzoor Hussain Khan v. Mst. Asia Begum 1990 CLC 1014 ref.

(b) Precedent---

----Law of precedent requires that any finding or interpretation in the context of a particular law was not to be applied to the cases in which circumstances were not identical and the provisions of law were different.

----Arts. 17 & 79---Transfer of Property (Amendment) Act (XXVII of 1926), S.2---Competence and number of witnesses---Proof of execution of document required by law to be attested---Provisions of Arts. 17 and 79, Qanun-e-Shahadat, 1984, are retrospective in effect---Interpretation, scope and application of Arts. 17 and 79 of Qanun-e-Shahadat, 1984---"Attested"---Meaning.

A perusal of Article 17 read with Article 79 of the Qanun-e-Shahadat, 1984 shows that under sub-Article (2) of Article 17 of Qanune-Shahadat, 1984 in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men or one man and two women and that such document cannot be used as document until at least two attesting witnesses have been called for the purpose of proving its execution, if there be two attesting witnesses alive and subject to the process of the Court and capable of giving evidence. These provisions are very clear to the effect that so long as there is attesting witness alive, capable of giving evidence and subject to process of the Court, no such document can be used in evidence until that witness has been called. The omission to call an attesting witness is fatal to the admissibility of the document.

A combined reading of the provisions contained in Articles 17 and 79 of the Qanun-e-Shahadat, 1984 indicates that there are two distinct aspects, which are often lost sight of. One aspect pertains to the mode in which the transaction may be legally effected. It should be kept distinct from the question as to how the deed embodying the transaction may be proved. Prior to the promulgation of Qanun-e-Shahadat, 1984, there was a requirement under section 68 of the Evidence Act, 1872 that if a document was required to be attested, it shall not be used as evidence until one witness at least was called for the purpose of proving its execution. However, this provision did not affect in any way the requirement of section 59 of the Transfer of Property Act, that a mortgage deed in order to be followed must be executed in the presence of two attesting witnesses. The result is that after the promulgation of Qanun-e-Shahadat, 1984 if a document falls within the ambit of sub-Article (2) of Article 17 of the Qanun-e-Shahadat, 1984 and at the time of recording of evidence in the event of denial of the execution of said document one or both of the witnesses are not alive or are not subject to the process of the Court and the document is not attested by at least two witnesses it shall not be allowed to be used as evidence by proving the document by other modes. It is further necessary that in cases governed under Articles 17 and 79 of the Qanun-e-Shahadat, 1984, it must be proved that two witnesses had appended their signatures as attesting witnesses. Mere signature of a person who has not signed the document in the capacity of attesting witness, shall not be deemed to be sufficient compliance of the requirement contained in Articles 17 and 79 of the Qanun-e-Shahadat, 1984. Mere signature of a person without seeing the actual execution of the deed shall not be treated as attestation of the document. The expression `attestation' has been defined by section 2 of the Transfer of Property (Amendment) Act, 1926.

Keeping in view the fact that the law of evidence is a procedural/adjective law and every procedural law has the retrospective effect until and unless specified otherwise, it is held that the provisions contained in Articles 17 and 79 of the Qanun-e-Shahadat, 1984 are retrospective in effect. In cases where documents have been executed prior to the promulgation of Qanun-e-Shahadat, 1984 and evidence to prove such documents has also been recorded prior to the enforcement of Qanun-e-Shahadat, 1984, the provisions contained in Articles 17 and 79 of the Qanun-e-Shahadat, 1984 shall not be applicable. Such documents, shall be governed by the provisions contained in sections 67 and 68 of the Evidence Act, 1872. If a document referred to in sub-Article (2)(a) of Article 17 of the Qanun-e-Shahadat, 1984 is executed before the enforcement of Qanun-e-Shahadat, 1984 and the execution thereof is not denied, such document shall not be rendered invalid. However, if a document is executed prior to the enforcement of Qanun-e-Shahadat, 1984 in the matters pertaining to financial or future obligations including a sale agreement and there are two or more marginal witnesses, the execution whereof is denied and the document is sought to be produced in evidence after the enforcement of Qanun-e-Shahadat, 1984, the provision contained in Article 79 of the Qanun-e-Shahadat, 1984 shall be applicable and no such document shall be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive and subject to the process of the Court and capable of giving evidence.

Girjanandan v. Hanumandas 1927 A.I.(FB); Nepra v. Sajer Pramanik AIR 1927 Cal. 763; Shamu Patter v. Abdul Qadir 16 IC 250 (PC); Balaji Singh v. Chaka Gongamma AIR 1927 Mad. 85; Veerappa Chettiar v. Subbrahamanya Ayyar AIR 1929 Mad. 1 and Thakurdas v. Topandas AIR 1929 Sindh 217 ref.

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

----Arts. 79 & 17 Competence and number of witnesses---Proof of execution of document required by law to be attested---If a scribe, besides being a deed writer is also witness to the transaction, payment and execution of the document, he can be regarded as an attesting witness---Attesting witness is one who not only writes or sees a document being executed and appends his name at the end of document, but is a person who also signs it as a witness---If, however, it is not shown with reference to the disputed document that scribe, in addition to the writing of document, has also acted as an attesting witness, he cannot be treated as such, and his examination at trial as a scribe shall not be sufficient compliance of the requirement contained in Art.79 of the Qanun-e-Shahadat.

Bashir Ahmad v. Akbar Ali 2005 MLD 283 rel.

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

----Arts. 79 & 17---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Competence and number of witnesses---Proof of execution of document, required by law to be attested---Document out of two, showed that (agreement to sell) one witness produced by the plaintiff had merely signed as scribe and not as an attesting witness, consequently such person could not be regarded as an attesting witness and evidence of such person would not fulfil the requirements of Art.79 of the Qanun-e-Shahadat, 1984---Non-production of second witness, who was alive at the relevant time, was therefore, fatal and in accordance with the provision contained in Art.79 of Qanun-e-Shahadat, 1984 the sale agreement shall not to be used as an agreement---District Judge, in circumstances, had committed illegality by ignoring the provision of Art.79 of the Qanun-e-Shahadat, 1984 and had erroneously given finding that the sale agreement was proved---Judgment and decree passed by the District Judge were not sustainable in law and consequently the same were set aside---Judgment and decree of the Trial Court dismissing the suit were restored by the High Court.

Jhamat Jethanand for Applicants.

Aijaz Ali Hakro for Respondent.

Date of hearing: 15th April, 2005.

MLD 2005 KARACHI HIGH COURT SINDH 1976 #

2005 M L D 1976

[Karachi]

Before Rahmat Hussain Jafferi, J

Messrs SIGN SOURCE through Partner---Plaintiff

Versus

Messrs ROAD TRIP ADVERTISERS through Partner and another---Respondents

Suit No.573, C.M.As. Nos.4704 and 4795 of 2005, decided on 2nd June, 2005.

Civil Procedure Code (V of 1908)---

----O. XLI, R.5(2)---Stay of appealable decree---Conditions to be fulfilled, enumerated---Where the application for stay of execution of decree was filed on the ground that the plaintiff intended to file appeal, therefore, the decree be suspended, such ground taken in the application being not covered under O.XLI, R.5; C.P.C. the decree could not be suspended.

High Court has power to stay such appealable decree on fulfilment of following conditions:--

(a) There should be sufficient cause for stay of decree.

(b) The application should establish that substantial loss will result if the execution is allowed to proceed.

(d) The application for stay should be made without unreasonable delay.

Order XLI, Rule 5(2), C.P.C. will apply only when the decree is capable of execution. However, important condition for grant of stay is that in case the stay is not granted then substantial loss will result if the execution is allowed to proceed.

The application for stay of execution had been filed pn the ground that the plaintiff intended to file appeal, therefore, the decree may be suspended. The ground taken in the application was not covered under Order XLI, Rule 5, C.P.C., as such, the decree could not be suspended on the above mentioned ground.

Kohinoor Sugar Mills Ltd. v. Kohinoor Textile Mills Ltd. (1996 SCMR 1883 ref.

Ms. Navin S. Merchant for Plaintiff.

Date of hearing: 2nd June, 2005.

MLD 2005 KARACHI HIGH COURT SINDH 1986 #

2005 M L D 1986

[Karachi]

Before Rahmat Hussain Jafferi, J

Messrs THERMIC ENGINEERING COMPANY through PARTNER---Applicant

Versus

Messrs GALLA & COMPANY and 2 others---Respondents

Civil Revision Application No.168 and C.M.A. No.1791 of 2002, decided on 19th September, 2005.

Specific Relief Act (I of 1877)---

---Ss. 8 & 42---Suit for possession and declaration---Allotment of property---Cancellation of allotment---Suit plot was duly allotted to respondents but said allotment was subsequently cancelled on the ground that construction was not raised by respondents on the plot---Possession of plot in dispute was handed over to allottees/respondents after 24 days of its allotment and on the very date possession was handed over to them, they submitted plan for construction on said plot---After about 7 months of submission of said plan for construction, a show-cause notice was issued to allottees/respondents by the Authority on ground that allottees had not raised construction on suit plot---After two months of issuance of said notice to allottees, Authority raised objection on construction plan submitted by allottees with directions that objection on construction plan be removed, within a period of two months---Before expiry of said period of two months, allotment of allottees/respondents was cancelled and subsequently said plan was approved after about six months of cancellation of allotment---Authority was responsible for delaying the matter as it had raised objection on construction plan after 9 months of its submission and allotment was cancelled before expiry of period of compliance of objection on plan, without any justification---Allotment was cancelled on the very date when objections were complied with by respondents/allottees---Courts below had rightly found that allotment of respondents was illegally cancelled---When allotment was illegally cancelled, Authority was not entitled to allot plot to other person---In absence of any irregularity or illegality and misreading or non-reading of evidence in concurrent judgments of Courts below, revision application was dismissed having no merits.

Munir-ur-Rehman for Applicant.

Ali Mumtaz Shaikh for Respondents No.1 and 2.

Sayed Muzafar Imam for Respondent No.3.

Lahore High Court Lahore

MLD 2005 LAHORE HIGH COURT LAHORE 1 #

2005 M L D 1

[Lahore]

Before Syed Zahid Hussain, J

Haji MUHAMMAD HANIF --- Petitioner

Versus

MUHAMMAD IBRAHIM and others---Respondents

C. R. No. 905 of 1995, heard on 21st September, 2004.

(a) Muslim Family Laws Ordinance (VIII of 1961)---

----S.4---Specific Relief Act (I of 1877), S.42---Succession---Sons and daughters of predeceased son and daughter---Widow of predeceased son--Suit for declaration that share in inheritance given to widow of predeceased son was illegal---Such suit was concurrently dismissed--Validity---Express and unambiguous phraseology and language of the provisions of Muslim Family Laws Ordinance, 1961 leave no obscurity or doubt that the "children of son or daughter" are only entitled to inherit and receive share which expression does not include the widow "of such son" ---Inaction of a party or limitation does not affect the right or interest---Mutation had to record the shares---Entry contrary to law could not operate as estoppel ---Mere passage of time does not extinguish the right.

(b) Islamic Law---

Inheritance---Estoppel---Under Islamic Law of Inheritance as soon as owner dies succession to his property opens---Due share of inheritance vests in the heirs---Any entry in mutation contrary to law did not operate as estoppel.

Ghulam Ali v. Ghulam Sarwar Naqvi PLD 1990 SC 1 quoted.

----S.3---Specific Relief Act (I of 1877), S.42---Islamic Law--Inheritance---Bar of limitation---Widow was incorrectly recorded and given a share---Appellate Court was misdirected in holding the view that the suit was time-barred.

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

----S.115---Concurrent findings---View taken by the Courts below was patently illegal and contrary to established facts---Such findings though concurrent would lose their sanctity and were liable to be reversed.

Allah Wasaya Malik for Petitioner.

Ch. Muhammad Imtiaz Bajwa for Respondents.

Date of hearing: 21st September, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 5 #

2005 M L D 5

[Lahore]

Before Muhammad Ghani, J

MUHAMMAD RIAZ---Petitioner

Versus

JUDGE, FAMILY COURT, SARGODHA and, another---Respondents

Writ Petition No. 14745 of 2003, decided on 16th December, 2003.

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

----S.5 & Sched---Constitution of Pakistan (1973), Art. 199--Constitutional petition---Suit for dissolution of marriage, recovery of dowry articles/amount and restitution of conjugal rights---Suit for restitution of conjugal right filed by petitioner was dismissed by Family Court, whereas suits for dissolution of marriage and recovery of dowry articles/amount filed by respondent were decreed---Petitioner in his Constitutional petition had challenged judgment and decree passed in favour of respondent for recovery of dowry articles/amount only--Respondent in her suit for recovery of dowry articles had claimed that at the time of marriage, her parents gave her dowry articles worth Rs.22/23 thousand details of which were given in list tendered by her in evidence---Petitioner had denied claim of respondent contending that dowry articles worth about Rs.1,00,000 were purchased by him and were sent to house of respondent and that at the time of her marriage respondent had brought small quantity of dowry articles and remaining articles sent by him were retained by her parents to give to their other daughter at the time of her marriage---Petitioner could not produce receipts showing purchase of dowry articles worth about Rs.1,00,000 which he had allegedly sent to house of respondent---Written statement of petitioner showed that petitioner had admitted that respondent had brought certain articles of dowry at the time of her marriage; after said admission onus was on petitioner to have established that dowry articles were purchased by him---Petitioner having failed to render any proof in support of his claim. Family Court had rightly decreed the suit filed by respondent granting her Rs.22,000 in lieu of dowry articles as price thereof which was reasonable---In absence of any error of approach by Family Court or jurisdictional defect in judgment and decree of Family Court, same could not be interfered with by High Court in exercise of its Constitutional jurisdiction.

Gohar Razzaq Awan for Petitioner.

Zafar Iqbal Chohan for Respondent No.2.

Date of hearing, 16th December, 2003.

MLD 2005 LAHORE HIGH COURT LAHORE 13 #

2005 M L D 13

[Lahore]

Before Khawaja Muhammad Sharif and Ch. Iftikhar Hussain, JJ

MUHAMMAD YOUSAF OJLA, SENIOR CIVIL JUDGE, SIALKOT, PRESENTLY ADDITIONAL DISTRICT JUDGE, FAISALABAD ---Petitioner

Versus

Malik MUHAMMAD IQBAL, EX-DIG, GUJRANWALA and 17 others---Respondents

Crl. Miscs. Nos.3264-BC, 1548-B and 4163 of 2004, decided on 14th October, 2004.

(a) Anti-Terrorism Act (XXVII of 1997)---

----Preamble & S.12---Anti-Terrorism Act, 1997 was a special enactment and it had meaning and spirit of its provisions---Special enactment needed to be taken in perspective of its own object and any departure from same would be negation of its object and spirit.

(b) Anti-Terrorism Act (XXVII of 1997)---

----S.21-D---General Clauses Act (X of 1897), S.21---Power of Anti-Terrorism Court to grant and cancellation of bail was subject to certain conditions---No doubt, no express provision of cancellation of bail to an accused of offence under Anti-Terrorism Act, 1997 existed but a Court, which had power to grant bail to an accused, was empowered to recall or cancel the same---Where any Act or provisions conferred power to make order, same essentially included power to add to amend, vary or rescind said order---Was not correct to say that there was no scope to cancel bail allowed by Anti-Terrorism Court because under S.21-D of the Act, Anti-Terrorism Court could grant bail.

Mazhar Hussain Shah v. The State 1986 PCr.LJ 2359; Baghunath Puri and others v. Emperor AIR 1932 Pat. 72; Bashir Khan v. District Magistrate and the Superintendent of Police, Gujrat PLD 1957 (W.P.) Lah. 892; Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63 and Azmat Bibi and another v. Asifa Riaz and 3 others PLD 2002 SC 687 ref.

---- Law favoured decisions on merits and not technicalities.

(d) Interpretation of Statutes---

---Special enactment---Such enactment indeed to be taken in perspective of its own object and any departure from same would be negation of its object and spirit.

Syed Ghulam Abbas Bukhari for Petitioner (in Crl. Misc. No.3264-BC of 2004) and the Complainant (in Crl. Miscs. Nos. 1548-B of 2004 and 4163-B of 2004).

Syed Mazahar Ali Naqvi for Respondents Nos. 1 to 3 and 16 (in Crl. Misc. No.3264-BC of 2004).

Malik Amjad Pervaiz for Respondents Nos.4 to 15 (in Crl Misc. No. 3264-BC of 2004).

Tanvir Ahmad Sheikh for Respondent No. 17 (in Crl. Misc. No.3264-BC of 2004).

Aftab Ahmad Bajwa for Petitioner (in Crl. Misc. No. 1548 of 2004).

Muhammad Yaqoob Sheikh for Petitioner (in Crl. Misc No.4163-B of 2004).

Muhammad Hanif Khatana, Additional Advocate-General and Tahir Mehmood Gondal, Assistant Advocate-General for the State.

Raza Awan, Inspector/S.H.O P.S. Civil Lines, Sialkot with Police Record.

Date of hearing 30th September 1st and 4th October, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 26 #

2005 M L D 26

[Lahore]

Before Ch. Ijaz Ahmad and Bashir A. Mujahid, JJ

Mian TAHIR-UL-RAFIQUE---Appellant

Versus

CITY HOUSING---Respondent

F.A.O. No.204 of 2003, decided on 1st October, 2003.

Interpretation of statutes---

---- Special law would exclude application of general law.

Zia-ur-Rehman's case PLD 1973 SC 49; Malik Israr Salim v. Citibank NA 2003 CLD 588 (Lahore) and M/s. Huffaz Seamlen Pipe Industries v. M/s. Security Leasing 2002 SCMR 1419 ref.

N.A. Butt for Appellant.

MLD 2005 LAHORE HIGH COURT LAHORE 28 #

2005 M L D 28

[Lahore]

Before Muhammad Muzammal Khan, J

Mrs. REHANA ASGHAR---Petitioner

Versus

MILITARY ESTATE OFFICER, LAHORE CIRCLE, LAHORE CANTT. and 2 others---Respondents

Writ Petition No.5879 of 2004, decided on 5th May, 2004.

(a) Cantonment Lease Area Rules 1937---

----Sched. IX-C---Constitution of Pakistan (1973), Art. 199--Constitutional petition---Conversion of old grants---Deposit of premium and annual ground rent---Furnishing non-judicial stamp papers for drawing up lease deed---Petitioner had deposited lease money and annual rent to the Government and had failed to supply non-judicial stamp papers of appropriate value---Authorities cancelled the grant ---Validity--Conversion of old grant to regular lease in Schedule IX-C of the CLA Rules 1937 was accepted by the authorities---Condition of deposit of amount mentioned and required by authorities was fulfilled by the petitioner---Contract of lease had been completed---Conversion of Old Grants Rights into Lease Holding Rights was subject to the payments and was not dependent on execution of lease deed---Such rights were not postponed till its completion---Authorities had utilized the money to their own advantage for a long period without returning same to the petitioner, such conduct of authorities amounted to estoppel ---Authorities could not be allowed to resile from their commitment---Decision of the authorities was declared to be illegal, unfounded, arbitrary and fanciful---Petitioner had become lessee under sanction letter issued by the authorities in circumstances.

Faiz Ali v. Mst. Rafia Jan PLD 1956 Lah. 94; Mst. Malap Kaur v. Hakim Singh and others 8 P.R. 1915; Jagat Singh v. Mst. Raj Devi AIR 1938 L ah. 554; Kishan Singh and others v. Labh Singh and others (Civil Appeal No.891 of 1933); Ibrahim v. Mst. Rajji PLD 1956 (W.P.) Lah. 609; Ilam Din v. Muhammad Din PLD 1964 SC 842 and Shamir v. Faiz Elahi 1993 SCMR 1456 quoted.

Ilam Din v. Muhammad Din PLD 1964 SC 842; Ali Ahmad v. Rabia Bibi PLD 1971 B.J. 38 and Nathay Khan v. Mehr Din 1994 MLD 1630 rel.

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

----S.70---Constitution of Pakistan (1973), Art.199---Constitutional petition---Execution of written document---Something done without intending to do so gratuitously---Enjoying the benefits of non-gratuitous act--Execution of written document was not essential to complete the contract to which the Government was a party---When sanction was accorded and payment was made it was enough to equip the petitioner. with rights of lease.

Col. M. Sana, Assistant Director (Medical) Provincial Health Directorate, Lahore v. The Government of West Pakistan PLD 1962 W.P. Lah. 509 quoted.

----S.24-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Order passed by Authority---Continuation---Reasons for change---Authorities had not given any reason for increase of conversion rates though they were obliged to give reasons in terms of section 24-A of the General Clauses Act---Such order was not sustainable.

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMF 2268 and Col. (Recd.) Ayub Ali Rana v. Dr. Carlite S. Pune and another PLD 2002 S.C. 630 cited.

(d) Stamp Act (II of 1899)---

----S.29---Constitution of Pakistan (1973), Art.199---Constitutional petition-- Lease-deed---Expenses of providing the proper stamps---Duties by whom payable---In absence of an agreement to the contrary, expenses were to be borne by the lessor under section 29 clause (d) of the Stamp Act, 1899---Execution of lease deed was for the benefit of the petitioner---No loss was caused to the respondents who had received entire amount which they had demanded---Lease could not be cancelled on such excuse.

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

----Art.199---Constitutional petition---Maintainability---Petitioner's grievance was not about the policy but was that the conversion of lease under the policy was granted to her and had matured without execution of formal documents---Constitutional petition was maintainable.

Ch. Muhammad Ghani for Petitioner.

Tariq Shamim, Standing Counsel.

MLD 2005 LAHORE HIGH COURT LAHORE 38 #

2005 M L D 38

[Lahore]

Before Muhammad Muzammal Khan, J

Syed GHULAM SABIR GILLANI---Petitioner

Versus

GHULAM MUHAMMAD and others---Respondents

C.R. No.732-D of 1991, decided on 1st December, 2003.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), S.115-Suit for declaration and permanent injunction---Plaintiffs had claimed that they were owners in possession of house and the land underneath of same was purchased by them through a registered sale-deed dated 3-1-1946 from its previous non-Muslim owners---Plaintiffs had challenged allotment order in respect thereof passed by Settlement Authority in favour of defendant contending that suit-land purchased by them was not evacuee land and same could not be allotted to defendant---Suit having concurrently been decreed, defendant had come up in revision before High Court---Suit-land admittedly was owned previously by non-Muslim who were shown to be in possession of the same in Jamabandi for, the year 1946-1947 who had sold it to plaintiffs through a registered sale-deed dated 3-1-1946---Said sale-deed in favour of plaintiffs remained unchallenged and same being a registered document old for a period of more than 30 years, had its own value and presumption and it was bounden duty of Registration Office concerned to have said sale-deed incorporated in Revenue Record, but such lapse on part of official functionaries could not be allowed to private individual--Conversely, property purchased by plaintiffs was shown as Ghair Mumkin and in view of such entries in Revenue Record, same could not have been allotted to defendant as agricultural land--Both Courts below had rightly appraised evidence on record and had correctly exercised jurisdiction in decreeing the suit---In absence of any misreading or non-reading of evidence by Courts below, concurrent judgment and decree of Courts below, could not be interfered with by High Court in exercise of its revisional jurisdiction.

Painda Khan v. Akram and others PLD 1951 Pesh. 49; Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356 and Pakistan. Transport Company Ltd. v. Walayat Khan (deceased) through L.Rs. 2002 SCMR 1470 ref.

Taffazul H. Rizvi for Petitioner.

Syed Mukhtar Abbas and Ch. Muhammad Suleman, Addl. A-G. for respondents.

Date of hearing: 1st December, 2003.

MLD 2005 LAHORE HIGH COURT LAHORE 42 #

2005 M L D 42

[Lahore]

Before M. Bilal Khan, J

SULTAN AHMAD---Petitioner

Versus

TAHIR HASSAN KHAN and another---Respondents

Crl. Revision No.767 of 2004, decided on 28th September, 2004.

Penal Code (XLV of 1860)---

---Ss.302/449---Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b) & 7---Determination of age of accused---Accused claimed that he was `child' within meaning of S.2(b) of Juvenile Justice System Ordinance, 2000---Accused's prayer that he be tried as child under Juvenile Justice System Ordinance, 2000, was concurrently accepted by Trial Court and High Court holding that accused being less than 18 years of age at the, time of occurrence; should be tried as such---Supreme Court, however, set aside order of. Trial Court and High Court and remanded the case to Trial Court for fresh decision in accordance with provisions of S.7 of Juvenile Justice System Ordinance, 2000 after getting accused examined by Medical Board---Trial Court in compliance with order of Supreme Court, ordered constitution of Medical Board which was duly constituted consisting of Medical Superintendent D.H.Q. Hospital and other Surgical Specialist, Medical Officer and Dental Surgeon of the said Hospital---Said Board thoroughly examined accused and opined that age of accused was between 18 and 19 years---Trial Court in the light of report of Medical Board, ordered that trial of accused be conducted under Juvenile Justice System Ordinance, 2000---Petitioner/complainant who had challenged order of Trial Court, could not point out any material to establish that Medical Board duly constituted was influenced by accused party--Even otherwise presumption was that all official acts had been regularly performed---In absence of any illegality or impropriety in impugned order of Trial Court, said order could not be interfered with by High Court in exercise of its revisional jurisdiction.

Asghar Khan Rokhari for Petitioner.

Malik Saeed Hassan for Respondent No. 1.

Fazal-e-Miran Chouhan, Addl., A.-G. for the State.

MLD 2005 LAHORE HIGH COURT LAHORE 48 #

2005 M L D 48

[Lahore]

Before Muhammad Muzammal Khan, J

ABDUL WAHEED---Petitioner

Versus

ZAHIDA PARVEEN and others---Respondents

Writ Petition No. 12347 of 2004, decided on 22nd July, 2004.

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

----S.5 & Sched.---Qanun-e-Shahadat (10 of 1984), Art. 17---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for recovery of dower---Relinquishment of dower---Proof---On filing suit for recovery of dower by plaintiff, defendant in his written statement had asserted that plaintiff had relinquished her dower by executing an affidavit to that effect---Plaintiff had categorically denied execution of alleged affidavit--Family, Court and Appellate Court had concurrently decreed suit filed by plaintiff---Defendant could not prove execution of valid affidavit as alleged affidavit which involved financial and future obligation, was required to be attested by two witnesses under Art. 17 of Qanun-e-Shahadat, 1984, but same was not so attested---Plaintiff was a literate woman and she at the time of her marriage had signed Nikah nama, but alleged affidavit was thumb-marked---After denial of execution of alleged affidavit by plaintiff, onus heavily shifted on defendant to prove not only execution of affidavit in accordance with law through positive and consistent evidence, but also to prove transaction reflected therein, but defendant had failed to do so---Both Courts below had rightly decreed suit filed by plaintiff---Concurrent judgments and decrees passed by Courts below were based on evidence on record and Courts had committed no illegality in deciding the lis---Justifiable view taken by Courts within their jurisdiction could not be substituted in Constitutional jurisdiction of High Court.

Zia Ullah Khan Niazi for Petitioner.

Date of hearing: 22nd July, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 55 #

2005 M L D 55

[Lahore]

Before Syed Jamshed Ali, J

MUHAMMAD NAWAZ and others---Appellants

Versus

GHULAM SHABBIR and others---Respondents

F.A.O. No.25 of 2002, decided on 8th September, 2003.

Civil Procedure Code (V of 1908)---

----O.XLI, R.23---Remand of case by Appellate Court---Appellants had claimed that in earlier round of litigation, findings on two issues in question, though were assailed in appeal, but at the time of hearing of first appeal said issues were given up---Appellant had further claimed that in second round of litigation Appellate Court was not justified to remand case for determination of said two issues especially when parties were litigating for the last about 26 years---Validity---Case could not be remanded in second round of litigation for decision of said two issues without first determining whether said two, issues had been given up in first round -of litigation---Remand of case though was within the discretion of Appellate Court, but in the present case not only parties had led complete evidence, but litigation in the case was 26 years old---First Appellate Court should have finally decided the controversy instead of remanding case and involving parties in another round of litigation---If at all some inquiry was required to be made, it could have been done by First Appellate Court subject to determination whether two issues in question could be agitated by respondents---Impugned order was set aside and case was remanded to First Appellate Court for re-hearing appeal and to decide it afresh after affording parties to raise all issues.

Zafar Iqbal Chohan for Appellants.

Saif-ul-Haq Ziay for Respondents.

Date of hearing: 18th September, 2003.

MLD 2005 LAHORE HIGH COURT LAHORE 58 #

2005 M L D 58

[Lahore]

Before Rustam Ali Malik, J

COOPERATIVE MODEL TOWN SOCIETY (1962) LTD. LAHORE through Secretary---Petitioner

Versus

SECRETARY (MRS. FARKHANA WASEEM AFZAL) COOPERATIVE DEPARTMENT, GOVERNMENT OF THE PUNJAB, CIVIL SECRETARIAT, LAHORE and 2 others---Respondents

Writ Petitions Nos.8692 and 10524 of 2003, heard on 20th July, 2004.

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

----S.17---Constitution of Pakistan (1973), Art.199---Constitutional petition-- Membership of Cooperative Housing Society---Enhancement of share certificate-- Respondent submitted application to the Registrar Cooperative Societies for demarcation of his plot of land and it was prayed by him that Cooperative Society be directed to correct its record relating to plots as per possession of the applicant and to issue revised share certificate containing the area in his occupation---Petitioner Society contested the said application with the averment that respondent was not owner of whole plot in his possession as he had made encroachment and increased his possession---Registrar Cooperative Societies had accepted the said application and appeal filed by the petitioner Society had failed---Validity---Questions raised by the Society in its Constitutional petition needed enquiry and recording of evidence which exercise could not be undertaken in Constitutional petition---Society could agitate the matter before an appropriate forum and in appropriate proceedings---Constitutional petition was dismissed in circumstances.

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

----S.17---Constitution of Pakistan (1973), Art.199 --- Constitutional petition---Lawful Authority---Cooperative Housing Society had sanctioned plan for dividing the plot, had received fee for sub-division and had also issued No-Objection Certificates---No right was left with the Society to suspend the operation of NOC's and withhold the right of membership or stop the registration of sale deeds---Constitutional petition was accepted and order issued by the Society was declared as without lawful authority and of no legal effect---Relief prayed was allowed in circumstances.

Ch. Muhammad Rashid Vehra for Petitioner.

Mian Zafar Iqbal Kalanauri for Respondent No.3.

Date of hearing: 20th July, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 67 #

2005 M L D 67

[Lahore]

Before Muhammad Sayeed Akhtar, J

KHAN MUHAMMAD ---Petitioner

Versus

KHIZAR HAYAT and others---Respondents

Writ Petition No.639 of 2003, decided on 17th November, 2003.

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

----O.VI, R.17---Punjab Pre-emption Act (IX of 1991), S.6---Suit for preemption ---Amendment of plaint---Application for---Plaintiff who filed suit claiming superior right of pre-emption on ground of being Shafi Sharik' filed application under O.VI, R.17, C.P.C. seeking amendment in plaint to take additional ground of beingShafi Khalit' and `Shafi Jar'---Nature of suit, insofar as its cause of action was concerned, would not be changed by amendment sought to be made by plaintiff in his plaint---Application of plaintiff filed for amendment of plaint was rightly allowed by Trial Court and Appellate Court.

Mst. Ghulam Bibi and others v. Sardar Khan and others PLD 1985 SC 345 and Muhammad Anwar and 3 others v. Allah Bakhsh and another 1986 SCMR 1575 ref.

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

----Art.199----Constitutional petition---Maintainability of---Interim order---Challenge to---Constitutional petition against interim order arising out of civil proceedings, was not maintainable, unless it suffered from jurisdictional error.

Tafazal H. Rizvi for Petitioner.

Syed Mukhtar Abbas for Respondent No. 1.

Date of hearing: 17th November, 2003.

MLD 2005 LAHORE HIGH COURT LAHORE 71 #

2005 M L D 71

[Lahore]

Before Bashir A. Mujahid and Ch. Ijaz Ahmed, JJ

CHAIRMAN, BISE, GUJRANWALA and another---Appellants

Versus

AYESHA MARYAM --- Respondent

I.C.A. No. 1130 of 1998, decided on 30th September, 2003.

(a) Educational Institution---

----Securing original result card --Candidate would be we within right to secure original result card from the Board of Education.

Samar Pervez's case PLD 1971 SC 838 and Faiza Malik's case PLD 1992 SC 324 ref.

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

---Art.199---Constitutional jurisdiction of High Court---Scope---High Court had ample jurisdiction to look into subsequent events at the time of deciding cases.

Nasir Jamal's case 1990 CLC 1069; Amina Begum's case PLD 1978 SC 220; Abdul Janan's case PLD 1996 SC 709; Khawaja Muhammad Yousaf's case 1999 SCMR 1516; Disciplinary Committee of the University of the Punjab v. Malik Abdul Majid (PLD 1971 Law Notes 265; Salma Afroz 's case PLD 1992 SC 263; Saima Zaid's case 1996 SCMR 676 and Tahir Saeed Qureshi's case 1996 SCMR 1872 ref.

Sheikh Shahid Waheed for Appellants.

Mian Waheed-ud-Din on behalf of Muhammad Kazim Malik for Respondents.

Date of hearing: 30th September, 2003.

MLD 2005 LAHORE HIGH COURT LAHORE 74 #

2005 M L D 74

[Lahore]

Before Mian Hamid Farooq, J

HIMMAT KHAN and others---Petitioners

Versus

ABDUL REHMAN KHAN---Respondent

Civil Revisions Nos. 2647 to 2649 of 2001, decided on 16th January, 2003.

Civil Procedure Code (V of 1908)---

----O.XVII, R.3---Closing of evidence and dismissal of suit---Plaintiff having failed to produce evidence despite several adjournments, Trial Court by invoking provisions of O.XVII, R.3, C.P.C. closed evidence of plaintiff and dismissed suit---Appellate Court on filing appeal by plaintiff, set aside judgment and decree of Trial Court and remanded the case for fresh decision---Defendant had challenged order of Appellate Court in revision---Case though was adjourned on various dates, but on previous two dates of hearing case was not adjourned at the request of plaintiff---On one date of hearing Trial Judge did not hold the Court as he was on leave and case was adjourned in routine and on the next date of hearing Trial Judge was busy in departmental course and case was adjourned in routine without recording request of adjournment by plaintiff---As on previous two dates of hearing, case was not adjourned for recording evidence of plaintiff at his request, closure of evidence of plaintiff on succeeding date, purportedly in exercise of powers under O.XVII, R.3, C.P.C., was not warranted by law---Revision petition against judgment of Appellate Court below, was dismissed being devoid of any merits.

Ajab Khan v. Karimi Industries and others PLD 1980 Pesh. 259; Allah Ditta and others v. Hafiz Zahoor Ahmad and another 1993 CLC 1359; Syed Manzoor Hussain Shah and 15 others v. Allah Bachaya Khan and 5 others 1986 CLC 1813; Chairman District Sargodha v. Government of the Punjab through District Collector, Sargodha and another 1993 MLD 930; Muhammad Mehmood v. Ghulam Rasool and another 1987 SCMR 952; Moeen-ud-Din and others v. Sabghatullah and others 1985 SCMR 1103; Qutab-ud-Din v. Gulzar and 2 others PLD 1991 SC 1109 Jindwadda and others v. Abdul Hamid and another PLD 1990 SC 1192 and Pakistan Burmah Shell Ltd. v. Tariq Brothers 1997 CLC 761 ref.

Saif-ul-Haq Ziay for Petitioners.

Syed Iqbal Hussain Shah Gillani for Respondent.

Date of hearing: 16th January, 2003.

MLD 2005 LAHORE HIGH COURT LAHORE 80 #

2005 M L D 80

[Lahore]

Before Muhammad Akhtar Shabbir, J

HASSAN MAHMUD---Petitioner

Versus

SETTLEMENT DEPARTMENT---Respondent

Writ Petitions Nos.5-R, 8-R, 11-R, 19-R of 2000 and 5-R of 2003 decided on 19th April, 2004.

Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----Ss.10/11---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), Ss.2/3---Constitution of Pakistan (1973), Art.199--Constitutional petition--Allotment of land---Cancellation of allotment--Past and closed transaction---Land in dispute was allotted and duly confirmed in the names of allottees, who were displaced persons against their verified claims---Subsequently on complaints of certain persons before Chief Minister against said allotments, inquiry was conducted and Assistant Commissioner declared the allotments made in favour of allottees as fraudulent and bogus without affording allottees the opportunity of hearing---Allottees/petitioners, in circumstances were condemned unheard---Validity---Assistant Commissioner or Deputy Commissioner had no power to re-open past and closed matters arid were not competent to cancel allotment already competently made in favour of allottees by Settlement Authorities---Original allottees, and subsequent purchasers of lands in dispute as well as occupants of said lands were not issued notices by Assistant Commissioner while passing order cancelling allotments---High Court, in exercise of Constitutional jurisdiction, set aside illegal orders of Assistant Commissioner---Case was remanded to Chief Settlement Commissioner for decision afresh after affording opportunity of hearing to all concerned parties.

Fateh Muhammad v. Deputy Commissioner T.T. Singh PLD 1989 Lah. 473 and Muhammad Sarwar v. Muhammad Ali 2002 SCMR 829 ref.

Islam Ali Qureshi for Petitioner.

Date of hearing: 19th April, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 85 #

2005 M L D 85

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

MUHAMMAD IQBAL SHAH and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.301-J, 1237 Murder Reference No.72-T of 2002, decided on 23rd September, 2004.

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

----Ss.302(b)/224/324/353/392/395/412/34/109/148/149---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence-Complainant, a police constable who was also in the van which was taking the prisoners from the Court to jail, had narrated the incident; how it took place during journey---Testimony of complainant was corroborated by eye-witnesses who Were police constables and who also suffered injuries during occurrence---No denial was about the occurrence and no enmity was found between injured prosecution witnesses and accused who were under trial prisoners---Possibility of substitution, which was even otherwise, a rare phenomenon, was excluded, in circumstances---Manner in which recoveries were effected from accused should not be a matter of surprise in view of peculiar circumstances of the case involving desperate criminals---Prosecution story appeared natural, truthful and plausible and in view of ocular account it was believeable---Prosecution having established its case fully, judgment of Trial Court was upheld.

Gobald Motor Service Ltd. and another v. R.M.K Veluswami and others AIR 1962 SC 1; Proabhoo's case AIR 1965 Allahabad 417; Bharosa and others v. The State AIR 1941 Allahabad 402 and Wali Muhammad v. The State PLD 1957 Lah. 261 ref.

(b) Criminal trial---

---- Benefit of doubt---Principle that benefit of doubt must be given to accused, was not applicable to the case where after considering the entire evidence, the Court was convinced beyond all reasonable doubt that prosecution's case was acceptable---Prosecution had to establish guilt of accused, but the doubt, the benefit of which, accused was entitled to have, must be such as rational thinking, sensible man could fairly and reasonably entertain--It would not bring within its ambit doubt of a vacillating mind and based on ideal skepticism---Doubt should be a doubt which could be honestly and conscientiously entertainable.

M. Asghar Rokhri assisted by Nazeer Ahmad defence counsel for Appellant.

Malik Fawad A.A.-G., Tahir Gondal A.A.-G. and Miss Naureen Saleem for State.

Dates of hearing: 22nd and 23rd September, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 98 #

2005 M L D 98

[Lahore]

Before Muhammad Akhtar Shabbir, J

ARIF ZAMAN---Appellant

Versus

PIR DOST ALI SHAH through Legal Heirs and others---Respondents

R.S.A. No.476 of 1967, heard on 19th April, 2004.

(a) Islamic Law---

----Gift---Proof---Essential ingredients highlighted.

Litigant to establish a valid gift has to prove three ingredients (i) declaration by the donor (ii) acceptance of gift by the donee and (iii) delivery of possession under the gift and if any of the three ingredient is missing, there can be no legal/valid gift.

(b) Islamic Law---

----Gift---Burden of proof---Beneficiary of deed/transaction is under legal obligation to prove validity of gift by producing sufficient evidence.

----S.60---Qanun-e-Shahadat (10 of 1984), Arts. 92 & 100---Registered document---Oral evidence to deny its contents---Validity---Presumption of truth was attached to such document---Contents of such document could not be controverted through oral evidence---Thirty years old document having legal backing could not be ignored easily.

(d) Islamic Law---

----Gift---Property in possession of 'tenant---Non-delivery of possession to donee ---Effect---Delivery of possession to donee in such situation need not be physical, but could be constructive or symbolic---Delivery of possession not a condition precedent for validity of gift in all cases--Principles.

Where property is in possession of a tenant, true owner can validly make the gift of the property, provided donor does all that he could do to complete the gift and enable donee to acquire possession of subject-matter of gift. Delivery of possession in such a situation need not be physical, but can be constructive or symbolic.

The delivery of possession is not condition precedent for the validity of gift in all cases, and if the possession was not with the donor at the relevant time, but he makes his intention to divest himself of the ownership of the property by doing all that he could do, the validity of gift would not be open to challenge merely on the basis of non-delivery of possession.

Ghulam Hassan and others v. Sarfraz Khan and others PLD 1956 SC (Pak.) 309 ref.

Khursheed Islam v. Qamar Jahan 1989 CLC 1467; Muhammad Bashir and 6 others v. Muhammad Yaqub and 11 others 1993 CLC 1084; Shamshad Ali Shah v. Syed Hassan Shah PLD 1964 SC 143; Rehm Ali v. Abdul and 3 others 1980 CLC 1110 (SC AJ&K); Zahuran and others v. Abdul Salam and others AIR 1930 Oudh 71 and Saida v. Pinnu and another PLD 1979 SC (AJ&K) 245 rel.

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

----S.42---Limitation Act (IX of 1908), Art. 120---Suit for declaration--Limitation---Time for filing such suit would start from denial of plaintiff's right by defendant----Right to sue would not be available to plaintiff in absence of unequivocal threat to infringe his right by defendant---Every denial of right would furnish plaintiff a fresh cause of action---Principles illustrated.

Wali and 10 others v. Akbar and 5 others 1995 SCMR 284; Ata Muhammad v. Naseer-ud-Din PLD 1993 Pesh. 127 and Muhammad Yousaf v. Noor Din and others 1993 MLD 763 rel.

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

----S.100---Second appeal---Finding of fact---Validity---Finding of fact could not be disturbed in second appeal, if case was not covered by S.100, C. P. C.

Pir Walayat Shah v. Muhammad Shafi and another 1986 SCMR 1304; The Province of West Pakistan through Deputy Commissioner Khairpur v. Imam Bakhsh 1970 SCMR 465; Lal Badshah and 5 others v. Sohail Khan 1970 SCMR 565; Abdul Rasool v. Muhammad Nawaz and others 1986 CLC 2261; Sitaran Bibi v. Sher Muhammad Khan 1985 SCMR 1052; Begum Bibi and 9 others v. Abdul Ghani and 4 others 1980 SCMR 675; Akbar and others v. Muhammad Shah and 4 others 198-2 SCMR 286 and Sikandar Hayat v. Master Fazal Karim PLD 1971 SC 730 rel.

Mirza Manzoor Ahmed for Appellant.

Nemo for Respondents.

Date of hearing: 19th April, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 106 #

2005 M L D 106

[Lahore]

Before Muhammad Muzammal Khan, J

ABDUL MAJEED---Petitioner

Versus

FAQIR BAKHSH and others---Respondents

C.R. No.424-D of 1398/BWP, decided on 15th March, 2004.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. VIII, R.5 & S.115---Suit for declaration and permanent injunction---Filing of concessional written statement by defendant---Effect---Defendants filed concessional written statement averring that they had no objection if suit filed by plaintiff was decreed---Despite such concessional statement of defendants, Trial Court and Appellate Court dismissed the suit--Validity---Under provisions of O.VIII, R.5, C.P.C. Trial Court was bound to pass a decree on admission made by defendants and its failure would amount to illegality and material irregularity as envisaged by S.115, C.P.C.---Appellate Court Was not justified in dismissing suit on presumption that remedy of suit was invoked by plaintiff to avoid payment of stamp duty/mutation fee and other incidental charges of transaction with mala fide intention as it was highly presumptive to assume that remedy of suit had been used as a device to save stamp duty etc.---High Court in exercise of its revisional jurisdiction set aside concurrent judgments and decrees of Courts below which were suffering from illegality and material irregularity.

Kaloo Khan v. Nisar Muhammad Khan 1972 SCMR 602; H. Gharib Ullah v. Mumtaz Begum 1990 CLC 1609; Directorate of Small Industries, Government of Balochistan through Sales Manager, Karachi Airport, Karachi v. Civil Aviation. Authority through Director-General and another 1993 MLD 1836 and H. Gharibullah v. Mst. Mumtaz Begum and others 1990 CLC 1609 ref.

Syed Muhammad Anwar Shah for Petitioner.

Nemo for Respondents.

MLD 2005 LAHORE HIGH COURT LAHORE 112 #

2005 M L D 112

[Lahore]

Before Sh. Hakim Ali, J

HOUSE BUILDING FINANCE CORPORATION and others---Petitioners

Versus

MUHAMMAD AKHTAR ZAMAN and others---Respondents

Civil Revision No.5-D of 2001/BWP, decided on 8th March, 2004.

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

----O. VII, R.2 & S.115---Suit for rendition of accounts and recovery of amount allegedly paid in excess---Plaintiffs had claimed that they had paid full amount of loan to defendant-Corporation and nothing was to be claimed from them by it---Plaintiffs had filed suit for rendition of accounts and for award of decree in their favour with regard to payment of excess amount which allegedly was paid by them to the defendant--Suit was concurrently decreed by two Courts below ---Defendant-Corporation being custodian of record of loan amount was bound to produce all necessary evidence to rebut claim of plaintiffs, but it had failed to produce in evidence even statement of payment-of instalments of amount paid by the plaintiffs---Case of defendant being of no evidence, concurrent findings of facts of two Courts below were unexceptional---In absence of any jurisdictional defect in concurrent judgments and decrees of two Courts below, same could not be interfered with by High Court in the revisional jurisdiction.

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

----O.XLI, R.27---Additional evidence, production of---Party had no right to produce additional evidence in Appellate Court, except when it was prayed for in Trial Court and Trial Court had refused to grant such right without any rhyme or reason.

M. Shamshir Iqbal Chughtai for Petitioners.

Rao Muhammad Sadiq for Respondents.

MLD 2005 LAHORE HIGH COURT LAHORE 122 #

2005 M L D 122

[Lahore]

Before M.A. Shahid Siddiqui, J

ASIF LATIF --- Petitioner

Versus

ADDITIONAL DISTRICT & SESSIONS JUDGE, MIAN CHANNU and 2 others---Respondents

Writ Petition No. 1852 of 2004, decided on 12th May, 2004.

Civil Procedure Code (V of 1908)---

----S. 47, O. XXI, R. 2 & O. XXIII, R. 3---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Money decree ---Execution--Objection petition-- Adjustment of decree by Trial Court--Compromise---Compromise entered and payment entered during pendency of the suit and prior to the passing of the decree, could be allowed to be adjusted by the Trial Court under O.XXIII, R. 3, C.P.C.---Such adjustment could not be made by executing Court--Executing Court cannot assume the role of Trial Court---Objection petition alleging agreement and adjustment---Compromise before passing of decree, was rightly rejected by the executing Courts---No illegality or jurisdictional defect, having been found, Constitutional petition was dismissed.

AIR 1938 Nagpur 265 ref.

Sheikh Mubarak Ahmad for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 124 #

2005 M L D 124

[Lahore]

Before Muhammad Muzammal Khan, J

KARIM BAKHSH and others---Petitioners

Versus

Mst. KHURSHID BEGUM and others---Respondents

C.R. No.281-D of 1999/BWP, decided on 15th March, 2004.

Specific Relief Act (I of 1377)---

----Ss.42 & 54---Suit for declaration and permanent injunction--Jurisdiction of Civil Court to try suit---Plaintiff had claimed that she was owner in possession of suit land on account of her Haq-Mehar and that defendants had no right, title or interest therein---Plaintiff had also prayed that adverse entries in the Revenue Record in respect of suit land being contrary to facts, could be rectified---Plaintiff also prayed for permanent injunction as a consequential relief restraining defendants from interfering in her lawful possession over the suit land---Claim of plaintiff was that her defendant husband, who got land in dispute from his father by way of Tamleek' had transferred the same in her favour as dower at time of her marriage---Suit was concurrently decreed by two Courts below---Concurrent decree had been challenged in revision by defendants contending that since claim of plaintiff was based on dower, Civil Courts had no jurisdiction in the matter and only Court which .had jurisdiction to entertain the suit was Family Court ---Nikah Nama in respect of Nikah of plaintiff with her defendant husband andTamleek Nama' of suit land in favour of defendant husband, on basis of which suit was filed by plaintiff, had fully been proved---Suit on the basis of title in respect of suit land derived from defendant husband through Nikah Nama and Tamleek Nama could only be tried by Civil Court--Had the suit been filed by plaintiff for recovery of dower amount, objection of defendants with regard to jurisdiction of Civil Court to try the same, would have been relevant, but suit being a simple suit for declaration based on documents like Nikah Nama and Tamleek Nama which had made plaintiff entitled to suit land, was competently filed before Civil Court---Executant of Tamleek Nama lived his life even after seven years of execution of said document and did not challenge it before any competent Court---Husband of plaintiff being well aware of transfer of land to his wife/plaintiff did not make any effort for cancellation of document transferring land to plaintiff---Courts below in passing concurrent judgment and decree in favour of plaintiff had not committed any illegality or irregularity---Concurrent judgments arid decrees of two Courts below could not be interfered with in revisional jurisdiction of High Court.

S.M. Anwar Shah for Petitioners.

Nemo for Respondents.

MLD 2005 LAHORE HIGH COURT LAHORE 131 #

2005 M L D 131

[Lahore]

Before Muhammad Akram Baitu, J, SHAHADAT and others---Petitioners

Versus

MEHTAB BIBI and others---Respondents

Civil Revision No.267-D of 1991, decided on 28th May, 2004.

Land Reforms Act (II of 1977)---

----S. 28---Specific Relief Act (I of 1877), S. 42---Suit for declaration--Competency---Deputy Land Commissioner directed to resume surplus units of land belonging to respondent ignoring registered gift-deed whereby respondent was shown to have made a gift of land in dispute in favour of adopted daughter of respondent---Feeling aggrieved, respondent filed declaratory suit alleging that she was owner in possession of land in dispute on the basis of said gift-deed---Suit was concurrently decreed by Trial Court and Appellate Court---Validity--Jurisdiction of Civil Court under provisions of S. 28 of Land Reforms Act, 1977 being barred, Trial Court was not vested with powers to try such-like cases and exclusive jurisdiction vested with Land Commission Authority to decide such matters---Concurrent judgments and decrees of two Courts below which were against law and facts, were set aside by High Court in exercise of its revisional Jurisdiction.

1994 SCMR 74 ref

Malik Muhammad Rafique Rajwana for Petitioners.

Ch. Habib Ullah Nihang for Respondent No. 1.

Amin-ud-Din for Respondent No.2.

Ramzan Khalid Addl. A.-G. for Respondents Nos.3 and 4.

MLD 2005 LAHORE HIGH COURT LAHORE 145 #

2005 M L D 145

[Lahore]

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1700 of 2001, heard on 3rd November, 2003.

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

----S.9(c)---Appreciation of evidence---Alleged making of judicial confession by accused before prosecution witness, having not been put to accused during his examination under S.342, Cr.P.C. said piece of, evidence could not be considered against accused for purpose of recording his conviction, especially when necessary formalities required for the purpose of recording a judicial confession had not been fulfilled---Prosecution witness before whom accused had made judicial confession was himself implicated in the case as an accused and he was let off only after recording judicial confession purportedly made by accused before him---No independent evidence was available on record to establish that accused was involved in any manner in export or transport of contraband substance recovered at British Port---Prosecution had not succeeded in proving guilt of accused through unimpeachable and independent evidence, but despite that Trial Court had proceeded to convict and sentence him on basis of material which even could not have been considered against him---No case property was produced in the case, no sample of recovered substance was available, no report of Chemical Examiner was brought on record to establish recovered substance to be contraband narcotics and no recovery witness was produced before Trial Court---Prosecution having miserably failed to prove its case against accused beyond reasonable doubt, conviction and, sentence recorded against him by Trial Court were set aside and accused was acquitted of charge against him.

Mian Abdul Ghafar and Malik Muhammad Arshad for the Appellant.

Muhammad Sohail Dar, Assistant Advocate-General for the State.

Date of hearing: 3rd November, 2003.

MLD 2005 LAHORE HIGH COURT LAHORE 150 #

2005 M L D 150

[Lahore]

Before Maulvi Anwar-ul-Haq and Syed Sakhi Hussain Bokhari, JJ

Sh. ABDUL ASHFAQ---Appellant

Versus

ELECTION TRIBUNAL and 3 others---Respondents

I.C.A. No.203 in Writ Petition No.410 of 2003, heard on 15th September, 2004.

Punjab Local Government Elections Ordinance (V of 2000)---

----Ss.14(1) & 38---Punjab Local Government Elections Rules, 2000, Rr.70, 73, 80 & 81---Disqualification---Appellant and respondent, were declared elected as Nazim and Naib Nazim---Rival defeated candidates filed election petition on the ground that appellant was a wilful defaulter--Election Tribunal proceeded to declare the election of the appellant and respondent Naib Nazim to be void and ordered fresh election--Appellant, Naib Nazim and the rival candidates filed Constitutional petitions whereby rival candidates sought the relief that they be declared as elected---Petition filed by Naib Nazim was allowed rest of the petitions were dismissed---Validity---Appellant was sole owner of the company and default was evident from the copy of the judgment of Banking Court---Election Tribunal could declare the ejection of returned candidate to be void on the ground that the returned candidate was not, on the nomination day, qualified for or was disqualified from, being elected as member or Nazim or Naib Nazim as the case might be, under the relevant Rules---Provisions of section 14(1) of Punjab Local Government Elections Ordinance, 2000 had kept the Rules intact---Election Tribunal had rightly proceeded with the election petition---Intro Court Appeal was dismissed in circumstances.

Dr. M. Mohy-ud-Din Qazi for Appellant.

Shamim Abbas Bokhari for Respondents.

Date of hearing: 15th September, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 153 #

2005 M L D 153

[Lahore]

Before Sh. Hakim Ali, J

GHULAM NABI and others---Petitioners

Versus

Mst. ZAINAB BIBI and others---Respondents

Civil Revision 647-D of 1994, decided on 14th June, 2004.

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

----Arts.100, 117 & 120---Specific Relief Act (I of 1877), Ss.39 & 42--Thirty years old document---Onus to prove---Principles---Person who comes to Court especially for the cancellation of a document/annulment of a contract or declaration of record to be illegal and without lawful authority or of such kinds of relief, has to prove his case because he has asserted against the tenor of an old document and wanted to get the declaration from the Court against the validity of facts recorded in such document.

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

----Art.100---Thirty years old document---Presumption of correctness--Philosophy-- After about or within the period of thirty years plus counting their age at the time of transaction a generation is perished who has settled a transaction---Parties and witnesses are generally vanished from the scene of the world---Presumption of correctness (although rebutted in some cases) becomes the fate of that document.

----Art.129(g)---Entries in Revenue Record---Presumption---Old transactions recorded in Revenue Record such as mutations and the entries of those carried into record of rights, if uninterrupted gets initial presumption of correctness.

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

----O.XIV, R.1---Improper framing of issue---Effect---Improper framing of issue cannot be considered a ground to remand a case or to set aside a judgment/decree unless it has caused a, grave prejudice or injustice to a party.

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

----O.XIV, R.1 & S.115---Qanun-e-Shahdat (10 of 1984), Arts.117 & 120---Onus of issue---Shifting of onus---Material illegality or irregularity---Validity---Onus of an issue initially shown on a party can be shifted from one party to another during the pendency of proceedings of a case---When a fact is proved or an issue is proved through evidence, the burden to disproof same is in fact the change of the onus---Rule that onus cannot be shifted is not hard and fast---Shifting of onus cannot be considered to be a matter of material illegality or irregularity which should attract the exercise of revisional jurisdiction of High Court.

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

----S.42---Declaration of title---Inheritance---Principles---After death of a person legal heirs of the deceased become spontaneously owner of property left by the deceased when it is proved that the property was owned by the deceased at the time of his death---Mechanical devolution without any intervention or declaration from any Court, authority or forum, in fact gives birth to the right of ownership from the deceased but it has necessarily to be shown that the property was abandoned or left by the deceased upon his death---Successors who become owner, their ownership thereafter cannot be taken or snatched away except by method manners, prescribed and provided by law.

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

----Ss.39 & 42---Qanun-e-Shahdat (10 of 1984), Arts.100 & 129(g)--Gift mutation, cancellation of---Limitation---Plaintiffs filed civil suit in year, 1991, seeking cancellation of gift mutation attested in year, 1918, in favour of defendants, on the basis of it being illegal and void---Trial Court decreed the suit in favour of plaintiffs but Appellate Court dismissed the same being barred by limitation---Plea raised by the plaintiffs was that since they had raised question of inheritance in their suit so bar of limitation was not attracted---Validity---When a hurdle, obstacle or impediment lay between claim of inheritance and ownership, then such case could not be termed as a case of inheritance---Plaintiffs had to approach the Court to get a document cancelled, record to be asseverated null and void, or the transaction affirmed or annulled, within the prescribed period of its limitation---Transaction recorded in mutation, carried into Jamabandi for more than thirty years, never objected to by the person entitled to challenge same but acted upon without any impunity or interruption and corroborated by the factum of possession has to be given its due weight---Possession of defendants had continued prior to the filing of the suit, which had been retained even up to the filing of the suit, while the entry showing possession of plaintiffs upon certain portion of land could not disprove the possession of defendants which had the backing of ownership-- -Plaintiffs failed to prove illegal,, fictitious, collusive and against real facts the gift mutation in favour of the predecessor-in-interest of defendants---Judgment and decree passed by the Appellate Court had no jurisdictional defect/flaws attracting exercise of jurisdiction of High Court under S.115 C.P.C. and the suit was rightly dismissed---Revision was dismissed in circumstances.

Gul Nawab and others v. Naimat Ullah and others 2004 CLC 973 and Miskeen and others v. Mst. Khudeja alias Mirza Noor and others 2001 MLD 1790 rel.

Mst. Hamida Bibi v. Wali Muhammad 1999 MLD Lah. 1687; Allah Ditta v. Mahboob Ali and others 1994 MLD Lah. 734; Muhammad Akram, Muhammad Aslam v. Altaf Ahmad PLD 2003 SC 688; Sherbaz Khan and others v. Mst. Malkani Sahibzadi Tiwana PLD 2003 SC 849; Muhammad Hakim v. Sher Alam 1973 SCMR 284; Shahana and 2 others v. Khushi Muhammad and 2 others 1987 SCMR 1295; Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143; Muhammad Jamil v. The Chairman Industrial Court, West Pakistan and The Orient Match Factory Limited, Shahdara PLD 1964 SC 559; Abdul Rahim and others v. Mrs. Jannatay Bibi 2000 SCMR 346; Juma Khan and others v. Mst. Bibi Zenab and others PLD 2002 SC 823; Wali and others v. Akbar and others 1995 SCMR 284; Shamas-ud-Din v. Mst. Jewan and others 1986 MLD 764 and Nazir Ahmad and others v. Abdullah and others 1997 SCMR 281 ref.

Ch. Naseer Ahmed for Petitioners.

Qari Nazir Ahmed and Mian Muhammad Arif for Respondents.

Date of hearing: 22nd March, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 166 #

2005 M L D 166

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD HAFEEZ and 2 others---Petitioners

Versus

ASSISTANT COMMISISONER, ICT SADDAR ISLAMABAD and another---Respondents

Writ Petition No. 1090 of 2004, heard on 21st July, 2004.

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

----S.172---Constitution of Pakistan (1973), Arts. 199 & 23---Constitutional petition---Fundamental rights---Ownership of property--Circular was issued by the Collector under section 172 of the West Pakistan Land Revenue Act, 1967 whereunder ban was imposed on the transfer/transaction of sale by the owners---Validity---Petitioners had right of proprietorship in the land---Restraint imposed on alienation of land was opposed to the Constitutional provisions---Fundamental rights could not be abridged in absence of law---Circular issued was declared to be without lawful authority in circumstances.

Maharram Ali Abbasi for Petitioners.

Syed Sajjad Hussain Shah, A.A.-G. along with Saeed Ramzan, Assistant Commissioner, Islamabad and Rana Imtiaz Ahmad -Janjua, Tehsildar for Respondents.

Date of hearing: 21st July, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 168 #

2005 M L D 168

[Lahore]

Before Tanvir Bashir Ansari, J

MIR FAZAL---Petitioner

Versus

LAND ACQUISITION COLLECTOR/ASSISTANT COMMISSIONER (SADDAR) ISLAMABAD CAPITAL TERRITORY (ICT) ISLAMABAD and 3 others---Respondents

Writ Petitions Nos.1855, 2348 and 1759 of 2003, heard on 5th July, 2004.

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

----Preamble, Ss. 11 & 18---Land acquisition---Scheme of law under Land Acquisition Act, 1894 is complete and exhaustive, which apart from mode of acquisition of land, provides a scheme containing machinery for taking measurement of land, assessment of value, payment of compensation to interested persons, and in case of any dispute provides a remedy through a reference by Collector to Civil Court.

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

-----Ss.3(b), 9 & 11---Land acquisition---Issuance of notice to interested persons by Collector---According to S.3(b) of Land Acquisition Act, 1894, expression interested persons would include all persons claiming and interested in compensation to be made on account of land acquisition---Such notice is mandatory stating nature of claims of interested persons in land and particulars of their claims to compensation---Failure of any claimant to make such claim would not deprive him of putting forth his claim even after announcement of award, unless such failure is result of negligence or want of good faith---Duty of Court would be to apply its mind to question, whether such failure was with or without sufficient cause.

----S.4---Notification of land acquisition---Nature and purpose---Such notification is merely an introductory measure, tentative in nature and foundation of subsequent proceedings for acquisition---Purpose of such notification is to carry on preliminary investigation to find out, whether land suited to public purpose.

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

----Ss. 3(b), 9 & 11---Proceedings as envisaged under S.11 of Land Acquisition Act, 1894---Nature of---Such proceedings are administrative---Collector while making an award acts as an officer of Government making inquiries in order to determine amount to be offered to interested persons---Collector neither acts as Tribunal nor judicial officer---Inquiries and award by Collector cannot be conclusive of rights of claimants, who had failed to prefer their claims under S.9 of the Act.

(e) Land Acquisition Act (I of 1894)---

----Ss.3(b), 11 & 30---Apportionment of compensation, dispute as to--Remedy of interested persons---Dispute as to mode of apportionment of compensation or as to persons to whom same is payable is necessarily of title---Collector would refer such dispute for decision of Court---Interested person, even after reference by Collector, may apply to Court to be joined as party to such reference---When claim is made by new person after award, then Collector may make a reference under S. 30 of Land Acquisition Act, 1894.

Pir Muhammad Salim Gilani v. S. Muhammad Ashraf Shah Gilani PLD 1963 AJ&K 66 and The State of Bihar v. Dr. G.H. Grant and another AIR 1959 Patna 343 ref.

(f) Land Acquisition Act (I of 1894)---

----S.30---Word "dispute" as used in S.30 of Land Acquisition Act, 1894---Scope---Such word would be construed in a wide and not literal sense, and would imply any controversy as to title.

(g) Land Acquisition Act (I of 1894)---

----Ss.3(b), 11 & 30---Constitution of Pakistan (1973), Art.199--Constitutional petition---Claim as to acquire land and its compensation--Collector on directions of High Court proceeded to decide such claim of petitioner---Respondent also made such claim and prayed to be impleaded as party, but Collector refused to join him in proceedings--Collector later on rejected claim of petitioner and decided to award compensation to original claimant---Validity---Collector should have allowed respondent to be joined as party to proceedings and considered his claim to compensation in respect of disputed land along with claim of petitioner and original claimant---Collector had erred in not hearing respondent and taking upon himself the responsibility of deciding question of title amongst two contesting claimants, who were allowed to appear before him---Neither of such courses were permissible---High Court accepted Constitutional petition, set aside impugned order and remitted matter to Collector to firstly join respondent to proceedings and then make a reference under S.30 of Land Acquisition Act, 1894 to Court, where all parties could agitate the basis of their title.

Syed Ashraf Shah and others v. Muzaffar Khan and others 1994 CLC 2408; Mst. Khalida Bibi v. Mst. Daryai Khunam and others 1994 MLD 2339 and Shahbaz and another v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and 5 others PLD 1992 Pesh. 69 ref.

Ms. Shaishta Altaf for Petitioner.

Muhammad Younis Bhatti, Syed Asghar Hussain Sabazwari and Raja Inam Ameen Minhas for Respondents.

Date of haring: 5th July, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 184 #

2005 M L D 184

[Lahore]

Before Syed Zahid Hussain, J

Qazi ZAHID HUSSAIN and others---Petitioners

Versus

SECRETARY (S&R) and others---Respondents

W.P. No.98-R of 1998, heard on 18th October, 2004.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Evacuee laws---Object and scope--Divisibility of evacuee property---Administration of justice---Disputed property was allotted to 44 persons as Katri---Petitioners being allottees of bungalow adjacent to Katri claimed their right over Katri also---High Court in its earlier judgment declared that the parties were living peacefully ever-since partition without encroaching upon each other's privacy anti the property had to be divisible and the matter was remanded to Settlement authorities---Supreme Court maintained the judgment of High Court---Settlement authorities in post-remand proceedings did not disturb the right of respondents having possession of Katri---Contention of the petitioners was that the property should be considered as one property transferable to the petitioners' only---Validity---Respondents were -ordered to be transferred the respective portions in their possession---Findings so recorded and view formed by Settlement Authorities was amply justified not only from the material on record but also the ground realities---Record of Municipal Corporation for the year 1946 showed that the disputed area of land was Katri with shops---In the list of occupants of the property, names of 41 persons had been shown--Contention of the petitioners did not hold the ground and was untenable in view of the factual position obtaining on the spot---Parties had remained entangled in long drawn litigation since after the creation of the country and had consumed lot of their valuable time in Courts---Courts had to endeavour to accommodate and settle as many displaced persons as possible in the evacuee premises occupied by them since long and not to unsettle them---High Court did not consider it just or fair to oust anyone after half a century of creation of country---High Court observed that it would be frustrating rather thwarting the very object of evacuee laws---High Court declined to interfere with the order passed by Settlement authorities---Petition was dismissed in circumstances.

Mst. Fazlun Nisa Begum v. Chief Settlement Commissioner and others PLD 1967 Kar. 402; Muhammad Rafiq v. The Chief Settlement and Rehabilitation Commissioner and others PLD 1968 Lah. 1037; Muhammad Anwar Jan Durrani and others v. Syed Hasan Imam Kazmi and others 1968 Lah. 1406; Abdul Hamid Khan v Settlement and Rehabilitation Commissioner and others PLD 1966 SC 719; Abdul Majid Khan v. The Chief Settlement and Rehabilitation. Commissioner, Pakistan, Lahore 1968 SC 154; Muhammad Yaqub v. Settlement and Rehabilitation Commissioner, Lahore and 5 others 1973 SC 439; Muhammad Hussain v Settlement and Rehabilitation Commissioner and another 1987 SCMR 1649; Allah Bakhsh v. Chief Settlement Commissioner, Lahore and 3 others 1976 SCMR 275; Barkat Ali v. Settlement and Rehabilitation Commissioner, Multan and 8 others PLD 1991 SC 610; Mst. Shah Jahan Begum v. Mst. Shabbir Fatima and another 1991 SC 614; Sh. Fazal Hussain v. Abdul Waheed and others 1992 SCMR 931 and Abdul Ghafoor and 30 others v. The Rehabilitation Commissioner West Pakistan Lahore PLD 1958 Lah. 48 ref.

A.R. Shaukat for Petitioners.

Syed Aal-e-Ahmad and Fazal Miran Chohan, Addl. A.-G. for Respondents No. 1.

Muhammad Zafar Ch., Shaukat Rafiq Bajwa and Sh. Muhammad Hanif for the Remaining Respondents.

Date of hearing: 18th October, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 190 #

2005 M L D 190

[Lahore]

Before Farrukh Latif, J

AHMAD ZAMAN KHAN‑‑‑Appellant

Versus

Ch. NAZEER AHMAD and 34 others‑‑‑Respondents

R.S.A. No.44 of 1996, decided on 11th March, 2003.

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

‑‑‑‑S. 12-‑‑Suit for specific performance of agreement‑‑‑Concurrent findings‑‑‑Oral agreement‑‑‑Plaintiff had alleged oral agreement with general attorney of the owner in suit for specific performance of agreement to sell‑‑‑Suit and appeal of the plaintiff were dismissed‑‑Validity‑‑‑Witness of oral agreement was not produced‑‑‑No proof of appointment of special or general attorney was produced‑‑‑No misreading of evidence was pointed out‑‑‑No material piece of evidence was overlooked‑‑‑Conclusions drawn were based on sound reasoning‑‑‑No jurisdictional error was pointed out‑‑‑Second appeal was dismissed in circumstances.

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

‑‑‑‑S.12‑‑‑Civil Procedure Code (V of 1908), S. 100‑‑‑Suit for specific performance of agreement‑‑‑Onus to prove‑‑‑Failure of defendant to rebut‑‑‑Alleged attorney had specifically denied the agreement to sell and receipt of earnest money in his written statement‑‑‑Onus of proof had shifted to the plaintiff‑‑‑Plaintiff had failed to prove his case‑‑‑Absence of defendant to appear in witness‑box made no difference as there was no case against him.

Muhammad Akhtar Khan for Appellant.

Sardar Mushtaq Ahmad for Respondents Nos.2, 12, 18‑A, 20‑F, 21, 23 and 25‑A.

Date of hearing: 6th March, 2003.

MLD 2005 LAHORE HIGH COURT LAHORE 194 #

2005 M L D 194

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. ALLAH MAFI‑‑‑Petitioner

Versus

MUNIR AHMAD‑‑‑Respondent

T.A.No.324‑C of 2004, decided on 7th September, 2004.

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

‑‑‑‑S.25‑A‑‑‑Petition for transfer of case‑‑‑Petitioner (wife) had filed three suits in the Court of Judge Family Court at place 'D'‑‑‑Husband had filed suit for restitution of conjugal rights in the Court of Judge Family Court at place 'T'‑‑‑In family matters convenience of female litigant had to be kept in view‑‑‑Suits arising under West Pakistan Family Courts Act, 1964 between the same parties should be tried by one and the same Court at the place where wife had instituted the suit to avoid any conflict of judgments‑‑‑Application was allowed and suit was withdrawn from the Family Court at place T' and entrusted to the Family Court at placeD' in circumstances.

Naseem Sajid v. Ghulam Yasin NLR 1995 CLJ 95; Mst. Bakhat Shada and another v. Mansab Dar PLD 1995 Lah. 198; Mst. Naseem Bibi v. Muhammad Baqir NLR 1995 CLJ 687; Mst. Sittara Shakoor v. Mufti Abdul Shakkor ,1988 CLC 1647; Mst. Rifat Parveen v. Ishtiaq Ahmad KLR 1990 C.C. Lahore 5; Mst. Parveen Kausar v. Muhammad Ishaq KLR 1990 C.C. 305; Khalida Parveen and others v. Mukhtar Ahmad NLR 1993 Civil 45; Mst. Tasleem Mai . v. Muhammad Rafiq KLR ‑1986 C.C. 296; Muhammad Ramzan v. Mst. Nasim Akhtar 1992 MLD 109; Farhat Shamsa v. Mushtaq Ahmad PLD 1979 Lah. 50 and Shamim Akhtar v. Muhammad Saleem NLR 1978 Civil 883 mentioned.

Ch. Imran Ashfaq for Petitioner.

Muhammad Hanif Khatana, Addl. A.‑G. on Court's call.

MLD 2005 LAHORE HIGH COURT LAHORE 197 #

2005 M L D 197

[Lahore]

Before Bashir A. Mujahid and Ch. Iftikhar Hussain, JJ

ZAFAR IQBAL‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Murder Reference No.188 of 2000 and Crl. A. No.402 of 1999, heard on 18th May, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑.Appreciation of evidence‑‑‑Ocular account rendered by complainant and other prosecution witness was consistent on all material particulars of prosecution case‑‑‑Said prosecution witnesses who were natural witnesses were consistent on all details with regard to time, and venue of occurrence, name of accused, weapon carried by him, manner in which incident had happened and there was absolutely no contradiction in them on said aspects of prosecution case‑‑‑Certain discrepancies of minor nature brought out in cross‑examination of said witnesses, were insignificant and not material to diminish value or level of credibility of their deposition and would carry no adverse effect qua reliability of their testimony‑‑‑Presence of said eye‑witnesses at the spot at relevant time was quite probable and believable as complainant and other eyewitnesses, who were related inter se, lived close to the place of occurrence‑‑‑Trial Court, in circumstances had rightly placed reliance upon their testimony‑‑‑Prosecution had sought support/corroboration to their testimony from medical evidence which was fully in line with ocular testimony‑‑‑Prosecution had succeeded in proving motive set up by it against accused and there could be do doubt that such a motive could prompt a person in one's killing‑‑‑Accused had fled away after incident and remained absconder for about more than two years and was declared proclaimed offender‑‑‑Said abscondance of accused was strong indicator of his guilty mind in the matter‑‑‑In view of ocular testimony corroborated by medical evidence,, motive and circumstances of abscondance, charge of Qatl‑e‑Amd. of deceased against accused had stood proved to the hilt and accused was rightly convicted under S.302(b), P.P.C. for Qatl‑e‑Amd of ‑deceased‑‑‑As accused, who intended to commit Qatl‑e‑Amd of deceased had repeatedly fired at deceased, there existed no mitigating circumstance for awarding him lesser penalty‑‑‑Award of death sentence to accused being appropriate in the facts and circumstances of case, conviction and sentence awarded to accused by Trial Court, were maintained and Murder Reference was answered in affirmative and death sentence awarded to him was confirmed.

Muhammad Nawaz and Muhammad Asif v. The State 2001 SCMR 1605 ref.

Sheikh Jamshed Hayat for Appellant.

Zafar Mehmood Anjum for the State.

Ch. Pervaiz Aftab and Altaf Ibrahim Qureshi for the Complainant.

Date of hearing: 18th May, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 207 #

2005 M L D 207

[Lahore]

Before Sardar Muhammad Aslam, J

RIAZ‑‑‑Petitioner

Versus

SARFRAZ and 4 others‑‑‑Respondents

C.R. No.839‑D, of 2000, heard on 10th November, 2004.

Punjab Pre‑emption Act (IX of 1991)

‑‑‑‑Ss.9 & 32‑‑Punjab Pre‑emption Act (I of 1913), S.28‑‑‑Civil Procedure Code (V of 1908), Ss.12(2), O.I, R. 10 & O. VI, R. 17‑‑‑Equal right of pre‑emption ‑‑‑Right of rival pre‑emptor‑‑‑Amendment of plaint‑Impleading of party‑‑‑Plaintiff had filed application for permission to implead rival pre‑emptor who had obtained consent decree in his favour‑Trial Court rejected the plaint‑‑‑Appellate Court accepted the appeal and remitted the matter to the Trial Court for decision after allowing the necessary amendment‑‑‑Validity‑‑‑Punjab Pre‑emption Act, 1913 (since repealed had catered for such a situation and effect of section 28 of Punjab Pre‑emptor Act, 1913 was that when rival pre‑emptor was not joined in the pre‑emption suit decree obtained was not binding on such plaintiff‑‑‑Punjab Pre‑emption Act, 1991 did not contain a provision like section 28 of Punjab Pre‑emption Act, 1913 and section 9 of the Punjab Pre‑emption Act, 1991 provided distribution of property where more than one person were equally entitled‑‑‑Section 32 of Punjab Pre‑emption Act, 1991 provided that ancillary matters were to be decided according to "Shariah"‑‑‑Section 9 read with section 32 of the Punjab Pre‑emption Act, 1991 does keep the door open for a pre‑emptor not joined in the suit ill which decree was passed, to claim that the decree, so passed was not binding oil him‑‑‑pre‑emption was right of substitution and decree‑holder could be impleaded its party and the shit will be decided between rival pre‑emptors on the basis of their qualification inter se on the analogy of section 28 of the Punjab Pre‑emption Act, 1913‑‑‑Judgment passed by the Appellate Court was upheld.

Noor‑ud‑Din v. Siraj‑ud‑Din 1991 SCMR 762; Ghulam Tayyab v. Shahro Khan and others PLD 1962 (W.P.) B.J 1; Muhammad Akram Khan v. Mst. Kaniz Fatima Bibi and others PLD 1952 Lah. 489 and Mehmood Khan v. Khan Muhammad and 5 others PLD 1973 Lah. 806 ref.

20 Punjab Record 1881 rel.

Syed Muhammad Kaleem Ahmad Khurshid for Petitioner.

Syed Zeshan Aslam for Respondent.

Date of hearing: 10th November, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 215 #

2005 M L D 215

[Lahore]

Before Muhammad Akhtar Shabbir, J

ANJUMAN JAMIA ISLAMIA, JAMIA MASJID, GARDEN BLOCK, NEW GARDEN TOWN, LAHORE though Nazim‑e‑Ala‑‑‑Petitioner

Versus

LAHORE DEVELOPMENT AUTHORTY through Director‑General, Lahore and 3 others‑ ‑‑Respondents

W.P. No. 12793 of 2003, heard on 1st November, 2004.

Lahore Development Authority Building Regulations, 1984‑‑‑‑--

‑‑‑‑Reglns. 10 & 12‑‑‑Lahore Improvement Trust Resolution No.18, dated 15‑12‑1973‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Coiistitutional petition‑‑‑Building plan‑‑‑Estate Management ‑‑‑Mosque‑‑Registered "Anjuman" had submitted a site‑plan of the Mosque for rebuilding the same‑‑‑Sanction was refused on the ground that the plot underneath the Mosque was owned by Lahore Development Authority and Director Estate Management had required and asked the Anjuman to purchase the place/plot‑‑‑Validity‑‑‑Lahore Improvement Trust (Lahore Development Authority) had reserved the land for Mosque‑‑‑Only objection raised was that area under the mosque belonged to Lahore Development Authority and petitioner had not paid the price ‑‑‑Validity‑‑All the lands belonged to "God"‑‑‑Authority could not claim price of that land which was under the house of "Allah"‑‑Demand of the Authority for price of land was contrary to injunctions of Islam‑‑‑Regulation 12 of the Lahore Development Authority Building Regulations 1984 had required the Authority to exempt the premises used for religious, charitable or educational purposes from payment of scrutiny fee‑‑‑Act of the Authority was declared illegal and without lawful authority, void and contrary, to the injunctions of Qur'an and Sunnah‑‑‑Petitioner was directed to submit a fresh site‑plan and Authority was directed to approve the same.

Ali Akbar Qureshi for Petitioner.

Mian Muzaffar Hussain Legal Advisor for LDA.

Fowad Malik A.A.‑G. on Court's call.

Date of hearing: 1st November, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 219 #

2005 M L D 219

[Lahore]

Before Muhammad Akram Baitu, J

MUHAMMAD SADIQ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Crl. Appeal No.73 of 2003, heard on 24th September, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.409/420/467/468/471‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Appreciation of evidence‑‑‑Out of twelve prosecution witnesses, three had been declared hostile by prosecution during trial, whereas testimony of remaining prosecution witnesses, was not in any way sufficient to prove case against accused‑‑‑No loss had occurred to District Council concerned and loss if any was caused to contractor whose name was not included in the calendar of witnesses‑‑‑By non producing said contractor as prosecution witness, adverse inference could be drawn against prosecution case‑‑‑Prosecution having failed to bring home charge against accused beyond any shadow of doubt, impugned conviction and sentence awarded to accused by Trial Court were set aside and he was acquitted of charge by giving him benefit of doubt.

2001 SCMR 56 ref.

Muhammad Arif Alvi for Appellant.

Tanvir Haider Buzdar for the State.

Date of hearing: 24th September, 2003.

MLD 2005 LAHORE HIGH COURT LAHORE 224 #

2005 M L D 224

[Lahore]

Before Khawaja Muhammad Sharif, J

ALTAF HUSSAIN ‑‑‑Petitioner

Versus

MANSOOR QADIR and others‑‑‑Respondents

Crl. Misc. No.7194‑CB of 2004, decided on 4th November, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.497(5) & 498‑‑Penal Code (XLV of 1860). S.420‑‑‑Bail before arrest, cancellation of‑‑Accused persons had signed a forged agreement to sell which was prepared by absconding accused‑‑‑Petition writer had deposed that he had copied the contents of a writing on the Stamp Paper provided by the accused and had not written the agreement in the presence of the parties‑‑‑Though the accused persons were not the direct beneficiaries of the said agreement but the question was as to why they had signed an agreement which never existed between the parties‑‑Actual beneficiary was not arrested‑‑‑Original sale agreement in question was not produced‑‑‑Case, in circumstances was not one for bail before arrest‑‑‑Order of bail before arrest being not sustainable in law, was set aside and bail was cancelled in circumstances.

The State v. Muhammad Jawwad Ghani 2004 PCr.LJ 1610 quoted.

Ch.Muhammad Afzal Wahla and Taqi Ahmad Khan for Petitioner.

Mazhar Iqbal Sidhu for Respondents.

Syed Akmal Hussain Naqvi for the State with Niamat Ali S.I with record.

MLD 2005 LAHORE HIGH COURT LAHORE 226 #

2005 M L D 226

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD ALI KHAN and others‑‑‑Petitioners

Versus

ABDUL HAFEEZ and others‑---Respondents

Civil Revision No.2001 of 2003, decided on 28th October, 2004.

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

‑‑‑‑S.13(1)‑‑‑Making of Talbs‑‑‑Jumping demand ‑‑‑Talb‑e‑Muwathibat‑‑Talb‑e‑Muwathibat is the first demand which is usually described as the jumping demand ‑‑‑Pre‑emptor had not declared his intention to pre‑empt the suit‑land, in the first meeting where he came to know about the sale ‑‑‑Pre‑emptor had not appeared in Court to substantiate his case for performance of Talbs, his non‑appearance would tantamount to non proving of the requirements of Talbs.

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

‑‑‑‑S.13(1)‑‑‑Civil Procedure Code (V of 1908), O.VII & R.1‑‑‑Qanun-e-Shahadat (10 of 1984), Art.71‑‑‑Talb‑e‑Muwathibat‑‑‑Declaration of intention to pre‑empt ‑‑‑Plaint‑‑‑Oral evidence‑‑‑Contents of plaint‑‑Contents of the' plaint must be proved by the plaintiff by his own statement in Court when there was no proof of any excuse or disability for non‑appearance‑‑‑Non‑appearance would .tantamount non‑proving of the requirements of Talbs.

‑‑‑‑S.13(1)‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Pre‑emption suit‑‑‑Revision‑‑‑Concurrent findings of fact‑‑‑Concurrent findings of fact were given by Courts below against the plaintiff‑‑‑Plaintiff had failed to establish Talb‑e‑Muwathibat, the immediate demand in the first meeting when he received the information of sale in dispute‑‑‑No. gross illegality or jurisdictional defect was pointed out‑‑‑Revision petition was dismissed in limine.

Mian Muhammad Abbas for Petitioners.

Ghulam Sadiq Lashari for Respondents

MLD 2005 LAHORE HIGH COURT LAHORE 232 #

2005 M L D 232

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. MUKHTARAN BIBI‑‑‑Petitioner

Versus

D.P.O. and others‑‑‑Respondents

W.P. No. 10409 of 2004, decided on 25th June, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.87, 88 & 512‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11‑‑‑Constitution of Pakistan (1973'), Art. 199‑‑‑Constitutional petition‑‑‑Failure to discharge statutory obligation of effecting arrest of accused by police‑‑‑Alleged abductee was recovered, she was medically examined and her statement was recorded under 5.161, Cr.P.C. by Investigating Officer wherein she supported prosecution version‑‑‑Accused who had absconded were proceeded against and Trial Court after fulfilling requirement of Ss.87 & 88, Cr.P.C. proceeded under S.512, Cr.P.C. directing issuance of perpetual non‑bailable warrants‑‑‑Police officials, despite repeated orders of Trial Court, failed to discharge their statutory obligations of effecting arrest of accused‑‑‑Assertions of petitioner/complainant revolved around factual dispute which could only be put to rest after inquiry and recording of evidence and that course was not permissible in Constitutional jurisdiction of High Court‑‑‑Despite said Constitutional handicap, police officials were bound under law to execute non‑bailable warrants issued by Trial Court and they could not ignore those warrants under any provision of law by colourful exercise of their powers‑‑‑Police official was directed to look into the matter and to have the compliance of said order without fail.

Nawaz v. The Additional Settlement and Rehabilitation Commissioner, Gujrat and another PLD 1970 SC 39 and Muhammad Younas Khan and 12 others v. Government of N.‑W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618 ref.

Shah Ahmad Khan Baloch for Petitioner.

Date of hearing: 25th June, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 233 #

2005 M L D 233

[Lahore]

Before Abdul Shakoor Paracha, J

Messrs USMANI ASSOCIATES‑‑‑Petitioner

Versus

PAKISTAN‑HOUSING AUTHORITY through Managing Director and 2 others‑‑‑Respondents

Writ Petition No.1290 of 2004, decided on 27th October, 2004.

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

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Adequate remedy‑‑‑Enforcement of contract‑‑‑Terms and conditions of contract‑‑‑Petitioner prayed that direction be issued to the respondent authority to pay a specific determined amount to the petitioner‑‑‑Authority had asserted that Constitutional petition was not maintainable as the parties were bound by the terms of the contract which were not enforceable through the Constitutional petition‑‑‑Validity‑‑‑Cumulative effect of reading the clauses of contract documents and letters of parties was that petitioner was entitled to a calculated amount‑‑‑Authority had already made part payment through a cheque‑‑‑Held, that the petitioner was entitled to the balance amount after deduction of amount already paid‑‑‑Other objections were repelled because no factual controversy was involved in the matter.

Messrs Ittehad Cargo Service and others v. Messrs Syed Tasneem Hussain Naqvi and others PLD 2001 SC 116; Messrs Wak Orient Power and Light Limited through Chief Executive, Lahore v. Government of Pakistan, Ministry of Water and Power through Secretary Islamabad and 2 others 1998 CLC 1178 and Muhammad Tufail Tarar v. Government of Punjab and others 1999 CLC 1937 ref.

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

‑‑‑‑Art.199‑‑‑Civil Procedure Code (V of 1908), O.XII & R.6‑‑Constitutional petition ‑‑‑Admission‑‑Reply‑‑Contents of the petition about non‑payment of verified amount was not denied rather non availability of funds was pleaded‑‑‑On such admission in the pleadings or otherwise any party could apply for judgment or order to be made by the Court.

Macdonald Layton and Company Pakistan Ltd. v. Usin Export Import Foreign Trade Co. and others 1996 SCMR 696 and Lal Muhammad v. Additional District Judge, Gujranwala and others 1983 CLC 770 rel.

Mian Gul Hassan Aurangzeb for Petitioner.

Muhammad Ishtiaq Ahmad Raja for Respondents.

MLD 2005 LAHORE HIGH COURT LAHORE 241 #

2005 M L D 241

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

DIRECTOR INTELLIGENCE AND INVESTIGATION (CUSTOMS AND EXCISE)‑‑‑Appellant

Versus

AHMAD FAZIL and 5 others‑‑‑Respondents

Crl. A. No‑969 of 1999, heard on 14th April, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.417(2‑A)‑‑‑Customs Act (IV of 1969), Ss.156(1)14/77/81/82/86, 178 & 185‑F‑‑‑Central Law Officers Ordinance (VII of 1970), S.4‑A [as inserted by Central Law Officers (Amendment) Ordinance (XXXIII of 1985)]‑‑‑Appeal against acquittal‑‑‑Maintainability‑‑‑Maintainability of appeal was objected to by respondents on ground that same was not filed by a competent person/Authority‑‑‑Validity of objection‑‑‑Instant appeal was filed by Standing Counsel for Customs Authorities under instructions of Director Intelligence (appellant)‑‑‑Power of Attorney filed by said counsel was admittedly signed by Superintendent Customs‑‑Counsel who filed appeal, was not law officer as defined under S.4‑A of Central Law Officers Ordinance, 1985 nor he had been authorized by a competent Authority to file the appeal‑‑‑Appeal was dismissed as not maintainable.

The State v. Bashir Ahmed Chaudhry and others" (PLD 2000 Karachi 198 ref.

K. M. Virk assisted by Sarfraz Ahmed Cheema for Appellant.

Mian Abdul Ghaffar and Ali Baqir Naizi for Respondents.

Date of hearing: 14th April, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 242 #

2005 M L D 242

[Lahore]

Before Ch. Ijaz Ahmad, J

ABDUL HAMEED ‑‑‑ Petitioner

Versus

MAHMOOD AHMAD and 3 others‑‑‑Respondents

Writ Petition No.2852 of 2004, decided on 16th September, 2004.

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

‑‑‑‑Ss.4(28) & 36‑‑‑West Pakistan Land Revenue Rules 1968, Rr.15,16 & 17‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Concurrent findings of facts‑‑‑Appointment of Lambardar‑‑District Collector after providing proper hearing to all the candidates, appointed respondent as Lambardar‑‑‑Appeal against such order failed‑‑Revision petition filed before Member Board of Revenue was dismissed‑‑‑Validity‑‑‑Constitutional petition was not maintainable against the concurrent findings of the facts arrived at by the forum of competent jurisdiction‑‑‑Constitutional petition was dismissed in circumstances.

Khuda Bakhsh v. Muhammad Sharif and others 1974 SCMR 279; Muhammad Sharif and others v. Muhammad Afzal Sohail and others 1951 SC 246 and Abdur Rehman Bajwa v. Sultan and others PLD 1981 SC 522 cited.

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

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Findings of facts‑‑Substitution of findings by High Court‑‑‑Validity‑‑‑High Court had no jurisdiction to substitute its own finding in place of findings of forum below while deciding Constitutional petition.

Board of Intermediate and Secondary Education, Lahore through Chairman and another v. M. Massadaq Naseem Sindhoo PLD 1973 Lah. 600 and Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore and others PLD 1964 SC 260 cited.

---Art.199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Authorities in deciding the controversy had not acted in violation of rules and regulations‑‑Constitutional petition was not maintainable in circumstances.

Chairman Board of Intermediate and Secondary Education, Lahore and another v. Ali Mir 1984 SCMR 433 cited.

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

‑‑‑‑S.4(28) & 36‑‑‑West Pakistan Land Revenue Rules, 1968, Rr.15, 16 & 17‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Lambardar, appointment of‑‑‑Reasons and application of mind in passing the order‑‑‑Member Board of Revenue had' considered the qualifications, merits and demerits of both the candidates in his order which revealed that Member Board of Revenue had passed the order after application of mind‑‑‑Revenue Authorities have the sole prerogative to appoint a Lambardar‑‑‑No one has a right to claim appointment on the basis of any preference‑‑‑Main criteria is the fitness of the person qua his ability to perform responsibilities and duties of said office.

Abdul Wahid's case 1971 SCMR 71 rel.

Muhammad Aslam Khan Buttar for Petitioner.

Muhammad Hanif Khatana, Addl.A.‑G. assisted by Syed Faisal Raza entered appearance on Court's call.

MLD 2005 LAHORE HIGH COURT LAHORE 256 #

2005 M L D 256

[Lahore]

Before Syed Sakhi Hussain Bukhari, J

MEHTAB MIRZA‑‑‑Petitioner

Versus

Mst. SHAZIA MANSOOR and 2 others‑‑‑Respondents

Writ Petitions Nos.8221 and 8222 of 2004, decided on 13th July, 2004.

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

‑‑‑‑S.25‑‑‑West Pakistan Family Courts Ordinance (XXXV of 1964), S.5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petitions‑‑‑Minor (daughter)‑‑‑Appointment of guardian‑‑‑Welfare of the minor‑‑‑Appellate Court had decided the appeals after appraisal of entire material available on record‑‑‑Judgment was well‑reasoned‑‑‑In determining the question of custody of minor, paramount consideration is the welfare of the minor‑‑‑Minor was admitted in a standard school and was enjoying every facility of life in house of mother, it was therefore, in the welfare of the minor to remain with her mother‑‑‑No illegality or infirmity in the judgments having been pointed out‑‑‑Constitutional petitions were dismissed.

Sardar Hussain and others v. Parveen Umer and others PLD 2004 SC 351 rel.

Mian Muhammad Mudassar Bodla for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 261 #

2005 M L D 261

[Lahore]

Before Mian Hamid Farooq, J

Mst. ALLAH JAWAI and others‑‑‑Petitioners

Versus

MAQBOOL SHAH and others‑‑‑Respondents

Civil Revision No. 1376‑D of 1997, heard on 26th July, 2004.

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

‑‑‑‑S.12‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 17 & 79‑‑‑Specific performance of agreement to sell‑‑‑Document‑‑‑Document required by law to be attested‑‑‑Proof of document‑‑‑Scribe‑‑‑Stamp vendor‑‑Attesting witness‑‑‑Defendants had alleged that the document was forged and their predecessor had not received the consideration and had not signed the document and plaintiff was in illegal possession of the suit land‑‑‑One marginal witness and scribe were produced to prove the document but other marginal witness was not produced‑‑‑Appellate Court had dismissed the suit on the ground that one attesting witness was not produced and only one attesting witness was not sufficient to prove the document‑‑‑Validity‑‑‑Plaintiffs were obliged, per force of Article 79 of the Qanun‑e‑Shahadat Order, 1984 to prove the execution of the agreement to sell by producing two marginal witnesses‑‑‑Held, Scribe could be a competent witness and could replace the requirement of producing marginal witness if the parties had executed and signed the document in his presence.

Nazir Ahmad v. Muhammad Rafiq 1993 CLC 257 and Zafar Ullah Khan v. Mst. Hakim Bibi and another 2000 YLR 2789 quoted.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 17 & 79‑‑‑Document‑‑‑Attesting witness‑‑‑Marginal witness‑‑Scribe‑=‑Scribe was produced to prove the document‑‑‑Scribe had stated that parties were known to him, he scribed the document which was read over to the parties; consideration was paid in his presence and signatures and thumb‑impressions were put in his presences ‑‑‑In presence of such an evidence non‑production of second marginal witness would not adversely affect the case of the plaintiffs and plaintiffs could not be non suited on said plea‑‑‑Statement of scribe was treated as statement of marginal witness.

‑‑‑‑S.12‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 17 & 79‑‑‑Constitution of Pakistan (1973), Art.201‑‑Suit for specific performance of agreement to sell‑‑‑Marginal witness‑‑Statement of the scribe could be treated as a statement of marginal witness‑‑‑Findings to the contrary were against law‑‑‑Appellate Court had not taken into consideration such aspect of the case and thus had committed illegality and material irregularity‑‑‑Law declared by superior Court ‑was binding on the lower Courts as per Article 201 of the Constitution which had completely been ignored in the present case‑‑Judgment and decree passed by Appellate Court were set aside in exercise of revisional jurisdiction and those passed by the Trial Court were restored in circumstances.

Asad Ullah Javed for Petitioner.

Respondents proceeded ex parte vide order dated 18‑5‑2004.

Date of hearing: 26th July, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 267 #

2005 M L D 267

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD KHAN alias MUMDAYA‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Crl. A. No. 1119 of 1999, heard on 9th December, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑‑Accused had claimed that he had committed murder of deceased under a grave and sudden provocation as deceased had abducted his first cousin nineteen years before the occurrence‑‑‑Said first cousin of accused who appeared in Court on application of accused himself as Court witness, had clearly stated that she was not abducted by the deceased, but she had married to deceased of her own free‑will and volition and that too with the consent of her mother who was still alive and her father had already died‑‑‑Witness also stated that she had already seven children from the said wedlock and that she was pregnant at the moment‑‑‑Lady, in circumstances had supported case of prosecution‑‑‑Even otherwise nineteen years old occurrence of alleged abduction, could not be made basis for grave and sudden provocation which resulted in murder of deceased‑‑‑Incident was premeditated murder which had been committed in broad‑daylight‑‑‑Accused did not fire only one shot, but had fired two successive shots and injuries received by deceased, according to opinion of Doctor, were sufficient to "cause death in ordinary course of nature‑‑‑Prosecution having proved its case against accused beyond any shadow of doubt, accused had rightly been convicted and sentenced by Trial Court‑‑Trial Court had already taken a lenient view while awarding life imprisonment and not death sentence as required under S.302(b), P.P.C. but since matter of enhancement of sentence ,was not raised before the High Court, Court did not make any comment on that point.

Zulfiqar alias Bhuttoo v. The State 1995 SCMR 1668 ref:

Muhammad Faisal Malik for Appellant.

Masood Sadiq for the State.

Munsif Awan for the Complainant.

Date of hearing: 9th December, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 273 #

2005 M L D 273

[Lahore]

Before Sardar Muhammad Aslam, J

EHSAN‑UL‑HAQ‑‑‑Petitioner

Versus

Qazi MISBAH‑UL‑HASSAN and 2 others‑‑‑Respondents

W.P. No. 16214 of 2004, heard on.23rd November, 2004.

Civil Procedure Code (V of 1908)‑‑‑--

‑‑‑O.VII, R.11‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Rejection of plaint‑‑Cause of action, absence of‑‑‑Specific performance of agreement to sell on the basis of agreement to sell‑‑‑Pleas raised by defendant‑‑‑Owner of suit plot entered into agreement to sell with defendant who further executed agreement to sell with plaintiff‑‑‑Owner had authorized the defendant to alienate the suit plot further to anyone else‑‑‑Plaintiff had filed suit for specific performance of agreement to sell and also claimed damages‑‑‑Defendant instead of filing written statement, filed application under O.VII, R.11 C.P.C. for the rejection of plaint on the ground that the plaintiff did not have any cause of action against him‑‑‑Application was dismissed by Trial Court‑‑‑Appellate Court in exercise of revisional jurisdiction maintained the order passed by Trial Court ‑‑‑Validity‑‑Owner of the suit plot did not raise any objection for rejection of the plaint‑‑‑Owner was not even impleaded as party in revision petition before Lower Appellate Court though he was arrayed as one of the defendants in the plaint‑‑‑Defendant admitted execution of agreement in favour of the plaintiff‑‑‑Defendant was estopped by his words and conduct to plead against the contents of the agreement‑‑‑Plaint was for specific performance of agreement and as a consequential relief a decree for damages had also been claimed‑‑‑Narration mentioned in the plaint had to be accepted unless the same was rebutted by admitted documents‑‑‑While taking action for rejection of plaint under O.VII, R.11 C.P.C., pleas raised by the defendant in the suit in his defence could not be taken into consideration‑‑‑Pleas raised at that stage by the defendant were only contentions in the proceedings unsupported by any evidence on record‑‑‑High Court in exercise of Constitutional jurisdiction declined to interfere with the concurrent findings of both the Courts below‑‑‑Petition was dismissed in circumstances.

Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826 ref.

Abdul Sattar Javaid for Petitioner, Muhammad Arif Raja for Respondent No.1.

Date of hearing: 23rd November, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 280 #

2005 M L D 280

[Lahore]

Before Muhammad Sair Ali, J

BARKAT BIBI and others‑‑‑Petitioners

Versus

Mst. GAMAN BIBI and others‑‑‑Respondents

C.Rs. Nos.3048 and 2895 of 1994, heard on 18th February, 2002.

(a) Islamic Law‑‑‑

‑‑‑‑ Inheritance‑‑‑Hanfi Law‑‑‑Share of sister of issueless deceased brother‑‑‑Concurrent findings of fact by the Courts below‑‑‑Owner of suit property died issueless leaving behind one sister and two sons of predeceased brother‑‑‑Trial Court declared that under Hanfi Law, sister was entitled to one half the share of land owned by issueless deceased brother‑‑‑Judgment and decree passed by Trial Court was maintained by Appellate Court‑‑‑Validity‑‑‑Table of shares as given in Hanfi Law prescribed one half share for sister of issueless deceased‑‑‑Both the Courts below had rightly decided the suit and appeal in favour of plaintiffs‑‑‑Defendants failed to point out any legal infirmity in the conclusion recorded in the judgments and decrees passed by the Courts below‑‑‑High‑ Court declined to interfere in the well reasoned judgments and decrees of Trial Court and Appellate Court concurrently adjudicating the question of law and facts involved in the controversy.

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

‑‑‑‑O.XIV, R.3‑‑‑Framing of issues‑‑‑Controversial facts in pleadings‑‑Effect‑‑‑Contention of petitioners was that Trial Court did not frame any issue despite the controversial questions were pleaded and raised in written statement‑‑‑Petitioners further contended that Appellate Court committed material irregularity in failing to attend to such aspect of the appeal and did not give any finding regarding non‑framing of issues by Trial Court as to the vires and status of sale and mutation in their favour‑‑‑Validity‑‑‑Examination of plaint, written statement and issues framed supported the contentions of petitioners‑‑‑High Court set aside the judgments and decrees passed by both the Courts below and the case was remanded to Trial Court for framing issues upon controversial questions of facts as set out and pleaded in plaint and written statement or otherwise in the pleadings of parties‑‑‑High Court directed the Trial Court to allow full opportunity of evidence to the parties and to re decide the case.

Ch. Asghar Ali for Petitioners.

Ch. M. Akram Gondal for Respondents Nos. 1 to 4.

Ch. Mushtaq Ahmad for Respondents Nos.5 to 10.

Date of hearing: 18th February, 2002.

MLD 2005 LAHORE HIGH COURT LAHORE 283 #

2005 M L D 283

[Lahore]

Before Mian Saqib Nisar and Tanvir Bashir Ansari, JJ

BASHIR AHMED and others‑‑‑Appellants

Versus

AKBAR ALI and others‑‑‑Respondents

Regular First Appeal No.35 of 2001 and R.S.A. No.52 of 2004, heard on 29th September. 2004.

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

‑‑‑‑Arts.31, 81, 113 & 79‑‑‑Specific Relief Act (I of 1877), S.12‑‑Specific performance of contract‑‑‑Agreement‑‑‑Document‑‑‑Attesting witness‑‑Scribe‑‑‑Estoppel‑‑‑Admissibility of document‑‑Execution of agreement to sell was not denied‑‑‑Scribe besides being a deed writer, was also witness to the transaction, payment and execution of the document‑‑‑Such witness could justifiably be regarded as an attesting witness‑‑‑Admissibility of such document could not be questioned as rule of estoppel teas attracted.

Nazir Ahmad v. Muhammad Rafique 1993 CLC 257; Amanat Ali v. Riaz Hussain 1991 MLD 1037 and Zafar Ullah Khan v. Mst. Hakim Bibi and another 2000 YLR 2789 rel.

(b) Contract Act (IX of 1872)‑‑‑--

‑‑‑‑S.55‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Limitation Act (IX of 1908), Art. 113‑‑‑Specific performance of contract ‑‑‑Limitation‑‑Agreement to sell‑‑‑Construction of document‑‑‑Time was of the essence of the contract‑‑‑Cumulative effect of the agreement to sell and acknowledgment was that the parties had agreed to transfer the property free from all encumbrances‑‑‑Time was successively enlarged‑‑‑Time fixed in the first agreement ceased to remain the essence of the contract‑‑‑The case fell within the purview of the second limb of Article 113 of the Limitation Act, 1908‑‑‑Limitation would be computed from the final refusal.

‑‑‑‑S.12‑‑‑Specific performance of contract‑‑Cause of action‑‑‑Cause of action to sue for specific performance of contract arises only when the obliger was in a position to perform his part of contract effectively‑‑‑Till that stage, the cause of action against the vendor was merely inchoate and incomplete‑‑‑Intention of the parties and obstacles in the way of effectively concluding the contract were, to be kept in mind.

Inam Naqshaband v. Haji Sheikh Ijaz Ahmad PLD 1995 SC 314; 1995 CLC 101; Pazhaniappa Chettiyar v. South Indian Planting and Industrial Co. Ltd. and another AIR 1953 Trav. C. 161 and Lakshminarayana Reddiar v. Singaravelu Najeker and another AIR 1963 Madras 24 rel.

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

‑‑‑‑O.XIV, R.5‑‑‑ Specific Relief Act (I of 1877), S.42‑‑‑Limitation Act (IX of 1908), S.3 & Art. 120‑‑‑Suit for declaration ‑‑‑Limitation‑‑Framing of issues ‑‑‑Declaratory suit had no intrinsic merit and was rightly dismissed by concurrent findings of both the lower Courts‑‑‑Error in the framing of issue of limitation would not cause miscarriage of jusitice.

Ahmed Waheed Khan and Saleem Aftab Sheikh for Appellants.

Syed Najam‑ul‑Hassan Kazmi for Respondent.

Date of hearing: 29th September, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 298 #

2005 M L D 298

[Lahore]

Before Syed Jamshed Ali, J

FAIZ AHMAD‑‑‑Petitioner

Versus

MUHAMMAD SHARIF and 6 others‑‑‑Respondents

Civil Revision No.3964 of 1994, decided on 13th October, 2004.

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

‑‑‑‑S.53‑A‑‑‑Part performance of agreement‑‑‑Protection of S.53‑A, Transfer of Property Act, 1882‑‑‑Principles‑‑‑Non‑payment of balance sale consideration‑‑‑Effect‑‑‑To allow protection of S.53‑A of Transfer of Property Act, 1882, to a vendee under agreement to sell who had only paid part of the sale consideration would mean that a vendee might not be ready and willing to perform his part of contract and vendor would be compelled to bring a suit for recovery of balance sale consideration‑‑‑As such the same would be unjust and unfair for any length, of time and to wait for the suit by the vendor for recovery of the balance sale consideration would be an abuse of process of law‑‑‑As the vendees had not paid the entire sale consideration, protection of S.53‑A of Transfer of Property Act, 1882, was not available to them.

Rashid Ahmad v. Messrs Friends Match Works (PLD 1989 SC 503 fol.

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

‑‑‑‑S.53‑A‑‑‑Part performance of agreement‑‑‑Protection pf S.53‑A, Transfer of Property Act, 1882‑‑‑Principles‑‑Delivery of possession in performance of agreement to sell‑‑‑Contention of plaintiff was that the vendors were owners of 1/4th share in Khata, possession of which was with him‑‑‑Validity‑‑‑Possession contemplated by S.53‑A of Transfer of Property Act, 1882, was a specific possession‑‑‑In agreement to sell only ¼ the share in Khata was involved and a fraction of Khata was not capable of specific possession because the vendors had 1/4th share in the joint Khata in every inch of land.

‑‑‑‑S.55‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Limitation Act (IX of 1908), Art. 113‑‑‑Specific performance of agreement to sell‑‑‑Time was of essence of contract‑‑‑Oral fixation of time‑‑‑Concurrent findings of fact by the Courts below‑‑‑Defendants entered into agreement to sell suit land with plaintiff for a consideration of Rs.16,000 and a sum of Rs.5,000 was received as earnest money‑‑‑Defendants transferred the suit land to another person on the ground that the plaintiff failed to pay the balance consideration within the time fixed between them orally‑‑Trial Court dismissed the suit and the judgment and decree passed by Trial Court was maintained by First Appellate Court‑‑‑Plaintiff contended that time not being essence of the contract, he could not have been non‑suited on the ground of oral agreement as to fixation of time for performance of the contract‑‑‑Validity‑‑‑Assumption inbuilt in the contention of the plaintiff who had paid part of sale consideration and who was in possession as tenant in a joint Khata might withhold payment of the balance sale consideration for an indefinite period‑‑‑Even if the plaintiff was not prepared to perform his part of contract he was entitled to the decree whenever he chose to bring a suit within a period of three years allowed‑by S.113 of Limitation Act, 1908‑‑‑Both the Courts below had come to a concurrent findings of fact that it was the plaintiff, who was in default to perform his part of contract and rightly that the plaintiff was not prepared to perform his part of contract and the person, to whom the land was transferred by the defendants, was bona fide purchaser for value‑‑‑High Court in exercise of revisional jurisdiction declined to interfere with findings of fact even if another view of the evidence could possibly be taken.

Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; P. Purshottam Reddy and another v. Messrs Pratap Steel Ltd. PLJ 2003 SC (India) 197; Fazal v. Mehr Din and 2 others 1997 SCMR 837; Ali Rehman v. Fazal Mehmud and 8 others 2003 SCMR 327; Amirzada Khan and others v. Ahmad Noor and others PLD 2003 SC 410; Muhammad Shafi and others v. Allah Dad Khan PLD 1986 SC 519; Ali Muhammad v. Ghulam Haider and 4 others 2001 CLC 1440; Muhammad Jamil and others v. Lahore Development Authority and 3 others 1999 SCMR 2015; Muhammad Nabi through Legal Heirs 1999 CLC 1771 and Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon an others 1994 SCMR 2189 distinguished.

Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494 and Trustees of the Port of Karachi v. Muhammad Saleem (1994 SCMR 2213 ref.

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

‑‑‑‑S.12‑‑‑Specific performance of agreement to sell‑‑‑Principles‑‑‑Relief of specific performance is discretionary and one who seeks equity must do equity.

Sh. Naveed Shaharyar for Petitioner.

Abdul Majeed Khan for Respondent No.7.

Dates of hearing: 12th and 13th October, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 307 #

2005 M L D 307

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD KHAN and another‑‑‑Petitioners

Versus

MUHAMMAD KHALIQ and another‑‑‑Respondents

C.Rs. Nos.307‑D, 308‑D and 309‑D of 2000, heard on 7th September, 2004.

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

‑‑‑O. VII, R.11 & O. I., R.9‑‑‑Specific Relief Act (I of 1877) S.42‑‑‑Suit for declaration‑‑‑Rejection of plaint‑‑‑Petitioners filed three suits for declaration with prayer for permanent injunction in the Civil Court contending that transfer of property made by general attorney through sale mutations was fraudulent and void‑‑‑Powers were revoked before sanction of mutations which were made antedated‑‑‑Plaints were rejected by the Trial Court on the ground that suits were barred due to decision in earlier suits and Revenue Authorities were not made party while their decisions were challenged‑‑‑Appellate Court, in appeal, had added the ground of limitation and dismissed appeals‑‑‑Validity‑‑‑No evidence of existence of earlier suits was on the file‑‑‑Mutation proceedings being summary in nature intricate questions involving determination after recording of evidence, were left open for decision by the Civil Court‑‑Ultimate decisions on the Revenue side did not block the approach of petitioners to the Civil Court‑‑‑Provisions of Order I Rule 9, C.P.C. could not be made a ground for rejection of plaint‑‑‑Courts below had committed material irregularities and illegalities in exercise of their jurisdiction‑‑‑Judgments and decrees of both the Courts were set aside in circumstances.

(b) Limitation Act (IX of 1908)‑‑‑‑

‑‑‑‑S.3‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑‑ Specific Relief Act (I of 1877), S.42‑‑‑Suit for declaration of title‑‑‑Suit barred by law‑‑‑Rejection of plaint‑‑‑Limitation was mixed question of law and facts‑‑‑Limitation starts running from date of knowledge‑‑‑Plaint had assertion that Member Board of Revenue had directed the petitioners to approach the Civil Court‑‑‑Fraud was alleged and it was also alleged that mutations were sanctioned at their back and limitation would start from the date of knowledge‑ ‑‑Fraud vitiated even the solemn proceedings and if petitioners succeeded in proving that they had been defrauded, limitation would not come in their way.

Messrs Bisvil Spinners (Pvt.) Ltd. v. Pakistan through Secretary Ministry of Finance, Islamabad and 2 others PLD 1992 SC 96 and Qureshi Noor Hussain and 7 others v. Ghulam Jan and 5 others PLD 1984 Pesh. 86 ref.

‑‑‑‑O. VII, R.11 & O. XIV, R.2‑‑‑Rejection of plaint‑‑‑Statement in plaint‑‑‑Petitioners had denied the authority to sell‑‑‑Assertion of antedating the mutations was also made‑‑‑Prayer of rejection of plaint could be decided by framing of issues and decision of preliminary issues after recording of evidence.

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

‑‑‑‑O. XXXIX, Rr.1 & 2‑‑‑Prima facie case‑‑‑Irreparable loss‑‑Inconvenience‑‑‑Petitioners had prima facie arguable case in their favour‑‑‑Dispossession would cause them irreparable loss and inconvenience‑‑‑Status quo order pending the suit was passed in circumstances.

Malik Asif Taufique Awan for Petitioners.

Nemo for Respondents.

Date of hearing: 7th September, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 318 #

2005 M L D 318

[Lahore]

Before Ch. Ijaz Ahmad, J

CHIEF ADMINISTRATOR, AUQAF‑‑‑Petitioner

Versus

SAKINA BIBI and others‑‑‑Respondents

Civil Revision No.750 of 2004, decided on 21st September, 2004.

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

‑‑‑‑Ss. 11 & 21‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Declaration with consequential relief‑‑‑Jurisdiction‑‑‑Plaintiff's suit was concurrently decreed against Auqaf Department‑‑‑Department had relied upon notification of taking over of property and pleaded bar of jurisdiction‑‑Suit property was found different than the property notified‑‑‑Property in question was thus, not taken over by the department‑‑‑Civil Court had jurisdiction to take cognizance of the matter.

Zafar‑ul‑Ahsan v. The Republic of Pakistan through Cabinet Secretary Government of Pakistan PLD 1960 SC 113 rel.

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

‑‑‑‑Ss. 11 & 21‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Declaration‑‑‑Notification‑‑‑Concurrent findings‑‑‑Courts below had returned concurrent findings‑‑‑Case did not fall within parameters prescribed by the Privy Council in PLD 1949 PC 26‑‑‑No infirmity or illegality in the findings of the Courts below, appearing, petition was dismissed.

N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madras PLD 1949 PC 26 quoted.

Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mahmood 1985 CLC 657 and Board of Intermediate and Secondary Education, Lahore v. Ghulam Qadir PLD 1988 SC 625 cited.

Ch. Saeed Ashraf. Waraich for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 328 #

2005 M L D 328

[Lahore]

Before Sh. Hakim Ali, J

MEPCO through Chief Executive and another‑‑‑Petitioners

Versus

ADVISORY BOARD, PUNJAB, LAHORE and 3 others‑‑‑Respondents

Writ Petition No.4863 of 2001/BWP, decided on 31st July, 2004.

Electricity Act (IX of 1910)‑‑‑--

‑‑‑‑Ss. 26(6), 38(3) & 39‑A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Detection bill‑‑‑Consumer had challenged the detection bill and had raised the plea that there was no hole in the meter as alleged by the Surveillance Team, no notice was served and he was not associated with the checking of the meter, which was installed outside the premises of the consumer‑‑‑Electric Inspector directed the parties to approach the appropriate forum as after elapse of 90 days his jurisdiction had ceased‑‑‑Consumer filed appeal before the Advisory Board, who accepted the version of the consumer and declared the imposition of detection bill to be illegal as no theft was found by the Advisory Board‑‑‑Validity‑‑‑Whether any meter was correct or incorrect, the matter could be referred to, upon application of either party, to Electric Inspector, who has to decide it within a period of 90 days and on failure the matter had to be referred to Provincial Government whose decision was to be final‑‑‑Provincial Government was empowered under section 38(3) of the Electricity Act, 1910 to delegate power of appellate authority to entertain, hear and adjudicate an appeal against the decision of Electric Inspector‑‑‑Decision of Advisory Board was not without jurisdiction‑‑‑Petition was dismissed in circumstances.

Hafiz Muhammad Abdul Qayyum for Petitioners.

Muhammad Ashraf Nadeem, for Respondent No.4.

Date of hearing: 2nd July, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 364 #

2005 M L D 364

[Lahore]

Before Ch. Ijaz Ahmad, J

MUNIR AHMAD and 6 others‑‑‑Petitioners

Versus

MUHAMMAD SADDIQUE ‑‑‑ Respondent

C. R. No. 2086 of 2004, heard on 31st August, 2004.

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

‑‑‑‑S. 42‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 100 & 101‑‑Suit for declaration‑‑‑Document thirty years old‑‑‑Oral evidence ‑‑‑Rebuttal‑‑Relationship‑‑‑Plaintiff claimed relationship and correction of Pedigree table through suit for declaration‑‑‑Suit was decreed by the Trial Court and appeal against such order had failed‑‑‑Validity‑‑‑Plaintiff had produced documents more than thirty years old recorded by Revenue officials showing relationship‑‑‑Such documents were never challenged‑‑Documentary evidence was not belied through any reliable documentary evidence‑‑‑Man could tell a lie but the document could not‑‑‑Documents were exhibited without any objection‑‑‑Presumption of truth was attached to such documents‑‑‑Courts had rightly relied upon the document and decided the same.

(b) Document‑‑‑--

‑‑‑‑Man can tell a lie but document cannot.

Ghulam Muhammad and others's case 1983 SCMR 849; Bahadar's case PLD 1961 Lah. 387; Surrendra Krishna Roy and another v. Mirza Muhammad Syed Ali Mutawali and others AIR 1936 PC 15 and Sarfraz Ahmad's case PLD 1985 Jour. 121 rel.

‑‑‑‑Art. 129(g)‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Best evidence‑‑Evidence which could be produced but was not produced‑‑Presumption‑‑‑Defendants had not produced their mother who was alive to disprove the relationship‑‑‑Defendants withheld the best evidence‑‑Courts below were justified to draw inference against defendants.

Shah Nawaz and another v. Nawab Khan PLD 1976 SC 767 quoted.

(d) Islamic Law‑‑‑

‑‑‑‑Legitimacy‑‑‑Courts had generally refused to admit illegitimacy when legitimacy, could be inferred from the surrounding circumstances‑‑Surrounding circumstances were not rebutted through any reliable evidence‑‑‑Findings of both the Courts were in accordance with law.

Shah Nawaz and another v. Nawab Khan PLD 1976 SC 767 cited.

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

‑‑‑‑ O.VII, R.1(e)‑‑‑Specific Relief Act (I of 1877), S. 42‑‑‑Cause of action‑‑‑Inheritance right‑‑‑Denial of inheritance right‑‑‑Plaintiff had challenged the vires of inheritance mutation‑‑‑Every denial gives fresh cause of action.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 quoted.

Mst. Fazal Jan v. Roshan Din and others NLR 1993 Rev. 8 cited.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction‑‑‑Concurrent findings‑‑‑No infirmity and illegality in the judgments were pointed out ‑‑‑Revisional Court had very limited jurisdiction to disturb the concurrent findings of facts arrived at by the Courts below.

N.S Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madrass PLD 1949 PC PC 26 quoted.

Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood 1985 CLC 657; C.P. No. 1146 of 1984 and Ghulam Qadir's case PLD 1988 SC 625 cited.

Syed Mumtaz Hussain Bukhari for Petitioner.

Nemo for respondents.

Date of hearing: 31st August, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 376 #

2005 M L D 376

[Lahore]

Before Sh. Hakim Ali, J

Mst. JAMEELA BEGUM‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 3 others‑‑‑Respondents

W.P. No.3871 of 2001/BWP, decided on 31st July, 2004.

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

‑‑‑‑Ss. 5 & 17‑‑‑Limitation Act (IX of 1908), S.14, Arts.103, 104 & 120‑‑‑Civil Procedure Code (V of 1908), O.XXIII, Rr.1 & 2‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Constitution of Pakistan (1973), Art. 199Constitutional petition‑‑‑Suit for declaration‑‑‑Consequential relief‑‑Dower‑‑‑Exclusion of jurisdiction‑‑‑Withdrawal of suit ‑‑‑Limitation‑‑Petitioner filed suit in Civil Court for declaration of title to property allegedly given to her in dower and as such was recorded in the "Nikah Nama"‑‑‑Suit was resisted by the defendant and he objected to jurisdiction of the Court along with other objections‑‑‑Trial Court dismissed the suit and appeal also failed‑‑‑Suit was withdrawn by the petitioner with permission to file fresh suit in revisional proceedings in the High Court‑‑‑Petitioner filed fresh suit in the Family Court‑‑‑Suit was decreed by the Family .Court‑‑‑Appellate Court dismissed the suit expressing its view that Article 104 of the Limitation Act, 1908 was applicable and suit , was barred by time and provision of section 14 of the Limitation Act was not applicable‑‑‑Validity‑‑‑Earlier suit was withdrawn under Order XXIII, Rule 1, C.P.C.‑‑‑Order XXIII, R.2 was not applicable to the suits filed under West Pakistan Family Courts Act 1964 because section 17 of the West Pakistan Family Courts Act barred it‑‑‑Even applying Order XXIII, Rule 2, C.P.C., words used in the said rule "Law of Limitation" include sections and Articles to be applied‑‑Section 14 of the Limitation Act excludes the period spent in previous litigation‑‑‑Respondent had raised objection about jurisdiction and had consented to withdrawal and grant of permission to file fresh suit‑‑‑Suit was competent before the Family Court‑‑‑Petitioner's suit was declaratory in nature regarding affirmation of rights with consequential relief of possession‑‑‑Articles 103 and 104 of the Limitation Act, 1908 were not applicable rather Article 120 of the said Act was applicable‑‑Judgment and decree of Appellate Court was declared to be illegal and unlawful , and suit of the plaintiff was decreed with costs in circumstances.

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

‑‑‑‑Ss.5 & 17‑‑‑Limitation Act (IX of 1908), S.14, Art. 103, 104 & 120Specific Relief Act (I of 1877), S.42‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for declaration ‑‑‑Dower‑‑Limitation‑‑‑Law of Limitation was applicable to suits before Family Court‑‑‑Not only the Articles but also the sections of the Limitation Act, 1908 were to be applied unless expressly or impliedly barred by any provision of law‑‑‑Mere influx of time could not be the causation of removing the law from the book of statutes‑‑‑Suit filed by petitioner was not for the recovery of Dower prompt or deferred, but was for declaration of ownership of property given over to wife at time of marriage‑‑‑Wife's right of ownership was denied/refuted by her husband‑‑‑Such suit would be declaratory suit regarding the affirmation of rights in property along with the consequential relief of possession‑‑Articles 103 and 104 of the Limitation Act, 1908 were not applicable and residuary Article 120 of the Limitation Act, 1908, would apply.

‑‑‑‑O. VII, R.10‑‑‑Limitation Act (IX of 1908); S.14‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Return of suit‑‑Withdrawal of suit from Court having no jurisdiction‑‑‑Consent of the opposite party to withdrawal and permission‑‑‑Petitioner was working under bona fide belief that the Civil Court was competent when she instituted her suit in the Civil Court‑‑‑Respondent had raised objection that suit was not competent in Civil Court‑‑‑Acting upon that objection suit was withdrawn with the consent of respondent and was filed in the Family Court‑‑‑Court had not returned the suit‑‑Suit withdrawn from Court having no jurisdiction, benefits of section 14 of the Limitation Act. 1908 were available to the petitioner.

Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 quoted.

(d) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 5‑‑‑"Nikah Nama"‑‑‑Entries in "Nikah Nama"‑‑‑Entries in "Nikah Nama" are sufficient proof of transfer of the property and it requires no registration or any other document for completion.

Anwar Khan and 16 others v. Mst. Sahibzada and 3 others 1989 CLC 1327; Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCMR 1403 and Allah Jawai v. Allah Ditta PLD 1975 Lah. 1399 mentioned.

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

‑‑‑‑S.52‑‑‑Lis Pendens, principle of‑‑‑Bona fide‑‑‑Transfer of suit property made during pendency of suit could not beheld to be bona fide.

Muhammad Kashif Khakwani for Petitioner.

Sheikh Karim‑ud‑Din for Respondent.

MLD 2005 LAHORE HIGH COURT LAHORE 397 #

2005 M L D 397

[Lahore]

Before Muhammad Nawaz Bhatti, J

Mst. SHARIFAN BIBI and 2 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.8916‑B of 2004, decided on 13th December, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.498 & 497, Proviso (1)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 18‑‑‑Pre‑arrest bail, grant and confirmation of‑‑‑Investigating Officer had stated that one who attempted to commit Zina‑bil‑Jabr with victim was arrested and had been sent to judicial lock‑up‑‑‑Investigating Officer had further stated that accused in the case had joined investigation, investigation of case had been completed and challan of case was going to be submitted in the Court of competent jurisdiction‑‑‑Heinousness of offence by itself was not sufficient for refusal of bail and bail was not to be withheld as a punishment‑‑‑No moral or legal compulsion existed to keep a person in jail‑‑‑During investigation, it had been transpired that accused persons prima facie did not appear to have committed the offence and case of accused was based on malice and thus fell in Proviso (1) to S.497, Cr.P.C.‑‑‑Accused, in circumstances deserved to be granted bail‑‑Accused being on ad interim pre‑arrest bail, same was confirmed.

Mahar Ata Muhammad Sanpal Sial for Petitioners

Iqbal Hussain for the State.

Nasir A.S. ‑I.

MLD 2005 LAHORE HIGH COURT LAHORE 399 #

2005 M L D 399

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD SALEEM‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.3587‑B of 2004, decided on 11th June, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/337‑A(i)/337‑A(ii)/337‑F (i)/337‑L(2)/148/149‑‑‑Bail, grant of‑‑‑F. I. R. had been lodged with noticeable delay‑‑‑Accused had not caused any injury to deceased‑‑Allegation levelled against accused in F.I.R. was couched in generalized terms without any specific attribution‑‑‑Accused was not directly connected with motive set up in F.I.R. and nothing had been recovered from his possession during investigation‑‑‑Initial Investigating Officer had recorded opinion that accused was not physically present at the spot at relevant time and had not participated in alleged occurrence, but Deputy Superintendent of Police conducting investigation of case at a subsequent stage, had recorded finding of guilt against accused only on the basis that accused could not establish before him that he was not present at the spot at relevant time‑‑‑Such approach of Deputy Superintendent of police was curious because it appeared that he had arrogated to himself the role of adjudicator and had abandoned role of an Investigator‑‑‑Adjudicator was to decide as to which party had successfully established its case before him whereas it was Investigator's duty to find out the facts and the truth himself rather than requiring parties to establish their rival claims before him‑‑‑Challan had already been submitted after completion of investigation‑‑‑Continued custody of accused in jail was not likely to serve any beneficial purpose at bail stage‑‑‑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.

Hasnat Ahmed Khan for Petitioner.

Khawaja Mazhar Ali for the State.

Date of hearing: 11th June, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 415 #

2005 M L D 415

[Lahore]

Before M. Bilal Khan, J

AMANULLAH ‑Petitioner

Versus

THE STATE ‑Respondent

Crl. Misc. No.3603‑B of 2004, decided on 21st July, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.324/452/34/337‑F(iii)‑‑Bail, grant of‑‑‑Accused had allegedly caused two injuries with his pistol at the right shin of the victim who, prima facie, appeared to have .received only one fire arm injury‑-‑Accused had not caused any other injury to any other person‑‑‑Co‑accused to whom motive was attributed and had accompanied the accused had been declared innocent on his plea of alibi‑‑‑Culpability and common intention of accused with his co-accused called for further probe as envisaged by S.497(2), Cr.P.C.‑‑‑Offence of under S.337‑F(iii), P.P.C. added later on did not attract the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Accused was in custody for the last more than ten months‑‑‑Trial of accused had not even commenced and he could not be retained in custody indefinitely as a punishment‑‑‑Accused was admitted to bail in circumstances.

Muhammad Saleem v. The State PLD 1989 Lah. 233; Zafar Ali v. The State PLJ 1996 Cr.C. Lah. 1636; Muhammad Khurshid v. .The State PLJ 1996 Cr.C. Lah. 1837; Muhammad Afsar v. The State 1994 SCMR 2051 and Muhammad Akram v. The State PLJ 1996 Cr.C. 312 ref.

Chaudhry Muhammad Asif Ranjha for Petitioner.

Allah Bakhsh Gondal for the Complainant.

2005 M L D 430

[Lahore]

Before Sh. Abdur Rashid, J

SAMINA‑‑‑Petitioner

Versus

S.H.O. POLICE STATION, GHULAM ABBAD, FAISALABAD and 2 others‑‑‑Respondents

W. P. No. 14324 of 2004, decided on 8th September, 2004.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Petition to restrain respondent police officer from causing harassment to petitioner and her husband‑‑‑Petitioner had claimed that she being major and sui juris had contracted marriage with her husband of her own free‑will and volition against wishes of her father and respondent Police Official on his behest was intimidating and harassing her and her husband and was interfering in their matrimonial life‑‑‑Petitioner had sought direction to restrain the official from causing harassment to her and her husband‑‑‑Both petitioner and her husband present in the Court had placed on record copy of Nikah Nama‑‑‑Petitioner being major and sui juris, could contract marriage of her own free‑will and volition and while doing so she had committed no offence‑‑‑Petitioner and her husband being legally wedded wife and husband, police officer had no legal business to harass or intimidate them or to interfere in their peaceful matrimonial life--‑Police Official was directed not to harass or intimidate petitioner and her husband to force them to revoke their marriage.

Abdul Latif Chishti for Petitioner.

Date of hearing: 8th September, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 432 #

2005 M L D 432

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Messrs PAKISTAN STATE OIL COMPANY LTD. through Divisional Manager, Retail, PSO‑‑‑Petitioner

Versus

SHAUKAT MAQBOOL and another‑‑‑Respondents

Criminal Miscellaneous Nos.111‑CB and 112‑CB of 2004, decided on 22nd November, 2004.

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

‑‑‑‑Ss.497(5) & 498‑‑‑Penal Code (XLV of 1860), Ss.420/468/471/409‑‑Pre‑arrest bail, cancellation of‑‑‑No element of mala fides or ulterior motive was found on part of complainant or police to falsely involve accused with commission of such an offence‑‑‑Both accused had been named in F.I.R. with a specific attribution‑‑‑Recovery was yet to be made from accused‑‑‑No case for grant of pre‑arrest bail having been made out against accused, order granting pre‑arrest bail to him was recalled‑‑‑Co‑accused remained in jail for few days and no case for further inquiry was made out entitling him to grant of post‑arrest bail‑‑Trial Court had gone beyond its jurisdiction by discussing almost all prosecution case which was not within domain of Trial Court at bail stage‑‑‑Prosecution possessed sufficient material to prima facie connect co‑accused with commission of alleged offence‑‑‑At bail stage only tentative assessment of evidence was to be made and deeper merits could not be discussed‑‑‑Offence against co‑accused fell within prohibitory clause of S.497, Cr.P.C.‑‑‑Order passed by Special Judge for confirmation of ad‑interim post‑arrest bail granted to co‑accused was also recalled.

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

‑‑‑‑Ss.497 & 498‑‑-Bail; grant of‑‑‑Assessment of evidence‑‑‑At bail stage only tentative assessment of evidence was to be made and deeper merits could not be discussed.

Sh. Anwarul Haq for Petitioner.

Ch. Sagheer Ahmad, Standing Counsel for Pakistan.

Ch. Muhammad Faakhar for Respondents (in Cr.M. No. 112‑CB of 2004).

Zahoor Hussain, A.S.‑I./F.I.A. with record.

MLD 2005 LAHORE HIGH COURT LAHORE 435 #

2005 M L D 435

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD ASHIQ‑‑‑Petitioner

Versus

MUHAMMAD ASIF ZIA alias BHOLA and 4 others‑‑‑Respondents

Crl. Misc. No.2420‑B of 2004, decided on 12th July, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), Ss.302/201/109/147/148‑‑Bail, cancellation of‑‑‑Petition for‑‑‑F.I.R. in the case was lodged with a delay of four months and eleven days‑‑‑Alleged murder had remained un-witnessed‑‑‑No opinion was given by relevant Doctor regarding cause of death of deceased‑‑‑Medical evidence, in circumstances did not show as to whether deceased had died of natural or unnatural death‑‑‑No other evidence was available on record qua culpability of accused except an extra‑judicial confession allegedly made by co‑accused‑‑‑First Investigating Officer had recommended discharge of accused and his co-accused, but in subsequent investigation other Investigating Officer had opined about guilt of accused‑‑‑Said Investigating Officer had not recorded statement of any witness and failed to record even any case-diary in respect of his investigation and he had remained contented with preparing a report containing his opinion about guilt of accused‑‑Nothing had been recovered from custody of accused and entire record of investigation had shown that no specific allegation of any nature had ever been levelled by prosecution against accused‑‑‑Allegations levelled by complainant party had throughout been couched in generalized and vague terms‑‑‑Possibility regarding false implication of accused could not safely be ruled out, in circumstances of case‑‑‑No occasion was for cancellation of bail granted to accused existed‑‑‑Petition filed by complainant for cancellation of bail of accused, was dismissed.

Talat Farooq Sheikh for Petitioner.

Zafar Iqbal Chohan for Respondent No. 1.

M. Zia Ullah Ghumman for the State.

Date of hearing: 12th July, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 440 #

2005 M L D 440

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. SAFIA BANG‑‑‑Petitioner

Versus

TANVEER AHMED and 2 others‑‑‑Respondents

Crl. Misc. No. 166‑CB of 2004, decided on 15th July, 2004.

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

‑‑‑‑S.497(5)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑‑Cancellation of pre‑arrest bail‑‑‑Complainant, a girl of 13/14 years of age, had specifically charged both the accused for having committed Zina‑bil‑Jabr with her and now she had a pregnancy of six months‑‑‑No previous enmity existed between the parties who were closely related to each other and no chance was available for false implication of accused in the case‑‑‑Factum of Nikah had been denied by the complainant and she had filed a suit for jactitation of marriage‑‑Minor age of accused was no ground to grant bail to accused in such heinous offences‑‑‑Tentative assessment of the evidence on record had, prima facie, made out a case of gangrape against the accused which fell within the prohibitory clause of S.497, Cr.P.C.‑‑‑Mere delay in registration of such‑like cases was also no ground for grant of bail‑‑Order of trial Court allowing pre‑arrest bail to accused was set aside in circumstances.

PLD 1983 SC 82, PLD 1985 SC 1950 and 1999 SCMR 338 ref.

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

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑‑Bail‑‑‑Attemption of Zina‑bil‑Jabr‑‑‑ Minor age of accused‑‑‑Mere minor age of accused is no ground to grant bail to accused in such‑like heinous offences.

1999 SCMR 338 ref.

Muhammad Akbar Sajid Chaudhry for Petitioner.

Farooq Akhtar for Respondents Nos.2 and 3.

Syed Muhibul Hasnain for the State.

Khalid Bilal, A.S.‑I. with record.

MLD 2005 LAHORE HIGH COURT LAHORE 444 #

2005 M L D 444

[Lahore]

Before Asif Saeed Khan Khosa, J

IRFAN KHALID‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.288‑M of 2004, in Cr. A. No. 1648 of 2000, heard on 9th March, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 561‑A & 544‑A‑‑‑Penal Code (XLV of 1860), Ss.302, 308, 109, 148 & 149 read with S.331‑‑‑Bail, grant of‑‑‑Payment of amount of Diyat‑‑‑Accused had served out his entire sentence of imprisonment, but was being detained in jail only on account of non‑payment of Diyat‑‑Convict after serving out his entire sentence of imprisonment, could not be detained in jail for more than six months on account of non‑payment of Diyat‑‑‑Superintendent, District Jail was directed to release the accused from jail‑‑‑Liability of accused to pay Diyat, however would remain intact, and relevant amount of Diyat could be recovered from accused in the manner provided for recovery of arrears of land revenue as contemplated by provisions of S.544‑A, Cr.P.C.

Abid Hussain and another v. Chairman, Pakistan Bait‑ul‑Mal and others PLD 2002 Lah. 482 fol.

Ch. Sadaqat Ali, assisted by Rana Munir Ahmad Khan on behalf of Muhammad Siddique Bajwa for Petitioner.

Asif Mehmood Cheema, Assistant Advocate‑General for the State.

Date of hearing: 9th March, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 447 #

2005 M L D 447

[Lahore]

Before Nasim Sabir, J

MUHAMMAD YASIN and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No. 1614‑B of 2004, decided on 10th June, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.337‑A(iii)/337‑L(2)/34‑‑‑Prearrest bail, grant of‑‑‑Case was of cross versions‑‑‑Both the parties had lodged criminal case against each other‑‑‑Complainants in both the cases were injured‑‑‑Investigating Officer, despite having been repeatedly asked to produce the Medico‑legal report, had failed to produce‑the same which had cast grave doubt on the opinion of the Doctor‑‑‑"Halaf Nama" executed by a responsible person of the locality at the instance of both the complainants had also indicated that the subsequent F.I.R. had been registered to counter the other case‑‑‑False involvement of the accused as well as the mala fides on the part of prosecution could not be ruled out‑‑Interim pre‑arrest bail already granted to accused was confirmed in circumstances.

Mian Arsahd Latif for Petitioners.

Atif Nawaz for the State with Zulfiqar S.‑I.

MLD 2005 LAHORE HIGH COURT LAHORE 449 #

2005 M L D 449

[Lahore]

Before Ch. Iftikhar Hussain, J

ASIF IQBAL---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No. 7291-B of 2004, decided on 28th October, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.11/16‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Record had shown that co‑accused female had eloped with accused out of illicit intimacy with him‑‑‑Offence against accused in circumstances would be under S.16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and question of application of S.11 of the Ordinance needed serious consideration‑‑‑Offence under S.16 of Offence of Zina (Enforcement of Hudood), 1979 was not covered under prohibition clause of S.497(1), Cr.P.C.‑‑‑No direct evidence of Zina was on record against accused‑‑Female accused having refused to get herself medically examined, that had raised presumption of Zina‑bil‑Raza against her, but presumption, howsoever, strong, could not take plea of proof when no direct evidence of Zina was available on record against them‑‑‑Case against accused, in circumstances was covered under subsection (2) of S.497, Cr.RC. calling for further inquiry into his guilt‑‑‑Accused who was behind the bars for the last about 2‑1/2 years, was previous non‑convict‑‑Accused was admitted to bail, in circumstances.

Muhammad Islam Sheikh for Petitioner.

Zaheer‑ud‑Din for the State.

Pir S.A. Rashid and Syed Zulfiqar Haider for the Complainant.

Muhammad Iqbal, S.‑I. with police record.

2005 M L D 462

[Lahore]

Before Ijaz Ahmad Chaudhry, J

TAHIR HUSSAIN--‑Petitioner

Versus

THE STATE and another ‑Respondents

Crl. Misc. No 171‑CB of 2004, decided on 21st July, 2004.

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

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), Ss.302/324/201/148/149‑‑Cancellation of pre‑arrest bail‑‑‑Accused. was specifically named in the F.I.R. with the allegation that he while armed with a "Kulhari", along with all other accused had attacked on both the deceased, caused them injuries, killed them and threw their dead bodies in the Canal‑‑‑An absolutely independent witness who tried to rescue the deceased and received nine injuries in the affair had also specifically nominated the accused and supported the complainant's version‑‑‑Evidence so far collected by the police during investigation had, prima facie, connected the accused with the commission of the offence‑‑‑Medical evidence had also supported the role attributed to accused‑‑‑Recoveries in the case were yet to be effected‑‑‑Previous enmity between the parties alone, was no ground to grant bail before arrest in cases of heinous nature which was a double edged weapon‑‑‑Presence of eye‑witnesses on the spot during the occurrence was not doubtful‑‑‑Bail before arrest granted to accused by Trial Court was cancelled in circumstances.

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

‑‑‑‑S.497‑‑‑Bail‑‑‑Assessment of evidence‑‑‑Deeper appreciation of merits of the case is not permissible at bail stage and only tentative assessment of the evidence has to be made regarding the guilt of the accused.

Mehr Allah Bakhsh Maraj for Petitioner.

Ehsan Ullah Khan Niazi and Mumtaz Hussain Awan for Respondent No.2.

Sajid Mahmood Niazi for the State along with Sajid Hassan S.I., with record.

MLD 2005 LAHORE HIGH COURT LAHORE 468 #

2005 M L D 468

[Lahore]

Before Asif Saeed Khan Khosa, J

AMEER ALI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No. 1236‑B of 2004, decided on 9th March, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss. 302/392/34‑-‑Bail, grant of‑‑‑Further inquiry‑‑‑Occurrence had taken place during night time and according to F.I. R. itself alleged murder had remained un-witnessed‑‑‑No culprit had been nominated in F.I.R.‑‑‑No direct evidence was available in the case positively incriminating accused in alleged murder and robbery‑‑‑Prosecution was mainly relying upon a confession allegedly made by accused before police and a recovery of a motor cycle from custody of accused during investigation of case‑‑‑Confession made by an accused during his custody with police, was inadmissible in evidence‑‑Motor cycle allegedly recovered from possession of accused during investigation did not belong to the deceased‑‑‑Worth and evidentiary value of such recovery would be gone into by Trial Court at the time of trial and same called for further probe ‑‑‑Co‑accused had already been admitted to post‑arrest bail and case against said co‑accused was not dissimilar to or distinguishable from the case against accused so far as merits of case were concerned‑‑‑No reason was shown as to why accused could not be treated in the matter of bail in the same manner as said co‑accused‑‑‑Accused was admitted to bail, in circumstances.

Aftab Ahmad Bajwa for Petitioner.

Badar Munir Malik for the State.

Date of hearing: 9th March, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 470 #

2005 M L D 470

[Lahore]

Before Ch. Iftikhar Hussain, J

SHAHID alias SHADOO‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No. 3537‑B of 2004, decided on 28th October, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.324/337‑F(i)/337‑F(iii)/ 337‑H(2)/334/148/149‑‑‑Bail, grant of‑‑‑Bail had been sought mainly on the ground that despite direction for conclusion of trial of accused within four months, same had not been concluded while accused in no way was responsible for the same‑‑‑Direction period stood expired about a year ago‑‑‑Accused was entitled to benefit of situation of non‑compliance of direction of the High Court‑‑‑Accused, in circumstances was entitled to bail.

Ashok v. The State 1997 SCMR 436; Imran alias Gogi v. State 2004 PCr.LJ 1630; Muhammad Rafiq v. The State PLJ 1975 Cr.C Lah. 359; Bachan Soap v. The State 1987 PCr.LJ Lah.1456; Qaisar Abbas v. The State 1996 PCr.LJ Lah. 1677; Muhammad Fayyaz v. The State 2004 PCr.LJ Lah. 1441 and Liaqat Ali v. The State 2004 PCr.LJ Lah. 962 ref.

Shaukat Rafique Bajwa for Petitioner.

Muhammad Yaqoob Qureshi for the State.

Ch. Hanif Ahmad Dogar for the Complainant.

Muhammad Sajid, A.S.‑I. with police record.

MLD 2005 LAHORE HIGH COURT LAHORE 474 #

2005 M L D 474

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD MANSHA‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.7378‑B of 2004, decided on 2nd November, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/324/452/109/148/149‑‑Bail, refusal of‑‑‑Accused allegedly along with others had fired indiscriminately at deceased persons and he was named in the F.I.R.‑‑Accused had submitted that in successive three investigations he had been found to be innocent‑‑‑Opinion of police was not binding upon the Court‑‑‑Such opinion of police seemed not based upon any sound material on the record, while contrary to that four eye‑witnesses and two injured persons had implicated accused with the charge against him‑‑Accused had come from outside and they had resorted to firing on the people sitting inside Dera of deceased which had resulted into loss of lives of five persons and injuries to ladies present in the courtyard of that Dera‑‑‑Sufficient incriminating evidence/material was available on record‑ against accused including statement under S.161, Cr.P.C. of six eye‑witnesses including two injured ladies---Accused prima facie was connected with alleged offence‑‑‑Opinion of police could not be preferred over such material‑‑‑Offence was heinous in nature and was covered under prohibitory clause of S.497(1), Cr.P.C.‑‑‑Bail could not be granted to accused, in circumstances.

Jaffar and others v. The State 1980 SCMR 784 and Dr. Muhammad Aslam v. The State 1993 SCMR 2288 ref.

Shaharyar Sheikh for Petitioner.

Malik Muhammad Arif Bara, for the State.

Muhammad Inayat Ullah Cheema for the Complainant.

M. Aslam, S.‑I. with police record.

MLD 2005 LAHORE HIGH COURT LAHORE 482 #

2005 M L D 482

[Lahore]

Before Ch. Iftikhar Hussain, J

ALHAMAD ABBAS alias HAMDI SHAH‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.4315‑B of 2004, decided on 7th July, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/34‑‑‑Bail, grant of‑‑Further inquiry‑‑‑Allegation against accused was that he caused fist blows and kicks to the deceased resulting into his death, but according to opinion of Doctor, deceased was suffering from "Anti HCV Positive" and he died natural death due to said disease ‑‑‑Co‑accused of accused who were his father and brother were found innocent during investigation‑‑‑No enmity existed between the parties and occurrence was a sudden flare‑up‑‑‑Was yet to be seen if accused ultimately could be held liable for murder of deceased‑‑‑Case of accused, in circumstances called for further inquiry into his guilt and was covered by subsection (2) of S. 497, Cr.P.C.‑‑‑Accused was stated to be a young boy and previous non‑convict‑‑‑Accused, in circumstances was entitled to concession of bail‑‑‑Accused was admitted to bail, in circumstances.

Badar Munir Chaudhry for Petitioner.

Miss Samina Shahzadi for the State.

Date of hearing: 7th July, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 484 #

2005 M L D 484

[Lahore]

Before Muhammad Akram Baitu, J

Mst. ISMA BIBI‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Crl. Misc. No.22‑CB of 2004, decided on 18th March, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), Ss.364‑A/34‑‑‑Bail, cancellation of‑‑‑Accused was named in F.I.R. with specific allegation of abduction of a boy‑‑‑Prosecution witnesses in their statements had fully connected accused, with the crime complained against him‑‑‑Accused though had contended that he had been declared innocent during investigation and that discharge report had been prepared for cancellation of case against him, but fact remained, firstly, that Area Magistrate had not agreed with the said discharge report; secondly, ipsi dixit of police was not binding on the Courts‑‑‑Offence complained against accused was of heinous nature and recovery of abductee was still to be effected‑‑Trial Court in absence of recovery was not justified to enlarge accused on bail especially when offence complained against was of heinous nature and fell within prohibitory clause of S.497, Cr.P.C.‑‑‑Order granting post arrest bail to accused was set aside and bail of accused was cancelled.

Tariq Zulfiqar Ahmed Chaudhry for Petitioner.

Muhammad Sabir Qureshi along with Sharif A.S.‑I for the State.

Mian Nazir Ahmed Shad for Respondents.

MLD 2005 LAHORE HIGH COURT LAHORE 494 #

2005 M L D 494

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD RAZZAQ‑‑‑Petitioner

Versus

THE. STATE‑‑‑Respondent

Crl. Misc. No.5735‑B of 2003, decided on 21st October, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.420/452/468/471/448/467‑‑Pre‑arrest bail‑-Dispute in respect of the plot in question was sub judice before the Civil Court and it was yet to be determined whether the agreement to sell was forged or genuine‑‑-Report of the Local Commission revealed that the brother of accused was in possession of the plot in dispute for the last 7/8 years‑‑‑Allegation that the accused, after having forged the agreement to sell had forcibly occupied the said plot required serious consideration and his case was open to further inquiry into his guilt‑‑‑Mala fides on the part of the complainant existed in view of the aforesaid report of the Local Commission‑‑‑Accused had joined the police investigation‑‑‑Question of recovery of crime weapon from the accused would not come in his way as he was neither shown to have been armed with any specific weapon at the relevant time nor any weapon was used in the alleged incident‑‑Interim pre‑arrest bail already allowed to accused was confirmed in circumstances.

Shaukat Rafique Ahmad Bajwa for Petitioner.

Maqbool Ahmad Qureshi for the State.

M. M. Alam Chaudhary for the Complainant. Abdul Ghafoor, A.S.‑I. with police record.

MLD 2005 LAHORE HIGH COURT LAHORE 499 #

2005 M L D 499

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SALEEM‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No. 1997-B of 2004, decided on 28th July, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302/109/148/149‑‑‑Bail; grant of‑‑‑Case of accused was at par with that of co‑accused who had already been released on bail‑‑‑"Lalkara" attributed to accused, prima facie, did not appeal to reason as he himself being allegedly armed with a pistol instead of firing at the deceased had no need to ask his co-accused to do what he could do himself‑‑‑Case against accused, thus, required further probe as envisaged by S.497(2), Cr.P.C.‑‑‑Bail was allowed to accused on the rule of consistency and also in the above mentioned circumstances.

Mian Arshad Latif for Petitioner.

Qamar‑uz‑Zaman for the State.

Muhammad Asghar, S.I. with record.

MLD 2005 LAHORE HIGH COURT LAHORE 508 #

2005 M L D 508

[Lahore]

Before Sh. Hakim Ali, J

ABDUL HAMEED‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.300‑B of 2004/BWP, decided on 7th May, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/34/109‑‑‑Bail, grant of‑‑‑Further inquiry‑‑State counsel had admitted that the panel of police officers, had declared accused innocent and police had moved for discharge of accused‑‑‑Accused was not nominated in F.I.R. and no recovery was effected from him‑‑‑ All said facts, prima facie, had made it the case of "further inquiry" ‑‑‑Accused was granted bail, in circumstances.

Syed Jamil Anwar Shah for Petitioner.

Wajid Aftab Missan for the State.

Date of hearing: 7th May, 2004.

2005 M L D 519

[Lahore]

Before Ch. Ijaz Ahmad Actg. C.J. and Mian Hamid Farooq, J

FARRUKH SAYYAR KHAN‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

W.P. Nos.2308 and 13259 of 2004, decided on 24th August, 2004.

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

‑‑‑‑S.498‑‑‑National Accountability Ordinance (XVIII of 1999), S.9/10‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Pre-arrest bail, refusal of‑‑‑Plea to grant protective bail to accused till fixation of the Constitutional petition before the Division Bench concerned had no force‑‑‑High Court had ample jurisdiction to entertain the Constitutional petition for grant of bail to the accused facing charges under the NAB Ordinance‑‑‑Reference in question against the accused was not alleged to have been sealed by the Competent Authority‑‑Accused had not attached with the Constitutional petition a copy of the said reference‑‑‑Warrant of arrest of accused issued by the NAB Authority was also not placed on record‑‑‑No allegation was made in the petition regarding any raid having been conducted on the house of accused for arresting him‑‑‑Constitutional petition was dismissed in circumstances, and. pre‑arrest bail was declined to accused accordingly.

Khan Asfand Yar Wali v. Federation of Pakistan PLD 2001 SC 607; Hassan Raza v. The State 2003 MLD 729; Sabir Hussain v. The State 1999 MLD 2208; Syed Ijaz Ali Shah Shirazi v. The State 2002 YLR 68; Razia Shaheen v. The State PLD 1997 Lah. 659; Syed Ahmad Ali Rizvi v. State PLD 1995 SC 500; Asif Baig Mahmood's case 2004 SCMR 91; Chaudhry Zahoor Ellahi's case PLD 1977 SC 273; Syed Muzaffar Hussain's case PLD 1974 Lah. 242; Sheikh Zahoor Ahmad's case PLD 1974 Lah. 256; Murad Khan's case PLD 1983 SC 82; Saeed Ahmad Khan's case PLD 1974 SC 151; Aman Ullah Khan's case PLD 1990 SC 1092 and Trustees of Board of Karachi's case 1994 SCMR 2213 ref.

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

‑‑‑Art.199‑‑‑National Accountability Ordinance (XVIII of 1999), S.9(b)‑‑‑Criminal Procedure Code (V of 1898), Ss. 426, 497, 498, 491 & 561‑A‑‑‑Constitutional jurisdiction‑‑‑Bail‑‑‑Superior Courts have the power to grant bail under Article 199 of the Constitution, independent of any statutory source of jurisdiction such as S.497, Cr.P.C.‑‑‑Section 9(b) of the National Accountability Ordinance, 1999, to that extent is ultra vires the Constitution‑‑‑High Court under its Constitutional jurisdiction has unquestionably such power and should exercise this jurisdiction when the question of liberty of a citizen is involved even when High Court has before it only an application under S.498, Cr.P.C.

Khan Asfand Yar Wali v. Federation of Pakistan PLD 2001 SC 607 and Chaudhry Zahoor Ellahi's case PLD 1977 SC 273 ref.

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Bail‑‑‑Scope of power under Article 199 of the Constitution cannot be enlarged to extend a deeper analysis of the evidence and perusal of facts through deep scrutiny to hold a person innocent and then declare his arrest and detention in a criminal case illegal and without lawful authority to grant him bail.

Syed Muzaffar Hussain's case PLD 1974 Lah. 242 ref.

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

‑‑‑S.498‑‑‑Pre‑arrest bail‑‑‑Prerequisites‑‑Genuine proved apprehension of imminent arrest with the effect of virtual restraint on the accused should exist; accused should physically surrender to the Court; on account of ulterior motives, particularly on the part of the police, there should be apprehension of harassment and undue irreparable humiliation by means of unjustified arrest; case otherwise should be fit on merits for exercise of discretion in favour of accused for the purpose of bail keeping in mind the provisions of S.497, Cr.P.C. and unless there is reasonable explanation, accused should have earlier moved the Sessions Court for the same relief under S.498, Cr.P.C.

Sheikh Zahoor Ahmad's case PLD 1974 Lah. 256 and Murad Khan's case PLD 1983 SC 82 ref.

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

‑‑‑‑S.498‑‑‑Pre‑arrest bail‑‑‑Mala fides‑‑‑Principles‑‑‑General allegations of mala fides are not sustainable in the eye of law.

Saeed Ahmad Khan's case PLD 1974 SC 151 and Aman Ullah Khan's case PLD 1990 SC 1092 ref.

Malik Shahzad Ahmad Khan for Petitioner.

Raja Abdul Rehman, A.A.‑G. for the State.

MLD 2005 LAHORE HIGH COURT LAHORE 535 #

2005 M L D 535

[Lahore]

Before Ch. Iftikhar Hussain, J

ALI SHER‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.4140‑B of 2004, decided on 28th June, 2004.

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

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), S.337‑A(ii)‑‑‑Pre‑arrest bail, grant of‑‑‑Clear conflict was found in the role assigned to accused in F.I.R. and medical opinion with regard to nature of injury caused to complainant‑‑‑Such conflict brought the case of accused within the ambit of subsection (2) of S.497, Cr.P.C.‑‑‑Accused had joined investigation and recovery of crime weapon‑ stood effected from him‑‑‑Accused was not required for any further purpose of investigation‑‑‑Case for extending relief prayed for by accused having been made out; ad interim pre‑arrest bail already extended to accused was confirmed.

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

‑‑‑‑S.498‑‑‑Grant of bail‑-‑Benefit of doubt‑‑‑Benefit of every doubt, even at bail stage, was to be given to the accused.

Rana Farman Ali for Petitioner.

Maqbool Ahmad Qureshi for the State.

Imtiaz Ali Khan for the Complainant.

Date of hearing: 28th June, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 537 #

2005 M L D 537

[Lahore]

Before Muhammad Khalid Alvi, J

ABDUL SALAM KHAN‑‑‑Petitioner

Versus

ZULFIQAR ALI MUMTAZ and others‑‑‑Respondents

Civil Revision No.632 of 2002, heard on 9th October, 2003.

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

‑‑‑‑S.4‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Rent, recovery of ‑‑‑Non-determination of rate, of rent and increase therein‑‑‑Plaintiff/landlord filed suit for recovery of specific amount of rent at a particular rate with certain amount of increase annually‑‑‑Witness produced by the plaintiff/landlord did not state the rate of rent and annual increase therein‑‑‑Trial Court dismissed the suit but the Appellate Court allowed the appeal and the suit was decreed in favour of plaintiff/landlord‑--Validity‑‑‑Minimum requirement for the plaintiff/landlord was at least to state the amount of rent and the rate of rent‑‑‑Reasons for enhancement of amount of rent were to be stated by the plaintiff/landlord in his statement‑‑‑Such aspect of the case was not attended to by the Appellate Court, therefore, its judgment and decree was set aside.

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

‑‑‑S.4‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 117 & 120‑‑‑Rent; recovery of‑‑‑Rate of rent and increase therein‑‑‑Fair rent‑‑‑Proof‑‑‑Concurrent findings of fact by the Courts below‑‑‑Plaintiff/landlord produced only his attorney as witness who claimed an amount of rent at the rate of Rs.300/‑ per month with 10% increase‑‑‑Apart from the statement of the attorney, the plaintiff/landlord did not produce any other witness‑‑‑Trial Court decreed the suit and judgment and decree passed by Trial Court was maintained by Appellate Court on the ground that there existed relationship of landlord and tenant between the parties‑‑‑Validity‑‑-Attorney admired in his cross-examination, that the amount was assessed by him on his own‑‑‑Such self‑serving statement could not establish the fact of fair rent for particular premises‑‑‑At least the plaintiff/landlord should have produced such quality of evidence which was highlighted in S.4 of West Pakistan Urban Rent. Restriction Ordinance, 1959, for determination of fair rent‑‑In absence of such evidence, suit filed by plaintiff/landlord could not have been decreed‑‑‑Both the Courts below had lost sight of the fact that dispute in the case was not relating to the relationship of the parties inter se‑‑‑Claim of the plaintiff/landlord was with respect to a specific amount of rent on the basis of such relationship which undisputedly existed between the parties‑‑‑As the evidence required to determine fixation of rent or fair rent was not available on record, therefore, the suit could not have been decreed‑‑‑Judgments and decrees passed by both the Courts below were set aside and the suit was dismissed.

Tariq Zulfiqar Amad Chaudhry for Petitioner.

Malik Sharif Ahmed for Respondents.

Date of hearing: 9th October, 2003.

MLD 2005 LAHORE HIGH COURT LAHORE 552 #

2005 M L D 552

[Lahore]

Before Ch. Iftikhar Hussain, J

SARFRAZ AHMAD‑‑‑Petitioner

Versus

ASLAM and 3 others‑‑‑Respondents

Criminal Miscellaneous No.5457‑CB of 2004, decided on 1st October, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860), S.381‑A‑‑‑Petition for cancellation of bail‑‑‑Dismissal of petition‑‑‑Complainant had not seen accused persons committing theft of his motorcycle rickshaw and complainant either on the basis of guess or suspicion had accused the accused persons of having committed the theft of his motorcycle rickshaw‑‑‑Suspicion or guess, however strong, could not take place of proof‑‑‑Benefit arising out of a situation or circumstances in a case, even at bail stage, was to be given to accused‑‑‑Police record showed that accused persons in two first investigations were found to be not involved in the matter‑‑‑Two police officers in initial investigations had found the accused persons to be innocent‑‑‑Trial Court had extended the accused persons pre‑arrest bail observing that no evidence at all was on record to connect them with commission of alleged offence and said observation of Trial Court was absolutely based on record and not at all, on any extraneous consideration as till then no incriminating evidence was available with the police on record against accused persons‑‑‑Such circumstance, itself was indication of existence of mala fides on the part of complainant in involvement of accused in the case‑‑‑Finding of innocence of respondents by two police officers was also an indicator of mala fides on part of petitioner in the matter‑‑‑Opinion of police though was not binding upon the Court, but still it had always been considered a relevant circumstance to be taken into consideration in such‑like matter‑‑‑Trial Court, in circumstances had not at all erred in extending the relief to accused‑‑‑Bail of accused persons could not be cancelled ‑merely for the reason that recovery was to be effected from them‑‑‑No case for cancellation of pre‑arrest bail extended to accused having been made out, petition for cancellation of bail, was dismissed.

Murad Khan v. Fazal‑e‑Subhan and another PLD 1983 SC 82; Muhammad Safdar and others v, The State 1983 SCMR 645; Zia‑ul-Hassan v. The State PLD 1984 SC 192; Arif Matin Bhutta v. The State PLD 1984 Lah. 383; Mst. Shafiqan v. Suba Khan and 2 others 1973 SCMR 42; Ali Muhammad v. Yamin and another 1981 SCMR 1139; and Muhammad Jan Marwat and another v. Nazir Muhammad and 17 others 1997 SCMR 287; Muzaffar Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231; Pervaiz v. The State and 2 others 2004 PCr.LJ 1318 and Muhammad Siddique v. Habib‑ur‑Rehman and 3 others 2004 PCr.LJ 1251 ref.

Nadeem Shibli for Petitioner.

Agha Nayyar for Respondents Nos.1 to 3.

Maqbool Ahmad Qureshi for the State/Respondent No.4.

Muhammad Ilyas S.I. with police record.

MLD 2005 LAHORE HIGH COURT LAHORE 556 #

2005 M L D 566

[Lahore]

Before Muhammad Khalid Alvi, J

MUHAMMAD SARWAR alias ARSHAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.2797‑B of 2004, decided on 26th October, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.324/452/337‑F(iii)/337‑F(v)/148/149‑‑‑Bail, grant of‑‑‑Seat of injury was a non‑vital part of body of victim and accused had not repeated the blow or caused any injury to anybody else‑‑‑Police had not collected final report regarding injury received by victim‑‑‑Accused was behind the bars for the last about 8 months‑‑‑Prima facie, intention of accused to kill the injured did not appear to be available keeping in view the seat of injury and non‑repetition‑‑‑Accused was admitted to bail, in circumstances.

M. Ramzan Khalid Joiya for Petitioner.

Riaz Ora for the State.

Date of hearing: 26th October, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 559 #

2005 M L D 559

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD SHAFI and 5 others‑‑‑Petitioners

Versus

AMANAT ALI and 5 others‑‑‑Respondents

Writ Petition No.2898 of 2004, heard on 10th December, 2004.

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

‑‑‑‑S.2(d) & O.VII, Rr.11 & 13‑‑‑Rejection of plaint ‑‑‑Decree‑‑Rejecting of plaint under O.VII, R.11 C.P.C. is a decree by fiction of law under S.2(d) C.P.C.‑‑‑As the order rejecting plaint is passed without proper adjudication of respective rights of the parties, fresh suit on the basis of same cause of action has been permitted to be filed in terms of O.VII, R.13 C.P.C. subject to limitation and aggrieved person has also right of appeal against the order.

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

-‑‑S.42‑‑‑Civil Procedure Code (V of 1908), Ss.2(d), 96, 115 & O.VII, R.11---Constitutions of Pakistan (1973); Arts.185 & 199 Constitutional petition‑‑‑Rejection of plaint‑‑‑Remedy‑‑‑Suit filed by plaintiffs was rejected by Appellate Court in exercise of revisional jurisdiction on the ground that the plaint did not disclose any cause of action‑‑‑Plea raised by the plaintiffs was that the Appellate Court exceeded its jurisdiction in rejecting the plaint‑‑‑Contention of defendants was that the order of rejection of plaint being decree was appealable and Constitutional petition was not maintainable‑‑‑Validity‑‑‑Order rejecting the plaint in terms of S.2(d) C.P.C. had the force of decree and as such was appealable only if the same was passed by any Court exercising the original jurisdiction‑‑‑Revisional Court while discharging its jurisdiction under S.115 C.P.C. could not be treated to be the Court exercising original jurisdiction so the orders passed by it even though having the force of decree could not be challenged by way of appeal under S.96 C.P.C.‑‑‑Revisional powers under S.115 C.P.C. were vested concurrently in District Court and High Court and revision petition subject to the evaluation of suit for purposes of jurisdiction, was maintainable either before High Court or the District Court‑‑‑If the plaint was rejected by High Court in revisional jurisdiction, its appeal should go before Supreme Court, subject to Constitutional requirements of Art, 185 of the Constitution but all such orders 'were not challengeable under Art. 185 of the Constitution‑‑‑Appeal against the order of rejection of plaint by revisional Court was not competent, when the plaintiffs had challenged the invocation of revisional jurisdiction by Appellate Court‑‑‑Revisional Court correctly exercised its jurisdiction and aptly rejected the plaint without committing' any illegality irregularity‑‑‑Lawful view taken by a Court of competent jurisdiction within the ambit of its framework could not be substituted in Constitutional jurisdiction of High Court‑‑‑Petition was dismissed in circumstances.

Ghulam Muhammad v. United State Agency for International Development (U.S. AID). Mission, Islamabad and another 1986 SCMR 907; Mst. Kaniz Fatima and 3 others v. M.B.R. Punjab Lahore and 5 others PLD 1973 Lah. 495; Chaudhry Muhammad Saleem v. Muhammad Akram and others PLD 1971 SC 516; Qamar‑ud‑Din v. Muhammad Din and others PLD 2001 SC 518; Abdur Razzaq v. Collector of Customs and another 1995 CLC 1453; Tamizun Nisa v. Parveen Fatima and others NLR 1985 Civil 325 and Ghulam Hussain v. Shahbaz Khan 1985 SCMR 1925 ref.

‑‑‑S.115‑‑‑Revisional jurisdiction‑‑‑Scope‑‑‑Suo motu powers‑‑‑Scope of revisional jurisdiction is controlled by certain pre‑requisites laid down in S.115 C.P.C. and those powers are circumscribed by the condition of exercise jurisdiction in an illegal manner‑‑‑In spite such conditions revisional jurisdiction is very vast and corresponds to the remedy of `certiorari' which though discretionary yet can be invoked suo motu as well and the Court can make such order in the case as it thinks fit‑‑‑As in the language of S.115 C.P.C. High Court can make such order as may be needed in the circumstances of the case, hence on invocation of revisional jurisdiction, the entire case becomes open for scrutiny.

Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97; H.M. Saya and Co. Karachi v. Wazir Ali Industries Limited, Karachi and another PLD 1969 SC 65; Municipal Committee, Bahawalpur v. Sh. Aziz Elahi PLD 1970 SC 506; Muhammad Salim and others v. D.C.O. and others 1994 MLD 295 and Muhammad Saleem and another v. Mst. Zarina Begum and 4 others 19.96 MLD‑ 1959 rel.

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

‑‑‑‑S.115 & O.VII, R.11‑‑‑Rejection of plaint ‑‑‑Revisional jurisdiction, exercise of‑‑‑During exercise of revisional jurisdiction Court can pass any order needed in the circumstances of the case including rejection of plaint, if the same is required on the touchstone of O. VII, R.11 C. P, C.

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

‑‑‑‑S.42‑‑‑Arbitration Act (X of 1940), Ss. 14, 17 & 31‑‑‑Declarator suit‑‑‑Maintainability‑‑‑Award not made rule of Court‑‑Effect‑‑‑Civil suit without invoking provisions of Arbitration Act, 1940, for making decision/award rule of the Court or adjudication thereon is not maintainable.

Ch. Bashir Ahmed for Petitioners.

Muhammad Zaffar Chaudhry for Respondents.

Date of hearing: 10th December, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 570 #

2005 M L D 570

[Lahore]

Before Ch. Iftikhar Hussain, J

TARIQ MAHMOOD alias NANNA‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.8100‑B of 2004, decided on 9th December, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)-‑‑Penal Code (XLV of 1860), Ss.302/460/380/412‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Accused during commission of alleged offence had not done anything except that he had remained standing outside the house of complainant to guard his companions‑‑‑Accused had not been attributed any act qua the deceased‑‑‑Record had also shown that two persons had made statement before Police that accused had confessed his guilt before them‑‑‑Alleged extra‑judicial confession of accused, in circumstances was made more than 7 years after the, incident‑‑‑Evidentiary value of such belated extra‑judicial confession of the accused needed serious consideration‑‑‑All said facts had made case of accused as one of further inquiry into his guilt as contemplated under subsection (2) of S.497,Cr.P.C.‑‑‑Accused was behind the bars for the last four months‑‑‑Accused was entitled to bail as of right and not of grace and could not be detained for a moment‑‑‑Accused was admitted to bail, in circumstances.

Rana Muhammad Arshad Khan for Petitioner.

Malik Riaz Khalid Awan for the State.

Rai Muhammad Abdullah Saleem Bhatti for the Complainant.

Liaqat Ali, S.I. with police record.

MLD 2005 LAHORE HIGH COURT LAHORE 574 #

2005 M L D 574

[Lahore]

Before Syed Jamshed Ali, J

MUHAMMAD SARDAR‑‑‑Petitioner

Versus

MUHAMMAD RIAZ and 2 others‑‑‑Respondents

W.P. No. 14910 of 1997, heard on 3rd December, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXIII, R.3‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑Disposal of suit by compromise‑‑‑Procedure‑‑Parties filed application before Trial Court for recording of their joint statement and disposal of suit in the light of compromise arrived at between the parties‑‑‑Trial Court recorded statements of the parties and dismissed the suit‑‑Validity‑‑‑Proper course for the Trial Court was to proceed and to satisfy itself as to lawful adjustment of the suit within the contemplation of the provisions of O.XXIII, R.3 C.P.C.‑‑‑If conclusion was to the contrary, then to proceed to decide the suit‑‑‑Judgment of Trial Court proceeded on mistaken assumption as to material facts‑‑Appellate Court also did not comprehend the controversy and proceeded on the same assumption on which the Trial Court had proceeded‑‑‑Both the Courts below exceeded their jurisdiction in dismissing the suit of plaintiff‑‑‑Judgments and decrees passed by both the Courts below were without lawful authority and of no legal effect with the result the suit of plaintiff and two applications jointly moved by the parties would be deemed to be pending in accordance with law‑‑‑High Court directed that if Trial Court satisfied itself about the lawful adjustment of the suit through compromise; the same would be duly recorded as required by O.XXIII, R.3 C.P.C. and a decree would follow accordingly‑‑‑If the lawful adjustment of the suit was not found to the satisfaction of the Trial court, the suit would proceed in accordance with law‑‑‑Petition was allowed accordingly.

Dr. Muhammad Akram Javed for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd December, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 579 #

2005 M L D 579

[Lahore]

Before Ch. Ijaz Ahmad, J

MASOOD PERVEZ SAJID---Petitioner

versus

Mst. NAWASIH FATIMA and 2 others---Respondents

W.P. No.8012 of 2004, decided on 17th December, 2004.

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

----S.5---West Pakistan Family Court Rules, 1965, R.6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Non-raising of objection to jurisdiction in pleadings---Suit for recovery of maintenance allowance and maternity expenses was filed by wife against her husband---Husband did not raise objection to jurisdiction of Family Court in his written statement and the suit was decreed in favour of wife---Husband did not agitate the ground of jurisdiction in memorandum of appeal before Appellate Court---Effect---Husband was not within his right to raise that objection in the contents of Constitutional petition on the principle that the parties were bound by their pleadings---Objection about lack of jurisdiction of Court or Tribunal should have been first raised before First Appellate Court or Tribunal seized with the matter---In case, the objection was not raised at proper time, same could not be raised in Constitutional petition---As the husband did not raise any objection about jurisdiction to hear the case or about maintainability of suit, he could not say before High Court exercising Constitutional jurisdiction that the Family Court had no authority to hear and decide the case---Constitutional petition was not maintainable in circumstances.

Muhammad Luoman v. Bashir Ahmad PLD 1994 Kar. 492; Mst. Murad Begum and others v. Muhammad Rafique and others PLD 1974 SC 332; Nawab Din and others v. Muhammad Salim Aamer and others 1994 PCr.LJ 1831; Javaid Akhtar's case 1988 SCMR 1751; Fazal Khitab v. Mst. Naheed Akhtar and another PLD 1979 SC 864 and Syed Muhammad Mashooq's case 1984 SCMR 1138 ref.

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

----S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintenance allowance---Concurrent findings of fact by the Courts below---Rate of maintenance challenged by husband---Family Court decreed the suit filed by wife and fixed maintenance allowance---Judgment and decree passed by Family Court was maintained by Appellate Court---Husband raised the plea in High Court that the rate of maintenance allowance fixed by Family Court was excessive---Validity---Rates at which maintenance was allowed by the Courts below, could not be agitated in High Court in Constitutional petition---Rates at which the maintenance was allowed, were fixed by two Courts below, after taking into consideration the evidence produced by both the sides---Concurrent findings of fact regarding rates reached at by the Courts of competent jurisdiction could not be challenged by invoking the Constitutional jurisdiction of High Court on the plea that the rates of maintenance so fixed were excessive---Petition was dismissed in circumstances.

Fazal Khitab v. Mst. Naheed Akhtar and another PLD 1979 SC 864; Syed Muhammad Mashooq's case 1984 SCMR 1138; Muhammad Sharif's case 2000 MLD 2030; Sohail Muhammad's case 1998 MLD 182; Rukhsana Tabassum's case 1999 CLC 878; Ehsan-ul-Haq's case 1991 SCMR 362 and Dawood Abdul Khaliq's case 2000 CLC 1823 rel.

----Art.199---Constitutional jurisdiction of High Court---Scope---Substituting findings of Courts below---Principle---Where Courts possessed jurisdiction, their findings cannot be disturbed on the ground that another view was possible on the same evidence---High Court while exercising powers under Art.199 of the Constitution, has no jurisdiction to substitute its own findings in place of findings of Tribunals below.

Mussadaq's case PLD 1973 Lah. 600; Khuda Bukhsh v. Muhammad Sharif and others 1974 SCMR 279; Muhammad Sharif and others v. Muhammad Afzal and others PLD 1981 SC 246 and Abdul Rehman Bajwa v. Sultan Ahmad and others PLD 1981 SC 522 rel.

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

----S. 17---Provisions of Civil Procedure Code, 1908, and Qanun-e-Shahadat, 1984 are not applicable stricto senso in family matters.

(e) Evidence---

----Documentary evidence---Scope and value---Man can tell a lie but documents cannot.

Atir Mehmood for Petitioner.

Shah Muhammad for Respondents.

MLD 2005 LAHORE HIGH COURT LAHORE 586 #

2005 M L D 586

[Lahore]

Before M.A. Shahid Siddiqui, J

NAEEM ARSHAD---Petitioner

versus

SUPERINTENDENT OF NEW CENTRAL JAIL, MULTAN---Respondent

W.P. No.1654 of 2004, decided on 28th April, 2004.

Criminal Procedure Code (V of 1898)---

----S.397---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Trial of accused simultaneously in two cases and conviction on same day---Petition to treat sentence in both cases concurrently---Petitioner/accused was tried in two cases simultaneously by the Court and was convicted in both cases on same day for different periods of sentences---Petitioner/accused in his Constitutional petition had prayed for direction to treat sentence in both cases concurrently---Accused was implicated in second case with an interval of four days---Both cases having been tried simultaneously, Trial Court should have ordered sentence of accused to run concurrently under S.397, Cr.P.C.---High Court accepting petition ordered that both sentences awarded to accused should run concurrently.

Mehar Tahir Amjad for Petitioner.

Date of hearing: 28th April, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 589 #

2005 M L D 589

[Lahore]

Before Ch. Ijaz Ahmad and Syed Shabbar Raza Rizvi, JJ

ASIF MAHMOOD---Petitioner

versus

DEPUTY COMMISSIONER, SHEIKHUPURA and another---Respondents

W.P. No.12588 of 1998, decided on 20th December, 2004.

(a) Precedent---

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

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

----Art.201---Judgment of High Court---Scope---Judge in Chambers of High Court cannot bypass judgment of Division Bench of High Court---Earlier judgment of equal Bench in High Court on question of law is binding upon the second Bench.

Multi Line Associates' case 1995 SCMR 362 rel.

----Art.199---Constitutional petition---Maintainability---Government accommodation, allotment of---Vested right of allottee---Non-assailing vires of cancellation order---Grievance of the petitioner was that the accommodation allotted to him was cancelled and the authorities intended to recover possession from him---Petitioner instead of challenging the vires of cancellation order asserted that by allotment of quarter, a vested right had been accrued in his favour and the same could not be rescinded---Validity---Competent authority had the prerogative to allot or not allot the Government accommodation to the employees and it was not a vested right of any Government employee to retain the accommodation as of right---Petitioner having not challenged vires of the cancellation order, the petition was not maintainable.

Syed Tahir Hussain's case PLD 1962 SC 75 and Shagufta Begum's case PLD 1989 SC 360 ref.

Mian Muhammad Nawaz for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 592 #

2005 M L D 592

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. HAJRAN BEGUM---Petitioner

versus

Kh. MUHAMMAD YOUSAF and Legal Heirs---Respondents

Civil Revisions Nos.2125 and 2126 of 1995, heard on 26th November, 2004.

(a) High Court (Lahore) Rules and Orders---

----Vol. V, Chap. 1-D---Demarcation of land---Procedure---Fixing of boundaries of Killa in question by measurements of surrounding land/properties is necessary and mandatory for local commissioner at the time of demarcation.

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

----S.117---West Pakistan Land Revenue Rules, 1968, Rr.4(c)(v) & 67-A ---Civil Procedure Code (V of 1908), S.115 & O.XXVI, R.9---Specific Relief Act (I of 1877), S.8---Recovery of possession---Demarcation of land---Necessary steps---Plaintiffs claimed recovery of possession of suit land from defendants---Plaintiffs relied upon a demarcation report prepared by revenue authorities whereby certain portion of land owned by plaintiffs was encroached upon by the defendants---Trial Court decreed the suit in favour of the plaintiffs and judgment and decree passed by Trial Court was maintained by Appellate Court---Plea raised by the defendants was that the demarcation proceedings were not conducted under the rules---Validity---Whenever application for demarcation of land was made to revenue officer under S.117 of West Pakistan Land Revenue Act, 1967, the same was to be dealt with under R.67-A of West Pakistan Land Revenue Rules, 1968---Revenue officer was bound to cause notice in Form 33-P to be issued in duplicate to any person whose presence at the time of demarcation of the boundaries was considered to be necessary or expedient for the revenue officer---After completion, the entries should be made in the register maintained for such purpose in the office---Evidence on record established that report of local commissioner was presumptive and was not worth reliance because he assumed that property of plaintiffs was surrounded on three sides by road Rajbah and permanent building, thus according to him, there was no question of any encroachment from those three sides---Finding of the local commissioner was that the defendants being on fourth side must have encroached over the property subject of demarcation---Such imaginary way of locating some property was not permissible under law---Report of local commissioner and site plan/list of encroachers did not reflect correct position at the spot and did not furnish lawful basis for the decision---Such facts escaped notice of the two Courts below at the time of decision of the lis, hence those being suffering with material irregularity could not be allowed to be maintained---Judgments and decrees passed by both the Courts below were set aside and the case was remanded to Trial Court for taking legal action under O.XXVI, R.9 C.P.C.---High Court directed the Trial Court to determine the properties after confirmation of report obtained through local commissioner and to decide the suit afresh---Revision was allowed accordingly.

Muhammad Suleman and another v. Abdul Rashid and 6 others PLD 1975 Lah. 42 ref.

----S.8---Recovery of possession---Proof of ownership---Plaintiff in such suit is required to prove his title to property in possession of defendant through lawful/cogent evidence---In absence of such proof, suit for recovery of possession cannot be decreed.

S.M. Masud for Petitioner.

Ijaz Feroze for Respondents.

Date of hearing: 26th November, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 599 #

2005 M L D 599

[Lahore]

Before Ch. Ijaz Ahmad, J

BASIT ALI---Petitioner

versus

ADDITIONAL CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, CIVIL SECRETARIAT, LAHORE and 3 others---Respondents

Writ Petition No.556 of 2005, decided on 13th January, 2005.

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

----Arts. 199, 4, 5 & 25---General Clauses Act (X of 1897), S.24-A---Constitutional petition---Allotment of house to respondent without deciding the representation filed by the petitioner for allotment of the house in question by the Authorities---Validity---Held, it was the duty and obligation of the public functionaries to decide the representation of the citizens without fear, favour, nepotism and within reasonable time as envisaged by Art.4 of the Constitution read with S.24-A, General Clauses Act, 1897---If the public functionaries failed to act within parameters of S.24-A of the Act, High Court had ample jurisdiction to give direction to the public functionaries to act strictly in accordance with law in view of Art.4 of the Constitution, while exercising power under Art.199 of the Constitution---High Court directed the authorities to pass an appropriate order strictly in accordance with law, after providing proper hearing to all concerned including the petitioner and the person who was allotted the house and any other person, who would be aggrieved by their order, within specified time---Principles.

It is the duty and obligation of public functionaries to exercise their powers without fear, favour, nepotism and within reasonable time as is envisaged by Article 4 of the Constitution. Public functionaries are duty bound to act within frame work of Constitution and law.

By virtue of Article 5(2) of the Constitution every body has to obey the command of the Constitution.

Public functionaries are duty bound to apply law equally to all the persons whose cases are exactly similar. In case action of the functionaries is in derogation of Article 25 of the Constitution, it is not sustainable in the eye of law.

It is the duty and obligation of the public functionaries to decide the representation of the citizens without fear, favour, nepotism and within reasonable time as is envisaged by Article 4 of the Constitution read with section 24-A of the General Clauses Act.

In case, public functionaries fail to act within parameters of section 24-A of the General Clauses Act, then High Court has ample jurisdiction to give direction to the public functionaries to act strictly in accordance with law in view of Article 4 of the Constitution, while exercising power under Article 199 of the Constitution.

The purpose of section 24-A of the General Clauses Act, is founded on the premises that public functionaries deriving authority from or under law are obligated to act reasonably, fairly and justly without any element of discrimination and squarely within the parameters of law and non-deciding the application of the petitioner by the authorities brings the case in the area where the action of the authorities is not in accordance with law. Such manner of exercising of power is also termed as mala fide.

Pakistan is founded on the basis of religion of Islam, effort should be made to bring about an egalitarian society based on Islamic concept of fair play and social justice. The State functionaries like Railways are expected to act fairly and justly, in a manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise.

Zahid Akhtars case PLD 1995 SC 530; Ch. Zahoor Ealhis case PLD 1975 SC 383; I.A. Sharwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others 1991 SCMR 1041; Ahmad Latif Qureshis case PLD 1994 Lah. 3; M/s. Airport Support Service v. The Airport Manager, Karachi, Airport 1998 SCMR 2268; Zainyar Khan v. Chief Engineer C.R.B.C. 1998 SCMR 2419; H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others PLD 1981 SC 612; Province of Sindh through Chief Secretary Sindh Karachi and 4 others v. Gul Muhammad Hajano 2003 SCMR 325; Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 and Shaukat Ali and others v. Government of Pakistan through Chairman, Ministry of Railways and others PLD 1997 SC 342 ref.

(b) General Clauses Act (X of 1897)---

----S.24-A---Object, scope and application of S.24-A, General Clauses Act, 1897 stated.

Ahmad Latif Qureshis case PLD 1994 Lah. 3; M/s. Airport Support Service v. The Airport Manager, Karachi, Airport 1998 SCMR 2268; Zainyar Khan v. Chief Engineer C.R.B.C. 1998 SCMR 2419; H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others PLD 1981 SC 612; Province of Sindh through Chief Secretary Sindh Karachi and 4 others v. Gul Muhammad Hajano 2003 SCMR 325; Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 and Shaukat Ali and others v. Government of Pakistan through Chairman, Ministry of Railways and others PLD 1997 SC 342 ref.

Syed Azhar Ali Shah Bokhari for Petitioner.

Muhammad Hanif Khatana, Acting A.-G. Punjab for Respondents on Courts call.

MLD 2005 LAHORE HIGH COURT LAHORE 604 #

2005 M L D 604

[Lahore]

Before Ch. Ijaz Ahmad, J

AUQAF DEPARTMENT, PUNJAB through Chief Administrator Auqaf, Lahore---Petitioner

versus

SIKINA BIBI and another---Respondents

C.R. No.750 of 2004, decided on 21st September, 2004.

Punjab Waqf Properties Ordinance (IV of 1979)---

----Ss. 7 & 11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Jurisdiction of Civil Court---Claim of plaintiffs was that house in dispute was their ancestral property which they had inherited from its original owner after his death---Auqaf Department controverted claim of plaintiffs and also challenged jurisdiction of Civil Court contending that it had no jurisdiction to take cognizance of the matter by virtue of S. 11 of Punjab Waqf Properties Ordinance, 1979---Both Trial Court and Appellate Court had concurrently decreed the suit---Validity---Jurisdiction of Trial/Civil Court would be barred under S. 11 of Punjab Waqf Properties Ordinance, 1979 when property had been declared and taken over by Auqaf Department under provisions of the Ordinance, but suit property had not been so taken over by Auqaf Department---Civil Court, in circumstances, had jurisdiction to take cognizance of the matter---Appellate Court below upheld findings of Trial Court and passed impugned judgment---Notification whereby some properties were taken over by the Department, did not show that property in dispute was so taken over---Both Courts below, in circumstances, had rightly decreed the suit---High Court having very limited jurisdiction to disturb concurrent findings of Courts below while exercising revisional powers under S. 115, C.P.C., could not disturb the same in absence of any infirmity or illegality in such findings.

Zafar-ul-Ahsan v. The Republic of Pakistan, through Cabinet Secretary, Government of Pakistan PLD 1960 SC 113; N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madras PLD 1949 P.C. 26; Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mahmood NLR 1985 Civil 114 and Board of Intermediate and Secondary Education, Lahore v. Ghulam Qadir PLD 1988 SC 625 ref.

Ch. Saeed Ashraf Waraich for Petitioner.

Date of hearing: 21st September, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 609 #

2005 M L D 609

[Lahore]

Before Maulvi Anwarul Haq, J

Capt. (R.) MUHAMMAD SHABBIR---Appellant

versus

MUHAMMAD IDREES and another---Respondents

R.S.A. No.85 of 2004, decided on 29th November, 2004.

Specific Relief Act (I of 1877)---

----Ss.12 & 27(b)---Suit for specific performance of agreement of sale---Plaintiff had claimed that defendant had agreed to sell suit-land to him and after receiving amount defendant executed agreement of sale in favour of plaintiff and delivered possession of suit-land to him under the said agreement---Plaintiff had alleged that defendant, thereafter collusively and without consideration sold away suit-land to another person (defendant No.1)---Said other person resisted the suit claiming that no agreement of sale was executed by defendant in favour of plaintiff who was paternal uncle of respondent and that suit filed by plaintiff was collusive and was filed to cause wrongful harm to the said other person (vendee)---Defendant did not contest the suit---Registered sale-deed in favour of said other person (vendee) was executed by defendant after about 9 months of alleged execution of sale agreement in favour of the plaintiff and suit was filed by plaintiff after about 10 months from the execution of alleged agreement of sale---No allegation was levelled in the entire plaint that said other person/vendee was aware of the alleged agreement of sale in favour of the plaintiff---Sale-deed in respect of suit-land executed by defendant/vendor in favour of said person (vendee) had never been questioned by the defendant/vendor---Vendee had proved himself to be a bona fide purchaser of suit-land without any rebuttal or for that matter any allegation that he was aware of previous agreement allegedly executed in favour of plaintiff within meaning of S. 27(b) of Specific Relief Act, 1877---Suit was rightly dismissed, by Appellate Court below, in circumstances.

Muhammad Din v. Mst. Sakina Bibi and others 2003 SCMR 956; Mst. Surryia Begum and others v. Mst. Suban Begum and others 1992 SCMR 652 and Ramdeni Singh v. Gumani Raut AIR 1929 Patna 300 ref.

Syed Muhammad Ali Gilani for Appellant.

MLD 2005 LAHORE HIGH COURT LAHORE 613 #

2005 M L D 613

[Lahore]

Before Muhammad Akhtar Shabbir, J

JEHANGIR AKHTAR---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.437 of 2003, heard on 11th June, 2004.

Penal Code (XLV of 1860)---

----S.228---Criminal Procedure Code (V of 1898), S.480---Appreciation of evidence---Record and the statement made by the accused before the Court had revealed that he had no intention to insult or interrupt the proceedings of the Court---Accused only wanted to bring to the knowledge of the Court that "Ziadti" was made by the police with the judgment-debtor---Accused had not forced his entry in the Court Room nor had interrupted in the Court proceedings---Utterance of the word "Ziadti" was made by the accused under passion or sentiment---Weapon of contempt while dealing with such cases was always sparingly used with reference to administration of justice---Word "Ziadti" spoken or attributed to the accused would not be taken as interference or interruption in the Court's work---Subordinate Courts have jurisdiction to convict any person for committing contempt of Court only in the circumstances mentioned in S.228, P.P.C., but they are bound to follow the procedure laid down in Ss.480, 481 and 482, Cr.P.C., otherwise the conviction and sentence would not be maintainable---Trial Court had failed to perform the legal requirement as provided in Ss.480 to 482, Cr.P.C.---Accused was acquitted in circumstances.

Ghulam Shabbir v. The State and another 1991 MLD 487; Iqbal Hassan Qazi v. The State 1969 PCr.LJ 627; Haji Khawar Saleem v. The State 2000 SCMR 1856; Muhammad Bakhsh and another v. The State 1972 PCr.LJ 96 and Abdul Rahim Shoro and 3 others v. The State 1995 PCr.LJ 1307 ref.

Z. Babar Awan for Appellant.

Tanvir Iqbal, Asst. A.-G. for the State.

Date of hearing: 11th June, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 620 #

2005 M L D 620

[Lahore]

Before Ch. Ijaz Ahmad, J

Ch. NOOR AHMAD through Legal Heirs---Appellants

versus

ABDUL MAJID through Legal Representatives---Respondents

R.S.A. No. 36 of 2004, decided on 2nd December, 2004.

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

----O.XLI, R. 27---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Additional evidence, production of---Suit having been dismissed by Trial Court, plaintiff filed appeal before Appellate Court along with application under O. XLI, R. 27, C.P.C. for production of additional evidence---Appellate Court without applying its mind dismissed application of plaintiff for production of additional evidence and also dismissed appeal---Appellate Court was obliged to decide application filed for production of additional evidence after application of mind which was a condition precedent---Appellate Court having decided application without application of mind and impugned decree was also based upon that order, impugned order, judgment and decree were set aside with the result that appeal and application were to be deemed to be pending adjudication before Appellate Court which would be decided afresh by Appellate Court after application of mind within specified period.

Manzoor Elahi v. Surrayya Jabeen PLD 2004 Pesh. 62; Khizar Yasin and others v. Mst Khadija Bibi and others 2003 CLC 1622; Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others PLD 1970 SC 158 and Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 ref.

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

----Arts. 189 & 190---General Clauses Act (X of 1897), S. 24-A---Judgment of Supreme Court---Binding force of---Duty and obligation of public functionaries---Judgment of Supreme Court was binding on each and every organ of State---Public functionaries were obliged to decide controversy between parties after application of mind.

M/s. Airport Support Services v. The Airport Manager 1998 SCMR 2268 ref.

M. Ramzan Chaudhry for Appellants.

Mian Abdul Rashid for Respondents.

Date of hearing: 2nd December, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 624 #

2005 M L D 624

[Lahore]

Before Maulvi Anwarul Haq, J

AMEER MUHAMMAD KHAN---Petitioner

versus

ALLAH DEWAYA---Respondent

C.Rs. Nos.43-D to 45-D and C.M. No.1/C of 2005, decided on 13th January, 2005.

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

----Ss.6, 13 & 24---Civil Procedure Code (V of 1908), S. 148---Suit for pre-emption---Deposit of Zar-e-soim---Limitation---Jurisdiction of Court to extend time for deposit of Zar-e-soim---Plaintiff, on filing the suit was directed to deposit Zar-e-soim within 30 days, but plaintiff did not make the deposit within said period and filed application for extension of time on ground that he was ill---Said application was dismissed and suits filed by plaintiff were dismissed by Trial Court and Appellate Court---Section 24, Punjab Pre-emption Act, 1991 had laid down in mandatory terms that Zar-e-soim would be ordered to be deposited within period not beyond 30 days of filing of suit and subsection (2) of S.24 of the Act had provided that, in case of failure to deposit within prescribed period of 30 days, suit would be dismissed---Trial Court had no jurisdiction to extend said time---Power to extend time, though had been granted to a Court by virtue of S.148, C.P.C., but that power could be exercised only where time had been fixed by the Court itself and not where statute had prescribed time for doing an act.

Mst. Wafa Jan v. Mahram Zad 1995 CLC 2002 and Awal Noor v. District Judge, Karak and 8 others 1992 SCMR 746 ref.

Akhtar Rahman Khan, for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 626 #

2005 M L D 626

[Lahore]

Before M. Bilal Khan, J

SOHAIL BUTT---Petitioner

versus

KALEEM SHEHZAD and another---Respondents

Crl. Revision No.1032 of 2004, decided on 20th December, 2004.

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

----S.204---Penal Code (XLV of 1860)---Ss.302/337-F(iii)/324/148/ 149---Accused summoned by Sessions Court in private complaint---Validity---Impugned order passed by the Additional Sessions Judge summoning the accused in private complaint was alleged to have been obtained by the complainant by practising fraud and by concealment of material facts inasmuch as the factum of the earlier complaint having been entertained by another Additional Sessions Judge and sent for inquiry to the Superintendent of Police had been concealed---Matter at present was pending with the Sessions Judge for decision as to which Additional Sessions Judge would hear the complaint as well as the State case---Court from which an order had been obtained by fraud, misrepresentation or concealment of facts had the power under the law to undo that order---If any such application had been made by the accused petitioner for recalling the impugned order, the Additional Sessions Judge seized of the case was, therefore, directed to first decide the said application after affording accused full opportunity to present his standpoint---Revision petition was disposed of accordingly. [pp.627, 628] A, B, C, D & E

The Chief Settlement Commissioner v. Raja Muhammad Fazal Khan PLD 1975 SC 331 ref.

(b) Administration of justice---

----Order obtained by fraud etc.---Whenever there is an allegation that an order had been obtained by fraud, misrepresentation or concealment of facts from a particular Court, the said Court has the power to undo that order.

The Chief Settlement Commissioner v. Raja Muhammad Fazal Khan PLD 1975 SC 331 ref.

M. Iqbal Bhatti for Petitioner.

Ch. Aamir Rehman Addl. A.-G. on Court's call.

MLD 2005 LAHORE HIGH COURT LAHORE 630 #

2005 M L D 630

[Lahore]

Before Sh. Abdul Rashid and M. Bilal Khan, JJ

MUHAMMAD NAWAZ---Petitioner

versus

MUHAMMAD WASEEM AFZAL and others---Respondents

Writ Petition No.17243 of 2003, decided on 25th March, 2004.

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

----S. 9(c)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Petitioner/accused during investigation in case was found to be innocent and alleged recovery of narcotics was found to have been planted upon him by Investigating Officer---Report under S. 173, Cr.P.C. for discharge of accused in the case was submitted to which Illaqa Magistrate did not agree and he directed Police Authorities to submit challan against accused---Accused had filed Constitutional petition for setting aside order of Illaqa Magistrate---D.P.O. who personally investigated case found same to have been falsely fabricated against accused---During investigation proceedings it was also found that statements under S. 161, Cr.P.C. allegedly recorded by Investigating Officer of all the recovery witnesses were also false---High Court accepting Constitutional petition set aside order of Illaqa Magistrate and discharged accused from case.

Ch. Imran Raza Chadhar for Petitioner.

Muhammad Suhail Dar, A.A.-G. for the State.

Date of hearing: 25th March, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 631 #

2005 M L D 631

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD RAMZAN---Petitioner

versus

JUDGE, FAMILY COURT and others---Respondents

W.P. No.5593 of 2004, decided on 1st December, 2004.

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

----S.5 & Sched---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles---Remedy of filing of Constitutional petition could not be made available, as a substitute for appeal or revision with regard to those decrees from which Legislature in its wisdom, had closed remedy of appeal or revision through statutory provisions.

Syed Saghir Ahmad Naqvi v. Province of Sindh and another 1996 SCMR 1165 and International Food Centre Ltd. v. Unified Bank Ltd. and others 1982 CLC 108 ref.

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

----Art.199---Constitutional jurisdiction---Scope---High Court cannot evaluate and appreciate evidence brought on record by a party in exercise of its extraordinary jurisdiction---Grave injustice having been done to the parties to proceedings had to be shown so as to attract exercise of jurisdiction under Art.199 of the Constitution.

Malik Javed Akhtar Waris for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 634 #

2005 M L D 634

[Lahore]

Before Muhammad Nawaz Bhatti, J

ARSHAD AHMAD---Petitioner

versus

THE STATE---Respondent

Crl. Misc. No.8884-B of 2004, decided on 21st December, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16/10---Bail, refusal of---Victim girl in her statement had fully implicated the accused and his co-accused who was still at large---Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, had also been added in the case and challan had been submitted in the Court---Case of accused, prima facie, fell under S.10(3) of the said Ordinance which attracted the prohibitory clause of S.497(1), Cr.P.C.---Bail was declined to accused in circumstances.

Altaf Hussain Bhatti for Petitioner.

Ms. Surraya Butt for the Complainant.

Ch. Riasat Ali for the State with Muhammad Yousaf, S.I. with record.

MLD 2005 LAHORE HIGH COURT LAHORE 637 #

2005 M L D 637

[Lahore]

Before Sardar Muhammad Aslam and Muhammad Nawaz Bhatti, JJ

SAJEEL-UR-REHMAN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.69-J of 2002, heard on 22nd December, 2004.

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

----S.302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---Medical evidence did not give the true account of the injuries of the deceased and thus did not corroborate the ocular account of occurrence---Report of the Forensic Expert being in the negative, recovery of the crime weapon was of no consequence---Motive for the occurrence was not proved---Eye-witnesses had made a deliberate attempt to substitute the accused for co-accused mentioned in the F.I.R. occupying the rear seat of the bike and their testimony was not trustworthy---Varying description of the features of the accused given by the eye-witnesses had shown their inability to identify him at the time of incident---Even otherwise, eye-witnesses being residents of a village located at a distance of five K.Ms. from the place of occurrence, their presence at the spot was not possible---Rules and the principles governing the holding of the identification test parade having not been strictly followed, identification parade had lost its significance---Doubt arising in respect of one fact or circumstance was enough to discard the prosecution case as a whole---Accused was acquitted in circumstances.

Imran Ashraf and 7 others v. The State 2001 SCMR 424; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Alim v. The State PLD 1967 SC 307 and Haroon alias Harooni v. The State 1995 SCMR 1627 ref.

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

----S.302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---Principles---Statement of a witness being in consonance with the probabilities fitting in the circumstances of the case and inspiring confidence in the mind of a reasonable prudent man, even if made by the worst enemy of the accused, may be accepted and relied upon without corroboration, but where such elements are missing, then the statement of a pious man may be rejected without second thought.

Haroon alias Harooni v. The State 1995 SCMR 1627 rel.

----S.302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---Benefit of doubt---Principle---Doubt arising in respect of one fact or circumstance is enough to discard the whole prosecution case.

Asghar Ali Khan Rokhri for Appellant.

Ch. Ghulam Hussain Special Public Prosecutor for the State.

Date of hearing: 22nd December, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 646 #

2005 M L D 646

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. SAFIA---Petitioner

versus

Mst. BIBI and 14 others---Respondents

Civil Revision No. 1782 of 1998, heard on 4th February, 2005.

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

----Arts. 64, 117 & 120---Civil Procedure Code (V of 1908), S.115---Specific Relief Act (I of 1877), S.42---Declaration of title---Relationship, proof of---Onus to prove---Concurrent findings of fact by the Courts below---After the death of the owner of suit-land, his widow became limited owner---Yakjadi of the original owner inherited suit property after the death of the limited owner---Plaintiff claimed to be the daughter of one of Yakjadi of the original owner and sought declaration to inherit 1/8th share in the suit-land---Trial Court dismissed the suit on the ground that the plaintiff failed to prove her relationship as mentioned by her in the family tree drawn in the plaint---Judgment and decree passed by Trial Court was maintained by Appellate Court---Validity---Defendants had placed on record documentary evidence which showed that family tree mentioned by the plaintiff in her plaint was not correct---Plaintiff failed to rebut the documentary evidence by producing any document or rebut the same even in oral evidence---To prove the contents of pedigree-table, by virtue of Art.64 of Qanun-e-Shahadat, 1984, there must be special means of knowledge---Statement of the witness produced by the plaintiff to prove the relationship, did not fulfil the mandatory requirement mentioned in Art.64 of Qanun-e-Shahadat, 1984---Plaintiff failed to point out any irregularity or illegality committed by the Courts below or misreading or non-reading of any piece of evidence---Plaintiff failed to prove her relationship with Yakjadi of the original owner and thus was not entitled to get 1/8th share in the land in dispute---Findings of the Courts below on the issue of relationship were upheld---High Court in exercise of revisional jurisdiction, declined to interfere in the concurrent findings of fact by the Courts below---Revision was dismissed.

Ghulam Ali's case PLD 1990 SC 1; Khuda Yar's case PLD 1987 SC 453; Najabat's case PLD 1982 SC 187; Muhammad Hussain's case PLD 1993 SC 147; Muhammad Riaz Aslam's case 1993 CLC 1391; Muhammad Siddiq's case 1992 SCMR 2260 and Mst. Habib Khatoon's case PLD 1970 SC 162 ref.

Shah Nawaz's case PLD 1976 SC 767 rel.

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

----Art. 103---Evidence----Documentary and oral evidence---Comparison---Man can tell lie but the documents cannot---Documentary evidence has been given grater weight as compared to oral evidence.

----Art.129(g)---Non-appearance of plaintiff in witness box---Presumption---When plaintiff did not appear herself in witness box, the Courts were justified to take adverse inference against the plaintiff.

Shah Nawazs case PLD 1976 SC 767; Sughran Bibi's case 1996 SCMR 137 and Abdul Ahad's case PLD 1979 SC 890 rel.

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

----S.115---Revisional jurisdiction of High Court---Scope---Concurrent findings of fact by the Courts below---Principles---Trial Court in the present case had exercised its discretion which was upheld by Appellate Court---High Court seldom interfered unless and until the discretion was exercised arbitrarily---High Court had very limited jurisdiction to interfere in concurrent findings of the Courts below, while exercising jurisdiction under S.115 C.P.C. unless and until the judgments of the Courts below were result of misreading or non-reading of record or had decided the case in violation of parameters prescribed by the superior Courts.

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

----Arts.117 & 120---Plaint, proof of---Principles---Plaintiff had to prove her case on the basis of her own evidence and could not get benefit of weaknesses of evidence of defendants.

Mirza Hafeez-ur-Rehman for Appellant.

Pir Kaleem Ahmed Khursheed for Respondent.

Date of hearing: 4th February, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 655 #

2005 M L D 655

[Lahore]

Before Bashir A. Mujahid, J

Mst. HAMEEDA BIBI alias FARIDA---Petitioner

versus

MUHAMMAD NAZIR and others---Respondents

Criminal Petition No. 118/Q of 2003, decided on 12th December, 2003.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Quashing of proceedings---Petitioner filed a suit for dissolution of marriage before Family Court---Respondent appeared before Family Court and case was adjourned for filing written statement, but respondent filed present complaint as a counterblast against petitioner as well as her witnesses as given in the Schedule of petition in the complaint to be produced in her support---Judicial Magistrate, after recording preliminary statement, summoned petitioner and her other relatives---Petitioner in her petition had prayed that proceedings be ordered to be quashed---Complaint having been filed by respondent as a counterblast with false allegations, High Court allowing petition, quashed proceedings pending in case before Judicial Magistrate.

Mst. Irshad Begum v. Nazir Ahmed and another 1973 PCr.LJ 122; Mrs. Surrya Edwin and others v. Professor Javid Jiwan Mall and others 1986 MLD 2203; Mazhar Ibnehassan Siddiqui and 2 others v. The State and another 1997 PCr.LJ 1030; Tasleem Begum and 6 others v. Inayat Ullah and 2 others PLD 1987 Lah. 212; Abdul Rashid and 2 others v. The State and another 1987 PCr.LJ 1380; Jan Muhammad and others v. Gaman Khan 1995 PCr.LJ 1371; Mst Nasim Bano and 2 others v. Muhammad Ismail and another 1980 PCr.LJ 1189; Anand Ram v. Moti Ram and 3 others PLJ 1988 Cr.C (Quetta) 1; Sher Muhammad and another v. The State and another 1996 PCr.LJ 2000 and Muhammad Anwar v. The State and another 1980 PCr.LJ 823 ref.

Syed Zulfiqar Haider for Petitioner.

Najeeb Faisal Chaudhary, Addl. A.-G. for Respondents.

Date of hearing: 12th December, 2003.

MLD 2005 LAHORE HIGH COURT LAHORE 657 #

2005 M L D 657

[Lahore]

Before Ch. Ijaz Ahmad, J

JAN MUHAMMAD---Petitioner

versus

Mst. HASHMAT BIBI through L.Rs.---Respondents

Civil Revision No.1079 of 1997, heard on 11th February, 2005.

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

----Ss.42 & 54---Civil Procedure Code (V of 1908), O.XLI, R.31 & S.115---Declaration of title---Common wall between two houses---Judgment of Appellate Court---Non-application of judicial mind---Material irregularity---Plaintiff was aggrieved of the construction raised by defendant over the partition wall between the houses owned by the parties---Contention of the plaintiff was that the wall was commonly owned by both the parties, therefore, the defendant was not entitled to raise construction over the same---Trial Court decreed the suit in favour of plaintiff but Appellate Court reversed the finding of Trial Court and dismissed the suit---Plea raised by the plaintiff was that the judgment of Appellate Court was passed without application of judicial mind---Validity---Appellate Court had reversed the findings of Trial Court without adverting to the reasoning of the Trial Court which was not in consonance with the law laid down by the Supreme Court in case titled Madan Gopal and 4 others v. Maran Bepari and 3 others, reported as PLD 1969 S.C. 617---Appellate Court had reversed the findings of the Trial Court without judicial application of mind and without reappraisal of the evidence, therefore, appeal of defendant was decided without judicial application of mind---If the Appellate Court had decided the case in violation of the parameters prescribed by Supreme Court, then it was termed as material irregularity committed by the Court---Judgment and decree passed by Appellate Court was set aside and the matter was remanded to Appellate Court for deciding the appeal afresh---Revision was allowed accordingly.

Syed Iftikhar-ud-Din Haider Gardezi v. Central Bank of India Ltd. Lahore and 2 others 1996 SCMR 669; Mst. Jannat Bibi v. Ch. Azim Bakhsh 1994 CLC 1695; Durga Parshad v. Jheetar Mal AIR 1954 Punjab 125; AIR 1931 Lah. 373; Baiji Nath v. Janki Prasad AIR 1930 Allahabad 318 and Muzaffar Ali v. Muhammad Amin PLD 1975 Lah. 479 ref.

Hira Lal and another v. Milkhiram AIR 1928 Lah. 598; Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617; Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others PLD 1970 SC 158; Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173; Kanwal Nain's case PLD 1983 SC 53 and Shaukat Nawaz's case 1988 SCMR 851 rel.

(b) Administration of justice---

----Decision of case---Duty of Judge---Presiding Officers are duty bound to decide the cases between the parties after judicial application of mind.

----S.24-A---Decision of cases by public functionaries---Duty and obligation---Retrospective effect of S.24-A of General Clauses Act, 1897---S.24-A is added in General Clauses Act, 1897, which is procedural in nature and as such of retrospective effect---After such addition it is the duty and obligation of the public functionaries to decide the cases of the citizens with reasons within reasonable time.

Zain Yar Khan v. The Chief Engineer 1998 SCMR 2419 and M/s Airport Support Services v. The Airport Manager 1998 SCMR 2268 rel.

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

----Arts.189 & 190---Decision of Supreme Court---Decision of Supreme Court is binding on each and every organ of the State as envisaged by Arts.189 and 190 of the Constitution.

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

----S.115---Revisional jurisdiction of High Court---Scope---High Court remanded the case to Appellate Court for decision afresh on appeal and declined to reappraise the evidence on record as by doing so one of the parties would lose right of revision before High Court and High Court would also not be benefited by the findings of the First Appellate Court.

Ch. Ali Muhammad for Petitioner.

Ch. Iftikhar Ahmed for Respondents.

Date of hearing: 11th February, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 667 #

2005 M L D 667

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Rustam Ali Malik, JJ

AMANULLAH---Appellant

versus

THE STATE and another---Respondents

Criminal Appeal No.345 of 2003, decided on 23rd November, 2004.

Criminal Procedure Code (V of 1898)---

----S. 417(2-A)---Penal Code (XLV of 1860), Ss. 302/148/149---Appeal against acquittal---Trial Court had acquitted accused by extending him benefit of doubt---Trial Court while passing acquittal order had observed that accused allegedly was present at the time of occurrence armed with a carbine, but injuries attributed to him were not supported by medical evidence but had in fact been described as an exit wound and that recovery was also not effected from him during course of investigation---Medico-legal report or the post-mortem report did not indicate any entry wound on the left buttock of deceased---Trial Court, in circumstances had rightly extended benefit of doubt to accused and had correctly acquitted him.

Ch. M. Nawaz Sulehri for Appellant.

Date of hearing: 23rd November 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 669 #

2005 M L D 669

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAH NAWAZ---Appellant

versus

THE STATE---Respondent

Crl. A. No.402-J of 2002, heard on 5th November, 2004.

Penal Code (XLV of 1860)---

----Ss.302(b)/324/402/452/34---Appreciation of evidence---Accused was not named in F.I.R., but was implicated in the case through supplementary statements of complainant and prosecution witness, recorded after four months of occurrence which had no sanctity in the eye of law---Case against accused was of doubtful nature because identification parade was not held in jail, but was held in Police Station which had no evidentiary value and was inadmissible in evidence---Recovery of .222 rifle from accused at a much belated stage, was also of no avail to prosecution---Conviction and sentence recorded against accused by Trial Court were set aside and he was acquitted from the case and was released.

Kashif Nawaz Bajwa for Appellant.

Syed Faisal Raza Bokhari for the State.

Date of hearing: 5th November, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 672 #

2005 M L D 672

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD KHAN---Petitioner

versus

BAHADUR---Respondent

C.Rs. Nos.182 and 183 of 1998, heard on 7th February, 2005.

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

----S.115 & O.XLI, R.33---Power of First Appellate Court to reverse findings of trial Court---Scope---Duty and obligation of Appellate Court to reverse such findings after meeting the reasoning of Trial Court---Decision of appeal without meeting the reasoning of trial Court, would be a material irregularity committed by Appellate Court---High Court had ample jurisdiction under S.115, C.P.C. to set aside such judgment of Appellate Court.

Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 rel.

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

----S.115 & O.XLI, R.33---Decision of case by First Appellate Court in violation of parameters prescribed by superior Courts---Validity---Such act of Appellate Court would be termed as material irregularity.

Kanwal Nain's case PLD 983 SC 53 and Shaukat Nawaz's case 1988 SCMR 851 rel.

----S.6---Transfer of Property Act (IV of 1882), Ss.54 & 118---Pre-emption, right of---"Sale" and "exchange"---Distinction---Both such terms have distinctive features independent of each other---Disparity in price of transaction of exchange could not demolish transaction itself---No irresistible inference of sale could be drawn, when areas and quantities of properties to be exchanged were unequal.

Haji Lal Shah and another v. Abdul Khaliq and another 2004 SCMR 409; Ali Muhammad and others v. Abdul Majid and others 2002 YLR 2487; Muhammad Zaman v. The State PLD 1993 Pesh. 13; Sher Azam v. Fazle Azim Shah 1972 SCMR 649; Raja Muhammad Siddique v. Abdur Rehman. 1997 CLC 1819 and Syed Khalil-ur-Rehman Chishti v. Abdul Hamid Khan 2004 SCMR 838 ref.

Ghulam Hussain's case PLD 1989 Lah. 73; Rahim Bukhsh's case 1992 CLC 2433; Muhammad Irshad's case 1981 CLC 124; Sher Azam's case 1973 SCMR 649; Aamar Sane's case AIR 1947 Pesh. 29; Alah Dad's case PLD 1968 Lah. 428; Faqir Shah's case PLD 1951 Pesh. 14; Haji Mamma Khel's case 1992 SCMR 1785; Raja Muhammad Siddiq's case 1997 CLC 1819; and Syed Khalil-ur-Rehman's case 2004 SCMR 838 rel.

Malik Noor Muhammad Awan for Petitioner.

M.M. Alam for Respondent.

Date of hearing: 7th February, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 682 #

2005 M L D 682

[Lahore]

Before Maulvi Anwarul Haq, J

ADMINISTRATOR, MUNICIPAL CORPORATION, MULTAN through City Nazim Multan---Appellant

versus

Messrs TAWAKKAL & COMPANY through Ghulam Fareed and 2 others---Respondents

R.S.A. No.2 of 2004, heard on 9th December, 2004.

Civil Procedure Code (V of 1908)---

----Ss. 96 & 100---Dismissal of first appeal for late deposit of printing charges---Regular first appeal was filed in time and court-fee was also deposited as directed, but appeal was dismissed for late deposit of printing charges of records---Late deposit of printing charges would hardly constitute a ground to dismiss appeal as barred by time when it was filed within time in the Court---First appeal having been dismissed on the ground which was not at all available in law, case was remanded with direction to office to issue a certificate for refund of court-fee paid on memo of regular second appeal to appellant.

1998 SCMR 307 ref.

Haji M. Aslam Mali for Appellant.

M. Shakeel Javed Chaudhry for Respondents.

Date of hearing: 9th December, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 685 #

2005 M L D 685

[Lahore]

Before Khawaja Muhammad Sharif, J

MUNIR AHMAD---Appellant

versus

THE STATE---Respondent

Crl. A. No.977 of 2003, heard on 8th November, 2004.

Penal Code (XLV of 1860)---

----Ss.302/308/34---Appreciation of evidence---F.I.R. was lodged with a delay of fifteen hours while place of occurrence was only five Kilometers from Police Station---Both prosecution witnesses were not residents of the vicinity or of a place close to occurrence, but were residents of other villages---One of prosecution witnesses was the real brother of deceased while other one was brother-in-law of brother of deceased---Place of occurrence was surrounded by houses, but none from the locality was produced during trial---Case was of delayed post-mortem---Two co-accused had already been acquitted by Trial Court on same evidence and their acquittal had attained finality as neither State nor complainant party had filed appeal against said acquittal---Defence plea taken by accused in his statement recorded under S.342, Cr.P.C. was more plausible and convincing---Presence of eye-witnesses at the place of occurrence, was highly doubtful and their statements could not be believed for the reason that they were closely related to deceased and had not put any plausible reason for their presence at the spot---Prosecution having failed to prove its case against accused beyond any doubt, judgment of conviction and sentence passed against him by Trial Court, was set aside and he was acquitted from the case.

Ch. Din Muhammad Mayo for Appellant.

Akram Chaudhry for Respondent.

Date of hearing: 8th November, 2004.

2005 M L D 699

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD SALEEM SHAHID---Petitioner

versus

ADMINISTRATOR, EVACUEE TRUST PROPERTY, LAHORE and 3 others---Respondents

W.P. No.1457 of 2005, decided on 31st January, 2005.

(a) Scheme for Management and Disposal of AgricultureLand 1975---

----S.18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Notice demanding lease money from petitioner---Pendency of civil suit and appeal before Administrator filed by private respondents---Validity---Constitutional jurisdiction being discretionary in character would not be exercised in favour of petitioner in such circumstances.

Ch. Tanvir Ahmad Siddiky v. Province of East Pakistan and others PLD 1968 SC 185 rel.

(b) Scheme for Management and Disposal of AgricultureLand 1975---

----S.18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Notice demanding lease money from petitioner as per rates determined by authority---Remedy before Appellate Authority qua such determination not availed---Constitutional petition was not maintainable.

Ch. Muhammad Ismail's case PLD 1996 SC 246 rel.

----Art.199---Demand notice or show-cause notice---Constitutional petition not maintainable against such notice.

M/s Aslam Trader's case 2000 SCMR 65 ref.

Mst. Shagufta Begums case PLD 1989 SC 360 rel.

Muhammad Akram Shahid for Petitioner.

Mian Qamar-uz-Zaman, legal advisor of Respondents entered appearance on Court's call.

MLD 2005 LAHORE HIGH COURT LAHORE 706 #

2005 M L D 706

[Lahore]

Before Sh. Hakim Ali, J

Mst. MUSARRAT BIBI---Petitioner

versus

SHAH MUHAMMAD and another---Respondents

W.P. No.3853 of 2004, decided on 8th December, 2004.

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

----S.5 & Sched---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dower---Jurisdiction of Family Court---Family Court decreed suit, but Appellate Court dismissed the suit being not maintainable in Family Court---Validity---Section 5 of West Pakistan Family Courts Act, 1964 had granted exclusive jurisdiction to Family Court to adjudicate upon cases which were provided in Schedule attached to the Act and dower was one of subjects/items shown in that Schedule---To determine as to how much amount or property was given to the bride in lieu of dower, how much amount was settled to be paid, whether it was prompt or deferred and all such related questions were to be resolved by Family Court---Existence, nature, quantum and even the recovery of dower, all those polemical questions were to be considered to have been covered by S.5 of West Pakistan Family Courts Act, 1964 read with Schedule thereof and it could not be held that Family Court had got no jurisdiction to entertain or adjudicate said controversial questions with regard to dower---High Court accepting Constitutional petition declared judgment of Appellate Court below to be illegal and unlawful---Case was remanded to be decided afresh after granting opportunity of hearing to both parties, in circumstances.

Liaqat Ali v. Addl. District, Judge and 2 others 1997 SCMR 1122 ref.

Muhammad Akbar Sajid for Petitioner.

Ch. Ghulam Din Aslam for Respondent No.1.

MLD 2005 LAHORE HIGH COURT LAHORE 708 #

2005 M L D 708

[Lahore]

Before Ch. Ijaz Ahmad, J

GHULAM ABBAS---Petitioner

versus

MEMBER, BOARD OF REVENUE (JUD.-1) PUNJAB, LAHORE and others---Respondents

Writ Petition No.11533 of 2003, decided on 1st February, 2005.

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

----S.10---General Clauses Act (X of 1897), S.24-A---Constitutional petition---Allotment under 15 years lease scheme---Board of Revenue without perusing record decided revision petition filed against such allotment---Validity---Board of Revenue while exercising quasi judicial powers was legally bound to decide revision petition after judicial application of mind---Impugned order was violative of mandatory provisions of S.24-A of General Clauses Act, 1894 and parameters prescribed by Supreme Court---High Court set aside impugned order with direction to Board of Revenue to decide revision petition afresh after application of judicial mind.

Zain Yar Khan v. The Chief Engineer 1998 SCMR 2419; M/s Airport Support Services v. The Airport Manager 1998 SCMR 2268; Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 and Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others PLD 1970 SC 158 rel.

(b) General Clauses Act (X of 1897)---

----S.24-A---Provisions of S.24-A of General Clauses Act, 1897 being procedural in nature would have retrospective effect.

Zain Yar Khan v. The Chief Engineer 1998 SCMR 2419 rel.

----Arts. 189 & 190---Judgment of Supreme Court---Binding on each and every organ of the State.

Malik Amir Muhammad Joya for Petitioner.

Ch. Safdar Ali Wahla on behalf of Muhammad Hanif Khatana, Acting A.-G. Punjab, on Court's call.

Rana Muhammad Hanif, for the Settlement Department.

MLD 2005 LAHORE HIGH COURT LAHORE 714 #

2005 M L D 714

[Lahore]

Before Muhammad Nawaz Bhatti, J

SARFRAZ AHMAD---Petitioner

versus

THE STATE---Respondent

Crl. Misc. No.9096-B of 2004, decided on 23rd December, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/148/149---Bail, grant of---No overt act was ascribed to the accused except of ineffective firing which stood disproved because no crime empty was recovered from the spot---Fatal shot was attributed to co-accused---Question of vicarious liability of accused could be determined at the trial---Accused was alleged to be armed with a pistol in the F.I.R., whereas a rifle was stated to have been recovered from him during investigation---Case against accused, thus, required further inquiry---Accused was in judicial lock-up for the last ten months---Bail was allowed to accused in circumstances.

Muhammad v. The State 1998 SCMR 454 and Faraz Akram v. The State 1999 SCMR 1360 ref.

Mazhar Iqbal Sindhu for Petitioner.

Muhammad Jehangir for the State with Muhammad Azam, S.I. with record.

MLD 2005 LAHORE HIGH COURT LAHORE 716 #

2005 M L D 716

[Lahore]

Before Muhammad Farrukh Mahmud, J

Mst. RAUF SIDDIQUE---Petitioner

versus

THE STATE---Respondent

Crl. Misc. No.910-B of 2003, decided on 13th October, 2003.

Criminal Procedure Code (V of 1898)---

----S. 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/11---Qanun-e-Shahadat (10 of 1984), Art. 38---Pre-arrest bail, grant of---Case was registered on statement of petitioner herself---State counsel had conceded that except statement of petitioner no other witness had stated about commission of Zina---Statement of petitioner/F.I.R. having been made before Police Officer same could not be used against her/petitioner as in view of Art. 38 of Qanun-e-Shahadat, 1984 as no confession made to a Police Officer would be proved as against a person accused of any offence---Ad interim pre-arrest bail already granted to petitioner was confirmed.

Sardar Zafar Iqbal Khan and Syed M. Jamil Anwar Shah for Petitioner.

Mirza M. Nadeem Asif for the State.

Date of hearing: 13th October 2003.

MLD 2005 LAHORE HIGH COURT LAHORE 739 #

2005 M L D 739

[Lahore]

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

AKBAR ALI and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.634 and Murder Reference No.18-T of 2003, heard on 13th January, 2005.

Penal Code (XLV of 1860)---

----Ss.302(b) & 392/34---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---Reduction in sentence---F.I.R. had been lodged with reasonable promptitude and both accused had been specifically nominated therein as perpetrators of alleged offences along with their absconding co-accused---Ocular account of incident had been correctly provided by complainant and prosecution witness and both said eye-witnesses had correctly identified accused persons before Trial Court by pointing their accusing fingers towards them and had also described in unison the roles respectively played by them during occurrence---No background of ill-will or bitterness between said eye-witnesses and accused had been pointed out so as to prompt eye-witnesses to falsely implicate accused in case of such a nature---Both said eye-witnesses had advanced plausible explanations for their presence with the deceased at the time of occurrence---Crime empty recovered from the place of occurrence had matched with fire-arm taken from the possession of one of accused---Medical evidence had provided full support to prosecutions case---Prosecution witnesses had made consistent statements before Trial Court and their statements had inspired-confidence---Some minor discrepancies found in statements of eye-witnesses regarding distance from which shot had been fired at deceased were explainable because incident had taken place during night time---Prosecution, having succeeded in establishing its case against both accused beyond reasonable doubt, Trial Court was justified in recording conviction of accused---One of the accused persons who deserved death sentence, had already been treated leniently and had not been awarded sentence of death by Trial Court---Other accused who was awarded death sentence by Trial Court, was a young man with no previous history of involvement in any crime and at the initial stages of robbery committed by him, he had not used his fire-arm---Said accused had not repeated his fire despite having an opportunity in that regard---High Court maintaining conviction of accused person, converted death sentence awarded to other accused to imprisonment for life accordingly and all sentences of imprisonment passed against both accused persons, were to run concurrently.

M.A. Zafar and Ch. Sadaqat Ali for Appellants.

Mrs. Erum Sajjad Gul for the State.

Date of hearing: 13th January, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 768 #

2005 M L D 768

[Lahore]

Before Ch. Ijaz Ahmad, J

Messrs MUHAMMAD ALI & BROTHERS and another---Petitioners

versus

DIRECTOR-GENERAL, L.D.A. and 3 others---Respondents

W.P. No.2350 of 2000, decided on 25th January, 2005.

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

‑‑‑‑Ss.18 & 23‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Maintainability‑‑‑Land acquisition‑‑Determination and enhancement of compensation‑‑‑Petitioner had more than one alternative remedy including filing of reference under S.18 of Land Acquisition Act, 1894 before competent forum‑‑‑Such questions being disputed questions of facts could not be resolved by High Court in Constitutional jurisdiction‑‑‑High Court dismissed Constitutional petition being non‑maintainable.

Abdul Rehman v. Province of West Pakistan 1987 CLC 670; Hyderabad Development Authority v. Karam Khan 1985 SCMR 45; Collector Quetta Pishin, Quetta v. Habibullah PLD 1970 Quetta 35; Sh. Manzoor Hussain v. The Multan Improvement Trust, Multan PLD 1972 Lah. 225; Fazalur Rahman v. General Manager, SIDB 1973 1979 SCMR 225; Malik Abdul Qayyum v. Punjab Province and others PLD 1979 Lah. 853; Messrs Edulji Dinshaw v. Deputy Commissioner 1980 CLC 2169; Collector Land Acquisition v. Rokhan and others PLD 1995 Pesh. 78; Muhammad Saeed v. Collector Acquisition Land Mansehra and 3 others PLD 1996 Pesh. 22 and Syed Masihul Islam v. The Land Acquisition Collector Rajanpur and others 1996 CLC 781 distinguished.

Ch. Muhammad Ismail's case PLD 1996 SC 246 and Muhammad Younas Khan v. Government of N.‑W.F.P. and others 1973 SCMR 618 rel.

(b) Administration of justice‑--

‑‑‑‑ When a thing is to be done in a particular manner, same must be done in that manner and not otherwise.

Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61 rel.

‑‑‑‑S.18‑‑‑Receipt of compensation "under protest"‑‑Mere filing of application after receiving compensation would not come under the phrase "under protest".

Ghulam Muhammad's case PLD 1967 SC 191 rel.

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

‑‑‑‑Art.199‑Constitutional petition‑‑‑Pendency of civil suit before competent Court‑‑‑Effect‑‑‑Constitutional jurisdiction being discretionary in character would not be exercised in favour of petitioner in such circumstances.

Ch. Tanbir Ahmad Siddiky v. Province of East Pakistan and others PLD 1968 SC 185 rel.

(e) Administration of justice‑‑‑

‑‑‑‑ Each and every case should be decided on its peculiar facts and circumstances.

Trustees of Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 rel.

Muhammad Rafique Chaudhry for Petitioners.

Badar‑ul‑Ameer Malik for Respondent No.4.

Mian Muzaffar Hussain, Legal Advisor of LDA.

MLD 2005 LAHORE HIGH COURT LAHORE 774 #

2005 M L D 774

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD AYUB---Petitioner

versus

ABBAS ALI---Respondent

Revision Petition No.1107 of 2004, decided on 10th January, 2005.

Contract Act (I of 1872)---

----S.55---Specific Relief Act (I of 1877), S.42---Suit for specific performance of agreement of sale of property---Contract for the sale of immovable property---Time not of the essence of the contract---Where both the Courts below had completely misdirected themselves, inasmuch as the impugned judgments were passed in complete oblivion of the facts of the case and law on the subject, said judgments were not sustainable in law---High Court set aside the judgments and decrees with direction that vendee's suit for specific performance of agreement shall be deemed to be pending before the Trial Court which shall re-write the judgment on the basis of existing record, after hearing the parties and in view of the findings by the High Court.

Muhammad Anwar and 8 others v. Bahan and another 2000 YLR 378; Seth Essabhoy v. Saboor Ahmad PLD 1972 SC 39; Abdul Hamid v. Abbas Bhai Abdul Hussain Sodawaterwala PLD 1962 SC 1; Muhammad Nawaz Khan v. Mst. Farrukh Naz PLD 1991 Lah. 238 and Muhammad Ramzan v. Abdullah and others 2000 YLR 398 ref.

Muhammad Ibrahim for Petitioner.

Muhammad Khalid Mian for Respondent.

Date of hearing: 21st September, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 779 #

2005 M L D 779

[Lahore]

Before Sh. Hakim Ali, J

PAARI---Petitioner

versus

THE STATE---Respondent

Crl. Misc. 3446-B of 2004, decided on 30th November, 2004.

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

----S.497---Penal Code (XLV of 1860), S.365-A---Bail, grant of---Allegation of abduction at the behest of accused alone was not sufficient to conclude prima facie that he was guilty of the offence as he was named in the F.I.R.---Some evidence must be available on record to keep a person behind the bars---Complainant abductee had charged the accused in the F.I.R. only for issuing direction for abduction whereas the witnesses had shown him to have participated in the actual commission of the offence of payment of ransom of the occurrence and such improvement needed a thorough probe---Delay of 36 days in lodging the F.I.R. was not explained therein and delay of 27 days after the release of the victim also required clarification through evidence---F.I.R. though lodged through a written application did not show any active participation of accused---Counter version of accused regarding his involvement was also to be considered at the trial---Accused who was 66 years of age admittedly was not involved in any other case previously and his case required further inquiry---Bail was allowed to accused in circumstances.

Mst. Hanifan Bibi and others v. Zulfiqar and others PLD 2001 Lah. 123; Wajid Ali v. Mumtaz Ali Khan and others 2000 MLD 1172; Anwar Khan v. The State 2002 PCr.LJ 400; Qurban Ali v. The State 2005 YLR 659; Ghulam Jilani v Station House Officer, Police Station Gulberg, Lahore and 2 others PLD 1975 Lah. 210; Khalid Saigol v. The State PLD 1962 SC 495; Haji Wali Muhammad v. The State 1968 PCr.LJ 192 and Haji Sain v. The State 1981 PCr.LJ 446 ref.

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

----S.497---Penal Code (XLV of 1860), S.365-A---Bail---Principles---Allegation of involvement of an accused in a heinous offence alone cannot be considered as a sole ground to refuse bail to him.

Ghulam Jilani v Station House Officer, Police Station Gulberg, Lahore and 2 others PLD 1975 Lah. 210; Khalid Saigol v. The State PLD 1962 SC 495; Haji Wali Muhammad v. The State 1968 PCr.LJ 192 and Haji Sain v. The State 1981 PCr.LJ 446 ref.

----S.497---Penal Code (XLV of 1860), S.365-A---Bail---Assessment of evidence---Principles---Bail application has to be decided after making a tentative assessment of the material brought on record during investigation.

Syed Athar Hassan Bukhari for Petitioner.

Syed Irfan Haider Shamsi for the Complainant.

Ata Ullah Khan Tareen for the State.

Ahmad Bakhsh. S.I.

MLD 2005 LAHORE HIGH COURT LAHORE 783 #

2005 M L D 783

[Lahore]

Before Maulvi Anwarul Haq, J

ISHTIAQ AHMED PRACHA, MANAGER/ ADMINISTRATOR/PRINCIPAL OFFICER, QUAID-E-AZAM INSTITUTE OF TECHNOLOGY---Petitioner

versus

CHAIRMAN, TECHNICAL EDUCATION AND VOCATIONAL TRAINING AUTHORITY (TEVTA). ACADEMICS DEPARTMENT, LAHORE and 3 others---Respondents

W.P. No.5740 of 2004, decided on 2nd December, 2004.

Punjab Private Educational Institutions (Promotion and Regulation) Ordinance (IV of 1984)---

----Ss. 8 & 9---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Cancellation of registration of Institution---Registration of petitioner Institution was cancelled without conveying directions, non-compliance whereof, could have been made basis for passing order of cancellation of registration---Petitioner Institution according to the relevant Law was to be inspected first and then directions were to be communicated to the Incharge of Institution through an order and time was to be specified therein for compliance of the same---If some defects were found in the course of inspection then law had mandated that in the first instance specified directions were to be issued to the Incharge of the Institution, to be complied within a period of time to be specified and it would only be upon failure of the Incharge of the Institution to comply with said directions that registration could be cancelled---No such directions were issued after inspections of premises of Institution by Enquiry Committee and straightaway registration of petitioner Institution was cancelled---High Court allowing Constitutional petition declared order of Authorities to be without lawful authority and set aside order cancelling registration.

Maulvi Sultan Alam Ansari for Petitioner.

Qasim Khan, A.A.-G.

Haji Muhammad Aslam Malik for Respondent No.4.

Amin Ullah, Assistant Manager, TEVTA.

MLD 2005 LAHORE HIGH COURT LAHORE 789 #

2005 M L D 789

[Lahore]

Before Sh. Hakim Ali, J

SHALIMAR FABRICS---Petitioner

versus

DISTRICT OFFICER REVENUE---Respondent

W.P. No.4210 of 2003, decided on 18th January, 2005.

Land Acquisition Act (I of 1894)---

----Ss. 4, 5-A & 40---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Acquisition of land of one private limited Company for another private limited Company---Public purpose---Determination of---Both, petitioner a private limited Company and respondent Mills had purchased land through different registered sale-deeds situated in one Mauza to establish two separate and independent industrial units---Pioneers of both said private limited Companies though inter se were close relatives, but respondent Company considering petitioner Company as its rival adopted different manners and methods and made efforts that owners of petitioner Company could not set up industry as owners of respondent Company though petitioner Company a rival in that field could destroy their business---Owners of respondent Company having failed in all their attempts and efforts, as a last resort, came out through two Notifications issued under S.4 of Land Acquisition Act, 1894 through District Officer (Revenue) with regard to acquisition of land of petitioner Company---Alleged two Notifications had noted the purpose of acquisition of land of petitioner as "extension of building for installing new machinery and storage", while in one of said Notifications had been mentioned as "extension of building for residential quarters of labour and storage"---Wording of Notification made it evident that respondents wanted to extend their present buildings for installation of new machinery, storage and residential quarters for labour---Said purpose of extension could not be termed to be for 'public purpose' and extension or expansion of an already established concern, was not envisaged or covered by provisions of S.40 of Land Acquisition Act, 1894---Permission to respondent to acquire land of petitioner Company would cause death of petitioner Company and it would be unjust to give priority to respondents upon petitioners---Owners of respondent Mills who were at daggers drawn with owners of petitioner Company, could not be allowed to cause death of petitioner Company which was another industrial concern---Private Limited Company could not be allowed to get land of other private limited Company as it would have the effect of destruction/annihilation of other private Company--No remedy had been provided by Land Acquisition Act, 1894 against notifications issued under S.4 of said Act---Even otherwise no Notification under S.5 of Land Acquisition Act, 1894 having been issued, Constitutional petition against said two Notifications, was maintainable---High Court had ample jurisdiction to decide as to whether purpose and intent of acquisition shown in Notification could be held to be public purpose or not---High Court allowing Constitutional petition declared both Notifications issued by District Officer (Revenue) to be illegal and unlawful.

Ghulshan Hussain and another v. Commissioner (Revenue), Islamabad/Deputy Commissioner, District Collector, I.C.T./Assistant Commissioner, Saddar, Islamabad and another 2000 YLR 1711/1712; Nazir Ahmad and 8 others v. Commissioner, Lahore Division, Lahore and 3 others 2000 MLD 322; Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another PLD 1966 SC 639; Mst. Nasreen Zohra v. Multan Development Authority through Director-General and another 1991 CLC 1001; Muhammad Ishaq and others v. Government of Punjab and others 2002 SCMR 1652; Muhammad Akbar (through LRs) and 7 others v. The Commissioner, Rawalpindi Division and 2 others PLD 1976 Lahore 747; Federal Government Employee's Housing Foundation through Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad PLD 2002 SC 1079; Khalid Mahmood v. Collector of Customs, Customs House, Lahore 1991 SCMR 1881; Zafeer Gul and 19 others v. N.-W.F.P. Province through Secretary, Government of N.-W.F.P., Revenue Department and Senior Member, N.-W.F.P., Board of Revenue, Peshwar and 5 others 2001 CLC 1853; Muhammad Shafi v. Collector, Land Acquisition, Mirpur and 19 others 1994 MLD 920 and Mst. Razia Sultana and 2 others v. Chairman Evacuee Trust Property Board, Lahore and 13 others 2002 CLC 1257 ref.

Muhammad Irfan Wyne for Petitioner.

Malik Muhammad Rafique Rajwana for Respondent.

Date of hearing: 10th December, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 797 #

2005 M L D 797

[Lahore]

Before Maulvi Anwarul Haq, J

MULAZIM HUSSAIN---Appellant

versus

INAYATULLAH and 3 others---Respondents

R.S.A. No.132 of 1984, heard on 22nd November of 2004.

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

----Ss. 6, 13 & 24---Civil Procedure Code (V of 1908), O.VII, R.11(c)---Suit for pre-emption---Making up deficiency in court-fee---Rejection of plaint---Plaintiff had written in his plaint that court-fee of Rs.2 was being affixed on plaint and that upon receipt of revenue papers deficiency in court-fee would be made up---Trial Court directed that suit be registered and to issue summons to defendants and Court also directed plaintiff to deposit 1/5 of price of suit-land---Plaintiff filed application for extention of time for making up deficiency in court-fee on ground that net profits table had not been prepared in time---Court-fee of certain amount along with net profits table and a copy of Khasra Girdawari, having been filed by plaintiff, Trial Court allowed time to deposit remaining amount---Local Commissioner duly appointed determined value of suit-land for purpose of court-fee and also court-fee payable---As certain amount had already been paid by plaintiff, he was directed to make up deficiency in court-fee by specified date, which was paid by plaintiff accordingly---Deficiency of court-fee having been made up, Trial Court decreed the suit---Appellate Court below set aside judgment of Trial Court and rejected plaint holding that Trial Court had no jurisdiction to extend time or to grant time for making up deficiency in court-fee---Validity---Trial Court had not ascertained exact amount of court-fee on the first date on which case was put up before it and ultimately Trial Court determined exact amount of court-fee and after determining deficiency, directed plaintiff to pay same which order was duly complied with by plaintiff---Plaint, in circumstances could not be rejected by Appellate Court---Suit was not barred by time as it was admittedly filed within period of limitation---Order passed by Appellate Court was set aside and that of Trial Court was restored.

Mst. Walayat Khatun v. Khalil Khan and another PLD 1979 SC 821; Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289; Shahna Khan v Aulia Khan and others PLD 1984 SC 157; Mst. Parveen v. Mst. Jamsheda Begum and another PLD 1983 SC 227; Sardar Ahmad Yar Jang v. Sardar Noor Ahmed Khan PLD 1994 SC 688; Muhammad Hanif v. Muhammad and others PLD 1990 SC 859 and Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287 ref.

Rafiq Ahmad Malik for Appellant.

Syed Irshad Hussain Jafferi for Respondents.

Date of hearing: 22nd November, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 803 #

2005 M L D 803

[Lahore]

Before Muhammad Akhtar Shabbir and Abdul Shakoor Paracha, JJ

PAKISTAN through SECRETARY MINISTRY OF DEFENCE, RAWALPINDI---Appellant

versus

Mian ABDUL WAHEED---Respondent

R.F.A. No.52 of 1988, heard on 23rd November, 2004.

(a) Limitation Act (IX of 1908)---

----S.5---Civil Procedure Code (V of 1908), S.96---Appeal---Condonation of delay---Suit for recovery was decreed against Government and appeal was filed with a delay of 106 days---Plea raised by the authorities was that after obtaining certified true copies of relevant documents, the authorities had to obtain sanction for filing of appeal and approval of expenses from higher authorities and the Justice Division---Validity---Not a single document had been appended with appeal to show that correspondence was made by the authorities for obtaining sanction from the higher authorities and approval from the Justice Division---Authorities also did not produce any letter written to Justice Division for obtaining sanction of money for meeting expenses of appeal---Record was also silent on the quantum of time it took to complete the formalities of obtaining sanction from higher authorities, approval from Justice Division and sanction of money---Simply stating that completion of formalities took some time and the matter was delayed by 106 days was not considered to be sufficient ground to condone the delay---Court of competent jurisdiction had passed judgment and decree against the Government, therefore, the same was not void---High Court declined to condone the delay---Appeal was dismissed accordingly.

Government of Balochistan through Secretary Member, Board of Revenue and another v. Ghulam Muhammad and 4 others 2001 SCMR 19; Haji Abdullah and 10 others v. Yahya Bakhtiar PLD 2001 SC 158; Mst. Allan Bibi v. Muhammad Iqbal alias Bala 2003 SCMR 1001 and PLD 1978 SC 220 distinguished.

Custodian of Enemy Property v. Hoshang M. Dastur and others 1979 SCMR 191 and Province of West Pakistan, Lahore v. Mian Noor Ahmad and others 1975 SCMR 91 rel.

(b) Limitation Act (IX of 1908)---

----S.5---Civil Procedure Code (V of 1908), S.96---Appeal---Condonation of delay---Judgment and decree against Government---Departmental proceedings against officials responsible for delay---Appeal filed by Government was barred by 106 days, against judgment and decree passed by Trial Court---Plea raised by the Government was that the officials who were responsible for the delay, had been proceeded against and disciplinary action was recommended against them---Validity---Such finding of Court of Inquiry against the persons who were responsible for delay did not make out a case of condonation of delay of each day in filing appeal---Delay was not condoned in circumstances.

Chairman/Secretary, Pakistan Railways. Ministry of Railways, Government of Pakistan, Islamabad and others v. Muhammad Sharif Javaid Warsi PLD 2003 SC 6 fol.

----S.82---Decree against Government---Execution---Specifying time for satisfaction of decree---Object---Further chance to Government or the public officer is allowed under S.82 C.P.C. to satisfy decree before the order of execution against them is passed.

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

----S.12---Civil Procedure Code (V of 1908), Ss.80 & 82---Specific performance of contract---Suit against Government---Requirement of mandatory notice---Principle---Suit could be instituted against Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, after expiration of two months next after notice in writing had been delivered to or left at the office---As the decree had been awarded to the plaintiff in pursuance of contract, therefore, neither S.80 C.P.C. nor S. 82 C.P.C. was applicable.

Ch. Muhammad Tariq, Deputy Attorney General for Appellant.

Ali Masood Hayat for Respondent.

Date of hearing: 23rd November, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 809 #

2005 M L D 809

[Lahore]

Before Maulvi Anwarul Haq and Farrukh Lateef, JJ

MUHAMMAD ZUBAIR alias JHARA---Petitioner

versus

THE STATE and 4 others---Respondents

W.P. No.6361 of 2004, heard on 1st December, 2004.

Penal Code (XLV of 1860)---

----S.302(b)/34---Juvenile Justice System Ordinance (XXII of 2000), S.7---Constitution of Pakistan (1973), Arts.199 & 45---Constitutional petition---Accused had been convicted and sentenced to death under S.302(b)/34, P.P.C. which was upheld by Supreme Court---President of Pakistan in exercise of his powers under Article 45 of the Constitution had issued a Notification on 15-12-2001 granting special remission in cases of death sentences of those condemned prisoners who were juvenile as defined in the Juvenile Justice System Ordinance, 2000, at the time of commission of offence and commuting the sentence of death to imprisonment for life---Para. 3 of the said Notification regarding the determination of age of the accused was however, subsequently amended to the effect that in case of any doubt about the age, the same might be determined in accordance with S. 7 of the Juvenile Justice System Ordinance, 2000---Accused who claimed himself to be juvenile at the time of occurrence moved the Sessions Court for getting the advantage of the said Notification and also filed an application for suspending the execution of his death sentence---Sessions Court by means of the impugned order declined to interfere in the matter and directed the accused to go to the relevant Authorities or competent Forum---Aforesaid amendment in the Notification of the President was not brought to the notice of the Sessions Court and it had acted in terms of Para. 3 of the Notification as originally published and had illegally refused to decide the plea of accused---Said order was consequently set aside and the matter was remanded to the Sessions Court/Juvenile Court to decide whether the accused was a minor at the time of occurrence and whether he was entitled to the benefit of S.7 of the Juvenile Justice System Ordinance, 2000, read with the aforesaid Notification issued by the President of Pakistan---Constitutional petition was allowed accordingly.

Ziaullah v. Najeebullah and others PLD 2003 SC 656 and Rehmat Ullah alias Raja v. Home Secretary, Punjab, Lahore and others 2004 SCMR 1861 ref.

M. Tariq Usman Joiya for Petitioner.

M. Qasim Khan, A.A.-G. for the State.

Pervez Aftab and Zia-ur-Rehman for the Complainant.

Date of hearing: 1st December, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 814 #

2005 M L D 814

[Lahore]

Before Muhammad Muzammal Khan, J

Dr. JALAL KHAN---Petitioner

versus

Qazi NASEER AHMED, DISTRICT DEPUTY OFFICER, (REVENUE), KHARIAN, DISTRICT GUJRAT and 6 others---Respondents

W.P. No.3354 of 2004, heard on 9th December, 2004.

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

----S.3---Building site---Land which was kept as a site of Town or village and was not assessed to land revenue---Such land had been excluded under S.3 of West Pakistan Land Revenue Act, 1967, from operation of West Pakistan Land Revenue Act, 1967.

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

----Ss.3, 117, 121 & 122---West Pakistan Land Revenue Rules, 1968, R.67-A---Civil Procedure Code (V of 1908), O.XXVI, R.9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Demarcation of building site---Jurisdiction of revenue authorities---Scope---Disputed piece of land was declared as urban building site and was not included in any revenue Estate---Petitioner being aggrieved of encroachments on his land by respondents, moved application for demarcation of land to revenue authorities and sought recovery of possession---Plea raised by the petitioner was that Collector by virtue of his powers under S.122 of the West Pakistan Land Revenue Act, 1967 could order dispossession of persons in wrongful possession of any land and revenue authorities were bound to remove the encroachments in light of demarcation report---Validity---Property subject of dispute being part of site of Town, provisions of West Pakistan Land Revenue Act, 1967, were not applicable to it and thus resort to its provisions for demarcation thereof was not permissible---Petitioner himself moved for demarcation of a part of site of Town under S.117 of West Pakistan Land Revenue Act, 1967, which had equipped a revenue officer to define the limits of any estate or of any holding, field or other portion of an estate but could not be extended for such purpose, to the land not falling in any estate---If the land subject of dispute would have been part of any estate, the revenue officer could have proceeded to demarcate it under S.117(1) of West Pakistan Land Revenue Act, 1967, but he could not have undertaken any such activity about the land falling outside the limits of the estate of any village---Collector by virtue of his powers under S.122 of West Pakistan Land Revenue Act, 1967, could not order dispossession of persons in wrongful possession of any land---Such power of Collector had to be read in conjunction with the provisions of S.121 of West Pakistan Land Revenue Act, 1967, which related to the manner of fixing boundaries of all or any of the estate in any local area under the Rules framed by Board of Revenue---Power of revenue authorities to remove persons in wrongful possession of the land was conferred on him for erecting boundaries of an estate and not for any part thereof especially when some private individual asserted encroachment by his adjoining owner or someone else---Petitioner instead of insisting possession through officials in revenue hierarchy out of summary proceedings, should have filed a suit for possession against respondents where his property was to be demarcated under the orders of Civil Court under the provisions of O.XXVI, R.9 C.P.C.---Illegal order by revenue authorities could not be ordered to be implemented without adjudication regarding ownership of the land subject of dispute or without proper fixation of its boundaries---Petition was dismissed in circumstances.

----S.117---West Pakistan Land Revenue Rules, 1968, R.67-A---Demarcation of land---Object and scope---Demarcation of land in terms of S.177 of West Pakistan Land Revenue Act, 1967, has to be done under R.67-A of West Pakistan Land Revenue Rules, 1968, which refers to defining the limits of an estate, a holding, a field or any portion thereof---Revenue officer designated under West Pakistan Land Revenue Act, 1967 cannot demarcate any urban property falling within the limits of Town Committee especially that, which has gained the character of building site.

(d) High Court (Lahore) Rules and Orders---

----Vol.-V, Chap. 1-D---Financial Commissioner's Instructions of demarcation---Demarcation proceedings---Procedure---Financial Commissioner's instructions of demarcation have been adopted by High Court in Vol.-V, Chap. 1-D of High Court (Lahore) Rules and Orders---Demarcating Officer is required to measure the properties subject of demarcation from three permanent places and he is required to show such measurement in his report by erecting boundaries of each Khasra number intervening---Measurements shown in demarcation report have to be made according to 'Shajra Aks' or 'Masavi' without which the demarcating officer cannot find out at the spot, whether the measurement done by him is according to the revenue record or not.

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

----S.8---Suit for recovery of possession of immovable property---Necessary requirements---Plaintiff is required to prove his title to the property in possession of defendant through some lawful/cogent evidence---In absence of such proof, his suit cannot be decreed.

Liaqat Ali Butt for Petitioner.

Ch. Muhammad Nasrullah Khan for Respondents.

Date of hearing: 9th December, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 823 #

2005 M L D 823

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD ARSHAD---Petitioner

versus

THE STATE---Respondent

Cr. Misc. No.1249-B of 2004/BWP, decided on 23rd November, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.324/337-H(ii)/34---Bail, refusal of---F.I.R. showed that the accused while armed with .30 bore pistol, effectively fired on complainant---Prima facie act of accused attracted provisions of S.324, P.P.C.---Accused could not be given premium for not repeating fire or for not being a good marksman---Accused remained absconder for a considerable period and that fact constituted a relevant factor for the purpose of bail---Unexplained noticeable abscondence, would disentitle accused to concession of bail notwithstanding merits of case.

The Sate v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Muhammad Mumtaz v. The State 2004 PCr.LJ 1875 and Awal Gul v. Zawar Khan and others PLD 1985 SC 157 ref.

Mian Muhammad Tayyub Wattoo for Petitioner.

Ghazanfar Ali Khan for the State.

Masud, A.S.-I. with Record.

MLD 2005 LAHORE HIGH COURT LAHORE 825 #

2005 M L D 825

[Lahore]

Before Muhammad Muzammal Khan, J

Miss SUMERA IJAZ---Petitioner

versus

CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCAITON, RAWALPINDI---Respondent

Writ Petition No.3531 of 2004, decided on 16th December, 2004.

Calendar of Board of Intermediate and Secondary Education, Rawalpindi---

----Rgln. 5.12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Re-marking of paper---Time barred application ---Candidate intended to get her Urdu paper re-evaluated as according to her the paper was not correctly marked---Application by the candidate for re-marking was filed after 30 days of declaration of result---Validity---Errors detailed in Rgln. 5.12 of Calendar of Board of Intermediate and Secondary Education, Rawalpindi, could be rectified on approach by the candidate on application in prescribed form, within 30 days of the declaration of result---Calendar of Board of Intermediate and Secondary Education, had force of law and time limit fixed by it could not be extended by the functionaries thereunder---Board authorities correctly dismissed the application of the candidate as the same was not filed within 30 days of declaration of result---Order passed by the authorities was not perverse/arbitrary/fanciful and it could not be demonstrated to be illegal---Petition was dismissed in limine.

Muhammad Ismail v. Jamil-ur-Rehman and 6 others 1995 MLD 1011; Mst. Wafa Jan v. Mahram Zad 1995 CLC 2002 and Haji Abdul Qadir v. Zafar Shaheen PLD 1997 Lah. 549 rel.

Taufiq Asif for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 828 #

2005 M L D 828

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. KANEEZ AKHTAR---Petitioner

versus

ABDUL QADOOS and 2 others---Respondents

Writ Petition No.1974 of 2003, decided on 14th December, 2004.

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

----S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintenance allowance---Quantum---Pendency of application of custody of minor---Family Court dismissed the suit for maintenance on the ground that application under S.25 of Guardians and Wards Act, 1890, filed by father of minor was pending before Guardian Judge---Appellate Court set aside the judgment and decree passed by Family Court and fixed Rs.1000 per month as maintenance allowance for the minor---Validity---Liability to maintain minor child was not only religious/moral obligation of the father but it was also his bounded legal duty---Father being Gazetted Officer, could easily provide maintenance of Rs.1000 per month to his minor son which in view of a school going child, was not excessive or exorbitant, during such dearness and inflation---Father of minor who had also claimed custody of the minor by filing a petition under S.25 of Guardians and Wards Act, 1890, could not deny to discharge his obligations on the basis of such petition till the time custody would not be taken by him---Father would pay the maintenance unless and until the child would have gone to him and was fed by him on his dining table and would have gotten the education while living at his house---Appellate Court correctly concluded that father was liable to provide maintenance till the custody of minor remained with mother---Findings in support of the judgment passed by Appellate Court were unexceptionable and deserved no interference---Petition was dismissed accordingly.

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

----Art.199---Constitutional jurisdiction of High Court---Scope---Lawful findings given after due appraisal of record, within the ambit of jurisdiction conferred by law, can neither be interfered nor substituted by High Court in Constitutional jurisdiction.

----S.25---Custody of minor---Right of father as natural guardian---Scope---While deciding custody of minor, his welfare has always been a paramount consideration---Father is entitled to the custody on account of his conduct in the light of facts and circumstances of each case---Right of the father as natural guardian is not absolute right.

Muhammad Iqbal v. Additional District Judge 2000 CLC 108; Mst. Naseem Kausar v. Muhammad Saleem and 2 others 2003 MLD 1306; Mst. Farah Iqbal v. Muhammad Anwar and 2 others PLD 2003 Quetta 131 and Mst. Najma Yasmeen and another v. Javed Akhtar and 12 others 2003 CLC 729 rel.

(d) Guardians and Wards Act (VIII of 1890)---

----S.25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Welfare of minor---Determination---Preference of child---Nature of service of father---Minor son was about 12 years of age and had been living with his mother since divorce---Father was serving in Army and sought custody of the minor---Guardian Judge allowed the application and found father entitled to custody---Decision of Guardian Judge was maintained by Appellate Court---Plea raised by mother was that nature of duty of father was such that he could not look after the minor and both the Courts below did not consider the intelligent preference of the minor---Validity---Both the Courts below did not consider the intelligent preference of the child, it was also ignored that since divorce, the minor had been in exclusive custody of the mother---Care and bringing up which was being rendered by the mother to the child was not found to be improper or lacking---Right of mother to meet the child and arrangements in such behalf were not made by the Courts below---Nothing was available on the file to support the claim of father for custody, showing that he had any attachment with him, out of which he had been looking after his educational career and he had been providing him maintenance---Question of welfare of minor remained thirsty of the decision and the lapses noted by High Court, negatively reflected on the orders of Guardian Judge and Appellate Court---Disqualification of mother on the basis of parameters laid down under Islamic Law was neither urged nor were borne out from the record and in absence of those, exclusion of mother from her child, for all times to come, appeared to be very harsh---High Court observed that there was no substitute of mother's love and affection and such soothing attachment could not be provided by father---All such aspects of the matter escaped notice of both the Courts below and the matter of custody was not correctly decided keeping in view the welfare of the minor and other factors, noticed by High Court---High Court in exercise of Constitutional jurisdiction set aside both the orders and the matter was remanded to Guardian Judge.

Mst. Firdous Iqbal v. Shafat Ali and others 2000 SCMR 838 ref.

Farid Nawaz Ch. for Petitioner.

Raja Ikram Ameen Minhas for the Respondent.

MLD 2005 LAHORE HIGH COURT LAHORE 834 #

2005 M L D 834

[Lahore]

Before Ch. Ijaz Ahmad, J

NAILA JUNAID---Petitioner

versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Writ Petition No.3454 of 2005, decided on 8th March, 2005.

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

----S.476---Penal Code (XLV of 1860), S.209---Constitution of Pakistan (1973), Art. 199--- Constitutional petition---Registration of criminal case---Respondent filed suit for partition against petitioner---Petitioner in her written statement controverted allegations levelled by respondent in the plaint contending that respondent/plaintiff had been divorced by her husband before his death with mutual consent of parties---Respondent in view of contents of written statement, withdrew her claim---Petitioner filed an application before Trial Court under S. 476, Cr.P.C. to initiate proceedings against respondent as she had made a false statement and false claim before the Court in contents of plaint---Said application of petitioner having been dismissed by Trial Court as well as Appellate Court petitioner had filed Constitutional petition alleging that both Courts below had erred in law to dismiss her application and said dismissal order was not in consonance with law laid down by Superior Courts---Word "may" occurring in S.476, Cr.P.C. had been used for taking cognizance of offence and trying same by the Court which had indicated that it was the discretion of the Court to proceed against a person who had made wrong claim before the Court in the contents of the plaint---Both Courts below had refused to exercise discretion in favour of petitioner keeping in view the circumstances of case---Constitutional petition was not maintainable---High Court had no jurisdiction to substitute its own finding in place of finding of Tribunal below while exercising power under Art.199 of the Constitution.

Khuda Bakhsh v. Muhammad Sharif 1974 SCMR 279; Muhammad Sharif v. Muhammad Afzal Sohail and others PLD 1981 SC 246; Abdul Rehman Bajwa v. Sultan and others PLD 1981 SC 522; Arif Manzoor Qureshi's case 2003 YLR 249; Nazar Ahmed Chaudhry's case PLD 1987 Lah. 214 and Hira Lal Sarda's case AIR 1932 Patna 243 ref.

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

----S. 476---Penal Code (XLV of 1860), S.209---Constitution of Pakistan (1973), Art. 199---Constitutional Petition---Registration of criminal case and initiating criminal proceedings---Strict proof was required to initiate proceedings under provisions of S.476, Cr.P.C. read with S.209, P.P.C.---Court had to consider whether a reasonable probability/certainty existed for conviction of respondent who withdrew her claim made in her plaint before Trial Court---No such element of reasonable probability/certainty for conviction of respondent was borne out from the record, proceedings could not be initiated against respondent---Court had to be extra cautious that prosecution was to be taken in the interest of justice and not to satisfy the private grudge of a litigant---If any claim was made by mistake proceedings under S.476, Cr.P.C. could not be initiated against the one who had made such claim---Not desirable that people should be hampered in their access to the Courts and in getting justice by fear that if they were unsuccessful they could be prosecuted for defamation---Statement having been withdrawn by witness, in the present case, proceedings under S.476, Cr.P.C. could not be initiated---Constitutional jurisdiction being discretionary in nature, High Court, in view of circumstances of case and fact that civil suit was pending adjudication, declined to exercise discretion in favour of petitioner.

Abdul Rehman's case PLD 1951 Baghdad-ul-Jadid 85; Aruf Manzoor Qureshi's case 2003 YLR 249; Lalanand Lal's case AIR 1937 Lah. 867; Ramnandan Prasad Narayan Singh's case (Criminal Law Journal Reporter 1921 page 467 equivalent 61 Indian Cases 955; Hira Lal Sarda's case AIR 1932 Patna 243; Mst. Zohra's case 1992 MLD 1827; Moti Lall's case AIR 1936 All. 164; Gangoo Mal's case AIR 1925 Sindh 263; Ghanshamdas Gianchand's case AIR 1934 Sindh 114; Kalumal Gelomal's case AIR 1935 Sindh 81; M. Liaqat Hussain's case AIR 1946 All. 156; Jairam Singh's case AIR 1932 Lah. 307 and Nawab Syed Ronaq Ali's case PLD 1973 SC 236 ref.

Ch. Muhammad Masood for Petitioner.

M. Hanif Khattana, Addl. A.-G. on Court's call.

MLD 2005 LAHORE HIGH COURT LAHORE 839 #

2005 M L D 839

[Lahore]

Before Asif Saeed Khan Khosa, J

SAIF ULLAH---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.1257-B of 2005, decided on 4th March, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Further inquiry---F.I.R. showed that date, time and place of alleged murder was not known---Alleged occurrence had remained unwitnessed and neither deceased had been identified nor the culprits were known at the time of registration of F.I.R.---Prosecution was relying on the last seen evidence, recovery of blood-stained knife from possession of accused and extra-judicial confession allegedly made by him before prosecution witnesses so as to prosecute him for alleged murder---Brother of deceased, who had alleged that accused and others had been last seen in the company of deceased whereafter dead body of deceased was discovered by police, had not himself seen deceased in the company of accused---Statement of brother of deceased, post-mortem examination report and injury statement prepared by Investigating Officer, deceased had apparently sustained only fire-arm injuries---Recovery of a blood-stained knife from possession of accused, could not fit into original case of prosecution---Alleged extra-judicial confession was made by accused after about two months of registration of F.I.R.---Alleged extra-judicial confession had shown that deceased had been made to take some intoxicant before he was done to death, but prima facie medical evidence did not show presence of any intoxicant inside the dead-body of deceased---When alleged murder remained unwitnessed, worth and evidentiary value of said pieces of evidence which were relied upon by prosecution, would call for further probe---Challan, in case, had already been submitted after completion of investigation---Continued custody of accused in jail was not likely to serve any beneficial purpose---Case against accused calling for further inquiry into his guilt he was admitted to bail.

Imran Asmat Chaudhry for Petitioner.

Zaheer-ul-Hassan Zaheer for the State.

Tahir Mahmood, S.-I. with record.

MLD 2005 LAHORE HIGH COURT LAHORE 842 #

2005 M L D 842

[Lahore ]

Before Syed Zahid Hussain, J

UMAR DIN---Petitioner

versus

COMMISSIONER---Respondent

W.P. No. 114-R of 1994, heard on 24th November, 2003.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Appellate powers, exercise of---Principles---Matter between the parties was decided upto Supreme Court and the Authorities in pursuance of the judgments/orders passed by High Court and Supreme Court and passed an order---Appellate authority entertained appeal against such order---Plea raised by the petitioner was that after the matter had been concluded upto Supreme Court, there was no scope left for respondents to agitate the same de novo---Validity---Order against which appeal was entertained was recognition of the order passed by superior Courts---Appeal did not lie before any forum as a matter of routine but it was a right, creation of statute---Unless so conferred, such remedy of appeal could not be availed by anyone---If Appellate Authority proceeded to hear the matter, the proceedings would be without jurisdiction and, therefore, nullity as the Appellate Authority did not have such appellate jurisdiction in the matter---Assumption of jurisdiction by Appellate Authority was unwarranted by law and nullity---Petition was allowed in circumstances.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Irshad Imran Sulehri v. Election Tribunal and others PLD 1998 Lah. 252 and Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450 ref.

Ch. Hafeez Ahmed for Petitioner.

Muhammad Attiq Khan for Respondent No.1

Fazal-e-Meran Chohan, A.A.-G.

Respondents Nos. 2 to 14 proceeded ex parte.

Date of hearing: 24th November, 2003.

MLD 2005 LAHORE HIGH COURT LAHORE 849 #

2005 M L D 849

[Lahore]

Before Khawaja Muhammad Sharif, J

GHAZANFAR ALI alias MITHU---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.4387-B of 2004, decided on 16th July, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 302---Bail, grant of---F.I.R. showed that accused was armed with Klashinkov, but neither same was recovered from him nor any empty thereof was found on the spot---Accused was found innocent during investigation and was placed in Column No. 2 of challan---Case of accused, in circumstances, was of further inquiry falling under subsection (2) of S. 497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Imran Asmat Chaudhry for Petitioner.

Asghar Ali Gill for the Complainant.

Sardar Zahid Gul for the State.

Abid S.I.

MLD 2005 LAHORE HIGH COURT LAHORE 851 #

2005 M L D 851

[Lahore]

Before Tassaduq Hussain Jillani, J

Sh. MUHAMMAD IRFAN and others---Petitioners

versus

SITARA COMMISSION SHOP and others---Respondents

Civil Revision No.711 and C.M. No.1 of 2001, decided on 17th September, 2001.

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

----O.XXXVII, Rr. 2 & 3---Suit for recovery of money---Leave to defend the suit---Jurisdiction of Trial Court,---Plea raised by the defendants was that the Trial Court should have decided the question of jurisdiction along with the application for leave to defend the suit---Validity---Before the leave was granted, the defendants had no locus standi to attack the maintainability of the suit.

Cotton Export Corporation of Pakistan (Pvt.) Ltd. v. Messrs Nagina Cotton Industries Ginning Pressing and Oil Mills and 6 others 1993 CLC 2217 fol.

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

-----O.XXXVII, Rr. 2 & 3---Suit for recovery of money---Conditional leave to defend the suit---Condition, non-compliance of---Trial Court granted leave to defend the suit subject to deposit of bank guarantee---Defendants did not deposit bank guarantee on the ground that the trial Court should have decided the question of maintainability of the suit along with the application for leave to defend---Validity---If the defendants failed to furnish bank guarantee in terms of an interim order, the consequence had to follow and the application of the defendants was rightly dismissed for non-compliance of the order passed by the trial Court; as such the order was neither arbitrary nor against the law declared to warrant interference in revisional jurisdiction of High Court---Revision was dismissed in circumstances.

Messrs Platinum Insurance Company through Chief Executive v. Messrs Highways Bridge, Contractor International (Pvt.) Ltd. and another 1997 MLD 2394; Messrs United Distributors Pakistan Ltd. v. Ahmad Zarie Services and another 1997 MLD 1835 and Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim 1999 SCMR 2832 ref.

Muhammad Iqbal Khan for the Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 853 #

2005 M L D 853

[Lahore]

Before Khawaja Muhammad Sharif, J

HAIDER ALI---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.1987 of 2003, heard on 17th December 2004.

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

----S. 302(c)---West Pakistan Arms Ordinance (XX of 1965), S. 13---Appreciation of evidence---Accused had acted under grave and sudden provocation as he lost his self-control and was not in a proper state of mind because deceased at relevant time was abusing him, his sister, mother and was using filthy language against whole family of accused---Provocation which was given by deceased to accused became the cause of murder of deceased---Trial Court had accepted version of accused in totality and in view of statement of Investigating Officer, version which accused had taken before Trial Court, was his first version---Case of accused though was covered by S. 302(c), P.P.C., but sentence of 14 years' R.I. awarded to him being very harsh, was reduced to 10 years' R.I.---Order of Trial Court whereby accused was directed to pay amount of compensation was set aside in view of fact that in cases of grave and sudden provocation no compensation was to be awarded---Sentence awarded to accused, was to run concurrently with conviction and sentence awarded to him by Trial Court in a case registered against him under S. 13 of West Pakistan Arms Ordinance, 1965 as both Challans had arisen out of one and the same occurrence.

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

----S.544-A---Penal Code (XLV of 1860), S.302(c)---Compensation---No compensation was to be awarded in a case of grave and sudden provocation.

PLD 1982 SC 294 rel.

Kh. Haris Ahmad for Appellant.

Abid Saqi for the Complainant.

Raja Akhtar Nawaz for the State.

Date of hearing: 17th December, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 862 #

2005 M L D 862

[Lahore]

Before Ch. Ijaz Ahmad, Sh. MUHAMMAD ISMAIL KHAN---Petitioner

versus

LAHORE DEVELOPMENT AUTHORITY, through Director-General, and 3 others---Respondents

Writ Petition No.3894 of 2005, decided on 14th March, 2005.

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

----O.I, R. 10(2)---Constitution of Pakistan (1973), Art. 199----Constitutional petition---Impleading of party---Petitioner filed a suit for permanent injunction wherein he prayed that Authority may be restrained from demolishing construction made by him over the plot in question---Respondent filed application under O. I. R.10, C.P.C. before Trial Court which was accepted and revision petition filed by petitioner against order of Trial Court was also dismissed---Petitioner had filed Constitutional petition against concurrent orders of Courts below---Both Courts had given concurrent findings of fact against petitioner to the effect that he had not produced any title with regard to property in question, whereas respondent had placed on record a letter according to which plot in question had been exempted in his name---Both Courts below had exercised power which was in consonance with O.I, R. 10(2), C.P.C. and had non-suited the petitioner with cogent reasons---Constitutional petition qua concurrent findings against Courts below was not maintainable---Observations in interim orders by the Trial Court were not binding upon Trial Court at the time of deciding main suit which would be decided on the basis of evidence produced by respective parties---Trial Court was directed to decide main suit without being influenced by observation of Appellate Court and High Court, as early as possible in accordance with law.

Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463; Khuda Bakhsh v. Muhammad Sharif and others 1974 SCMR 279; Muhammad Sharif and others v. Muhammad Afzal and others PLD 1981 SC 246 and Abdul Rehman Bajwa v. Sultan Ahmed and others PLD 1981 SC 522 ref.

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

----Art. 199---Constitutional jurisdiction---Scope---High Court had no jurisdiction to substitute its own findings in place of findings of Tribunals below while exercising power under Art. 199 of the Constitution---Constitutional jurisdiction was discretionary in character--Substantial justice having been done between parties, to avoid multiplicity of proceedings of litigation, High Court declined to exercise its discretion in favour of the petitioner.

Board of Intermediate and Secondary Education, Lahore v. M. Mussadaq Naseem Sindhu PLD 1973 Lah. 600 and Nawab Syed Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 ref.

Mirza Muhammad Aziz-ur-Rehman for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 865 #

2005 M L D 865

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Rustam Ali Malik, JJ

Malik KHALID HUSSAIN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.6480-B of 2004, decided on 10th December, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Co-accused was declared innocent by Investigating Officer while accused was arrested in case about 1/2 month after occurrence---Nothing was recovered from accused---Police did not try to determine, in the course of investigation, as to whether house from which recovery in question had been effected had actually been hired by accused---Owner of house appeared in Court and filed affidavit to the effect that he had not rented out any house to accused nor any recovery had been effected from said house---Mere fact that accused had not been apprehended at the spot and was arrested by police subsequently about 1/2 month after alleged recovery, was sufficient to make it a fit case for grant of bail---Accused was admitted to bail, in circumstances.

Imran Asmat Chaudhry for Petitioner.

Shahid Naeem Mirza for the State.

Rai Sarfraz, A.S.-I.

MLD 2005 LAHORE HIGH COURT LAHORE 867 #

2005 M L D 867

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD SALEEM AKHTAR---Petitioner

versus

SENIOR CIVIL JUDGE/RENT CONTROLLER---Respondent

W.P. No. 2945 of 2004/BWP, decided on 30th August, 2004.

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

----S. 13(6)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Tentative rent order---Petitioner/tenant had disputed the correctness of tentative rent order passed by Rent Controller, contending that said order was to be passed after assessment and examination of documents and hearing the parties, which method was not followed by Rent Controller in the case---Contention of the tenant was that Rent Controller had to direct parties to produce documents and to get their statements recorded before passing impugned order under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 and version of landlord was not to be believed straightaway for passing of said order---Validity---Impugned order had been passed in presence of both the counsel of parties and Rent Controller had granted opportunity of hearing and had considered version of petitioner as well as respondent---Not necessary in all cases for Rent Controller to direct parties to present the documents; it was sweet will of parties to present documents, which they considered necessary for the support of their version---Case was not fit for exercise of extraordinary jurisdiction as impugned order had been passed by Rent Controller within his jurisdiction and could not be declared or termed as illegal or unlawful---Constitutional petition was dismissed, in circumstances.

Tauqeer Shahid v. Additional District Judge and others 1993 CLC 2435; Muhammad Munir v. Mst. Zahida Parveen PLD 1995 Lah. 352 and Muhammad Tufail v. Mst. Veeran Bibi and others 1993 CLC 655 ref.

Ch. Muhammad Ashraf Mohandra for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 876 #

2005 M L D 876

[Lahore]

Before Muhammad Jehangir Arshad, J

NOOR MUHAMMAD and 3 others---Petitioners

versus

THE STATE---Respondent

Criminal Revision No.101/BWP of 2004, heard on 18th February, 2005.

Criminal Procedure Code (V of 1898)---

----S. 514---Penal Code (XLV of 1860), Ss. 324 & 34---Forfeiture of surety bond---Accused in the present case were proceeded against for offence under Ss. 324 & 34, P.P.C. and petitioner stood sureties for accused persons in their interim pre-arrest bail by furnishing surety bond in sum of Rs.50,000 each---Accused persons having failed to appear in Court bail application was dismissed for non-prosecution and bail bonds furnished by petitioners/sureties were ordered to be forfeited---Petitioners had contended that bail bonds furnished by them were only for the next date of hearing and not for any subsequent default in appearance for which petitioners were not liable to pay surety amount---Contention of petitioners was repelled because by furnishing surety bonds petitioners, had undertaken to produce accused in the Court on all subsequent dates till final disposal of case---Petitioners were liable for absence of accused on dates subsequent to date mentioned in surety bond---Trial Court having already taken lenient view and reduced amount of surety from Rs.50,000 each to Rs.15,000 each, further reduction in amount as prayed for by petitioner could not be allowed.

Zulfiqar Ahmad v. The State and another PLD 2001 Lah. 545; Abdul Hafiz v. The State 1993 MLD 541 and Sardar Muhammad v. The State 1998 PCr.LJ Lah. 236 ref.

Syed Mubashar Hassan Gillani for Petitioners.

Mirza Nadim Asif for the State.

Date of hearing: 18th February, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 878 #

2005 M L D 878

[Lahore]

Before Ch. Ijaz Ahmad, J

BASHIR HUSSAIN---Petitioner

versus

MUHAMMAD TUFAIL---Respondent

Civil Revision No.2069 of 2004, decided on 25th February, 2005.

(a) Pleadings---

----Parties are bound by their pleadings.

Mst. Murad Begum and others v. Muhammad Rafiq and others PLD 1974 SC 322 rel.

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

----Arts. 117 & 120---Fact---Onus to prove---Plaintiff has to prove his own case and to succeed on the basis of his own documents and not on the weaknesses in defendant's case.

----O.XLI, R.33---First Appellate Court---Powers---First Appellate Court possesses the jurisdiction to come to its own conclusion on the basis of evidence adduced before the Trial Court by the parties---First Appellate Court can competently reverse the findings of Trial Court on the question o fact involved.

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

-----S.115---Revisional jurisdiction of High Court, exercise of---Scope---Finding of fact, howsoever erroneous, if recorded by a Court of competent jurisdiction, cannot be interfered with by High Court in its revisional jurisdiction under S.115, C.P.C. unless such findings suffer from jurisdictional defect, illegality or material irregularity.

N.S. Vankatagiri Ayyangar and another v. The Hindus Religious Endowments Board Madras PLD 1949 PC 26; Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood 1985 CLC 657 and Board of Intermediate and Secondary Education, Lahore v. Ghulam Qadir PLD 1988 SC 625 rel.

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

----S.54---Civil Procedure Code (V of 1908), Ss.96 & 115---Revision---Judgments at variance---Title on the basis of Revenue Record---Plaintiff claimed to be in possession of the land as tenant on the basis of entries of Khasra Gardawari---Such entries were based on erroneous order of Deputy Commissioner, which had already been set aside by higher forum---Suit-land was owned by Provincial Government and physical possession of the plaintiff upon the land remained unproved---Judgment and decree passed by Trial Court in favour of plaintiff was set aside by Appellate Court resultantly the suit was dismissed---Validity---Plaintiff failed to point out any piece of evidence which was non-read and misread by the Appellate Court---Material documents with regard to title of the land in question were not produced by the plaintiff, therefore, High Court declined to interfere with the findings of facts of Appellate Court---No infirmity and illegality having been found in the judgment passed by Appellate Court as the same was passed after reappraisal of evidence on record in accordance with law while exercising power under S.96, C.P.C.---Revision was dismissed in circumstances.

Saeed Ahmad Rana for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 884 #

2005 M L D 884

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

GHULAM MURTAZA alias CHOTA KAKA---Petitioner

versus

THE STATE---Respondent

Criminal Appeal No.1452 of 2001, decided on 29th September, 2004.

Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), S.544-A---Appreciation of evidence---Presence of one of the prosecution witnesses at the spot at relevant time was not free of doubt---Both prosecution witnesses had made glaring improvements while deposing before Trial Court---Stand of prosecution witnesses also stood belied by Medical evidence---Defence plea was that accused being provoked on coming to know that his sister had been disgraced and molested by deceased, went to shop of deceased to enquire about the incident and during ensuing scuffle he caused injuries to deceased---Investigating Officer, while deposing before Trial Court had admitted plea of accused---Putting both versions of complainant and defence in juxta-position, there was much force in defence plea which was supported from circumstances of the case--Even otherwise when there were two views about same incident, view in favour of accused was to be followed---Case of accused fell within the purview of S.302(c) , P.P.C. and not under S.302(b), P.P.C. as held by Trial Court---Conviction of accused under S.302(b), P.P.C. was set aside and he stood convicted under S.302(c), P.P.C. and was sentenced to ten years' R.I. with benefit of S.382-B, Cr.P.C.---Deceased having been done to death by accused because of his immoral act, legal heirs of deceased were not entitled to any compensation as required under S.544-A, Cr.P.C.

Syed Muzahar Ali Akbar Naqvi for Appellant.

Muhammad Akbar Cheema for the Complainant.

Ch. Muhammad Nazeer for the State.

Date of hearing: 29th September, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 893 #

2005 M L D 893

[Lahore]

Before Muhammad Muzammal Khan, J

RUKHSANA NAZ---Petitioner

versus

ARSHAD alias ACHHI and another---Respondents

Criminal Miscellaneous No.73-CB of 2005, decided on 23rd February, 2005.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Offence of Zina (Enforcement of Hudood), Ordinance (VII of 1979), S.16---Bail, cancellation of---Besides making statements before the Sessions Court, complainant and the victim both had also sworn affidavits confirming the compromise effected between them and the accused---Offence although was not compoundable, yet the compromise inter parties was relevant for consideration at bail stage especially when prosecution version during police investigation was not found to be correct---Offence under S.10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and 354, P.P.C. had already been deleted on the basis of inquiry and statements of witnesses---Offence under S.16 of the said Ordinance was triable by ordinary Courts---Challan having already been submitted in the Court, case was ready for trial and sending the accused behind the bars after three months appeared to be harsh---Verbal allegation of misuse of concession of bail by the accused alone was not sufficient to substantiate the same---Victim being a married lady, her medical examination and chemical report were not much of the help to the prosecution case---Petition for cancellation of bail was dismissed in circumstances.

PLD 2002 Central Statute 107 and Nazir Nadeem v. The State 2002 P.Cr.LJ 160 ref.

Razaq A. Mirza for Petitioner.

Raja Ikram Ameen Minhas for Respondents.

M.D. Shahzad, State counsel with Ashram Sub-Inspector.

MLD 2005 LAHORE HIGH COURT LAHORE 896 #

2005 M L D 896

[Lahore]

Before M. Bilal Khan, J

Mst. MAMOONA AKHTAR---Petitioner

versus

MAGISTRATE SECTION 30, WAZIRABAD, DISTRICT GUJRANWALA and 2 others---Respondents

W.P. No.6592 of 1996, heard on 22nd February, 2005.

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

----Ss.439-A, 439(5) & 417(2-A)---Revision petition against acquittal---Maintainability---Revision petition is not maintainable against an order of acquittal passed by the Judicial Magistrate---Remedy of filing an appeal against such order is, however, available under S. 417(2-A),Cr.P.C.

Abdul Majeed and 4 others v. Messrs H. Ghulam Muhammad & Brothers Ltd. and another 1995 PCr.LJ 1369 and Muhammad Bashir v. Fazal Hussain and 2 others 2002 PCr.LJ 513 rel.

Muhammad Yasin v. Muhammad Hanif and others 1997 PCr.LJ 1626 ref.

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

----S.319--Criminal Procedure Code (V of 1898), Ss.439-A, 439(5) & 417(2-A)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Revision petition against acquittal---Maintainability---Accused having been acquitted of the charge by the Magistrate under S.249-A, Cr.P.C. remedy of filing an appeal was available to the complainant under S. 417(2-A), Cr.P.C.---Revision petition against the said order of acquittal before the Sessions Court, therefore, was not competent---Impugned order passed in revision by Sessions Court remanding the case for fresh decision on merits to Magistrate, was consequently set aside being illegal and unlawful.

Abdul Majeed and 4 others v. Messrs H. Ghulam Muhammad & Brothers Ltd. and another 1995 PCr.LJ 1369 and Muhammad Bashir v. Fazal Hussain and 2 others 2002 PCr.LJ 513 rel.

Muhammad Yasin v. Muhammad Hanif and others 1997 PCr.LJ 1626 ref.

Parvez I. Mir for Petitioner.

Ch. Aamir Rehman Addl. A.-G. for the State.

Ch. Manzoor Hussain, for Riasat Ali the Complainant.

Date of hearing: 22nd February, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 899 #

2005 M L D 899

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD IDREES---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.13-B of 2005, decided on 3rd February, 2005.

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

----S.497---Penal Code (XLV of 1860), S.337-A(i)/337-F(i)/337-F(vi)/34--Bail, grant of---Withdrawal of the first bail application would mean under the law that the same was never filed---Even otherwise, second bail application without decision on the first bail application was maintainable---Complainant had sustained twelve injuries, but all of them were simple with blunt weapon except one grievous injury on the index finger of the left hand which was not a vital part of the body---Fact whether the said injury was caused with a Danda or a friendly hand would be determined by the Trial Court after recording evidence---Parties were real brothers and the scuffle between them took place on a dispute of raising a wall by the complainant---Who was the aggressor was a matter of further inquiry---Despite a lapse of five months trial of the case had not yet started---Bail could not be withheld as a punishment---Accused was admitted to bail in circumstances.

Muhammad Riaz v. The State 2002 SCMR 184; Allah Rakha ailas Bodi and another v. The State and another 1993 SCMR 1994 and Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

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

----Ss.497 & 498---Bail--Second bail application---Maintainability---Second bail application without a decision on the first bail application is maintainable.

Muhammad Riaz v. The State 2002 SCMR 184 ref.

Malik Muhammad Nawaz Khan for Petitioner.

Amin Feroz for the State with Ghulam Abbas, S.I.

Dr. Z.M. Babar Awan for the Complainant.

MLD 2005 LAHORE HIGH COURT LAHORE 902 #

2005 M L D 902

[Lahore]

Before Muhammad Farrukh Mahmud, J

ABDUL RAZZAQ and others---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.837-B of 2004/BWP, decided on 27th September, 2004.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324, 337-A(iii), 148 & 149--Pre-arrest bail, grant of---Accused had joined investigation of the case---Case was that of two versions; cross-version was registered on statement of co-accused under Ss.324, 336, 337-A(iii), 148 & 149, P.P.C.---Five persons had received injuries at the hands of complainant party---Injuries caused to accused had been suppressed in F.I.R.---No overt act was attributed to co-accused while injury attributed to accused was simple in nature and had been caused by blunt weapon---Ad interim pre-arrest bail already granted to accused, was confirmed in circumstances.

Sardar Muhammad Shamim Khan for Petitioners.

Zahoor Ahmad assisted by M.A. Farazi and Munir A.S.-I. for the State.

Date of hearing: 27th September, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 903 #

2005 M L D 903

[Lahore]

Before Syed Zahid Hussain, J

Haji AHMAD NAWAZ---Petitioner

versus

MUHAMMAD RIAZ---Respondent

Civil Revision No.335 of 2005, decided on 29th March, 2005.

Civil Procedure Code (V of 1908)---

----S. 114---Limitation Act (IX of 1908), S.5---Review petition accompanied by an application under S.5, Limitation Act, 1908---Trial Court, while accepting the review petition, did not pass any order whatsoever qua application under S.5, Limitation Act, 1908---Effect---Held, it was incumbent upon the Trial Court to have first considered the application made for condonation of delay before deciding the review petition---Review petition could only be decided on its merits if the same was found to be within limitation or the delay was condoned by the Court for sufficient and adequate reasons---Order of Trial Court being illegal and contrary to law, its affirmance by the Appellate Court was set aside by the High Court---Review application as also the application made under S.5, Limitation Act, 1908 would be deemed to be pending before the Trial Court, which will be heard and decided in accordance with law in the light of observation by the High Court.

Dilmir v. Ghulam Muhammad and 2 others PLD 2002 SC 403; Ahsan Ali v. District Judge PLD 1969 SC 167 and Sheikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628 fol.

Shahid Mahmood Khan for Petitioner.

Mian Muhammad Nawaz for Respondent.

Date of hearing: 29th March, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 908 #

2005 M L D 908

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD HUSSAIN---Petitioner

versus

SESSIONS JUDGE, PAKPATTAN and 4 others---Respondents

Writ Petition No.17030 of 2004, heard on 3rd December, 2004.

Criminal Procedure Code (V of 1898)---

----Ss.22-A(6) & 154---Penal Code (XLV of 1860), S.212---Constitution of Pakistan (1973) Art. 199---Constitutional petition---Application for cancellation of F.I.R.---On filing F.I.R. by petitioner against respondent under S.212, P.P.C., challan was submitted before Trial Court after completion of investigation---After submission of challan, respondent filed application for cancellation of F.I.R. and registration of case against petitioner for falsely implicating respondent in the case---Sessions Judge after receipt of requisite report from District Police Officer, passed an order directing S.H.O. concerned to register criminal case against petitioner/complainant---Validity---Application filed by respondent against petitioner presumably was a petition filed under S.22-A(6), Cr.P.C.---Challan in criminal case lodged by petitioner against respondent had been submitted before Trial Court many months before submission of petition under S.22-A(6), Cr.P.C. by respondent before Sessions Judge---No investigation could be carried out in a criminal case and relevant F.I.R. could not be cancelled by a Magistrate or by any other judicial or executive officer after submission of a challan before Trial Court and after taking of cognizance of case by Trial Court---Prayer by respondent before Sessions Judge regarding cancellation of F.I.R., after holding an inquiry in that respect could not be granted by Sessions Judge acting in his capacity as ex officio Justice of the Peace---Other prayer of respondent regarding holding of a departmental inquiry against petitioner/complainant also could not be granted by ex officio Justice of the Peace because that was a matter which was already being taken care of by departmental hierarchy---Order passed by Sessions Judge was declared as without lawful authority and of no legal effect and same was set aside.

Muhammad Alam and another v. Additional Secretary to Government of N.-W.F.P. Home and Tribunal Affairs Department and 4 others PLD 1987 SC 103; Nasira Surriya v. Muhammad Aslam and 7 others 1990 SCMR 12; Syed Waqar Hussain Shah v. The State PLD 1988 Lah. 666 and Ashiq Hussain v. Sessions Judge, Lodhran PLD 2001 Lah. 271 ref.

Ch. Azeem Sarwar for Petitioner.

Najeeb Faisal Chaudhry A.A.-G. for Respondents Nos.1 to 4.

Ch. Muhammad Akram for Respondent No.5.

Date of hearing: 3rd December, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 915 #

2005 M L D 915

[Lahore]

Before Ch. Ijaz Ahmad and Muhammad Khalid Alvi, JJ

SECRETARY AGRICULTURE, GOVERNMENT OF THE PUNJAB and another---Appellants

versus

MUHAMMAD AKRAM and another---Respondents

I.-C.A. No.512 of 2000, in Review Appeal No.5 of 2000 in main Writ Petition N.10806 of 1996, decided on 10th February, 2005.

Law Reforms Ordinance (XII of 1972)---

----S.3---Constitution of Pakistan (1973), Art. 199---Civil Procedure Code (V of 1908), S.114 & O.XLVII, R.1---Order of Single Bench of High Court passed in review application challenging order passed in Constitutional petition--Intra-Court Appeal against such order of review---Maintainability---Such order of review could neither be termed as an order passed in original civil jurisdiction nor same could be equated with an order passed under Art. 199(1) of the Constitution---Such order of review was, not appealable under S.3(2) of Law Reforms Ordinance 1972---Principles.

Under subsection (1) of section 3 of the Law Reforms Ordinance, 1972, an appeal is competent before a Bench of two or more Judges of the High Court, wherein the order passed by a Single Bench while exercising original jurisdiction is challenged. In the present case, learned Single Bench had passed impugned order while exercising his power of review of an order passed in a petition under Article 199 of the Constitution. Thus, neither the order sought to be reviewed nor the order of review, are orders, which can be termed as order to have been passed in original civil jurisdiction, therefore, the case is not covered under subsection (1) of section 3 of Law Reforms Ordinance, 1972. Under subsection (2) of section 3 of Ordinance, 1972, an appeal before a Bench of two or more Judges of the High Court is also competent against an order made by a Single Judge under Clause (1) of Art. 199 of the Constitution. However, this is subject to the conditions mentioned in the proviso to subsection (2) of section 3. Meaning thereby that if an order is passed by High Court in Constitutional petition, it is challengeable before a Bench of two or more Judges, provided it fulfils the condition provided in proviso to subsection (2) of section 3. But if such an order passed in Constitutional jurisdiction is challenged through a review, then an order passed in review would acquire a different status and would not be equated with an order passed under Clause (1) of Article 199. Therefore, an order passed in review is not appealable under subsection (2) of section 3 of the Law Reforms Ordinance, 1972. Intra-Court Appeal in present case was dismissed being non-maintainable.

Lahore Development Authority v. Fahmeeda Khatoon and others 1986 SCMR 1478 ref.

Employees Management Group, Pak-Saudi Fertilizers Limited through the Ministry of Privatization (Privatization Commission), Pak. Secretariat, Islamabad and others' case YLR 2002 Lah. 1487 rel.

Muhammad Hanif Khattana Addl. A.-G. for Appellants.

M.A. Zafar for Respondents.

MLD 2005 LAHORE HIGH COURT LAHORE 921 #

2005 M L D 921

[Lahore]

Before Nazir Ahamd Siddiqui, J

ZIA ULLAH---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.761-B of 2004/BWP, decided on 8th September, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 324/34---Bail, grant of---Accused was behind the bars for the last more than seven months and trial had not commenced, even copies of statements of prosecution witnesses recorded under S.161, Cr.P.C. had not been supplied and there was no likelihood of commencement of trial in near future---Alleged injury on right thigh of complainant fell within mischief of S.337-F(vi), P.P.C. and punishment for same was seven years---Prohibitory clause of S.497, Cr.P.C., in circumstances was not attracted in the case---Was yet to be determined, particularly keeping in view seat of injury, as to whether S.324, P.P.C. could be made applicable---Complainant allegedly was a professional criminal involved in a number of criminal cases---One of alleged eye-witnesses through his affidavit had not supported prosecution version as stated in F.I.R. and second alleged eye-witness was real brother of complainant---Accused did not have any previous history of his involvement in such-like cases---Accused was admitted to bail, in circumstances.

Chaudhry Arshad Mahmood for Petitioner.

Hafiz Munir Ahmad for the State.

Muhammad Aslam, A.S.-I. with record.

Date of hearing: 8th September, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 926 #

2005 M L D 926

[Lahore]

Before Ch. Iftikhar Hussain and sMuhammad Sayeed Akhtar, JJ

NASRULLAH alias NASRULLI---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.530 of 2004, decided on 26th November, 2004.

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

----S. 9(b)---Appreciation of evidence---Both prosecution witnesses had unanimously deposed that 503 grams heroin had been recovered from accused---No major or material discrepancy had been found in deposition of said two witnesses---Slight variation in statements of said two witnesses, had hardly any adverse effect upon evidence of said two recovery witnesses--Consistent narration of event of recovery from accused had led to believe that they were worth-relying witnesses---Evidence of said witnesses had established that Heroin in question was recovered from possession of accused at given date, time and place---Said witnesses though were police officials, but that itself was not sufficient to discredit them in their testimony as they had no animus at all against accused to involve him falsely in the case---Trial Court, in circumstances had rightly believed their evidence---Evidence regarding safe custody and dispatch of parcel of sample of Heroin recovered from accused had established the credibility of report of Chemical Examiner---Report of Expert was to the effect that sample sent for Chemical Analysis was Heroin---Said report had lent corroboration to evidence of recovery witnesses that substance recovered from accused was in fact Heroin---Prosecution, in circumstances had fully brought home guilt of accused beyond any shadow of reasonable doubt---Trial Court, in circumstances had rightly convicted and sentenced accused---Quantity of Heroin recovered from accused, being quite heavy, Trial Court had awarded him only 2-1/2 years of sentence, while such offence was punishable with imprisonment up to seven years besides fine---Trial Court having already taken sufficient lenient view in the award of sentence to accused, no further indulgence could be shown in matter of sentence---Conviction and sentence awarded to accused by Trial Court, were maintained, in circumstances.

Ehsan Qadir Sial for Appellant.

Rana Munir-ul-Hassan for the State.

Date of hearing: 26th November, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 937 #

2005 M L D 937

[Lahore]

Before Abdul Shakoor Paracha, J

ADNAN BASHIR KAYANI---Petitioner

versus

DIRECTOR-GENERAL, ANTI-CORRUPTION, ESTABLISHMENT PUNJAB, LAHORE and 2 others---Respondents

Writ Petition No.2213 of 2004, heard on 21st February, 2005.

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

----Ss.420/468/471/161---Prevention of Corruption Act (II of 1947), S.5(2)--Punjab Anti-Corruption Establishment Rules, 1985, R.15(1)(b)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Exoneration of the accused by the Anti-Corruption Establishment in three inquiries had not given a right to him for getting the impugned F.I.R. quashed and judicial action could be recommended against him under rule 15(1)(b) of the Punjab Anti-Corruption Establishment Rules, 1985---Similarly taking of departmental action against the Naib Tehsildar and dropping of the case against Girdawar by the Anti-Corruption Establishment Authorities was also covered by the aforesaid rule, for which the accused should have no grievance---Anti-Corruption Establishment Rules, 1985, having been framed by the Executive Authorities and not by the Parliament, were not mandating and were directory in nature---Any action even if taken in violation of any rule thereof, therefore, was not a sufficient ground to quash the F.I.R.---Constitutional petition was dismissed accordingly.

Maula Bux and 8 others v. The State 1977 SCMR 292; Muhammad Mansoor and 2 others v. The State and another 1974 Cr.LJ 59; Abdul Ghafoor v. The State 1984 PCr.LJ 381; Faizan Bibi and another v. The State and 3 others PLD Lah .174 and Sajjad Hussain v. S.H.O. Police Station Khairpur Sadaat and others 1999 PCr.LJ 322 distinguished.

Mirza Muhammad Iqbal v. Government of the Punjab PLD 1991 Lah. 109 and Muhammad Khalid v. Additional Director, Anti-Corruption Establishment, Faisalabad Region, Faisalabad 2002 YLR 1104 rel.

(b) Punjab Anti-Corruption Establishment Rules, 1985---

----Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Sufficient ground---Anti-Corruption Establishment Rules, 1985, having been framed by the Executive Authorities and not by the Parliament, were not mandatory and were directory in nature---Violation of any of the said Rules, therefore, would not constitute a sufficient ground for quashing of F.I.R.

Mirza Muhammad Iqbal v. Government of the Punjab PLD 1991 Lah. 109 and Muhammad Khalid v. Additional Director, Anti-Corruption Establishment, Faisalabad Region, Faisalabad 2002 YLR 1104 ref.

M. Asif Chaudhry and Ali Hassan for Petitioner.

Sardar M. Ishaq Khan-I for the Complainant.

M. Tanvir Iqbal Khan, A.A.-G. for Respondents.

Date of hearing: 21st February, 2005.

2005 M L D 952

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD AKRAM and another---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.9039-B of 2004, decided on 23rd December, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.337-A(iii)---Bail, refusal of---Cross-versions of occurrence and people from both sides had been injured---Several persons were nominated from both sides and majority of them were still at large---Concession of bail at that stage, in circumstances, was likely to cause more harm---Sota had been recovered from accused who had caused two injuries on the person of injured on his forehead and nose---Accused had also caused two injuries on other person---Grant of bail, in circumstances, was not appropriate.

Dr. Sohail Akhtar for Petitioners.

A.H. Masood for the State.

Date of hearing: 23rd December, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 958 #

2005 M L D 958

[Lahore]

Before Muhammad Farrukh Mahmud, J

ABDUL RAZZAQ and another---Petitioners

versus

THE STATE---Respondent

Criminal Revision No.131 of 2004/BWP, decided on 29th July, 2004.

Criminal Procedure Code (V of 1898)---

----S. 514---Penalty on sureties of accused---Petitioners, who stood sureties for accused, were imposed penalties and Trial Court directed them to pay amount of penalty of Rs.17,000 each within 15 days and in case of default of payment they were to pay full amount of surety bond which was Rs.50,000 each---Amount of penalty was reduced in revision to Rs.7,000 each with direction that said amount of penalty would be deposited by petitioners with the Trial Court within a month, failing which order passed by Trial Court would stand resurrected and the law would take its own course---Petitioners having failed to comply with said order of High Court, Trial Court vide impugned order directed petitioners to pay full amount as penalty of Rs.50,000 each---Validity---Both petitioners had deposited Rs.17,000 each, the amount of penalty which was imposed upon them initially by Trial Court---High Court in revision while reducing the amount of penalty from Rs.50,000 each to Rs.17,000 each (already deposited) set aside direction of Trial Court relating to deposit of remaining amount of Rs.33,000 each---With said modification relating to reduction in the amount of penalty revision petition was partly allowed.

Ghazanfar Ali Khan for Petitioners.

Hafiz Muhammad Asghar Lang for the State.

Date of hearing: 29th July, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 962 #

2005 M L D 962

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUHAMMAD ADNAN and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Crl. Miss. No.9003‑B of 2004, decided on 16th December, 2004.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.324 & 34‑‑‑Pre‑arrest bail, grant of‑‑‑No specific role had been attributed to accused except that they were found present at the place of occurrence‑‑Cross‑version of the case had been put forth by accused and they had alleged police and, complainant party having malice against them‑‑‑Plea of accused that they had been falsely involved in the case could not be ruled out‑‑‑Matter of accused was of further inquiry covered under S.497(2), Cr.P.C.‑‑‑Ad interim bail already granted to accused was confirmed, in circumstances.

Muhammad Aslam Zar for Petitioners.

Maqbool Ahmad Qureshi for the State.

Date of hearing: 16th December, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 966 #

2005 M L D 966

[Lahore]

Before Muhammad Akhtar Shabbir and Muhammad Muzammal Khan, JJ

KHALIQ JAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 62 of 2003, heard on 28th February, 2005.

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

‑‑‑‑Ss.9(c) & 25‑‑‑Criminal Procedure Code (V of 1898), S.103‑‑Appreciation of evidence‑‑‑Police Officer was not prohibited under the law to be a complainant if he was a witness to the commission of the offence and also to be an Investigating Officer‑‑‑Application of S.103, Cr.P.C. having been excluded by S.25 of the Control of Narcotic Substances Act, 1997, association of two more respectable persons of the locality was not required where the recovery, was made on a highway, roadside or from a running vehicle‑‑‑Arrest of accused was not denied‑‑‑Police officials while appearing as prosecution witnesses had made consistent statements on material points without any material discrepancy‑‑‑No rancour or animosity against the prosecution witnesses was urged by the accused who was not even known to them earlier‑‑‑Defence evidence was an afterthought and being a belated stand was not worth reliance upon‑Chemical Examiner's report about the Charas recovered from the accused was in positive‑‑‑Non‑appearance of accused as his own witness under S.340(2), Cr.P.C. to contradict the prosecution story was also fatal to him‑‑‑Conviction and sentence of accused were maintained in circumstances.

State through A.‑G. Sindh v. Bashir and others PLD 1997 SC 408; Abdul Rehman Mubarak v. State 2000 PCr.LJ 907; Muhammad Ali v. State 2000 PCr.LJ 755; Muhammad Amin v. State 1999 SCMR 1367 and Ali Muhammad v. State 2003 SCMR 54 and Feroze Shah v. State 2002 PCr.LJ 1470 ref.

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

‑‑‑‑S.9(c)‑‑‑Evidence‑‑‑Police witness‑‑‑Dual capacity‑‑‑Police Officer is not prohibited under the law to be a complainant if he is a witness to the commission of an offence and also to be an Investigating Officer.

State through A.‑G. Sindh v. Bashir and others PLD 1997 SC 408 ref.

‑‑‑‑S.9(c)‑‑‑Evidence‑‑‑Police officials‑‑‑Police witnesses are competent witnesses in the eye of law unless they are shown to have any motive or reason to falsely implicate the accused and their testimony cannot be discarded only because they happened to be employees of Police Department.

Feroze Shah v. State 2002 PCr.LJ 1470 ref.

Ch. Ghazanfar Ali for Appellant.

Nadeem Akhtar Bhatti State counsel/Special Prosecutor for ANF.

Date of hearing: 28th February, 2005.

2005 M L D 978

[Lahore]

Before Mian Saqib Nisar, J

Mst. ZAITOON‑‑‑Petitioner

Versus

Mst. REHMI through L.Rs.‑‑Respondent

C.R. No.133, 666‑C and 584‑C of 2001, decided on 13th October 2004.

Civil Procedure Code (V of 1908)‑‑‑

----Ss. 12(2) & 115---Power of attorney to compromise---Scope---Plea of fraud and misrepresentation---Compromise was arrived at between the parties and civil revision was disposed of on basis of said compromise--Thereafter two applications were filed under S.12(2) C.P.C., one by the petitioner who had alleged that she was not given due share in the valuable lands in dispute and that alleged compromise and order of High Court procured on its basis were the result of fraud and misrepresentation---Other application was filed by one of the legal heirs of respondent who, claimed that his attorney had no power to enter into any compromise and to relinquish their entitlement to the estate according to law of inheritance---Record had shown that petitioner herself had signed the compromise-deed, she was also present in the Court and affirmed said compromise‑deed besides her admitted attorney who had also signed said document‑‑‑No fraud and misrepresentation, in circumstances had been played in obtaining order from High Court on basis of said compromise‑deed‑‑‑Legal heir of respondent/applicant had authorized his attorney through Power of Attorney duly executed to enter into compromise‑‑‑Power to compromise was a very vast and comprehensive power, which included that attorney could relinquish or surrender any of the right of his principal while acting as his lawful agent‑‑‑Applications being without merit, were dismissed.

Kh. Mushtaq Ahmed for Petitioner (in C.M. No.666‑C of 2001).

Akhtar Ali Chaudhry for Petitioners (in C.M. No.584‑C of 2001).

Ahmad Hassan Anwari for Respondents Nos.2(i‑iii)(a‑j), 3(i‑v), 4 to 11 (in C. M. No. 666‑C of 2001 and 3(i‑iii)(a‑j), 4(a‑e) and 6 to 12) (in C.M. No.584‑C of 2001).

Date of hearing: 13th October, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 980 #

2005 M L D 980

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

Qazi MUHAMMAD AMIN ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No. 5410‑B of 2003, decided on 18th November, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S.497‑‑‑Emigration Ordinance (XVIII of 1979), S.17/22 ‑‑‑ Bail refusal of‑‑‑Four passports of intending emigrants had been recovered from the house of accused during investigation‑‑‑Fifteen witnesses had specifically made statements before the police that the accused had received huge amount for sending them abroad for employment but later on failed to fulfill his commitment, nor he had returned the amount‑‑Sufficient evidence, thus, was prima facie, available on record to link the accused with the commission of the offence under S.22 of the Emigration Ordinance, 1979, which fell within the prohibitory clause of S.497(1), Cr.P.C. Bail was declined to accused in circumstances.

Malik Aftab Aslam for Petitioner.

Ch. Tariq Javaid for the Complainant.

Nasir Zaman, S.I. F.I.A.

MLD 2005 LAHORE HIGH COURT LAHORE 982 #

2005 M L D 982

[Lahore]

Before M. Bilal Khan, J

SAIF ULLAH SINDHU‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.5346‑B and 5453‑B of 2003, decided on 23rd October, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 15‑‑‑Penal Code (XLV of 1860), Ss.420/468/471‑‑‑Bail, refused of-----Serious allegations with minute details had been made by the complainant against the accused ‑in the F.I.R.‑‑‑Delay in lodging the F.I.R. stood explained therein‑‑ ‑Police opinion that the alleged gang rape did not appear to have taken place was not supported by any tangible material‑‑‑Ipsi dixit of police was not binding on the Court‑‑‑Sufficient material was available on, record to connect the accused with the crime which was hit by the prohibition contained in S.497(1), Cr.P.C.‑‑‑Bail was declined to accused in circumstances.

Muhammad Ismaeel v. Muhammad Rafique and another PLD 1989 SC 585; Sardar Ali v. The State 1986 PCr.LJ 2292 and Mst Hanif Bibi and another v. Zulfiqar and another 2001 PCr.LJ 123 ref.

S.M. Nazim and Zia Ullah Ranjha for Petitioners.

Allah Bakhsh Gondal for the Complainant.

Suhail Tariq and Aslam Khokhar for the State.

Muhammad Majeed A.S.‑I. with police file.

MLD 2005 LAHORE HIGH COURT LAHORE 986 #

2005 M L D 986

[Lahore]

Before Ch. Ijaz Ahmad and Muhammad Khalid Aliv, JJ

ASAD WAHEED through Special Attorney‑‑‑Appellant

Versus

KHALID PERVAIZ and another‑‑‑Respondents

R. F. A. No. 16 of 2005, heard on 7th March, 2005.

(a) Interpretation of Document‑‑‑--

‑‑‑‑ Document must be read as a whole.

Reference by the President of Pakistan PLD 1957 SC 219 and Hakim Khan v. Government of Pakistan PLD 1992 SC 595 rel.

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

‑‑‑‑S. 96‑‑‑West Pakistan Civil Courts Ordinance (II of 1962), S.18(1)(a)----- Appeal‑‑‑Maintainability‑‑‑Plaintiff had fixed Rs.15000 as value of the suit for the purpose of court‑fee; in the body of the plaint it was mentioned that the value of relief claimed by plaintiff was Rs. 1,44,98,138‑‑‑Suit was dismissed by Trial Court and appeal was filed before High Court‑‑‑Plea raised by the defendant was that the appeal was not maintainable before High Court‑‑‑Validity‑‑‑In view of language used by plaintiff in one of the paras of plaint, it revealed that value so fixed was for the purpose of court‑fee and not for the purpose of jurisdiction of Court‑‑‑High Court commented that the concerned para was not happily worded‑‑‑Appeal was maintainable in circumstances.

‑‑‑‑ Each case has to be decided on its peculiar circumstances and facts.

Trustee, of. Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 rel.

(d) General Clauses Act (X of 1897)‑‑‑

‑‑‑‑S.24‑A‑‑‑Controversies between parties, decision of‑‑‑Duty of public functionaries‑‑‑Principles‑‑‑Public functionaries, in view of S.24‑A, General Clauses Act, 1897, are duty bound to decide controversies between parties after judicial application of mind.

Airport Support Service's case 1998 SCMR 2268 rel.

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

‑‑‑‑S.12‑‑‑Civil Procedure Code (V of 1908), O.V, R.11, O.IX, R.12 & O.XII, Rr.1 & 2‑‑‑Specific performance of agreement to sell ‑‑‑Nonappearance of plaintiff‑‑‑Failure to decide pending application before passing judgment‑‑‑Trial Court directed plaintiff to appear before Court in person but plaintiff failed to appear and the suit was dismissed‑‑Contention of the plaintiff was that his counsel could not inform him about his personal appearance because of illness and then death of mother of his counsel‑‑‑Plaintiff further contended that he had filed application under O.XII, Rr.1 & 2 C.P.C. but without deciding that application, Trial Court dismissed the suit‑‑‑Validity‑‑‑Application was not decided by Trial Court as was evident from the judgment and decree and the same was not in consonance with the law laid down by the superior Courts‑‑‑Trial Court should have decided the application of plaintiff keeping in view the requirements and conditions prescribed under O. IX, R.12 and O. V, R.4 C. P. C. ‑‑‑Counsel of plaintiff had filed application duly supported by his affidavit that he could not contact the plaintiff on account of illness and then death of his mother‑‑‑Trial Court did not decide the application of plaintiff filed under O.XII C.P.C and dismissed the suit thus the Trial Court had dismissed the suit in hurry, Judgment and decree passed by Trial Court was set aside and the matter was remanded to Trial Court for decision afresh in accordance with law‑‑‑Appeal was allowed accordingly.

National Bank of Pakistan v. Muhammad Akram Khan 2000 CLC 1493; Ghulam Mustafa v. Rawat and others PLD 1997 Kar. 622; Ghulam Mohy‑ud‑Din v. Noor Dad PLD 1988 SC (AJK) 42; Sardar Ali Khan Sayal v. District Judge PLD 1982 Lah. 63; M. Aftab Sehgal v. Station House Officer 1994 MLD 1659; Mollah Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173; Bilqee's case PLD 1979 Lah. 387; Syed Muhammad Abdul Jaleel Shah's case PLD 1962 Lah. 401; Muhammad Sharif's case 1995 MLD 923; Muhammad Ismail Chaudhry's case PLC 1960 SC (Pakistan) 301 and Ghulam Mohy-ud-Din's case PLD 1964 SC 829 ref.

(f) Administration of justice‑‑‑--

‑‑‑‑ Courts should decide cases on merits instead of technicalities.

Muhammad Hussain Chotiya for Appellant.

Sheikh Shafiq Iqbal for Respondent No. 1.

Muhammad Aslam Shaikh for Respondent No.2.

Date of hearing: 7th March, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 994 #

2005 M L D 994

[Lahore]

Before Mian Muhammad Najam‑uz ‑Zaman, J

Sufi MUHAMMAD ASLAM‑‑‑Petitioner

Versus

SADIQ ALI KHAN and another Respondents

Criminal Miscellaneous No.5154‑BC of 2003, decided on 18th November, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(5)‑‑‑Emigration Ordinance (XVIII of 1979), S.17/22‑‑‑Bail cancellation of‑‑‑Nothing incriminating was recovered from the accused during investigation‑‑‑Statements of witnesses recorded by the police had revealed that the accused had not received any amount and the only allegation against him was that he was present at the time when co accused had received the amount‑‑‑ Investigation qua the accused was complete and he was no more required by the police‑‑‑Petition for cancellation of bail granted to accused was dismissed in circumstances.

Ch. Muhammad Tariq Javaid for the Petitioner.

Malik Muhammad Afzal Awan for Respondent No.1.

Nasir Zaman, S.I., FIA.

MLD 2005 LAHORE HIGH COURT LAHORE 995 #

2005 M L D 995

[Lahore]

Before M. Nameeullah Khan Sherwani, J

Mst. SIASAT BIBI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.5539‑B, 2003, decided on 31st October, 2003.

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

‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/148/149‑‑‑Bail, refusal of‑‑‑Accused had allegedly delivered a rifle to the main accused who made a fatal shot with the same at the deceased‑‑‑Said allegation was not rebutted‑‑‑Trial Court had already recorded the evidence of four material witnesses which had linked the accused with the accusation brought against her‑‑‑Trial proceedings were nearing end‑‑‑Offence with which the accused was charged was punishable with death or imprisonment for life‑‑‑Accused was not allowed bail in circumstances.

Ch. Tahir Nasrullah Waraich for Petitioner.

Sohail Tariq for the Sate with Safdar S.I.

M. Yasin Farukh Kamboh for the Complainant.

MLD 2005 LAHORE HIGH COURT LAHORE 997 #

2005 M L D 997

[Lahore]

Before M. Bilal Khan, J

Malik EJAZ ALI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1178‑B of 2005, decided on 4th March, 2005.

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

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), S.302/34/209‑‑‑Pre‑arrest bail, grant of‑‑‑Accused admittedly was not present on the spot at the time. of occurrence and he was not alleged to .have caused any injury to the deceased or to anyone else ‑‑‑F.I.R. did not offer either the details qua the hatching of conspiracy or the names of its witnesses‑‑‑Accused was a police inspector and possibility of his false implication due to his close relationship with the main accused could not right away be ruled out‑‑Mere fact of the accused being a police inspector did not disentitle him to the protection of law‑‑‑Accused had joined investigation and no recovery was to be effected from. him‑‑‑Concession of bail could not be denied to accused for the reason that the co‑accused were still at large‑‑Culpability of accused needed further probe within the meaning of S.497(2), Cr.P.C.‑‑‑Interim pre‑arrest bail granted to accused was confirmed accordingly.

Syed Amanullah Shah v. The State and another PLD 1996 SC 241; Ghulam Murtaza v. The State 2003 YLR 3255; Murad Khan v Fazal‑e‑Subhan and another PLD 1983 SC 82; Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68; Abdul Rauf v. The State 2001 PCr. LJ Lah. 694 and Allahdino and 6 others v. The State 2003 PCr. LJ 135 ref.

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

‑‑‑‑S. 498‑‑‑Pre‑arrest bail‑‑‑Intent and purpose‑‑‑Pre‑arrest bail is meant to protect an innocent citizen if there is doubt that the motive for his involvement is not pure.

Kh. Haris Ahmed for Petitioner.

Farooq Bedar, M.S. Shad and N.A. Butt for the Complainant.

Ch. Muhammad Nazeer for the State.

Abdul Sattar S.I. P.S. Islampura, Lahore

MLD 2005 LAHORE HIGH COURT LAHORE 1002 #

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MLD 2005 LAHORE HIGH COURT LAHORE 1007 #

2005 M L D 1007

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD ASHIQ alias SOHNA‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.765‑B of 2003, decided on 12th March 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.337‑A(i), 337‑F(i), 337‑F(ii), 337‑L(2) & 34‑‑‑Bail, grant of ‑‑‑F.I.R. in the present case had been lodged with a delay of about seven days‑‑‑Offence under Ss. 337‑A(i), 337‑F(i) & 337‑L(2), P.P.C. were bailable and offence under S.337‑F(ii), P.P.C. contained a maximum sentence of three years imprisonment which did not attract prohibitory clause contained in subsection (1) of S. 497, Cr.P.C.‑‑‑School Leaving Certificate showed that age of accused was less than 16 years at the time of alleged occurrence‑‑‑Prima facie case against accused attracted provisions of first Proviso to subsection (1) of S. 497, Cr.P.C.‑‑‑Challan in the case had already been submitted after completion of investigation‑‑‑Continued custody of accused in jail, in circumstances was not likely to serve any beneficial purpose‑‑‑Accused was admitted to bail.

Imran Asmat Chaudhry for Petitioner.

Muhammad Azam Khan, A.S.‑I. with record.

MLD 2005 LAHORE HIGH COURT LAHORE 1008 #

2005 M L D 1008

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Sheikh BABAR IQBAL‑‑‑Petitioner

Versus

DIRECTOR EXCISE AND TAXATION, MULTAN and another‑‑‑Respondents

Provincial No.6717 of 2004, decided on 13th January, 2005.

Provincial Motor Vehicles Ordinance (XIX of 1965)‑‑--

‑‑‑‑S.23‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Registration of special number for vehicle‑‑‑Petitioner who purchased new car offered final bid for registration of special number and deposited bid amount‑‑‑Authority, despite deposited of said amount by petitioner, refused to allot him said required number on ground that higher Authorities had issued directions not to register any car against attractive numbers‑‑‑Petitioner in his Constitutional petition had sought issuance of necessary directions to the Authorities for registration of his car alleging that Authority's act of refusal to allot him said number was illegal and of no legal effect‑‑‑Authorities had brought on record copies of advertisement for auction attractive numbers wherein it was mentioned that bid was subject to approval by Competent Authority and successful bidders were to deposit whole amount at the spot‑‑‑Contention of petitioner that he had already deposited whole amount, was of no avail to him and it did not create any vested right in him for allotment of requisite attractive number because bid was subject to approval by Competent Authority and nothing was on record that bid of petitioner was confirmed‑‑‑Petitioner had also failed to show that allocation of specific registration number even through auction was his vested right whereas Constitutional petition was maintainable against vested rights.

Ch. Abdul Sattar Goraya for Petitioner.

M.R. Khalid Malik, Addl. A.‑G. for Respondent No.2.

MLD 2005 LAHORE HIGH COURT LAHORE 1011 #

2005 M L D 1011

[Lahore]

Before Tassaduq Hussain Jillani, J

Mst. WAZIR BIBI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.937 of 2003, heard on 11th February, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 200 & 439‑‑‑Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149‑‑‑Complaint case‑‑‑Withdrawal of complaint‑‑‑On filing complaint by petitioner against accused, Magistrate, after recording of preliminary evidence, issued notices to accused persons‑‑‑Said accused person appeared and were allowed bail, charge was framed, but thereafter accused absconded and became fugitive from law‑‑‑When case was fixed for recording of evidence, Trial Court dismissed complaint as having been withdrawn by complainant‑‑‑Complainant had alleged that she had never made a statement to withdraw complaint‑‑‑Complainant had further stated that her thumb‑impressions were obtained on the pretext that same were required for adjourning the case and that it being a warrant case, Trial Court could not have permitted withdrawal, even if complainant had made statement to that effect‑‑‑State counsel did not oppose petition filed by complainant‑‑‑Complaint in summon cases triable under Chapter XX, Cr.P.C. could only be withdrawn with the permission of Magistrate‑‑‑Since the present case was at the stage of proceedings in Chapter XVI of Cr.P.C. and was triable as a summon case under Chapter XX, Cr.P.C., Sessions Judge had no authority to permit complainant to withdraw complaint or to dismiss it as having been withdrawn‑‑‑Order passed by Trial Court/Sessions Judge was set aside and complainant was directed to appear before Trial Court.

Nazar Ahmad v. Muhammad Aslam and others 1988 PCr.LJ 1787 ref.

Imran Asmat Ch. for Petitioner.

Sardar Zahid Gul for the State.

Date of hearing: 11th February, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 1013 #

2005 M L D 1013

[Lahore]

Before Maulvi Anwarul Haq, J

RIASAT ALI ‑‑‑Petitioner

Versus

ADDL: DISTRICT JUDGE, KEHRORE PACCA and 2, others‑‑‑Respondents

W.P. No.6677 of 2004, decided on 16th December, 2004.

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

‑‑‑‑S.42‑‑‑Mutation‑‑‑Evidentiary value‑‑‑Mutation whether attested or unattested, would not create any title and was not even evidence of title‑‑‑Important thing was to find out whether transaction recorded in the mutation had taken place or not.

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

‑‑‑‑O.I, R.10‑‑‑Impleading of party‑‑‑While considering an application under O.I, R.10, C.P.C., a tentative decision was to be taken as to whether or not party was necessary or proper and for that purpose only allegations in the plaint were to be looked into which were of course subject to proof as once a party was impleaded, then result of suit was dependent upon evidence on record and the law applicable.

Malik Javed Akhtar Vains for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 1015 #

2005 M L D 1015

[Lahore]

2005 M L D 1026

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD LATIF ‑‑‑ Petitioner

Versus

SESSIONS JUDGE, JHELUM and 6 others‑‑‑Respondents

Criminal Miscellaneous No.57/M of 2005, decided on 22nd February, 2005.

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

‑‑‑‑Ss.516‑A & 561‑A‑‑‑Custody of Motor Car given to respondent by Sessions Court‑‑‑Validity‑‑Police while taking action on the application of the petitioner had taken the motor car into possession under S. 550, Cr.P.C. from the respondent who had claimed its ownership‑‑Registration of the said motor car undisputedly was in the name of the respondent‑‑‑Vehicle which was taken into possession by the police from its owners i.e., the respondent was, thus, rightly ordered to be given to him‑‑‑Claim of the petitioner of having purchased the vehicle in the name of the respondent was already sub judice before a Civil Court where his entitlement would be determined after recording evidence‑‑‑Presently respondent was entitled to the custody of the vehicle which could not be given to the petitioner or the police as the proceedings under S. 550, Cr.P.C. were absolutely unauthorized‑‑‑Petition was dismissed accordingly.

Ch. Naseer Ahmad Tahir for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 1028 #

2005 M L D 1028

[Lahore]

Before Muhammad Khalid Alvi and Sh. Hakim Ali, JJ

ALEEM ASHRAF ‑‑‑ Petitioner

Versus

THE STATE‑‑‑Respondent

Writ Petition No.5246 of 2004, heard on 30th September, 2004.

Anti‑Terrorism Act (XXVII of 1997)‑‑‑‑

‑‑‑‑Ss.2(e), 7‑B & 13(2)‑‑‑Juvenile Justice System Ordinance (XXII of 2000), S.4‑‑‑Penal Code (XLV of 1860), Ss. 353, 380, 452, 506, 186, 148 & 149‑‑‑Appreciation of evidence‑‑‑Jurisdiction of Anti‑Terrorism Court‑‑‑Scope‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Anti Terrorism Court to which challan of case was submitted having taken cognizance of the case, petitioner/accused who was minor, had filed application before said Court praying that he being minor, his case should be forwarded to Juvenile Court‑‑‑Said application was dismissed by Court holding that it had jurisdiction to entertain and adjudicate upon his case‑‑‑Petitioner filed revision against order of Anti‑Terrorism Court before High Court, which was converted into Constitutional petition‑‑Anti‑Terrorism Act, 1997 was in operation when Juvenile Justice System Ordinance, 2000 came into being and said Ordinance having come into existence after Anti‑Terrorism Act, 1997, would take precedence over Anti‑Terrorism Act, 1997‑‑‑Juvenile Court established under S. 4 of Juvenile Justice System Ordinance, 2000 had been granted exclusive jurisdiction to try cases in which a child was accused of commission of any offence‑‑‑If intention of Legislature had been to grant said powers to Anti‑Terrorism Court, it could have provided same through a Legislative enactment and could have conferred powers on Anti‑Terrorism Court arid there was no need to provide a different method for conferment of powers as prescribed under S. 4 of Juvenile Justice System Ordinance, 2000‑‑‑By vesting exclusive jurisdiction in Juvenile Court to try cases of accused who was a child/minor all other Courts would lose their jurisdiction to try such cases‑‑Judicial Officer might hold powers, but unless he was posted or declared as Judge of a Juvenile Court, he could not entertain, hear or adjudicate cases with regard to a juvenile under Juvenile Justice System Ordinance, 2000‑‑‑Special Court constituted under Anti‑Terrorism Act, 1997 having not been declared as a Juvenile Court, even if powers be vested in Presiding Officer of such Court, he could not try, entertain and adjudicate case of petitioner/minor accused‑‑‑Reasoning advanced by Judge Anti‑Terrorism Court for rejection of application of petitioner/minor, could not be accepted‑‑‑High Court accepting petition set aside impugned order passed by Anti Terrorism Court declaring same illegal and unlawful with direction that case of petitioner be referred to Sessions Judge concerned who would entrust it to competent Juvenile Court for its trial in accordance with law.

Muhammad Arif Alvi for Petitioner.

Muhammad Jahangir Arshad, A.A. ‑G. for Respondent.

Date of hearing: 30th September, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 1034 #

2005 M L D 1034

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ZAFAR‑‑‑Petitioner

Versus

NAZIR AHMED and others‑‑‑Respondents

Writ Petition No.2250 of 2004, decided on 26th May, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss.12(2) & 115‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for specific performance of agreement‑‑‑Ex parte decree, setting aside of‑‑‑Suit filed by respondent having been decreed ex‑parte on 15‑5‑1994, predecessor-in‑interest of petitioner, who was one of the defendants in said suit filed application under S.12(2), C.P.C. for setting aside ex parte decree, but as he could not produce any evidence, his application was dismissed‑‑Respondent/ decree‑holder thereafter went in execution, pending which predecessor‑in‑interest of petitioner died‑‑‑Petitioner after death of his predecessor‑in‑interest filed revision petition challenging ex parte decree and order whereby application under S.12(2), C.P.C. filed by his predecessor‑in‑interest was dismissed‑‑‑Said revision petition was filed by petitioner after about six years from order of dismissal of application which was filed under S.12(2), C.P.C.‑‑‑Said revision was rightly dismissed on merits as well as being time‑barred‑‑‑Revision petition which was to be filed within period of ninety days against impugned order, was filed after six years and no explanation for such inordinate delay was given by petitioner‑‑‑Revision having been competently dismissed by Court of competent jurisdiction, Constitutional petition against said dismissal order, having no merits, was dismissed, in circumstances.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 and Punjab Road Transport Corporation through District Manager, PRTC, D.G. Khan and another v. Muhammad Iqbal Lodhi and another 2003 CLC 1539 ref.

Ch. Waseem Ahmed Gujar for Petitioner.

Zafar Iqbal Chohan for Respondents.

Date of hearing: 26th May, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 1036 #

2005 M L D 1036

[Lahore]

Before Tanvir Bashir Ansari, J

VICKRAM alias VICKY ---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.2142-B of 2005, decided on 4th April, 2005.

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

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Bail, grant of ---F.I.R. was lodged with an inordinate delay of 25 days from occurrence---Alleged abductee was not recovered from the possession of accused, but was recovered from another person who was a Ricksha Driver---Neither alleged abductee had incriminated accused nor any material was on record to involve the accused---State Counsel had submitted that during investigation accused had been found prima facie innocent and that he had been challaned in Column No.2-- Accused was admitted to bail, in circumstances.

Justin Gill for Petitioner.

Rai Haider Ali Kharal for the State.

MLD 2005 LAHORE HIGH COURT LAHORE 1038 #

2005 M L D 1038

[Lahore]

Before Muhammad Nawaz Abbasi and Mansoor Ahmad, JJ

Sepoy MUHAMMAD AFZAL through Attorney ‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Defence, Rawalpindi and others‑‑‑Respondents

Writ Petition No.645 of 1993, decided on 5th December, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑During pendency of present Constitutional petition, another Constitutional petition filed on behalf of petitioner questioning validity of conviction awarded to him by Field General Court Martial was dismissed and said dismissal order attained finality as appeal and thereafter review petition filed by petitioner before Supreme Court, were dismissed‑‑‑On the same subject two independent petitions were filed and during pendency of present petition, subsequently filed petition was dismissed and matter was finally adjudicated upon by the Supreme Court‑‑‑Order in present petition would be of no consequence‑‑‑Present petition having become infructuous, petitioner could seek alternate remedy, if any available to him for the redressal of his grievance.

Ibad‑ur‑Rehman Ladhi for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 1039 #

2005 M L D 1039

[Lahore]

Before Maulvi Anwarul Haq, J

ATTA ULLAH and 6 others‑‑Petitioners

Versus

FAIZ AHMAD and 2 others‑‑‑Respondents

Civil Revision No.682‑D of 1998, heard on 2nd March, 2005.

Islamic Law‑‑‑--

‑‑‑‑Gift‑‑‑Brother asserted a valid gift in his favuor by his deceased father through mutation‑‑‑Sisters challenged such gift‑‑‑Proof‑‑‑Burden was upon brother to prove a valid gift being beneficiary thereof‑‑Brother, though alive and well, did not enter witness‑box‑‑‑Son‑in‑law of brother as witness did not state that in what manner gift was made by deceased in favour of his son; whether a declaration was made and accepted; whether possession was delivered and received under gift‑‑Such witnesses deposed not to be present during mutation proceedings‑‑Roznamcha Waqiati found mention that deceased appeared along with witnesses and had stated that he had gifted his land to his son and had delivered possession‑‑‑No evidence on record to prove a valid gift in favour of brother‑‑‑Suit of sisters was decreed in circumstances.

Muhammad Zaman Khan v. The Additional Chief Land Commissioner and another 1986 SCMR 1121 and Mst. Tayyaba Khanam and others v. Chairman Federal Land Commissioner and others 1984 SCMR 1110 ref.

Arif Zaman v. Pir Dost Ali Shah through Legal Heirs and others 2005 MLD 98 rel.

Ch. Abdul Sattar Goraya and Jahangir Iqbal Bokhari for Petitioners.

Nemo for Respondents.

Date of hearing: 2nd March, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1042 #

2005 M L D 1042

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD YOUNIS‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.4713‑B of 2003, decided on 19th September, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/16‑‑‑Bail, grant of‑‑‑Allegation against the accused was that he had only signed the Nikahnama as a witness‑‑‑Whole family of the accused had been involved in the F.I.R. ‑‑‑Accused had been declared innocent by the police during investigation‑‑‑Case of accused, thus, required further inquiry within the meaning of S.497(2), Cr.P.C.‑‑Accused was admitted to bail in circumstances.

Ch. Saeed Ashraf Warraich for the Petitioner

Sohail Tariq for the State.

Muhammad Sikandar A.S.-I.

MLD 2005 LAHORE HIGH COURT LAHORE 1044 #

2005 M L D 1044

[Lahore]

Before Sh. Hakim Ali, J, MUHAMMAD ZAFAR IQBAL‑‑‑Petitioner

Versus

NOOR MUHAMMAD ‑‑‑Respondent

C.R. No. 1021 of 2000, decided on 16th March, 2005.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 54‑‑‑Suit for permanent injunction‑‑‑Jurisdiction‑‑‑Plaintiff filed suit for grant of permanent injunction against Provincial Government and a private defendant seeking permanent injunction restraining them from interfering into his possession of land in dispute‑‑‑Private defendant undertook by getting recorded his statement that plaintiff would not be ejected from lands in dispute without due course of law‑‑‑On the very day the said statement/undertaking was recorded, plaintiff who was got apprehended in criminal proceedings under Ss.107/151, Cr.P.C. was ejected forcibly from the lands in dispute‑‑‑Plaintiff filed application before Trial Court for initiation of proceedings under contempt and for restoration of his possession which application was finally accepted‑‑Validity‑‑‑Plaintiff had asserted ownership of disputed land vesting in Provincial Government and had claimed tenancy of Government‑‑Nowhere in plaint plaintiff had admitted himself as the tenant of the private defendant or said defendant to be his landlord or owner of disputed lands‑‑‑Plaintiff had denied categorically any right of private defendant with regard to said land‑‑‑There being no relationship of landlord and tenant between plaintiff and the private defendant, assertion and version of private defendant that suit was not maintainable in, Civil Court due to exclusive jurisdiction vesting with Revenue Court, had lost its significance and proved to be a fallacious argument‑‑‑Civil Court had got jurisdiction in the case‑‑‑ Even otherwise the facts as narrated in plaint at initial stage, were determinative factors for commencement of proceedings upon a suit instituted and those would serve the foundational basis to decide question of jurisdiction of a Court‑‑‑Court had to take initiative and decide as to whether it had to proceed or to reject plaint under O.VII, R.1, C.P.C.‑‑‑Party could not be allowed to approbate and reprobate, because the order which had attained finality, could not be assailed in same litigation again‑‑‑High Court dismissed revision by maintaining order for delivery of possession and grant of compensation as ordered/directed by Appellate Court.

Ghulam Nabi and others v. Bahsir Ahmad and others 1981 SCMR 46; Province of Punjab v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351; Muhammad Ashiq alias Ashiq Ali v. Razia Begum and others PLD 1982 Lah. 459; Mst. Kishwar Sultan Jehan Begum v. Aslam Awais and 3 others PLD 1976 Lah. 580; Bakhtawar and others v. Amin and others 1980 SCMR 89 and Muhammad Salim Khan Yusufzai v. K. Muhammad Din 1968 SCMR 557 ref.

Muhammad Naveed Hashmi for Petitioner.

Irshad Hussain Jafari for Respondent.

Date of hearing: 16th March, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1050 #

2005 M L D 1050

[Lahore]

Before Sh. Abdul Rashid, J

AMAR and 3 others‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.5706‑B of 2004, decided on 30th August, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of. 1860), Ss.337‑F(i)(iii)&(iv)/337‑L(2)/ 337‑A(ii)/148/149/109‑‑‑Pre‑arrest bail, grant of‑‑‑Allegations against the accused regarding infliction of injuries on the person of the injured prosecution witness could not be substantiated during police investigation‑‑‑Police had also found some of the accused nominated by the complainant as innocent after investigation‑‑‑It was doubtful as to which set of accused had caused blunt weapon injuries to the said witness‑‑‑Prosecution story as couched in the F.I.R. did not reflect the whole truth‑‑‑Case of accused, who were found to be only carrying sticks at the time of occurrence, thus, required further inquiry‑‑‑Interim pre‑arrest bail allowed to accused .was confirmed in circumstances.

Nasim Ullah Khan Niazi for Petitioner.

Kh. Shaukat Ali for the State.

Muhammad Mumtaz, S.I. with record.

MLD 2005 LAHORE HIGH COURT LAHORE 1052 #

2005 M L D 1052

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAKEEL AHMAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.5834‑B of 2004, decided on 22nd September, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.506/500/380/419/420/411/ 471/468‑‑‑Telegraph Act (XIII of 1885), Ss.25/29‑‑‑Bail, refusal of‑‑Applications submitted to the high‑ups of the Judiciary and the Chief Executive of Pakistan, according to the report of the Handwriting Expert, were written by the accused who allegedly had been threatening the prosecution witnesses with dire consequences‑‑‑Bail in the offences not punishable with death, imprisonment for life and ten years' R.I., no doubt could be granted as a rule and its refusal was an exception, but accused in the present case was not entitled to bail due to the aforesaid circumstances‑‑‑Trial had already commenced and despite presence of six witnesses in the Court on the last date of hearing, accused could not produce his counsel‑‑‑Bail was declined to accused in circumstances.

Rab Nawaz Khan Niazi for Petitioner.

Muhammad Amir Khan Niazi for the Complainant.

Abdur Rehman S.I. with record.

MLD 2005 LAHORE HIGH COURT LAHORE 1053 #

2005 M L D 1053

[Lahore]

Before Syed Jamshed Ali, J

SHAUKAT ALI WAHLA, SUPERINTENDENT, ZONAL OFFICE, AUQAF, SARGODHA‑‑‑Petitioner

Versus

CHIEF ADMINISTRATOR OF AUQAF, PUNJAB, LAHORE‑‑‑Respondent

Writ Petition No.2398 of 2002, heard on 13th October, 2004.

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

‑‑‑‑S.5(1)‑‑‑Constitution of Pakistan (1973), Arts. 8, 27 & 199‑‑Constitutional petition‑‑‑Promotion‑‑‑Discrimination on ground of religion‑‑‑Petitioner, who was an Ahmadi, was promoted as Superintendent in Auqaf Organization, but said order of promotion was recalled on the ground that proviso to S.5(1) of Punjab Waqf Properties Ordinance, 1979, did not permit promotion of a non‑Muslim as an officer‑‑‑Validity‑‑‑Discrimination on the ground of religion alone was prohibited by Art.27 of the Constitution‑‑‑Guarantee against discrimination on ground of religion was absolute and not subject to reasonable qualification or restriction‑‑‑Exceptions to said guarantee had been provided by Art.27 of the Constitution itself‑‑‑Proviso to S.5(1) of Punjab Waqf Properties Ordinance, 1979, in circumstances was repugnant to Art.27 of the Constitution and was void by virtue of operation of Art.8 of the Constitution.

Malik Muhammad Azam Rasool for Petitioner.

Dilshad A. Khan Raja for Respondent.

Date of hearing: 13th October, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 1056 #

2005 M L D 1056

[Lahore]

Mian Muhammad Najam‑uz‑Zaman and M. Naeemullah Khan Sherwani, JJ

SHAH NAWAZ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No. 1783‑B 2004, decided on 12th April, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S.497‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.6/9‑‑‑Bail, grant of‑‑‑Accused had no criminal history and was never involved in any criminal case of like nature‑‑‑Accused also did not have the notoriety as drug pusher‑‑‑Case against accused, prima facie, fell under S.9(b) of the Control of Narcotic Substances Act, 1997‑‑‑Accused being the first offender, bail was allowed to him in circumstances.

Gulfam Muslim Rana for Petitioner.

Sohail Tariq for the State.

Faiar Khan, A.S.‑I.

MLD 2005 LAHORE HIGH COURT LAHORE 1057 #

2005 M L D 1057

[Lahore]

Before Muhammad Muzammal Khan, J

M.S. RAWALPINDI GENERAL HOSPITAL‑‑‑Petitioner

Versus

Raja MUHAMMAD FAREEDON and 3 others‑‑‑Respondents

Civil Revision No.341‑D of 2000, decided on 9th September, 2004.

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

‑‑‑‑O.XVI, R.7‑A & O.XVII, R.3‑‑‑Specific Relief Act (I of 1877), S.54‑‑‑Suit for permanent injunction‑‑‑Closing of evidence‑‑‑Trial Court after recording evidence of plaintiffs, fixed case for recording evidence of defendant‑‑‑Application by defendant for summoning of certain official record was allowed by Trial Court and defendant deposited diet money of witness besides other ancillary expenses, but Trial Court without waiting for witness, sought to be summoned, closed evidence of defendant and decreed suit on basis of available evidence on record‑‑Appeal against order of Trial Court was also dismissed by Appellate Court‑‑‑Validity‑‑‑Defendant had summoned required witness through Process of the Court completing all formalities like deposit of diet money of said witness‑‑‑Trial Court besides summing of required witness through its process, had also directed defendant to get witness served at his own responsibility in terms of O.XVI, R.7‑A, C.P.C.‑Trial Court, however, at time of taking action under O.XVII, R.3, C.P.C. i.e. closing of evidence of defendant, was not mindful of that fact and did not care to inquire as to whether service of witnesses or the Record Keeper sought to be produced had been effected or not‑‑‑If service of summoned witnesses had not been effected, impugned action could not have been taken against defendant, but had there been any report by Process‑Server that summoned witnesses could not be served for any reason not contributed to defendant, even in that eventuality, impugned order was not permissible‑‑‑Defendant in the present case was never given any final opportunity of producing his evidence and was not given opportunity of producing available evidence‑‑‑Defendant having summoned witnesses through process of the Court, plaintiffs could have been compensated by payment of costs for inconvenience, if any loss was suffered by them‑‑Judgments/decrees of Courts below due to order closing the evidence of defendant under O.XVII, R.3, C.P.C. suffered from material irregularity and illegality amenable to revisional jurisdiction of High Court‑‑Concurrent judgments and decrees of two Courts below, were set aside in revision and case was sent back to Trial Court for allowing only one opportunity to defendant to produce whatever evidence he wished to produce.

Shambilid Ghori and another v. Mst. Tayyaba Begum PLD 1989 Lah. 478; Muhammad Nazir Qureshi Hashmi v. Shaukat Ali and 3 others PLD 1994 Lah. 374; Syed Tasleem Ahmad Shah v. Sajawal Khan and others 1985 SCMR 585; Haji Muhammad Ramzan Saifi v. Mian Abdul Majid and others PLD 1986 SC 129; Ali Muhammad v. Mst. Murad Bibi 1995 SCMR 773 and Syed Haji Abdul Wahid and another v. Syed Sirajuddin 1998 SCMR 2296 ref.

Mujeeb‑ur‑Rehman Kyani for Petitioner.

Ch. Sultan Mansoor for Respondents.

Date of hearing: 9th September, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 1061 #

2005 M L D 1061

[Lahore]

Before Mian Muhammad Jahangir, J

Mian NOOR AHMAD and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Crl. Misc. Nos.3423‑B, 3424‑B and 3475‑B of 2003, decided on 15th July, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.420/468/471/218/409‑‑‑Bail, refusal of‑‑‑Opinion of Investigating Officer regarding innocence of accused though not binding on the Court yet might be taken into consideration if based upon any sound material‑‑‑Had there been any truth in the claim of innocence by accused, they could not be named in the F.I.R. ‑‑‑Accused had allegedly misappropriated huge public money from the Head of Marriage Grant by preparing bogus documents and so long as the same was not paid even under protest, the bail matter would not be taken into consideration‑‑‑Public money was yet to be recovered from the accused‑‑‑Bail was declined to accused in circumstances.

Ch. Muhammad Jameel Gujjar for the Petitioners (in Crl. Misc. Nos.3423‑B and 3424‑B of 2003).

Muhammad Yaqub Pannu for Petitioner (in Crl. Misc No.3475‑B of 2003).

Muhammad Farooq Rashid for the State (in Crl. Misc Nos.3423‑B and 3424‑B of 2003).

Tariq Sohail for the State (in Crl. Misc. 3475‑B of 2003)

Ehsan ul Haq A.S.‑I. and Shafqat S.‑I.

MLD 2005 LAHORE HIGH COURT LAHORE 1063 #

2005 M L D 1063

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD ZULFIQAR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No. 2211‑B of 2004, decided on 4th May, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), S.489‑F‑‑‑Bail, grant of‑‑Cheque issued by the accused to the complainant according to F.I.R. had been dishonored‑‑‑Cheque in question was issued on 30‑6‑2002 whereas the offence in question was inserted in the Pakistan Penal Code on 25‑10‑2002‑‑‑Question of liability of the accused for the same, therefore, was open to serious consideration which called for further inquiry into his guilt as envisaged by S.497(2); Cr.P.C.‑‑Accused was not a previous convict and he was behind the bars for the last more than one and a half months‑‑‑Accused was admitted to bail in circumstances.

Ch. Riasat Ali for Petitioner.

Sohail Tariq for the State.

M. Arshad, S.I. with police record.

MLD 2005 LAHORE HIGH COURT LAHORE 1064 #

2005 M L D 1064

[Lahore]

Before Muhammad Nawaz Bhatti, J

WAHID BAKHSH‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others‑‑‑Respondents

W.P. No.2747 of 2002, decided on 12th April, 2005.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 2(c)(i), 13(2)(i), (3)(a)(i)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Ejectment of tenant on ground of default in payment of rent and personal bona fide need of landlord‑‑ Relationship of landlord and tenant‑‑‑Proof of existence‑‑‑Tenant denied existence of relationship of landlord and tenant between them‑‑‑Both Rent Controller and Appellate Authority dismissed ejectment application Holding that no relationship of landlord and tenant was proved between the parties‑‑‑Validity‑‑‑No written rent, deed was executed and tenancy had been alleged by petitioner to be oral one---Before filing of ejectment application, a suit for recovery of possession was filed by petitioner in which he had never stated that respondent was his tenant, but in his better statement recorded by the Court, petitioner had stated that respondent was his tenant‑‑‑Difference existed between contents of application for ejectment and that of statement of petitioner regarding renting out premises in question to the respondent‑‑‑Mere passing of order by Rent Controller for deposit of rent and depositing‑of same by respondent in compliance with order of Rent Controller would not prove relationship of landlord and tenant and it also did not prove that respondent had acknowledged the tenancy‑‑‑Conduct of petitioner was that he did not stand on a firm claim and he had taken different stands through pleadings in his suit for possession‑‑‑Rent Controller and Appellate Authority in circumstances had rightly dismissed ejectment application of petitioner holding that there was no relationship of landlord and tenant between the parties.

Khan Ataullah Khan Tareen for Petitioner.

Tahir Mehmood for Respondent No.3.

Date of hearing: 12th April, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1068 #

2005 M L D 1068

[Lahore]

Before Sh. Abdul Rashid, J

MUHAMMAD ARIF‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.7452‑B, 2004, decided on 27th October, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.222, 223 & 224‑‑‑Bail, grant of‑‑‑Allegations set up in F.I.R., showed that accused, while posted as Sub‑Inspector of Police at a Police Station was investigating a case registered at said Police Station under S.302, P.P.C. against a nominated accused in the case‑‑‑Nominated accused was in custody of accused and instead of locking the accused in judicial lock‑up, accused (Sub‑Inspector of Police) made him sit in his room in handcuffs wherefrom he was able to make good his escape‑‑‑Nominated accused escaped from custody of accused (Police Official) due to his negligence as he was required under the Rules to keep the nominated accused in lock‑up‑‑‑Offence of accused Police Inspector fell within purview of S.223, P. P. C. which was bailable one‑‑‑Accused was admitted to bail, in circumstances.

Shaharyar Sheikh for Petitioner.

Najeeb Faisal Chaudhry, Addl. Advocate‑General and Malik Muhammad Aslam for the State.

Subah Sadiq, S.I

MLD 2005 LAHORE HIGH COURT LAHORE 1069 #

2005 M L D 1069

[Lahore]

Before Muhammad Nawaz Bhatti, J

M. JAFFAR‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others‑‑‑Respondents

W.P. No.3826 of 2004, decided on 29th March, 2005.

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

--------S.5 & Sched---Constitution of Pakistan (1973), Art.199‑‑Constitutional petition----Dowry articles----Proof---Solitary statement of wife‑‑‑‑suit for recovery of was dismissed by Family Court but Appellate Court allowed appeal and decreed the suit directing husband to pay the amount equal to the cost of dowry articles‑‑‑Plea raised by the husband was that only witness to prove dowry articles was wife herself and her statement was full of contradictions ‑‑‑Validity‑Rukhsati had taken place and naturally articles of dowry were shifted along with bride ‑‑Record proved that articles of dowry were given to wife at the time of Rukhsati‑‑‑For determination of value of articles of dowry, Appellate Court had rightly fixed the value on the basis of the statement of wife‑‑No illegality was found in the judgment passed by Appellate Court‑‑Petition was dismissed in circumstances.

Mian Riaz Ahmad Ansari for Petitioner

Miss Shahida Saeed for Respondents.

Date of hearing: 29th March, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1071 #

2005 M L D 1071

[Lahore]

Before Khawaja Muhammad Sharif, J

NAUSHER and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.4737‑B of 2003, decided on 6th October, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324/337‑F(i)/337‑L(2)/148/149‑‑‑Bail, refusal of‑‑Accused were armed with deadly weapons and had caused numerous injuries on the person of the injured prosecution witness‑‑‑Offence with which the accused were charged fell within the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Bail was refused to accused in circumstances.

Sohail Tariq for the State with Allah Ditta A.S.‑I

MLD 2005 LAHORE HIGH COURT LAHORE 1072 #

2005 M L D 1072

[Lahore]

Before Muhammad Nawaz Bhatti, J

BASHIR AHMAD‑‑‑Petitioner

Versus

THE STATERespondent

Crl. Misc. No.3742‑B of 2004, decided on 14th February, 2005.

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

‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.324, 148 & 149‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Accused had been declared innocent during investigation and 'Kassi' as alleged in F.I.R. had not been recovered rather 'Sota' had been recovered from accused ‑‑‑Kassi blow, according to the investigation, had been attributed to co‑accused‑‑‑Other co‑accused was allegedly armed with Sota and he had been bailed out‑‑‑Investigation showed that accused though, was present at the spot, but he had not committed any overt act and was found innocent by police‑‑‑High Court though was not bound by the ipsi dixit of police, yet same was relevant at bail stage especially when finding was with regard to innocence of accused‑‑‑All said facts had made case of accused of further enquiry‑‑Accused was admitted on bail.

Zafar Iqbal v. The State 2002 MLD 454; Dr. Muhammad Aslam v. The State 1993 SCMR 2288; Muhammad Ilyas v. Ijaz Ahmad Butt and another 1992 SCMR 1857 and Manzoor and others v. The State PLD 1972 SC 81 ref.

Ch. Pervaiz Aftab for Petitioner.

Farrukh Pervaiz Cheema for the Complainant.

Atif Nawaz for the State.

Ghulam Rasul, A.S.‑I. with record.

MLD 2005 LAHORE HIGH COURT LAHORE 1074 #

2005 M L D 1074

[Lahore]

Before M. Bilal Khan, J

FATEH SHER ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc No.7307-B of 2004, decided on 8th December, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.420, 468 & 471‑‑‑Pre‑arrest bail, grant of‑‑‑Investigating Officer after a thorough probe in the matter had recorded a specific finding of innocence qua the accused, which had made his case one of further inquiry as envisaged by subsection (2) of S.497, Cr.P.C.‑‑‑State Counsel in view of the said finding of the Investigating Officer had not seriously opposed the prayer for prearrest‑‑‑Interim pre‑arrest bail granted to accused was confirmed in circumstances.

M. Amir Khan Niazi for Petitioner.

Ch. Aamir Rehman, Addl. Advocate‑General on Court's call with Shakil Tariq for the State.

Yousaf Ali S.I./I.O., P.S. Cantt. District Sargodha with police file.

MLD 2005 LAHORE HIGH COURT LAHORE 1076 #

2005 M L D 1076

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUHAMMAD RASHID ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.372‑B of 2005, decided on 24th February, 2005.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.337‑A(ii)/337‑F(v)/337‑L(2)/34‑‑‑Bail, grant of‑‑‑Cross‑version had been registered at the instance of the accused party in which five persons had been challaned and it was yet to be determined as to who was the aggressor‑‑‑Accused was admitted to bail in circumstances.

S.M. Javed Tameemi for Petitioner.

Mohibbul Hasnain for the State.

2005 M L D 1085

[Lahore]

Before Rustam Ali Malik, J

DOST MUHAMMAD ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.639‑B of 2005, decided on 2nd March, 2005.

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

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302, 148 & 149‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑No direct evidence was available with prosecution about the occurrence and only extra‑judicial confession of accused was on record which obviously was a weak type of evidence and Investigating Officer found accused innocent‑‑‑Opinion of Investigating Officer, though was not binding on the Court, but it could be taken into consideration at bail stage‑‑‑Said finding of Investigating Officer was sufficient to make case against accused of further inquiry into his guilt‑‑Accused, in circumstances, was entitled to concession of bail‑‑‑Accused was admitted to bail, in circumstances.

Liaqat Ali v. The State 1998 MLD 2059 and Rasool Bakhsh v. The State 2003 PCr. LJ 119 Lahore ref.

Ch. Fawad Hussain for Petitioner

Tariq Shafiq Bhandara for the Complainant.

Miss Siddiqa Altaf for the State.

Rai Ahmad Ali, S.I.

MLD 2005 LAHORE HIGH COURT LAHORE 1088 #

2005 M L D 1088

[Lahore]

Before Muhammad Nawaz Bhatti, J

RIYASAT ALI and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.366‑B of 2005, decided on 22nd February, 2005.

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

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.337‑A(i)/337‑A(ii)/337‑F(i)/394‑‑‑Pre‑arrest bail, grant of‑‑‑Accused, after getting interim pre‑arrest bail, had joined the police investigation‑‑‑Section 394, P.P.C. had been deleted by the police during investigation‑‑‑One accused was allegedly armed with Sota at the time of occurrence and even if recovery of Sota was effected from him, it would not prove the case of other party as the injury attributed was an incised wound and not a blunt weapon injury‑‑‑Other accused admittedly was empty handed‑‑‑Originally case was got registered by the accused and cross case implicating the accused was registered subsequently and false implication of accused due to malice and mala fide intention could not be ruled out‑‑Interim pre‑arrest bail granted to accused was confirmed in circumstances.

Sh. Muhammad Raheem for Petitioners.

Ahsan Raza Hashmi for the Complainant.

Sh. Mehmood Kamal for the State.

2005 M L D 1096

[Lahore]

Before Muhammad Farrukh Mahmud and Syed Sakhi Hussain Bokhari, JJ

SARFARAZ‑‑‑Petitioner

Versus

SPECIAL JUDGE, ANTI‑TERRORISM COURT, BAHAWALPUR and 3 others‑‑‑ Respondents

W.P. No.750 of 2004/BWP, heard on 20th July, 2004.

(a) Anti‑Terrorism Act (XXVII of 1997)‑‑‑--

‑‑‑‑‑S.6‑‑‑Constitution of Pakistan (1973), Art 199‑‑‑Constitutional petition‑‑‑Application for sending case from Special Judge Anti Terrorism Court to the Court of Sessions Judge‑‑‑Rejection of application‑‑‑Complainant got‑registered case against petitioner/accused and his co‑accused alleging that his sick daughter left his house on her own, but later on accused took her to different places and committed Zina‑bil‑Jabr with her and that she came back next day of her own‑‑‑Challan of case having been submitted before Special Judge, Anti Terrorism Court, accused submitted application before Special Judge for sending the case to Court of Sessions Judge contending that it was not a Scheduled offence‑‑‑Said application having been rejected, accused filed Constitutional petition‑‑‑Validity‑‑‑Nothing was on record to show that occurrence created terror, panic or sense of insecurity amongst people and there was no sectarian violence but et was a case of rape‑‑‑Court had y to see whether act had tendency to create sense of fear or insecurity in the minds of people‑‑‑No evidence to the effect that accused had teased, victim girl prior to occurrence was available and no evidence was found to show that victim girl actually was abnormal‑‑‑No medical report to the effect was available that accused had administered her alcohol as alleged by prosecution‑‑‑Act of "terrorism" means an act which was committed with sole object to terrorize people and to feel them insecure, but said ingredients were not found in the case‑‑No justification, in circumstances existed for submitting challan before Anti‑Terrorism Court‑‑‑Order rejecting application of accused for sending case to Sessions Judge passed by Special Judge, was set aside by High Court with direction that challan of case would be submitted before Sessions Judge concerned.

(b) Anti‑Terrorism Act (XXVII of 1997)‑‑‑

‑‑‑‑S.6‑‑‑Terrorism‑‑‑Meaning‑‑‑Act of "terrorism" means an act which was committed with sole object to terrorize people and to feel them insecure.

Jam Tariq Mahmud and Ghazanfar Ali Khan for Petitioner.

Muhammad Sharif Bhatti for Respondent No.4.

Shaheen Masood Rizvi, A.A.‑G. for the State.

Date of hearing: 20th July, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 1101 #

2005 M L D 1101

[Lahore]

Before Muhammad Jehangir Arshad, J

MATLOOB HUSSAIN ‑‑‑Petitioner

Versus

THE STATE and 2 others‑‑‑Respondents

Criminal Revision No.3 of 2005/BWP, decided on 24th January, 2005.

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

‑‑‑‑S.540‑‑‑Penal Cede (XLV of 1860), Ss.302 & & 34‑--Summoning of material witnesses‑‑‑Observation of Trial, Court‑‑‑Order summoning witness passed by Trial Court in case did not suffer from any irregularity or illegality, but certain observations recorded by Trial Court in said order were uncalled for and unwarranted having no nexus with language of S.540, Cr.P.C.‑‑‑Said observation which amounted to pre‑deciding controversy, should not have been recorded at all.

The State v. Muhammad Yaqoob and others 2001 SCMR 308 and Imran Ashraf and 7 others v. The State 2001 SCMR 424 ref.

(b) Criminal trial‑‑‑

‑‑‑‑ Parties had the right to have fair trial uninfluenced or unbiased by any act of the Court‑‑‑Act of Court should not prejudice any party.

PLD 2003 SC 808 ref.

Ch. Muhammad Ashraf Mohandra for Petitioner.

Mumtaz Mustafa for Respondents Nos.2 and 3.

M.A. Farazi for the State on Court's Call.

MLD 2005 LAHORE HIGH COURT LAHORE 1103 #

2005 M L D 1103

[Lahore]

Before Ch. Ijaz Ahmad, J

Mian ABBAS ALI ‑‑‑Applicant

Versus

MUHAMMAD SHAHBAZ‑‑‑Respondent

Crl. Misc. No. 21‑M of 2005 in C. P. No. 14041 of 2004, decided on 11th January, 2005.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.476 & 195‑‑‑Taking cognizance of offence‑‑‑Discretion of Court‑‑Court had discretion to take cognizance of the matter as was evident from provision of S.476, Cr.P.C. itself‑‑‑Where a private party would apply to the Court to prosecute his opponent, it could be safely presumed that malice was behind the application filed by private party‑‑‑Every case was to be decided on its own peculiar circumstances and facts of the case‑‑‑Respondent in the present case having challenged vires of order of Chief Administrator Auqaf in his, Constitutional petition, there was no force in the petition under Ss. 476 and 195, Cr.P.C.

Muhammad Ehsan v. The State 1971 SCMR 227; Ghasia v. Thakur Ramsingh and others AIR 1917 Nagpur 180; 2000 SCMR 1915; NLR 2001 Lah. 97; Abdur Rahman v. Noor Muhammad and others PLD 1951 B.J. 85; Arif Manzoor Qureshi v. Raees Ahmad Khan, Director Legal LDA 2003 YLR 249; Muntazar and another v. The State and others 1998 PCr.LJ 1189; Abdullah v. The State and another PLD 1971 Pesh. 147 and Trustees of Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 ref.

Mrs. Saima Abbas for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 1106 #

2005 M L D 1106

[Lahore]

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

2005 M L D 1127

[Lahore]

Before Sh. Hakim Ali, J

SABIR ALI ‑‑‑Petitioner

Versus

KHALIL AHMED BAJWA and others‑‑‑Respondents

W.P. No. 1586 of 2000, decided on 3rd November, 2004.

(a) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)‑‑‑--

‑‑‑‑Ss. 7 & 17‑‑‑Criminal Procedure Code (V of 1898), S.190(2)‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Executive Magistrate through the impugned order while taking the cognizance of the case submitted by the Investigating Officer under S.7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, had commenced the proceedings and summoned the accused‑‑‑Section 17 of the said Ordinance through its proviso had explicitly barred the jurisdiction of the Magistrate in the matter which only rested with the Sessions Court‑‑‑Cognizance taken by the Executive Magistrate in the case was consequently held to be illegal and unlawful with the direction to the. Magistrate to forward the case to the Sessions Court under S.190(2), Cr.P.C.‑‑‑Constitutional petition was allowed accordingly.

Mst. Nawab Bibi and others v. Ch. Allah Ditta and others 1998 SCMR 2381; Syed Shabbar Raza, Rizvi Advocate v. The Government of the Punjab PLD 1988 Lah. 501 and Karachi Metropolitan Corporation and others v. M/s Qarshi Industries (Pvt.) Ltd and another PLD 2002 SC 439 ref.

(b) Interpretation of Statutes‑‑‑

‑‑‑‑Proviso to section‑‑‑Effect‑‑‑Proviso to main section being an exception to the same detracting something therefrom, has an overriding effect upon the substantive provision of the section.

Mst. Nawab Bibi and others v. Ch. Allah Ditta and others 1998 SCMR 2381 and Syed Shabbar Raza, Rizvi Advocate v. The Government of the Punjab PLD 1988 Lah. 501 ref.

‑‑‑‑Principle‑‑‑In case of plain language of a Statute, there is no alternative but to give effect to the same.

Karachi Metropolitan. Corporation and others v. M/s Qarshi Industries (Pvt.) Ltd. and another PLD 2002 SC 439 ref.

Muhammad Ghias‑ul‑Haq for Petitioner.

Malik Muhammad Ramzan Khalid, Addl. A.‑G.

MLD 2005 LAHORE HIGH COURT LAHORE 1130 #

2005 M L D 1130

[Lahore]

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

KHURRAM NAZIR‑‑‑Petitioner

Versus

UNIVERSITY OF HEALTH SCIENCES, LAHORE, through Vice‑Chancellor, and another‑‑‑Respondents

W.P. No.5617 of 2005, heard 20th April, 2005.

(a) Calender of the University of Health Sciences Lahore‑‑‑

‑‑‑‑Regln No.2‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Grant of five grace marks‑‑‑Entitlement‑‑Candidates were not entitled to benefit of 5 grace marks having failed in two subjects, and the candidates failing in one subject were deficient by more than five marks‑‑‑Excessive marks obtained by the candidates in other subjects could not be used to make up deficiency in the failing subjects‑‑‑Principles.

A candidate failing in more than one subject was not entitled to any grace marks and the candidate failing in one subject only was to be bestowed with 5 grace marks in order to make up his deficiency in that subject if that be of 5, marks or less. Likewise, minimum pass marks for each subject was prescribed as 50% in writing, 50% of the aggregate in the oral and practical/clinical examination were separately required at one and the same time.

Departure from the formula flowing from the above referred regulations was not permissible under law.

Vice‑Chancellor could not confer 5 grace marks in each subject, in violation of the controlling regulation of the Calander and thus, such grace marks could not be given to the students in each failing subject.

The acts have to be done in the manner prescribed and in no other manner.

Office order by the Vice‑Chancellor in this connection was. unauthorisedly issued, hence, the same did not confer any right on the candidates to claim that the same treatment be meted out to them on the basis thereof.

The candidates were not entitled to benefit of 5 grace marks having failed in two subjects, and the candidates failing in one subject, were deficient by more than 5 marks. Their excessive marks in other subjects could not be used to make up deficiency in the failing subject. High Court could not undertake exercise of tabulation of marks falling within the exclusive jurisdiction of the University.

Karim Bakhsh v. Controller of Examination and others 1997 CLC 1524; Murid Hussain v. Bahauddin Zakariya University, Multan through Vice‑Chancellor and another 2004 YLR 1375; Zahoor Ahmed Azhar v. Islamia University, Bahawalpur through Vice‑Chancellor and 4 others PLD 1998 Lah. 324 and Jalil Ahmad v. Public Service Commission and another 1998 CLC 435 ref.

(b) Calander of the University of Health Sciences Lahore‑‑‑--

‑‑‑‑ Regln. No. 2‑‑‑Constitution of Pakistan (1973), Art. ‑ 199‑‑Constitutional petition ‑‑‑Calander of the University of Health Sciences Lahore Regulations being not tainted with malice and having been brought to get better results and produce well, oriented doctors‑would apply to students, who got admission in M.B.B.S, after the promulgation of said Regulations‑‑‑Principles.

Miss Sultana Khokhar and 2 others v. The University of the Punjab through its Registrar PLD 1962 SC 35 and Muhammad Akbar v. Bahauddin Zakariya University through its Registrar and others 1997 CLC 280 ref.

Malik Azam Rasul for Petitioner.

Rasal Hassan Syed for Respondents.

Date of hearing : 20th April 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1137 #

2005 M L D 1137

[Lahore]

Before Muhammad Sayeed Akhtar, J

SANIA ABID through her mother‑‑‑Petitioner

Versus

PRINCIPAL, POST‑GRADUATE COLLEGE FOR WOMEN, RAWALPINDI and another‑‑‑Respondents

Writ Petition No. 585 of 2005, decided on 13th April, 2005.

Calandar of the Board of Intermediate and Secondary Education, Rawalpindi‑‑‑

----Vol 2, Ch.2 & R. 3---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Admission to the Intermediate Examination--Failure of student to pass send up test of the college---Form for admission to the examination of the student was not forwarded to the Board by the College---Validity---Rule 3, Ch.2, Vol. 2 of Calandar of the Board of Intermediate and Secondary Education Rawalpindi provided that admission form of the student obtaining "F" grade in the Internal Assessment Scheme shall not, be forwarded to the Board---No student had vested right to have his her form forwarded to the Board if he failed to 'secure' the required grade in the Internal Assessment Scheme/send up test---Prospectus framed by the College Authorities "was not in conflict with the Rules framed by the Board of Intermediate and Secondary Education Rawalpindi---Prospectus clearly stated that it was essential for the student to pass in all the subjects for forwarding his/her form to the Board---High Court, in circumstances, dismissed the Constitutional petition of the student against the College Authorities having no merits.

Irfan Nadir v. The University of Punjab 1996 CLC 550 distinguished.

Shah Khawar for Petitioner.

Ch. Saleem ul Haq, A.A.‑G. with Munaza Rehman, Principal and Zahoor Nawaz, D.E.O. (Colleges), Rawalpindi.

MLD 2005 LAHORE HIGH COURT LAHORE 1140 #

2005 M L D 1140

[Lahore]

Before Muhammad Akhtar Shabbir, J

REHMAT ELLAHI‑‑‑Petitioner

Versus

PAKISTAN through Secretary Defence Rawalpindi/Islamabad and 8 others‑‑‑Respondents

F.A.O. No. 161 of 2004, decided on 20th April, 2005.

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

‑‑‑‑S. 18‑‑‑Acquisition of land‑‑‑Compensation, determination of‑‑Appellant had not challenged the judgment passed by the Referee Court by way of appeal before the High Court and out of the whole .lot of landowners, only one party had filed appeal before the High Court which was accepted and the case was remanded to the Referee Court, who enhanced the compensation amount of his land‑‑‑Judgment passed by High Court as well as the Referee Court was a judgment between the landowner who had challenged the judgment of Referee Court and the Land Acquisition Collector‑‑‑Said judgment was a "judgment in personam" and not "judgment in rem"‑‑‑Appellant could claim the benefit of a judgment, had the same been "judgment in rem" but the dictum laid down by the High Court was "judgment in personam" and not attracted to the case of present appellant‑‑‑Appellant himself had accepted that he did not assail the judgment passed by the Referee Court on his Reference and the said judgment had attained finality, therefore, he was not entitled to any benefit out of the judgment passed by the High Court in the case of another landowner.

(b) Judgment‑‑‑

‑‑‑‑ Judgment in rem"; Judgment in personam‑‑‑Connotations.

The term "in rem" and "in personam" are of Roman Law. used in connection with the action, that is, action "in rem" and "action in personam" to denote the nature of actions and with the disappearance of the Roman forms of procedure, each of the two terms 'in rem' and 'in personam' got' tagged with the word judgments to denote the endproducts of action 'in rem' and action 'in personam'. ,Thus, according to the civil law an action in which a claim of ownership was made against all other persons was an action 'in rem' and the judgment pronounced in such action was a judgment 'in rem'. The judgment 'in personam' means, one imposing on the defendants' personal liability to pay it, and which may, therefore, satisfied out of any of his property which is within reach of process, distinguished from one which would be satisfied only out of a particular fund or the process of particular property. Judgments in which Court has personal jurisdiction over parties.

A `judgment in personam' or inter se parties is that which determines the right of parties inter se to or in the subject‑matter in dispute, whether it be corporeal property of any kind or a liquidated or unliquidated demand, but does not affect the status of either persons or things, or makes any disposition of property or declares or determines any interest in it except as between the parties litigant.

A judgment inter se parties, though binding between them does not affect the rights of third parties. A "judgment in rem" creates what is in fact a right good against all mankind. The effect of an action `in rem' is to conclude the whole community, but the effect of action 'in personam' is to conclude individual only.

Balck's Law Dictionary; Noor Muhammad and 5 others v. The Chairman, Allotment Committee, Pakpattan PLD 1974 Note 5 at p.32 and Esra Omer Yousaf v. Controller of Examination, Bahauddin Zakarya University, Multan (2001 Cr.L.J. 28 ref.

Mazhar Masood Khan for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 1144 #

2005 M L D 1144

[Lahore]

Before Ch. Ijaz Ahmad, J

Syed MUHAMMAD TAQQI‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, PINDI BHATTIAN and 3 others ‑‑‑Respondents

Writ Petition No. 5621 of 2005, decided on 2nd May, 2005.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 42 & 55‑‑‑Civil Procedure, Code (V of 1908), O.VII, R.11‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Petitioner (plaintiff) filed suit for possession and permanent injunction; Suit was decreed with the direction to the plaintiff to furnish court‑fee for a specified sum within 30 days otherwise the suit shall be dismissed under O.VII, R.11, C.P.C.; plaintiff filed execution petition without complying with the direction of the Trial Court; plaintiff also filed application for extension of time to deposit the deficient court‑fee in terms of the judgment of Trial Court; Trial Court dismissed the application and finally plaintiff filed revision before the District Judge which was also dismissed‑‑‑Validity‑‑‑Held, Trial Court was justified to dismiss the application on the principle that the Court had become functus officio‑‑‑Vested right had accrued to the defendant (respondent) on account of the inaction of the plaintiff, meaning thereby that the matter was not confined solely between the subject and the State because in the circumstances a third person i.e. the defendant had also in the meantime, due to running out of period of limitation in his favour acquired vested right, therefore, it was the duty and obligation to grant time with cogent reasons and Court was not bound to oblige to grant time nor it was to be granted just in routine or mechanically‑‑Revisional Court had also declined its discretion on account of the conduct of the plaintiff as he had filed application after considerable delay without mentioning any sufficient cause‑‑‑High Court, in view of the conduct of the petitioner, declined to exercise discretion in favour of the plaintiff/petitioner under its Constitutional jurisdiction.

Syed Ayezuddin case PLD 1956 Dacca 280 Shah Wali's case PLD 1966 SC 983; Muhammad Nawaz's case 1995 SCMR 105; Wali Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106; G.M. Malik, Chairman, Board of Intermediate and Secondary Education, Faisalabad v. Province of Punjab and 2 others 1990 CLC 1783 and Nawab Syed Raunaq Ali's case PLD 1973 SC 236 ref.

Mian Muhammad Hussain Chotya for the Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 1147 #

2005 M L D 1147

[Lahore]

Before Muhammad Muzammal Khan, J

KEMAL-UD‑DIN CHAUDHRY and 2 others‑‑‑Appellants

Versus

NADEEM BABAR‑‑‑ Respondent

F.A.O No.74 of 2005, decided on 21st April, 2005.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXXIX, Rr.1 & 2‑‑‑Specific Relief Act (I of 1877), S.12‑‑Transfer of Property Act (IV of 1882), S. 53‑‑‑Suit for specific performance of agreement to sell property‑‑‑Grant of temporary injunction restraining defendants from alienating the property to any other person‑‑‑Appeal for vacation of injunction‑‑‑Defendants entered into an agreement to sell their property after receipt of earnest money‑‑Defendants themselves agreed to get "No objection certificate" from the Housing Society without which they could not transfer the suit property in favour of the plaintiffs‑‑‑Suit filed by the defendants against the Housing Society stood conceded, by the defendant therein but was being not decided on account of formal defects‑‑‑Defendants were responsible to remove the defects in their suit and to have the same decided‑‑Tentatively, the apparent lapse appeared to be on the part of the defendants out of ulterior motives‑‑‑Defendants could not point out any lapse on part of the plaintiff in discharging his part of contract without which the agreement could not be rescinded unilaterally‑‑‑Penalty clause of the agreement, prima facie, was not meant for the purpose for which it had been used and the same, prima facie would not relieve the defendants of‑ their liability to perform their part of contract‑‑‑Time was not essence of the contract of sale of immovable property‑‑‑Defendants had already returned the earnest money through a pay order which was produced by the plaintiff in original before the Trial Court and remained there without encashment‑‑‑Held, principle of lis pendens, was there to protect the rights of the plaintiff in case of his success in the suit but even on availability/applicability of principle acknowledged by S. 53, Transfer bf Property Act, 1882, Courts were not denuded from their jurisdiction to restrict the alienation of the suit property‑‑‑Discretion vesting in Civil Court by terms of O.XXXIX, Rr.1 & 2, C.P.C. was not subject to the provisions of S.53, Transfer of Property Act, 1882‑‑‑Prima facie/arguable case existed in favour of the plaintiff and in case of alienation by the defendants he would suffer an irreparable loss/injury‑‑Balance of convenience also would lie in his favour and the defendants being in actual physical possession/use of the property would face no inconvenience if the injunction issued was not vacated‑‑‑Order granting injunction was not only lawful/justified but the same could not, as well, be shown, as opposed to any known canon for administration of justice, or in any manner was arbitrary/fanciful, hence no interference in the order of the Trial Court was called for.

Sardar Wali Muhammad v. Sardar Muhammad Iqbal Khan Mokal and 7 others PLD 1975 Lah. 492 and Rustam Ali v. Chaudhary Mukhtar Ahmad Anwar 1987 MLD 394 ref.

Tariq Aziz for Appellants.

Sayed Najam‑ul‑Hassan Kazmi and Rasaal Hassan Syed for Respondent.

MLD 2005 LAHORE HIGH COURT LAHORE 1152 #

2005 M L D 1152

[Lahore]

Before Ch. Ijaz Ahmad, J

GHULAM HAIDERPetitioner

Versus

MUHAMMAD ARSHAD and othersRespondents

C. RS. Nos. 886 and 887 of 2005, decided on 2nd May, 2005.

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

---S. 42---MutationConnotation---Rebuttable presumption---Mutation proceedings by no means judicial proceedings but fiscal proceedings Burden of proof on the party, who claimed to be its beneficiary--- Mutation having no evidentiary value, had to be proved through evidence---Mere mutation would not confer title with regard to land in question unless basic transaction was proved on the basis of which mutation was sanctioned---Principles.

Term "mutation" has not been defined by the legislature. It literally means the change or alteration, meaning thereby "mutation" merely reveals, alteration of entry in the Revenue Records with object of bringing the latter upto date so as to represent the facts with regard to the respective rights and liabilities of persons as those at present are and not as they should be Entry made in the Record of Rights in accordance with law is entitled to a rebuttable presumption of correctness, but it is equal to mere making of entry and does not in any way create a title. Mutation Register is not part of Record of Right and its entries do not share presumption of truth attached to that record. As presumption of truth is not attached to the entries in the mutation, it is for the party who relies on their correctness to prove them by leading necessary evidence. In case of dispute about genuineness of the mutation, initial burden of proof must always rest on the party, who claims to be its beneficiary and not the one who denies its correctness.

Mere mutation does not confer any title with regard to land in-question.

Mere incorporation of mutation entry in the Jamabandi would not affect the allocation of initial burden of proof Looked at from this point of view, the question as regards genuineness of sale turns upon appreciation of evidence led by the parties to prove their assertions.

Relevant provisions of Land Revenue Act makes it clear that mutation proceedings are intended primarily for fiscal purpose for collection of land revenues and they are by no means a judicial 'proceedings in which right and entitlement in the property is determined.

Mutations are much, more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations, of immovable property may be put into occupation of it with the greater confidence that the revenue for it will be paid.

Mutation has to be proved through evidence and it has no evidentiary value of title unless basic transaction is proved on the basis of which said mutation was sanctioned.

In order to prove the existence of transaction of exchange through mutation, a party relying on such mutation, is bound to prove both of them.

Noor Alam v. Mehdi and 2 others 1990 CLC 321; Abdul jalil's case PLD 1964 Pesh. 159; Adam Khan's case 1995 MLD 506; Major Muhammad Ayyub Khan's case NLR 1980 R.S.C.AJK 62; Nirman Singh's case 53 IA 220; Haji Muhammad Boota's case PLD 2003 SC 979 and Muhammad Akram's case PLD 2003 SC 688 ref.

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

----S. 115---Revisional jurisdiction of High Court under S.115, C.P.C.--- Scope---Parameters to interfere in the findings of the. Courts below while exercising powers under S.115, C.P.C. recorded.

High Court has very limited jurisdiction to reverse the findings of Courts below while exercising power under section 115 of C.P.C.

Section 115, C.P.C. empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law; or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusion of the subordinate Courts upon questions of fact or law.

N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madras PLD 1949 P.C. 26; Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood 1985 CLC 657 and Board of Intermediate and Secondary Education, Lahore v. Ghulam Qadir PLD 1988 SC 625 ref.

Ch. Riaz Hussain Uppal for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 1165 #

2005 M L D 1165

[Lahore]

Before Ch. Ijaz Ahmad and Muhammad Khalid Alvi, JJ

WAPDA and another---Appellants

versus

Messrs GHULAM RASOOL & CO. (PVT.) LTD. through Managing Director---Respondent

R.F.A. No.484 of 1999, heard on 28th April, 2005.

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

----O.XIV, R.1 & O.XXIX, R.1---Companies Ordinance (XLVII of 1984), S.30---Suit by corporation---Locus standi---Failure to frame proper issues---Suit for recovery of money was filed by Technical Advisor of plaintiff-Company---Trial Court decreed the suit in favour of plaintiff---Plea raised by defendants was that Technical Advisor was not competent to file the suit---Validity---Procedure of signing and verification of pleadings on behalf of corporation was regulated by the provisions of O.XXIX, R.1 C.P.C.---Three types of persons i.e. the secretary, any director or other Principal Officer of the corporation could perform the act of signing and verification of pleadings under O.XXIX, R.1 C.P.C.---Technical Advisor was neither Secretary nor a Director of the Company---Trial Court did not adjudicate upon the issue as if the Technical Advisor fell in the category of Principal Officer of the Company---It was omission of Trial Court to frame proper issues, therefore, parties were not properly put to notice to produce their evidence in terms of issues framed by Trial Court---High Court set aside the judgment and decree passed by Trial Court and after framing additional issue, remanded the matter to Trial Court for decision afresh after recording of evidence---Appeal was allowed accordingly.

Premier Sugar Mills' case PLD 1991 Lah. 381 ref.

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

----O.XXIX, R.1---Companies Ordinance (XLVII of 1984), S.30---Suit by corporation---Valid institution---Principle---Authorization of company-Object-For valid institution/presentation of a plaint on behalf of a company/corporation two distinct authorities are required---First requirement is that it should be signed and verified by a person competent to do so---Second step is the requirement of authorization to institute suit on behalf of company to any person through a resolution adopted in a meeting held for such purpose in accordance with its Memorandum and Articles of Association duly registered under S.30 of Companies Ordinance,. 1984---Private limited company is established by joining two or more persons to run a joint business in the name of a company by getting it registered under Companies Ordinance, 1984---In such way a private limited company acquires the status of a juristic person---Object of having an authorization of company through a resolution for institution of suit is that all the shareholders/directors are involved for taking a decision as to whether the company as a whole intend to institute legal proceedings or not---Director or Principal Officer of the company on his own without authorization of the company cannot take a decision for institution of legal proceedings/suit---For the purpose of signing and verification of pleadings such a person can act as permitted by O.XXIX, R.1 C.P.C.---Resolution of the company shows the will and command of all the members/shareholders/directors of the company for the purpose of initiating a legal action---Company as the juristic person through resolution expresses its willingness to reap the fruits of the legal action and also to face any adverse consequence thereof---If any person associated with the Company in any capacity files a suit without such authorization, the company as juristic person can neither take advantage nor can suffer any consequence on account of such presented plaint, therefore, the same has to be termed as an incompetently presented suit.

NLR 1983 UC 184; Millat Tractor Ltd. v. Tawakal Ullah Chaudhary NLR 1993 UC 54; Millat Tractor Ltd. v. Tawakal Ullah Chaudhary NLR 1991 A.C. 432; M. Siddique's case PLD 1986 SC 684; Iftikhar Hussain Khan of Mumdot's case PLD 1971 SC 550; Phool Muhammad v. Abdul Ghaffar 1982 CLC 2575 and Mushtaq Ahmad's case PLD 1975 Kar. 327 ref.

----Judge must wear all the laws of the country on the sleeves of his robes---Any failure of counsel to properly advise the Judge is not a complete excuse in the matter.

Muhammad Sarwar's case PLD 1969 SC 278 rel.

(d) Question of law---

----Question of law on the basis of provision of law can be raised at any stage.

Haji Abdullalh Khan's case PLD 1965 SC 690 rel.

(e) Act of Court---

----Nobody should be prejudiced by act of Court.

Mian Irshad Ali's case PLD 1975 Lah. 7 rel.

Abdul Rehman Madni for Appellants.

Muhammad Raza Qureshi for Respondent.

Date of hearing: 28th April, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1172 #

2005 M L D 1172

[Lahore]

Before Sh. Azmat Saeed, J

ANJUMAN HIMAYAT-E-ISLAM through General Attorney---Petitioner

Versus

Dr. FAROOQ HUSSAIN---Respondent

C.R. No.686 of 2000, decided on 27th April, 2005.

(a) Maxim---

----"A case was only an authority for what it actually decides"---Applicability---Neither party, in the present case, had claimed that principles of res judicata were applicable to the facts of the case nor that doctrine of estoppel per rem judicatum was attracted---Question of interpretation of document, in the present case, a wakf deed, was not a pure question of law---Principle thus attracted in the present case was that "a case was only an authority for what it actually decides".

Mst. Mubarik Jan v. Taj Begum and others AIR 1938 Lah. 453; Quinn v. Leathem 1901 AC 495; Messrs Jamia Industries Ltd. Karachi v. Karachi Municipal Corporation PLD 1975 Kar. 26; Pir Bakhsh and others v. The Chairman Allotment Committee and others PLD 1987 SC 145 and Trustee of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 ref.

(b) Precedent---

----Issue in the matter had been adjudicated by the same High Court in another litigation about the same property---Observations of the High Court in the decided case must be viewed and treated with great respect and a heavy burden would lie upon the party on whose behalf it had been canvassed at the bar that a different view be taken by the High Court.

----"Aulad"---Meaning and import.

(d) Mussalman Wakf Validation Act (VI of 1913)---

----Ss. 2, 3 & 4---Wakf-alal-Aulad---"Aulad"---Meaning and import is not limited to the immediate offspring i.e. the children but can, with reference to its context, extends to descendants---Provisions of Ss.2, 3 and 4, Mussalman Wakf Validation Act, 1913 are permissive in nature and permit a Muslim to create a Wakf wherein the benefit and management of the property vests in the family/children and descendants of the Wakf till the extinction of the line of descendant, whereafter, the property may be used for charitable purposes---Provision of S.4, Mussalman Wakf Validation Act, 1913 cannot be interpreted to mean that all Wakf-alal-Aulad must necessarily be for the benefit of the family and children and descendant of Wakf till the extinction of the line of descendant.

Mahommedan Law by Syed Amir Ali 5th Edition by Raja Said Akbar Khan page 293 distinguished.

(e) Islamic law---

----Wakf-alal-Aulad---Wakf among his (the Wakif's) children naming them specifically and then on poor---Upon the death of any of the specific individuals so named as Mutawali, the share of such deceased would be for the poor etc.

Abdul Hameed and 23 others v. Muhammad Mohiyuddin Siddique Raja and 3 others PLD 1997 S.C. 730 quoted.

(f) Societies Registration Act (XXI of 1860)---

----S. 6---Litigation/legal proceedings must necessarily be initiated in the name of principal officer of the Society or the trustees and not in the name of the Society---Suit filed in the name of the Society would necessarily fail.

Muntizma Committee, Al-Mustafa Colony (Regd.) Karachi and 3 others v. Director Katchi Abadies Sindh and 5 others PLD 1992 Kar. 54 ref.

Sh. Ijaz Feroz for Petitioner.

Dr. Farooq Hassan Muhammad Ghani, Dr. Riaz-ul-Hassan, Gillani and (Sh. Noor Muhammad in C.M. No. 87-C of 2005) for Respondent.

Dates of hearing: 25th February, 1st, 2nd and 3rd March, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1184 #

2005 M L D 1184

[Lahore]

Before Mian Saqib Nisar, J

SOHAIL AHMAD BAJWA through Special Attorney---Appellant

Versus

MUHAMMAD RIAZ---Respondent

S.A.O. No.125 of 2004, heard on 2nd May, 2005.

(a) Pleadings---

----No one can be allowed to prove a case beyond his pleadings---Pleas extraneous to the record and the scope of the dispute between the parties cannot be permitted to be raised.

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

----S. 13---Default in payment of rent---Contents of ejectment petition showed that the rent since the month of March, 2000 remained unpaid, but it was positively proved on record by the tenant that the rent for the said month till September, 2000 was deposited by him in the landlord's Bank account through cheque and for the month of October, 2000 onward, for eight months was also deposited in the same way---Contention of the landlord was that as the tenant had deposited some further rent in the month of January, 2001, the rent for the previous months was not paid---Validity---Landlord himself had stated in the petition that the tenant had paid the rent till February, 2000 and therefore, under the law, he could not go against his admission in the pleadings---Only for the reason that some further rent was deposited on 10-1-2001 by the tenant it could not be construed or inferred that the rent for the admitted period remained unpaid.

----Party cannot go against its admission in the pleadings.

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

----Ss. 11, 5-A, 4 & 13---Allegation of conversion of residential property into non-residential property---Property in question, admittedly was a residential property used by the tenant for non-residential purpose, but had not been converted into non-residential as required under S.11, West Pakistan Urban Rent Restriction Ordinance, 1959---Landlord had not even asserted that property in question was a non-residential property and, therefore, the increase in the rent to the tune of 25% after every three years, should be granted as envisaged under S.5-A of the Ordinance---Appellate Court, in circumstances had no jurisdiction to enhance the rate of rent and award the arrears of the rent to the landlord, when neither before the appellate forum, it was the case for the determination of fair rent under S.4, West Pakistan Urban Rent Restriction Ordinance, 1959, nor about the increase of the rent on the basis of the conversion of the property---Impugned order of the Appellate Court, in this behalf could not sustain and was set aside by the High Court in appeal.

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

----S. 13(3)(a)(b)---Bona fide personal need of landlord---Requirements to be fulfilled by landlord. to achieve ejectment on the ground of bona fide personal need detailed.

The landlord, in order to seek the ejectment of a tenant, on the basis of the personal need, has to establish his bona fide, which obviously is the honesty of purpose. For this, the landlord, at least has to state in his testimony on oath before the Rent Controller, the basic facts from which, the special forum and its superior hierarchy, under the special law, should be able to ascertain and assess in an objective manner that the demand of the landlord is with good intentions and to cater for his genuine "need" which obviously is a contradiction of the landlord's "wish". One check upon the bona fide need and against the arbitrary and whimsical "wish" or demand of the landlord, has been provided by subsection 3(a)(b) of section 13 of the Rent Restriction Ordinance, which requires, that if the landlord is in occupation of any premises, he must prove those to be unsuitable to fulfil his need. Therefore, it is expedient that the landlord when propounded his claim of personal requirement, he must take the Rent Controller in confidence and if he has some premises in his occupation, disclose the same in the petition, that those are inadequate to meet his requirement, should state the fact and prove this plea through evidence. However, if he deliberately fails to disclose the factum of being in occupation of some premises and this is so proved in defence by the tenant or during the cross-examination, the landlord is compelled to admit the fact and still is unable to substantiate that such premises in his occupation are unsuitable for his need, the Courts are bound to draw a conclusion against the landlord about the honesty of purpose, and in such a situation, the ejectment petition is liable to be rejected. Bona fide requirement of the landlord cannot be equated with the "wish" of an owner.

Ahmad Waheed Khan for Appellant.

Muhammad Afzal Wahla for Respondent:

Date of hearing: 2nd May, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1190 #

2005 M L D 1190

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. SANIYA BIBI---Petitioner

Versus

S.H.O. POLICE STATION SADDAR RAHIMYAR KHAN and 8 others---Respondents

W.P. No. 256 of 2005/BWP, decided on 8th February, 2005.

Constitution of Pakistan (1973)---

----Art. 199--Constitutional petition---Islamic law---Marriage---Validity---Petitioner who was sui juris Muslim girl had contracted marriage with her husband with her free-will and consent---She in circumstances had not violated any principle of Islamic Law---Police was directed to remain within their lawful authority and not cause any harassment to petitioner or her husband.

Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another (PLD 2004 SC 219 ref.

Abdul Rasheed Rashid for Petitioner (with petitioner in person along with husband Zafar).

MLD 2005 LAHORE HIGH COURT LAHORE 1191 #

2005 M L D 1191

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

MUHAMMAD ANWAR---Appellant

Versus

THE STATE-Respondent

M.R. No. 281 of 2000 and Criminal Appeal No.128/J of 2000, heard on 28th February, 2005.

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

----S.302(b)---Appreciation of evidence---Case of two versions---Principles---Both the versions in a case of two versions are put in juxta position and then it is decided as to which version rings true.

Ashiq Hussain v. The State 1993 SCMR 417 rel.

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

----Ss.302(b) & 302(c)---Appreciation of evidence---Sentence, reduction in---Medical evidence was in clear conflict with ocular testimony---Eyewitness account, thus, was not believable and the defence version was to be accepted in totality---Statement of the accused was duly supported by the defence witness---Accused had fired at the deceased with his pistol under grave and sudden provocation---Conviction of accused under S.302(b), P.P.C. was consequently altered to S.302(c), P.P.C. and his sentence was reduced to the imprisonment already undergone by him in circumstance---Deceased himself being mainly responsible for the tragedy, sentence of compensation was set aside.

Ashiq Hussain v. The State 1993 SCMR 417; Maqsood Ahmad v. The State 1995 SCMR 359 and Mairaj Begum v. Ejaz Anwar and others PLD 1982 SC 294 ref.

----S.302(b)---Appreciation of evidence-Principles-When the eye-witness account is disbelieved the version of the accused is to be accepted in totality.

S.M. Latif Khan Khosa for Appellant.

Ch. Muhammad Nazir for the State.

Ch. Muhammad Abdus Salam for the Complainant.

Date of hearing 28th February, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1196 #

2005 M L D 1196

[Lahore]

Before Khawaja Muhammad Sharif, J

ASGHAR ALI---Appellant

versus

THE STATE-Respondent

Criminal Appeal No.1112 and Criminal Revision No.677 of 2003, heard on 4th March, 2005.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Ten accused were named in the F.I.R. and nine out of them had already been acquitted by the trial Court---Appeal against the acquittal of said nine accused had been dismissed in limine by the High Court---Medical evidence was in clear conflict with the ocular testimony---Accused was found innocent by the police---Crime empties recovered from the spot did not match with the rifle recovered at the instance of accused---Said incriminating evidence was not put to accused in his statement recorded under S.342, Cr.P.C.---Enmity admittedly existed between the parties and the ocular account was not corroborated by any independent evidence---Accused was acquitted on benefit of doubt in circumstances.

Syed Karamat Ali Naqvi for Appellant.

Muhammad Aslam Khan Buttar for the Complainant.

Syed Fazal Hussain Jafree for the State.

Date of hearing: 4th March, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1202 #

2005 M L D 1202

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. RASHIDAN BIBI through Legal heirs---Petitioners

Versus

Mst. JANTAY BIBI through Legal heirs and 2 others-Respondents

C.R. No.966 of 2005, decided on 10th May, 2005.

(a) Precedent---

----Each and every case would be decided on its own peculiar facts and circumstances.

Trustees of Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 rel.

(b) Pleadings----

---Parties would be bound by their pleadings.

----S.115---Revision---Plea not raised before Appellate Court---Effect---Such plea could not be raised before High Court---Principles illustrated.

Murad Begum's case PLD 1974 SC 322 and Hussain's case PLD 1977 Kar. 320 rel.

(d) Islamic Law---

----Sect---Inheritance---Sunni or Shia sect of Muslim in Indo-Pak Sub-Continent---Presumption--Initial presumption would be that Muslim was governed by "Hanafi" law, unless contrary was established by strong evidence.

Sections 28 and 31 of Muhammadan Law by "Mollah"; Pathana's case PLD 1965 SC 134; Sabir Hussain's case 1989 CLC 1591; Zain-ul-Hassan's case 1998 MLD 1857; Hussain's case PLD 1977 Kar. 320; Mst. Sardar Bibi's case PLD 1954 Lah. 480 and Maula Bakhsh's case PLD 1952 Sindh 54 rel.

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

----S.115---Revisional jurisdiction of High Court to set aside judgment of District Judge---Scope---Very limited.

Ismail v. Mst. Azizan. Bihi C.P. No.1179/L of 1998; Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139 and Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568 ref.

Ali Akbar Qureshi for Petitioners.

MLD 2005 LAHORE HIGH COURT LAHORE 1211 #

2005 M L D 1211

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

ZULFIQAR ALI---Petitioner

Versus

THE STATE---Respondent

Murder Reference No.153, Criminal Appeal No.148 and Criminal Revision No.73 of 2000, heard on 2nd March, 2005.

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

----Ss.302(b) & 458---Appreciation of evidence---Neither the accused was named in the F.I.R. nor his description was given therein---Nine injuries sustained by the deceased were not mentioned in the F.I.R. and the same were not even explained by the eye-witnesses---Such glaring conflict between the ocular testimony and, medical evidence had supported the fact that eye-witnesses were not present at the scene of occurrence---No crime empty having been recovered from the spot, recovery of the licensed pistol from the accused could not advance the prosecution case---Identification of accused in the identification parade without any independent corroboration was not sufficient to maintain his conviction---Prosecution case was replete with doubts---Accused was acquitted in circumstances."

Amjad Ali Chatta for Petitioner.

Malik Suleman Awan for State.

Iftikhar Ahmad Malik for the Complainant.

Date of hearing: 2nd March, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1215 #

2005 M L D 1215

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHABAT and 6 others---Petitioners

Versus

Mst. BAKHAT BHARI and another---Respondents

Civil Revisions Nos.498 & 499 of 1991, heard on 20th April, 2005.

West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 2-A [As amended by West Pakistan Muslim Personal Law (Shariat) (Amendment) Ordinance (XIII of 1983)]---Inheritance---Termination of limited estate of female---Effect---After termination of estate of female owner of land in dispute, Revenue Officer sanctioned mutation in respect of disputed property in favour of certain legal heirs of said female according to their respective shares---Respondent being aggrieved of said mutation filed suit challenging the validity of said mutation on the ground that she was entitled to half of land in dispute as real sister of last male holder and in remaining half she had acquired proprietary rights through adverse possession---Petitioners who claimed to be collaterals of last male holder, had also filed suit challenging vires of said mutation and claimed 7/8 shares of land in dispute as collaterals---Trial Court dismissed suit filed by respondent and decreed suit filed by petitioners, but Appellate Court below accepting appeal against judgment and decree of Trial Court, set aside same vide impugned judgment and decree---Family tree/Shajra Nasab, had clearly established that land was reverted to last male holder in view of S.2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962---Judgment of Appellate Court' below to the extent of half share of late last male holder to be transferred through impugned judgment to respondent was valid which was in accordance with direction laid down by Supreme Court in judgment reported as PLD 1990 SC 816---Impugned judgment was upheld partly to the extent of half share given to respondent with regard to share of her late brother/last male holder---Appellate Court below, however did not determine the proper shares in accordance with Injunctions of Islam with regard to remaining half of land in question left by last male holder--Revision, in circumstances was partly accepted to the extent of remaining half share which was not distributed and determined in accordance with Injunctions of Islam---Case was remanded to be deckled afresh in accordance with Injunction of Islam.

Amin Din and 5 others v. Bahadur Hussain PLD 1990 SC 816; Mst. Fatima v. Ghulam and others 1993 CLC 567; Zaid and others v. Muhammad Akram NLR 1993 SC 374; Mst. Fazal Nishan v. Ghulam Qadir and others 1992 SCMR 1773 and Feroze Din and others v. Azmat Bibi and others 1993 CLC 1626 ref.

Ras Tariq Chaudhary for Petitioners.

Naeem-ul-Hassan Sherazi for Respondents.

Date of hearing: 20th April, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1224 #

2005 M L D 1224

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Khawaja Muhammad Sharif JJ

Mst. BASHIRAN BIBI---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petition No.4897 of 2005, decided on 1st April, 2005.

Penal Code (XLV of 1860)---

----S.302(b)---Criminal Procedure Code (V of 1898), S.345(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Partial compromise---Accused had been sentenced to death as Tazir---Only one legal heir of the deceased had entered into a compromise with the accused whose affidavit had been placed on record---Ten other legal heirs of the deceased had not compounded the offence---Partial compromise could not advance the case of accused and help him in any manner---Constitutional petition was dismissed in limine accordingly.

Ghulam Hussain and another v. The State NLR 1993 Criminal 203 and Sikandar Hayat and another v. Allah Ditta and 9 others 2004 PCr.LJ 530 ref.

Muhammad Saleem v. The State PLD 2003 SC 512; Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others 1997 SCMR 1307 and Bashir Ahmad v. The State and another 2004 SCMR 236 rel.

Ch. Naseer Ahmad Bhutta for Petitioner.

Ch. Muhammad Hanif Khatana, Addl. A-G Punjab on Court call.

MLD 2005 LAHORE HIGH COURT LAHORE 1232 #

2005 M L D 1232

[Lahore]

Before Syed Hamid Ali Shah, J

HAMEED JILANI TIWANA---Appellant

Versus

ABDUL AZIZ GHAFOOR KHAN and 2 others---Respondents

S.A.O. 161 of 2004, decided on 11th April, 2005.

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

----S.13(6)-Non-compliance of tentative rent order---Effect---Striking off defence of tenant would be the right course to be adopted by Rent Controller-Defence of tenant could be considered only, if there was compliance of such order---Principles.

Muhammad Ilyas & Sons Ltd. v. Abu Ahmad Khan 1981 CLC 1257 and Mst. Zubaida Bai v. Mst. Kaniz Bano 1989 CLC 1929 ref.

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

--Preamble-Proceedings before Rent Controller---Nature and scope of---Provisions of C.P.C. and Qanun-e-Shahadat, 1984 would not apply to such proceedings .for being in the form of an inquiry.

Abdul Majeed v. Muhammad Aslam 1981 CLC 20 ref.

----Ss.13 & 15---Appeal by a non-party to ejectment proceedings---Not competent---Applicant seeking his impleadment as party in ejectment proceedings would not be a party within contemplation of S.15 of West Pakistan Urban Rent Restriction Ordinance 1959.

Mistri Allah Din v. Fazal Muhammad and another PLD 1991 SC 52 rel.

Mistri Allah Din v. Fazal Muhammad and another PLD 1991 SC 52; Allah Ditta and others v. Muhammad Hussain and others PLD 1965 (W.P.) Lah. 29; Captain Rahat Majeed v. Mst. Kubra Bai 1982 CLC 1171; and Muhammad Suleman v. Aziz-ud-Din and another PLD 1971 Kar. 1 ref.

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

----O.I, R. 10 & O.XLIII, R.1---Order passed on application under O.I, R.10, C.P.C.---Not appealable.

Allah Ditta v. Muhammad Hussain PLD 1965 Lah. 29; Qutbuddin Ahmad Khan v. Zohra Musarat Amin 1981 CLC 212 and Rahat Majeed v. Kubra Bai 1982 CLC 1171 rel.

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

----S.13---Ejectment proceedings---Entertainment of frivolous application causing delay in disposal of such proceedings to be discouraged by the superior Courts.

Sarfraz Ali for Appellant.

Faisal Hussain Naqvi and Uzair Karamat Bhandari for Respondent No.1.

Ali Masood Hayat for Respondent No.2.

Nemo for Respondent No.3.

Date of hearing: 14th February, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1241 #

2005 M L D 1241

[Lahore]

Before Khawaja Muhammad Sharif and Ch. Iftikhar Hussain, JJ

Mst. AMEERAN BIBI---Appellant

Versus

GUL MUHAMMAD and 4 others---Respondents

Criminal Appeal No.1274 of 2004, decided on 24th November, 2004.

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

----S.302134---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal under S. 265-K, Cr.P.C.---Doctor during post-mortem examination of the deceased had not observed any mark of violence, ligature or any external sign on the dead body---No poison was even detected in the viscera by the Chemical Examiner sent to him by the Doctor---Ocular testimony was in clear conflict with medical evidence---Court under S.265-K, Cr.P.C. could acquit the accused at any stage of the case if there was no probability of his conviction--Reasons recorded by the Trial Court for acquittal of accused did not need any interference---Appeal was dismissed in limine accordingly.

Muhammad Amir Khan Niazi for Appellant.

MLD 2005 LAHORE HIGH COURT LAHORE 1245 #

2005 M L D 1245

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUHAMMAD AHMAD---Petitioner

Versus

S. H .O. and others---Respondents

Writ Petition No.1642 of 2005, decided on 19th April, 2005.

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

----S. 489-F---Constitution of Pakistan (1973), Arts.199 & 12---Constitutional petition---Quashing of F.I.R.---Offence under S.489-F, P.P.C. was constituted when the cheque was dishonestly issued by the accused---On the date of issuance of cheque by the accused offence under section 489-F, P.P.C. was not on the statute book---Accused could not be punished retrospectively in view of Article 12 of the Constitution---Impugned F.I.R. registered against the accused was quashed accordingly.

Afaf Rahim v. Nisar Ahmad and others 2004 PCr.LJ 263 rel.

Ayaz Ahmad Chaudhry for Petitioner.

Muhammad Sarwar Bhatti, A.A.-G. for the State.

Mian Khalid Shaukat Haideri for Respondent No.3.

MLD 2005 LAHORE HIGH COURT LAHORE 1253 #

2005 M L D 1253

[Lahore]

Before Khawaja Muhammad Sharif and Sh. Javaid Sarfraz, JJ

MUHAMMAD GULZAR and others---Appellants

versus

THE STATE---Respondent

Criminal Appeals Nos. 390-J of 2003, 2-J of 2004 and Murder Reference No. 33-T of 2003, heard on 15th December, 2004.

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

----Ss.302(b)/34, 324 & 337-F(i)---Anti-Terrorism Act (XXVII of 1997), S.7(a)(c)&(e)---Appreciation of evidence--Accused having brought some under trial prisoners to the District Courts was present on official duty who had admitted before the Trial Court to have murdered the three deceased and caused injuries to the injured witness---Statement of the accused recorded under S.342, Cr.P.C. had shown very callous, sensational and brutal manner in which he had taken lives of the three deceased persons---Recovery of G-3 rifle from the accused and five crime empties of G-3 rifle from the spot had fully connected him with the commission of the offence---Occurrence had taken place in broad daylight---Accused had remained fugitive from law for ten months---Rifle recovered from the accused was found by the Arms Expert to be in working condition---Motive for the occurrence was admitted by the accused---Ocular testimony was corroborated by medical evidence as well as by incriminating recoveries---Occurrence being premeditated and preplanned no question of mitigation could arise---Acquittal of eleven co-accused in the case was of no avail to the accused especially when appeal filed by the State against their acquittal had been dismissed by High Court as not pressed---Accused did not deserve any leniency---Convictions and sentences of accused were upheld in circumstances.

Elahi Bakhsh v. Rab Nawaz and another 2002 SCMR 1842; Khairu v. The State 1981 SCMR 1136 and Muhammad Dilbar alias Muhammad Boota v. The State 2002 SCMR 1425 ref.

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

----Ss.302(b), 324 & 337-F(i)---Anti-Terrorism Act (XXVII of 1997), S.7(a)(c)&(e)---Appreciation of evidence---Falsus in uno falsus in omnibus-Maxim "falsus in uno falsus in omnibus" has no universal application and Court is duty bound to sift the grain from the chaff.

Elahi Bakhsh v. Rab Nawaz and another 2002 SCMR 1842 and Khairu v. The State 1981 SCMR 1136 ref.

----Ss.302(b)/34, 324 & 337-F(i)---Anti-Terrorism Act (XXVII of 1997), S.7(a)(c)&(e)---Appreciation of evidence--Accused had no motive to join hands with his co-accused---No crime empty of the pistol with which the accused was allegedly armed was recovered from the spot, nor the pistol itself was recovered from him---Accused was arrested after 24 days of the occurrence--No specific injury either to the deceased persons or to the injured witness was attributed to accused---Co-accused had admitted that he was alone when he had made firing at the spot and killed the deceased persons and injured a prosecution witness--Accused was acquitted on benefit of doubt in circumstances.

Muhammad Sharif Cheema for Appellants (in both Appeals).

Salman Safdar for the State.

Date of hearing: 15th December, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 1264 #

2005 M L D 1264

[Lahore]

Before Ch. Ijaz Ahmad, J

MEHR PEHALWAN---Petitioner

versus

CHIEF EXECUTIVE, FAISALABAD and 3 others---Respondents

Civil Revision No.1020 of 2005, decided on 16th May, 2005.

(a) Electricity Act (IX of 1910)---

----S.54-C---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit challenging validity of electricity bill---Interim relief to suspend payment of disputed bill, prayer for--Refusal of Trial Court and Appellate Court to grant such relief---Validity---High Court had no power to suspend payment of disputed bill, except subject to its payment in terms of proviso to S.54-C(i) of Electricity Act, 1910---Courts below had given concurrent finding of fact and decided case after judicial application of mind-Discretion exercised by trial Court had been upheld by Appellate Court---High Court under S.115, C.P.C. had very limited jurisdiction to disturb concurrent finding of fact---Impugned order did not suffer from any infirmity or illegality---High Court dismissed revision petition.

Sahibzada Muhammad Umar Baig's case PLD 1970 SC 139 and N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Edowments Board Madras PLD 1949 P.C. 26 rel.

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

----O.XLI, R.33---Discretionary order of Trial Court---Validity---Appellate Court would have no jurisdiction to set aside such order, if same was passed keeping in view principle of equity after judicial application of mind---Principle.

Col. (Retd.) Dr. Sharif Ullah Khan's case PLD 2000 Pesh. 4; WAPDA Operation's case PLD 1990 Pesh. 105; Muhammad Fayyaz Butt's case 1999 MLD 2731; WAPDA's case 1999 CLC 492 and Muhammad Akbar's case 1999 CLC 1198 rel.

----Courts have only power to interpret law---Courts cannot take the role of legislature in the garb of interpretation of statute.

Zia-ur-Rehman's case PLD 1973 SC 49 rel.

Abdul Hameed Rana for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 1272 #

2005 M L D 1272

[Lahore]

Before Muhammad Farrukh Mahmud, J

BAKHAT ALI---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.577-B of 2003/BWP, decided on 11th June, 2003.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.380, 452, 148 & 149---Pre-arrest bail, grant of---Matter was reported to Police after delay of four months---Accused had already joined the investigation---No specific allegation was available against accused and in the first round of investigation, he was found innocent---Ad interim pre-arrest bail already granted to accused, was confirmed, in circumstances.

M. Abdul Rasheed Rashid for Petitioner.

Syed Niaz Ahmad Shah for the State.

Shafaqat Ali, S.-I.

MLD 2005 LAHORE HIGH COURT LAHORE 1276 #

2005 M L D 1276

[Lahore]

Before Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

Haji RIAZ AHMAD and others---Appellants

versus

THE STATE---Respondent

Criminal Appeals Nos.161 154, 159, and 196 of 2002/BWP and Murder Reference No.45 of 2002, decided on 11th November, 2002.

Penal Code (XLV of 1860)---

----Ss. 302 & 310---Criminal Procedure Code (V of 1898), S. 345---Appreciation of evidence---Compromise---Compromise was effected between legal representatives/walis of deceased and accused whereby legal representatives of deceased had waived their right of Qisas against all accused---Said compromise was duly verified by Sessions Judge---Legal heirs of deceased appeared in Court and all of them had verified compromise effected between them and accused---Appeal of accused was accepted and conviction and sentence recorded against him was set aside accordingly in view of statement of legal heirs of deceased and verification of compromise by the Sessions Judge.

Mumtaz Mustafa, Advocate.

Abdul Rasheed Rashid, Advocate.

Saleem-ud-Din Aftab, Advocate.

Mian Muhammad Bashir, A.A.-G for the State.

Tariq Mehmood, Advocate.

MLD 2005 LAHORE HIGH COURT LAHORE 1287 #

2005 M L D 1287

[Lahore]

Before Syed Hamid Ali Shah, J

INFOLOGIX (PVT.) LTD. through Chairman---Appellant

Versus

ABDUL AZIZ GHAFOOR KHAN and another---Respondents

S.A.O. No.162 of 2004, decided on 11th April, 2005.

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

----S.13(6)---Non-compliance of rent deposit order passed under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959---Effect---In event of such non-compliance, Rent Controller without taking any further proceedings would be bound to strike off defence of tenant and put landlord into possession of premises---Principles.

Khadim Hussain v. Nisar Ahmad 2003 SCMR 1580 fol.

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

----S.13(6)---Rent deposit order passed under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959---Non-deposit of arrears of rent amounting to Rs.16,25,000 and future rent at the rate of Rs.3,25,000 per month---Tenant produced compromise agreement allegedly executed between parties four days prior to a date on which such payment became due---Landlord on oath denied to have executed such agreement---Effect---Court would not accept such compromise, if same was rejected by one party---Landlord had to receive either such payment or an ejectment order, in case of its non-payment---Such compromise could not be believed to have been executed---Defence of tenant was struck off and ejectment petition was accepted in circumstances.

Muhammad Ilyas and Sons Ltd. v. Abdul Ahmad Khan 1981 CLC 1257; Athar Hussain Jafari v. S. Akbar Amin 1995 CLC 115; Muhammad Siddique v. Abdul Karim and others 1983 CLC 913; Malik Shoib Anwar v. Bashir Hussain Shami 1993 SCMR 535; Muhammad Arif v. Muhammad Raza PLD 1993 Lah. 121; Ghulam Rasool v. Said Rasool and others PLD 1990 Lah. 457; Syed Akhlaque Hussain v. Habib Ismail Bajwa 1974 SCMR 504; Shah Muhammad and 8 others v. Additional District Judge and 7 others PLD 1990 Lah. 64; Mushtaq Hussain v. M. Shafi 1979 SCMR 496; WAPDA v. Aftab Ali PLD 1981 CLC 579; Abdul Ghafoor v. M. Ibrahim; 1967 MLD 138; M. Rafique v. Ghulam Rasool NLR 1993 CLJ 755; Fazal Karim v. ADJ PLD 1982 SC 306; Abdul Majeed and others v. Muhammad Aslam 1981 CLC 20; M. Nazeer v. Saeed Subhani 2002 SCMR 1540 and Haseena Begum v. Nazima Begum 1991 MLD 2327 ref.

Umar Bakhsh v. Azim Khan 1993 SCMR 374 rel.

----S.13---Ejectment petition---Tenant seeking dismissal of ejectment petition on basis of compromise agreement allegedly executed between parties---Denial on oath by landlord to have executed such agreement---Effect---Court would not accept such compromise, if same was rejected . by one party---Such compromise, if not filed in original its signatories had not agreed and reiterated its contents before Rent Controller and its execution was denied by landlord, then same could not be made the basis of dismissal of ejectment petition.

Muhammad Ayub v. Muhammad Yousaf 1996 MLD 1395 and Saleem v. Jalal-ud-Din and others PLD 1982 SC 457 ref.

Umar Bakhsh v. Azim Khan 1993 SCMR 374 rel.

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

----S.13---Arbitration Act (X of 1940), S.34---Ejectment proceedings stay of---Rent deed not containing arbitration clause---Effect---Proceedings could not be stayed on the basis of an agreement which was not the basis of ejectment proceedings.

Ali Masood Hayat for Appellant.

Faisal Hussain Naqvi and Uzar Karamat Bhandari for Respondent.

Nemo for Respondent No.2.

Date of hearing: 14th February, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1298 #

2005 M L D 1298

[Lahore]

Before Sh. Hakim Ali, J

MUSHTAQ AHMED---Petitioner

Versus

THE STATE---Respondent

Crl. Mise. 474 of 2004/BWP, decided on 4th June, 2005.

Criminal Procedure Code (V of 1898)--

----S. 497---Penal Code (XLV of 1860), Ss.420 & 471---Bail, grant of---Both parties were at daggers drawn to get hand of female---Accused claimed her as his legally wedded wife whereas other person also claimed her to be his wife---As to who was the real and genuine husband, had still to be adjudicated upon by Judge Family Court---Justice demanded that bail should be granted to accused also so that he should have opportunity to prove/defend his case before Family Court---When bail was granted to an accused in a case, it should not be cancelled/recalled unless cogent and convincing grounds were available demanding cancellation of bail---To keep accused behind the bars would not serve any useful purpose to the case of prosecution-Grant of bail was rule especially in the bailable offences not falling within the prohibitory clause of S.497, Cr.P.C. while refusal was an exception--Offences in present case not falling within prohibitory clause of S. 497, Cr.P.C. accused was allowed bail.

Abdul Rasheed Rashid for Petitioner.

Muhammad Javed Akhtar Bhatti for the Complainant.

2005 M L D 1344

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

GHULAM SARWAR---Petitioner

versus

ARSHAD IQBAL and others---Respondents

W.P.No.467 of 2005, decided on 10th May, 2005.

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

----Ss. 6, 13 & 24---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for pre-emption---Deposit of 1/3rd of sale price---Limitation---Extension of time---Jurisdiction of Trial Court---Trial Court directed plaintiff to deposit 1/3rd of sale price within 30 days, but plaintiff failed to comply---Subsequently plaintiff filed application for depositing said amount which was accepted by Trial Court---Validity---No justification existed for granting plaintiff further time to deposit 1/3rd sale price---Trial Court had no justification to extend period for said deposit beyond 30 days of institution of suit---Section 24 of Punjab Pre-emption Act, 1991 provided that if plaintiff failed to deposit 1/3rd of sale price within the period fixed by the Court, the suit would be dismissed---Order extending time to deposit 1/3rd, sale price passed by Trial Court was not maintainable in the eyes of law and Appellate Court below had rightly set aside the same---Well-reasoned judgment of Appellate Court not suffering from illegality or infirmity, could not be set aside by High Court.

Ch. Muhammad Tariq, Advocate.

MLD 2005 LAHORE HIGH COURT LAHORE 1347 #

2005 M L D 1347

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD JUNAID RAZZAQ---Petitioner

Versus

BAHAUDDIN ZIKARYA UNIVERSITY, MULTAN through Vice-Chancellor, B.Z.U., Multan and another---Respondents

W.P. No.664 of 2005, decided on 16th March, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition--=Educational institution---Admission to Electrical Engineering Course in the University---Petitioner filed admission Form seeking Admission to Electrical Engineering Course of the University on Self-Finance basis and paid all requisite charges, took entry test and obtained 67.659% marks---Grievance of the petitioner was that though he had expressed his preference for category of a seat reserved for candidates having 'passed their Intermediate Examination from Multan, his Form was not considered and admission was not granted---Petitioner had stated that he had filed two admission forms, one against a Special Admission Charges Seat in S-category and one in open merit against a B-category seat and in one such form, preference was given for a category-S-seat and that Form also mentioned Special Admission Charges and that amount had been deposited---Other Form was titled as General Application Form and therein first preference had been given to the course "Electrical" and category was mentioned as 'B.S.'---Validity---Forms submitted by petitioner did not at all disclose that he had given preference for a category 'B' Seat in any of said Forms---If at all it was to be assumed that by writing 'B.S.', petitioner meant a category B-seat then it was with reference to open merit, and thus nothing turned on the same---Constitutional petition was dismissed with direction to return Forms to the University.

Mehar M. Zameer Hussain Sandhal for Petitioner.

M. Tariq Rajwana for Respondent.

MLD 2005 LAHORE HIGH COURT LAHORE 1348 #

2005 M L D 1348

[Lahore]

Before Asif Saeed Khan Khosa, J

KHAN AFSAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4780-B of 2004, decided on 13th July, 2004.

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

----S. 498---Penal Code (XLV of 1860), Ss. 407, 489-F & 506---Pre arrest bail, grant of---Parcel in question had not been entrusted by complainant to the accused, but he had handed over the parcel to a booking clerk of courier company---Accused was not said to be the owner or proprietor of the courier company---Absolutely no evidence was available on record of investigation regarding any entrustment of said parcel to accused or theft of the parcel by accused---Applicability of provisions of S.407, P.P.C. to the case prima facie' was suspected in circumstances---Three cheques had been got issued from accused by local police allegedly under duress and coercion, but before encashment of said cheques, accused had written a letter to the Bank requesting stoppage of payment on the basis of such cheques and said cheques had not so far been encashed---Language employed in S.489-F, P.P.C. had clearly postulated that said offence was committed when somebody "dishonestly issued a cheque towards payment of loan or fulfilment of obligation"---Said cheques had surely not been issued by accused towards repayment of any loan nor accused had any obligation in that regard to fulfil because by virtue of the terms and conditions of agreement between the complainant and relevant courier server---Courier company was under an obligation and liability to pay damages or to compensate customer in case of any loss or theft of any parcel booked with such courier company---Accused, while working with relevant courier company as its employee, had no personal liability or obligation towards the complainant in that regard---Cheques issued by accused could not be said to have been issued by him towards fulfilment of an obligation on his part---Only other offence remaining in case was offence under S.506, P.P.C., but apart from recording statement of complainant in that regard, Investigating Officer had not collected any evidence to find out whether such allegation of complainant in that respect wasprima facie' correct or not---Submission made by accused regarding his mala fide implication in the case could not be said to be without any foundation or substance---Accused had already joined investigation---Ad interim pre-arrest bail already allowed to accused, was confirmed.

Azhar Hameed Chaudhary for Petitioner.

Mirza Abdullah Baig for the State with Muhammad Malik, A.S.-I. with record.

Shahid Mahmood, Complainant in person.

MLD 2005 LAHORE HIGH COURT LAHORE 1351 #

2005 M L D 1351

[Lahore]

Before Ch. Ijaz Ahmad, J

JAMAL DIN---Petitioner

Versus

Syed ALTAF HUSSAIN SHAH and others---Respondents

C.Rs. Nos.1034, 1035 and 3346 of 1994, heard on 5th May, 2005.

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

----S.12---Specific performance of agreement to sell---Discretionary relief.

Nowab Meah Chowdhury v. Syed Ezaz-ud-Din Ahmad PLD 1962 Dacca 655 rel.

(b) Interpretation of document---

---Agency, contract of---Once contract of agency is created in favour of a person showing complete trust by principal qua the agent, then each word thereof would be construed and proved strictly.

Haji Mitha Khan's case 1995 CLC 896 rel.

---General power of attorney not containing any specific authority empowering general attorney to delegate his power to another person---Effect---Authority executed by general attorney in favour of such person and also sale by such person would be void.

Gulfam and others v. Ali Muhammad and others PLD 1989 Kar. 499 rel

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

----S. 115---Revision---Duty and obligation of petitioner to place on record copies of documents, which were before Courts below.

(e) Islamic Iaw---

----Gift---Third party would have no locus standi to challenge gift made by donor in favour of donee.

S.M. Mohsin Zaidi for Petitioner.

Muhammad Sarwar Awan for Respondents.

Date of hearing: 5th May, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1364 #

2005 M L D 1364

[Lahore]

Before Ch. Ijaz Ahmad Actg. CJ

MAZHAR IQBAL---Petitioner

Versus

THE STATE---Respondent

Cr1. Misc. No.85-T of 2005, decided on 26th April, 2005.

Criminal Procedure Code (V of 1898)---

----S. 526---Transfer of case---Case had been sought to be transferred to another Court on ground that application filed by applicant under S.265-K, Cr.P.C. had been dismissed by Trial Court by giving remarks that he would be convicted---Applicant had alleged that he had no confidence in the Court on account of said conduct of the Court---No specific allegation was made by applicant in his application against Presiding Officer of the Court---General allegations of mala fide were not maintainable in the eye of law---Contention of applicant/accused that Trial Court had dismissed his application filed under S.265-K, Cr.P.C., was no ground for transfer of case---Plea of applicant/accused having no force, application for transfer of case was dismissed.

Federation of Pakistan v. Saeed Ahmad Khan and others PLD 1974 SC 151; Amanullah Khan and others v. Federation of Pakistan and others PLD 1990 SC 1092; Shah Jehan v. Special Judge Anti-Corruption and others 1992 PCr.LJ 1982; Muhammad Malik v. Muhammad Farooq and 2 others 1993 PCr.LJ 1362; Mushtaq Ahmad v. Mst. Rajan and others NLR 1994 Cr.LJ 652; Abdul Sattar and others v. The State 1993 PCr.LJ 614 and Imam Bux v. Shadi Khan and 4 others 1996 PCr.LJ 933 ref.

Malik Ejaz Hussain for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. on Court's call.

MLD 2005 LAHORE HIGH COURT LAHORE 1366 #

2005 M L D 1366

[Lahore]

Before Muhammad Nawaz Bhatti, J

Agha NADEEM and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

W.P. No. 2546 of 1995, decided on 21st April, 2005.

(a) Drugs Act (XXXI of 1976)---

----Ss.23 & 27---Dangerous Drugs Act (II of 1930), S.14---Punjab Drugs Rules, 1988, R.4(3)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---No show-cause notices were issued to the accused by the Government before granting permission to the Drug Inspector for getting the case registered against them, which was the requirement of the rule 4(3) of the Punjab Drugs Rules, 1988---Report of the Government Analyst regarding the recovered sample of the Drug being of substandard quality was not even supplied to the accused, who could not challenge the same under S. 22 of the Drugs Act, 1976---Said report also being not final, registration of the case against accused was without lawful authority---Case even otherwise could not be registered at Vehari as the offence had allegedly taken place at Lahore---High Court was competent to quash criminal proceedings based on a false complaint even without moving the Trial Court by the accused under S. 249-A or 265-K, Cr.P.C.---Impugned F.I.R. registered against the accused was quashed in circumstances.

Agha Nadim and another v. The Station House Officer Police Station, Lohari Gate, Lahore and another 1998 PCr.LJ 181; Shuja Ullah v. The State and others 1994 PCr.LJ 1065; Raja Haq Nawaz v. Muhammad Afzal and others 1968 SCMR 1256; Ghulam Ali v. Javid and another 1989 PCr.LJ 507; Abdul Ghafoor v. The State 1984 PCr.LJ 381; and Mian Munir Ahmad v. The State 1985 SCMR 257 ref.

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

----Art. 199---Criminal Procedure Code (V of 1898), Ss. 561-A, 249-A & 265-K---Constitutional and inherent jurisdiction of High Court---Quashing of criminal proceedings---Accused, before moving High Court, may not necessarily move Trial Court under S.249-A or 265-K, Cr.P.C.---Every criminal case should be judged on its own facts and circumstances---High Court has the power to quash criminal proceedings if satisfied that a false complaint had been brought and the process of Court was being abused to subject the accused to unnecessary harassment.

Raja Haq Nawaz v. Muhammad Afzal and others 1968 SCMR 1256; Ghulam Ali v. Javid and another 1989 PCr.LJ 507; Abdul Ghafoor v. The State 1984 PCr.LJ 381 and Mian Munir Ahmad v. The State 1985 SCMR 257 rel.

Sh. Zia Ullah for Petitioner.

Muhammad Sarwar Bhatti A.A.-G. for Respondents Nos.1 to 5.

Date of hearing: 13th April, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1370 #

2005 M L D 1370

[Lahore]

Before Asif Saeed Khan Khosa and M.A. Shahid Siddiqui, JJ

SAJJAD alias SAJOO and another---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No.1234 of 2000, Criminal Revision No.618 of 2000 and Murder Reference No.545 of 2000, heard on 9th May, 2005.

Penal Code (XL.V of 1860)---

---S.302(b)---Appreciation of evidence---Eye-witnesses were related, chance and inimical witnesses and could not be relied upon without independent corroboration of their statements---Accused had no direct concern with the previous murder forming the alleged motive in the present case, nor their direct interest was established on the record in the murder of the deceased---No weapon had been recovered from the possession of accused---Abscondence of accused was not lawfully proved---Medical evidence could not possibly be held to have supported the ocular account which by itself was unable to prove the guilt of accused when all other pieces of prosecution evidence had been found unreliable---Accused were acquitted on benefit of doubt in circumstances.

M.A. Zafar for Appellant No.1. (in Criminal Appeal No.1234 of 2000).

Mian Aftab Farrukh for Appellant No.2 (in Criminal Appeal No.1234 of 2000).

Syed Zahid Hussain Bukhari for Petitioner (in Criminal Revision 618 of 2000).

Miss Rabia Bajwa for the State.

Syed Zahid Hussain Bukhari for the Complainant (in Criminal Appeal No.1234 of 2000).

M.A. Zafar for Respondent No.1. (in Criminal Revision No.618 of 2000).

Dates of hearing: 5th and 9th May, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1379 #

2005 M L D 1379

[Lahore]

Before Ali Nawaz Chowhan and Umar Ata Bandial, JJ

ABDUL GHAFOOR and 2 others---Appellants

Versus

THE STATE---Respondent

Crl. AppealNo.382 of 2000, heard on 28th April,2005.

Penal Code (XLV of 1860)---

----Ss. 302(b)/149 & 148---Appreciation of evidence---Sentence, reduction in---Occurrence had taken place in day time in the thick of the town, but the eye-witnesses had resiled from their earlier position---Accused while escaping after the event were chased by the police which led to an encounter in the city where one of the assailants was killed and the others were apprehended---Persons apprehended immediately after the chase during police encounter were the same who were involved in the incident of five murders---Since the eye-witness had resiled the actual scene of murders had remained obscure and the role played by each accused in the occurrence could not be known, which had resulted in five gruesome murders in the thick of the town and in the vicinity of the Courts---Sentence of death awarded to each accused under Ss.302(b)/149, P.P.C. on each count by the Trial Court was reduced to imprisonment for life in circumstances---Since an accused could be sentenced to imprisonment for life only once, the sentences were directed to run concurrently.

M.A. Zafar for Appellants.

Waqar Hussain Mir and Zahid Hussain for the Complainant.

Masood Sadiq Mirza for the State.

Date of hearing: 28th April, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1388 #

2005 M L D 1388

[Lahore]

Before Asif Saeed Khan Khosa, J

Mian MUHAMMAD SAEED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5380-B of 2004, decided on 2nd November, 2004.

Criminal Procedure Code (V of 1898)--

-----S. 497(2)--:Penal Code (XLV of 1860), S. 489-F---Bail, grant of---Further inquiry---F.I.R. itself showed that, complainant and accused were locked in a business dispute requiring rendition of accounts---During efforts made for resolution of said dispute arbitrators had been appointed and cheque in question had been executed by accused in favour of one of the arbitrators---No dispute existed to the effect that accused did not have any obligation towards said arbitrator in whose favour relevant cheque had been issued and said arbitrator had never produced said cheque before concerned Bank for its encashment nor he had filed any suit or any criminal proceedings against accused in that connection---Question as to whether complainant was entitled to get relevant cheque encashed on his own or the question whether petitioner was under any obligation towards said arbitrator regarding any payment required further probe---Offence allegedly committed by accused did not attract prohibitory clause contained in subsection (1) of S.497, Cr.P.C.---Grant of bail in such cases was a rule and its refusal was an exception---Case against accused calling for further inquiry into his guilt, he was admitted to bail.

Zafar Iqbal Chohan and Abdul Razzaq Sheikh for Petitioner.

Shaukat Ali Khawaja for the State.

Noor Muhammad Awan and Mian Shahid Iqbal for the Complainant.

MLD 2005 LAHORE HIGH COURT LAHORE 1389 #

2005 M L D 1389

[Lahore]

Before Rustam Ali Malik, J

SAIFULLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3184-B of 2004, decided on 24th May, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 392, 395, 411 & 412---Bail, grant of---Further inquiry---Accused was not named in FIR., but he was named as one of the culprits in a supplementary statement of complainant recorded more than three months after the occurrence---Recovery effected from accused consisted of four seats of wagon allegedly stolen, a Payedan and two iron body supports of said wagon---No identification parade was held in the case without any explanation---Statement of co-accused could hardly be of any evidentiary value---No identification parade having been held in the case, it was clearly a case of further inquiry into the guilt of accused---Accused was admitted to bail, in circumstances.

M. Waseem for Petitioner.

Sohail Tariq for the State.

MLD 2005 LAHORE HIGH COURT LAHORE 1391 #

2005 M L D 1391

[Lahore]

Before Muhammad Farrukh Mahmood, J

SAEED BIBI alias SADA and 4 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.615/B of 2005/BWP, decided on 30th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 13, 14 & 10(2)---Bail, grant of---Complainant had acted in utter violation of provisions of S.103, Cr.P.C.---Story as narrated in F.I.R. was not plausible---In such-like cases, police could not raid the houses of citizens on the basis of secret information by a Mukhbar, as had been done in the present case---Three of accused being women their case attracted provisions of Proviso 1 to subsection (1) of S.497, Cr.P.C.---Co-accused who was saddled with somewhat similar role, had been admitted to bail---Accused were admitted to bail, in circumstances.

Riaz v. S.H.O. PLD 1998 Lah. 35 ref.

M. Akhtar Chishti and Mumtaz Ahmad Aamir for Petitioners.

Syed Niaz Ahmad Shah for the State.

MLD 2005 LAHORE HIGH COURT LAHORE 1402 #

2005 M L D 1402

[Lahore]

Before Asif Saeed Khan Khosa, J

SHAHBAZ KHAN---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No.8491-B of 2004, decided on 6th December, 2004.

Criminal Procedure Code (V of 1898)---

-------S. 497(2)---Penal Code (XLV of 1860), S. 406---Bail, grant of---Further inquiry---Allegation against accused was that two buffaloes given on Superdari to him had not been produced by him before concerned Authorities and had committed criminal breach of trust---Accused had maintained that said buffaloes had been stolen from his custody and that in respect of that theft he had already lodged F.I.R. for offence under S. 380, P.P.C.---Nothing was on record of investigation of said case to indicate that the case filed by accused was bogus, false and had been cooked up by accused as a pretext for not producing buffaloes before concerned Authorities--Case against accused, in circumstances had called for further inquiry into his guilt---Accused was admitted to bail, in circus stances.

Zafar Iqbal Chohan for Petitioner.

Raja Sher Zaman Khan with Falak Sher, S.-I. and Ghulam Abbas, A.S.-I. with record for the State.

MLD 2005 LAHORE HIGH COURT LAHORE 1404 #

2005 M L D 1404

[Lahore]

Before Muhammad Nawaz Bhatti, J

SAKHAWAT ALI---Petitioner

Versus

THE STATE---Respondent

W.P. No.4446 of 2004, decided on 20th April, 2005.

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

----S.491---Habeas. corpus--Petitioner police officer had been burdened with costs of Rs.10,000 by the Sessions Judge in a habeas corpus petition for illegal confinement of the alleged accused by means of the impugned order---Stance of the petitioner had not been incorporated in the impugned order meaning thereby that he had not been given a chance of defence and as such he had been condemned unheard---Nobody could be condemned unheard under the, law and the order passed in violation of the said principle was liable to be set aside---Impugned order was consequently set aside and the matter was remanded to the Sessions Judge for fresh decision after giving proper opportunity of hearing to both the parties---Constitutional petition was accepted accordingly.

Muhammad Khan v. Shamsuddin and others 1969 SCMR 212; Mrs. Anisa Rehman v. P.I.A.C. and others 1994 SCMR 2232 and Munawar Sultana v. Director of Education 2001 PLC (C.S.) 270 ref.

(b) Natural justice, principles of---

----Principles of natural justice are so fundamental that the right of hearing should be given to a citizen even if it is not enunciated in the enactment---No one should be condemned unheard and where this principle is violated, the order passed without affording opportunity of hearing and show cause is liable to be set aside.

Muhammad Khan v. Shamsuddin and others 1969 SCMR 212; Mrs. Anisa Rehman v. P.I.A.C. and others 1994 SCMR 2232 and Munawar Sultana v. Director of Education 2001 PLC (C.S.) 270 ref.

Muhammad Arif Alvi for Petitioner.

Muhammad Sarwar Bhatti, A.A.-G. for the State.

Naeem Ahmad, Inspector.

MLD 2005 LAHORE HIGH COURT LAHORE 1407 #

2005 M L D 1407

[Lahore]

Before Muhammad Muzammal Khan, J

ZAHID AFZAL---Petitioner

Versus

Mst. FATIMA SAEED and 3 others---Respondents

C.Ms. Nos.677, 678 of 2005 in W.P. No.2777 of 2004, decided on 2nd June, 2005.

Constitution of Pakistan (1973)---

. ----Art. 199---Limitation Act (IX of 1908), S.5---Constitutional petition dismissed on account of non-appearance---Applications for restoration and condonation of delay---Contentions of the petitioner were that he had moved an application for early hearing of the case on which the office objected that the Constitutional petition had already been disposed of on account of non-appearance; that the fixation of case was not within the knowledge of the counsel and the petitioner slipped for noticing the date fixed by the office---Petitioner also filed another application under S.5, Limitation Act, 1908 for condonation of delay wherein the plea raised was that the Bar Clerk had failed to circulate the list of the cases in the office of the counsel for the petitioner, and thus, fixation was not within the knowledge of the petitioner---Validity---Both the petitions, one for restoration and other for condonation of delay, did not coincide---Service of providing list to the Advocates by the Bar was only complimentary and had no legislative backing---Counsel in the case was supposed to check the list of the cases fixed for hearing, displayed in the office, outside the Court Room or in the Bar Room---Petitioner had failed to explain as to why the fixation of case was not checked up by him, his counsel or by any of the persons from the office of his counsel---Mere vague asscertions without any proof for fixation of case not within the knowledge. of the petitioner or his counsel were not enough for restoration of the case---Title of the case, its number and name of the learned counsel for the petitioner were correctly inscribed in the cause list, thus, there was no sufficient cause for restoration of the Constitutional petition---Petitioner, also having failed to explain delay of about 4 months for seeking restoration and there being no explanation for each day's delay, an inordinate unexplained delay-could not be condoned.

Sardar Altaf Khan for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 1417 #

2005 M L D 1417

[Lahore]

Before Muhammad Muzammal Khan, J

KHALID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.82-B of 2005, decided on 3rd February, 2005.

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

------S. 497(2)-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10---Bail, grant of---Further inquiry---Tentatively, narration of complainant/alleged victim, in F.I.R., were unnatural as her entire family was sleeping in the courtyard along with her wherefrom two persons abducted her to a place adjacent to house, but none of them got up---According to medical report complainant was a girl of easy virtue who appeared to have associated with co-accused of accused, on her own and on getting up of her father, story of abduction was knit---Report of Chemical Examiner was also negative and no allegation was found against accused of committing sexual intercourse and it was also quite unnatural that accused during intercourse by his co-accused remained present and kept on watching the activity---All said facts had made case of accused that of further inquiry---Accused was arrested on 15-6-2004 and since then trial of case had not commenced---Bail was not to be withheld as of punishment---Accused was admitted to bail in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

Raja Muhammad Ishtiaq for Petitioner.

Naseer Ahmed for the State.

MLD 2005 LAHORE HIGH COURT LAHORE 1419 #

2005 M L D 1419

[Lahore]

Before Ch. Ijaz Ahmad, J

WAHAB AMJAD KHAN---Petitioner

Versus

GOVERNMENT COLLEGE UNIVERSITY through Principal and another---Respondents

W.P. No.3276 of 2005, decided on 8th June, 2005.

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

----Art. 199---General Clauses Act (X of 1897), S.24-A---Educational institution---Intermediate Part-II examination---Petitioner was declared successful in examination, but Board withheld his result card for not having secured requisite lectures in institution---Validity---Institution and Board had parental jurisdiction qua candidates---Pendency of matter qua fate of petitioner before Board for the last one year was not in consonance with S.24-A of General Clauses Act, 1897---High Court declined to exercise discretion in favour of petitioner at such stage---High Court directed petitioner to appear before Board, who would finalize inquiry/matter within 20 days.

Mst. Asma Nadeem v. International University 2002 MLD 290; Mst. Aisha Maryam v. Chairman Board of Intermediate and Secondary Education 2005 MLD 71; Miss Aalia v. Chairman Board of Intermediate and Secondary Education 2003 MLD 1314; Mrs. Kalsoom Ara v. Controller of Examination, University of Punjab PLD 1995 Lah. 520 and Iqtidar Karamat Cheema v. University of Punjab 2000 CLC 1589 ref.

Bakhtiar Mahmud Kasuri v. Principal Law College and others NLR 1980 Civil 36; I.C.A. No.382 of 1999; M/s. Airport Support Services v. The Airport Manager, Karachi 1998 SCMR 2268 and Ch. Tanbir Ahmad Siddiky's case PLD 1968 SC 185 rel.

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

----Arts. 189 & 190---Judgment of Supreme Court---Binding on each and every organ of the State.

----Art. 199---Constitutional jurisdiction of High Court---Discretionary in Character.

Sardar Muhammad Tariq Khan Dareshak for Petitioner.

Muhammad Hanif Khatana, Addl. Advocate-General along with Professor Ashraf Shabbir Bukhari, Deputy Controller Examinations, Government College University Lahore for Respondent No. 1.

Ch. Arfan Haider on behalf of Sh. Shahid Waheed for Respondent No.2.

MLD 2005 LAHORE HIGH COURT LAHORE 1423 #

2005 M L D 1423

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD KHALID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5813-B of 2004, decided on 10th September, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 392 & 114---Bail, grant of---Further inquiry---Occurrence had taken place after dark and F.I.R. had been lodged with a delay of seven days---F.I.R. showed that culprits perpetrating alleged offences had remained unidentified at the spot and " their names had been divulged before complainant by a co-accused who had informed complainant that accused was also one of the persons who had committed alleged offence---No test identification parade had been held in case so as to positively incriminate accused---During investigation a C.D. deck and a pistol had allegedly been recovered from possession of accused, but recovered C.D. deck had never been identified by complainant or eye-witnesses---Nothing was on record to connect pistol allegedly recovered from possession of accused with offences---Accused was implicated in case through a disclosure allegedly made by co-accused who had already been admitted to post-arrest bail---Challan in case had already been submitted after completion of investigation---Continued custody of accused in jail was not likely to serve any beneficial purpose---Accused had no credentials or antecedents of a dacoit or a robber to his account as no other case of similar nature stood registered against him at relevant Police Station---Case against accused calling for further inquiry into his guilt, he was allowed bail.

Zafar Iqbal Chohan for Petitioner.

Wajid Iqbal with Ahmad Nawaz A.S.-I. with record for the State.

MLD 2005 LAHORE HIGH COURT LAHORE 1443 #

2005 M L D 1443

[Lahore]

Before Asif Saeed Khan Khosa, J

ZULFIQAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7475-B of 2004, decided on 21st October, 2004.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Pre-arrest bail, grant of---Accused was not connected with the motive set up in F.I.R. and he had not caused any injury to any person during alleged incident---Allegation levelled against accused in F.I.R. was only in respect of indulging in ineffective firing---Accused had not resorted to firing at the spot and he was merely present outside complainant's house at the time of alleged occurrence---Accused, in circumstances had not committed any overt act during alleged occurrence---Accused had already joined investigation and nothing was to be recovered from his possession---Even otherwise, if any weapon was recovered from the possession of accused, same was likely to be of no consequence inasmuch as it was being alleged that accused was armed with a pistol at the relevant time, but no crime empty of a pistol was recovered from place of occurrence---Accused was not to be deprived of his liberty merely for the purpose of effecting a recovery which was likely to be legally inconsequential---Accused had argued that he happened to be a close friend of principal accused and it was on that account that he had been falsely implicated in the case so that he could not pursue case in defence of principal accused---In absence of any motive alleged against accused, said submission of accused, did not appear to be without any substance or foundation---Ad interim pre-arrest bail already allowed to accused, was confirmed in circumstances.

Zafar Iqbal Chohan for Petitioner.

Tasneen Amin with Qalib Hussain, A.S.-I. with record for the State.

MLD 2005 LAHORE HIGH COURT LAHORE 1445 #

2005 M L D 1445

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD NAWAZ and 3 others---Petitioners

Versus

Haji KHIZAR HAYAT and 15 others---Respondents

Civil Revision No.1251.of 2004, heard on 16th May, 2005.

Specific Relief Act (I of 1877)---

----S.42---Land Records Manual, Para. 7.19 & Appendix-A---Suit for declaration---Shamlat land---Plaintiff claimed to be exclusive owner in possession of suit-land on basis of gift made in his favour by donor---Defendant denied that donor had any proprietary rights in suit-land and was in his possession---Conveyance whereby donor had transferred proprietary rights while retaining his common interest in shamlat land was not produced in evidence by plaintiff---Such suit could not be decreed as according to Wajib-ul-arz, shamlat lands had not been partitioned---Suit was dismissed in circumstances.

Muhammad Farooq Qureshi Chishti for Petitioners.

Mian Humayun Aslam for Respondents.

Date of hearing: 16th May, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1447 #

2005 M L D 1447

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD SADIQ and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.292 and 293 of 2003, heard on 10th December, 2004.

Penal Code (XLV of 1860)---

--Ss. 379 & 409---Prevention of Corruption Act (II of 1947), S.5(2)---Appreciation of evidence---Allegation against co-accused was that he in his capacity as a Forest Guard, had sold some water meant for the forest to accused and his father for purpose of irrigation of private lands of accused persons---Alleged theft had been detected by a raiding party---No details of Warrabandi pertaining to relevant forest had been brought on record nor had the officials of the Irrigation department had ever been associated with investigation of case---Allegation against co-accused regarding criminal breach of trust by him had never been established on the record of Trial Court to the effect that a Forest Guard was entrusted with water from which relevant forest was to be irrigated---No allegation regarding criminal breach of trust committed by Forest Guard had been proved---No prosecution witness had deposed about having seen passing of any money as bribe to the accused---No money had been recovered from possession of the co-accused---No stolen property had ever been recovered or secured in the case---Amount of water allegedly stolen, had never been quantified and the loss suffered in that connection had never been assessed; it was not possible, in circumstance for any criminal Court to convict accused persons for offences for which they had been convicted by Trial Court---No official of Anti-Corruption Establishment or local Magistracy had been associated with alleged raid on basis of which case had been lodged---Such a private raid by an interested complainant and resulting criminal case would be seen with some suspicion---Prosecution having failed to prove its case against appellants beyond reasonable doubt, conviction and sentences of accused persons recorded by Trial Court were set aside and they were acquitted of charges against them.

Zafar Iqbal Chohan (in Criminal Appeal No.292 of 2003) for Appellants.

Zahid Farani Sheikh (in Criminal Appeal No.293 of 2003) for Appellants.

Rana Naseem Sabir (in Criminal Appeal No.292 of 2003) for the State.

Ishfaque Ahmed Chaudhry, (in Criminal Appeal No.293 of 2003) for the State.

Date of hearing: 10th December, 2004.

JUDMGENT

Through this consolidated judgment, I propose to decide Criminal Appeal No.292 of 2003 filed by Muhammad Sadiq and Abdul Wahab appellants and Criminal Appeal No.293 of 2003 preferred by Zia?-ul-Haq appellant together as all these appellants have challenged the same judgment dated 6-3-2003 rendered by the learned Special Judge Anti-Corruption, Sargodha, Camp at Mianwali. Muhammad Sadiq and Abdul Wahab appellants were convicted for an offence under section 379, P.P.C. and sentenced to rigorous imprisonment for three years each and a fine of Rs.3,000 each or in default of payment thereof to undergo simple imprisonment for , three months each Zia-ul-Haq appellant was convicted for an offence under section 409, P.P.C. read with section 5(2)of the Prevention of Corruption Act, 1947 and was sentenced to rigorous imprisonment for ten years and a fine of Rs. 10,000 or in default of payment thereof to undergo simple imprisonment for ten months. The benefit under section 382-B, Cr.P.C. was extended to all the appellants.

After hearing the learned counsel for the appellants and going through the record of this case with their assistance it has been observed by me that the allegation against Zia-ul-Haq appellant is that he, in his capacity as a Forest Guard, has sold some water meant for the forest to Muhammad Sadiq appellant and his father Abdul Wahab appellant for the purpose of irrigation of the latter's private lands. The alleged theft had been detected at 4-00 p.m. on 24-8-1998 by a raiding party of Sub-Divisional Khidmat Committee, Bhakkar which had allegedly witnessed irrigation of some private lands by the water meant for a local forest. According to the prosecution's case Muhammad Sadiq and Abdul Wahab appellants had made statements before the raiding party to the effect that the water meant for the forest was sold to them by Zia-ul-Haq appellant. On the basis of a complaint lodged in this regard by Saifullah Khalid, Chairman, Sub-Divisional Khadimat Committee, Bhakkar an inquiry was held by the Anti-Corruption Establishment, Bhakkar and subsequently F.I.R. No.9 was registered at Police Station Anti-Corruption. Establishment, Bhakkar on 9-10-1998 for offences under section 379, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947. After completion of investigation a challan was submitted and after holding a trial the learned trial Court found the prosecution's allegations against the appellants to have been proved beyond reasonable doubt and, thus, the appellants were convicted and sentenced as mentioned and detailed above.
The record of this case shows that no detail of Warabandi pertaining to the relevant forest had been brought on the record of this case and no official of the Irrigation Department had ever been associated with the investigation of this case. As regards the allegation against Zia-ul-Haq appellant regarding criminal breach of trust by him I have found that it had never been established on the record of the learned trial Court that a Forest Guard was entrusted with the water from which the relevant forest was to be irrigated and, thus, there was no question of the allegation regarding criminal breach of trust having been committed by the Forest Guard to have been proved in this case. As regards the alleged bribery and corruption by the said Forest Guard it may suffice for the present purposes that admittedly no prosecution witness had deposed about having been seen passing of any money between Muhammad Sadiq and Abdul Wahab appellants on the one hand and Zia?ul-Haq appellant on the other. It is not disputed that no money had ever been recovered from the possession of Zia-ul-Haq appellant. As far as the allegation pertaining to the offence under section 379, P.P.C. it has been noticed by me that admittedly no stolen property had ever been recovered or secured in this case. It had been admitted by the relevant prosecution witnesses that the amount of water allegedly stolen had never been quantified and the loss suffered in that connection had never been assessed. In these circumstances it was not possible for any criminal Court to convict the appellants for the offences for which they had been convicted by the learned trial Court in the case in hand.

MLD 2005 LAHORE HIGH COURT LAHORE 1453 #

2005 M L D 1453

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD ASIF KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6243/B of 2004, decided on 21st September, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 392, 394 & 337-F(iii)---Bail, grant of---Further inquiry--Police record showed that, accused had not caused any injury and injury was attributed to the co-accused---Whether accused had shared common intention for commission of dacoity or co-accused who fired at the victim, intended to commit his murder, was not clear from the record---Police had stated that accused was present with motorcycles of accused party---No source of light was mentioned as to how witnesses identified accused--Accused who was arrested in case under S. 392, P.P.C., had already been admitted to bail by Trial Court---Present case against accused was also of further inquiry---Accused was admitted to bail, in circumstances.

Zafar Iqbal Chowhan for Petitioner.

Miss Rukhsana Tabbasum for the State along with Azmat Ullah, S.-I.

MLD 2005 LAHORE HIGH COURT LAHORE 1455 #

2005 M L D 1455

[Lahore]

Before Sh. Azmat Saeed, J

MARKET COMMITTEE, FAISALABAD through Chairman---Petitioner

Versus

PROVINCE OF PUNJAB through Collector, Faisalabad and 2 others---Respondents

C.R. No.1489 of 2003, decided on 31st May, 2005.

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

----S.4(b)(ii) [as amended by Punjab Finance Ordinance (XXXVII of 2002)]---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), S.115---Property tax, levy of---Property owned by local authority---Market Committee being local authority claimed exemption from property tax imposed on the property owned by it--Suit was decreed by trial Court in favour of Market Committee but. Appellate Court dismissed the suit on the ground that the exemption from property tax had been withdrawn by Punjab Finance Act, 2002---Validity---Punjab Finance Act, 2002, had come into force with effect from 1st July, 2002, and there was nothing in it which could be interpreted to mean that the amendment effected in S.4(b)(ii) of Punjab Urban Immovable Property Tax Act, 1958, would have retrospective application---Property ov'ned/administered by Market Committee would not be subject to the levy of property tax from year, 1973 to 1-7-2002---Any demand for property tax in respect of such period would be ultra vires of Punjab Finance Act, 2002, without jurisdiction and without lawful authority---Judgment and decree passed by Lower Appellate Court was set aside and that of Trial Court was restored---Revision was allowed accordingly.

Market Committee, Chichawatni District Sahiwal v. Federation of Pakistan 1991 CLC 118 ref.

M.A. Zafar for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. for Respondents.

Fakhar Hussain, Estate, Excise and Taxation Officer, Pakpattan.

MLD 2005 LAHORE HIGH COURT LAHORE 1458 #

2005 M L D 1458

[Lahore]

Before Khawaja Muhammad Sharif and Ch. Iftikhar Hussain, JJ

MUHAMMAD RAFIQ SHAHID---Petitioner

Versus

SPECIAL JUDGE, ANTI-TERRORISM COURT, FAISALABAD DIVISION, FAISALABAD and 2 others---Respondents

Writ Petition No.14913 of 2004, decided on 30th September, 2004.

Anti-Terrorism Act (XXVII of 1997)-----

----Ss.2(x), 6, 7 & 23---Penal Code (XLV of 1860), Ss.380, 436, 440, 148 & 149---Maintenance of Public Order Ordinance (XXXI of 1960), S.16---Constitution of Pakistan (1973), Art.199---Constitutional petition'-Petition for transfer of case to Court of ordinary jurisdiction---Act complained of was fully covered within definition of word "terrorism" as defined in S.2(x) of Anti-Terrorism Act, 1997---Act complained of had shown that a mob perhaps in order to launch protest, had not only blocked the road, but also caused damage to the property lying in the house of sister of complainant by sprinkling kerosene oil on same and burnt those to ashes and also looted valuables therefrom---Such act did not at all suggest any private revenge or personal vendata on the part of mob or the members of unlawful assembly formed for the purpose---Taking out procession and blocking the road and committing other mentioned acts, certainly were designed to overcome the Government or public or community to create sense of fear and insecurity in the society---Act of damaging house and property of sister of complainant fully attracted offence of "mischief" defined in S.6(g) Anti-Terrorism Act, 1997---Act complained of, in circumstances did fall within the meaning of word "terrorism"---Members of unlawful assembly, perhaps wanted to express their anger over incident forming the motive behind the incident mentioned in F.I.R.---Anti-Terrorism Court, in circumstances had jurisdiction to try petitioner and his coaccused---Impugned order being open to no valid exception, petition was dismissed.

Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala PLD 2004 Lah. 199 ref.

Azam Nazir Tarar for Petitioner.

Talib Hussain Chhutha for Respondent No.2. /Complainant.

Tahir Mehmood Gondal, Assistant Advocate-General for Respondent No.3/State.

Date of hearing: 30th September, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 1468 #

2005 M L D 1468

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD ASLAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4074-B of 2004, decided on 12th July, 2004.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 377 & 34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Bail, grant of---Further inquiry---F.I.R., had been lodged with a noticeable delay---Murder had remained unwitnessed and accused had not been nominated in F.I.R. in any capacity whatsoever and his name had been introduced through a supplementary statement made by complainant---Witnesses of alleged extra-judicial confession had made their statements before Investigating Officer regarding the extra-judicial confession after three days of making. of said confessions---Confessions allegedly made by accused and his co-accused before the witnesses had the trappings of a joint confession---Worth and evidentiary value, of said evidence and alleged extra-judicial confession was suspect---Worth and evidentiary value of last seen evidence would be gone into by Trial Court at the time of trial---No other evidence was directly connecting accused with alleged offences---Challan in case had already been submitted after completion of investigation---Continued custody of accused in jail was not likely to serve any beneficial purpose---Accused was stated to be aged about sixteen years and challan' against him had been submitted before a Juvenile' Court---Case against accused, in circumstances attracted provisions of First Proviso to subsection (1) of S.497, Cr.P.C. besides attracting provisions of S.10 of Juvenile Justice System Ordinance, 2000 entitling him to bail---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.

Zafar Iqbal Chowhan for Petitioner.

Raja Sher Zaman Khan with Muhammad Ashraf, A.S.-I. with record for the State.

Ch. Muhammad Riaz Ahmad for the Complainant.

MLD 2005 LAHORE HIGH COURT LAHORE 1470 #

2005 M L D 1470

[Lahore]

Before Muhammad Farrukh Mahmud, J

SHAUKAT ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.68 of 2005/BWP, heard on 2nd June, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 161, 162 & 439---Qanun-e-Shahadat (10 of 1984), Art. 140---Object and purpose of S.162, Cr.P.C.---Intention of legislature in framing S. 162, Cr.P.C. in the manner it did, was to protect accused against the use of statements of witnesses, made before police during investigation, at the trial, presumably on the assumption that said statements were not made in circumstances inspiring confidence---Section 162, Cr.P.C. was conceived in an attempt to find a via media, namely, while it enacted absolute bar against statement being used for any purpose whatsoever and it enabled accused to rely upon it for limited purpose of contradicting a witness in the manner as provided by Art. 140 of Qanun-e-Shahadat, 1984 by drawing his attention to parts of the statement intended for contradiction, same could not be used for corroboration of a prosecution or a defence witness or even a Court witness, nor could it be used for contradicting a defence or a Court witness by prosecution---Article 140 of Qanun-e-Shahadat, 1984 was controlled by 5.162, Cr.P.C. and prohibition contained in S.162, Cr.P.C. could not be defeated---Portion of evidence wherein statement had been, used by prosecution, would be disregarded as evidence, being inadmissible.

Abdul Rehman and another v. The State 1998 PCr.LJ 1523; Muhammad Akhtar and another v. The State 2002 YLR 220; Tahir Waheed and others v. State and another 2005 PCrLJ 1022; Nazir Hussain v. Muhammad Shafi and others PLD 1965 SC 188; Haji Muhammad v. The State PLD 1966 (W,P.) Lail. 344 and Fazlul Haque v. The State PLD 1959 Dacca 931 ref.

Muhammad Zahid Khan for Petitioner.

A.R. Tayyab and Ijaz Ahmad Abbasi for the Complainant.

Hafiz Munir Ahmad for the State.

Date of hearing: 2nd June, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1481 #

2005 M L D 1481

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD ARIF---Petitioner

Versus

MUHAMMAD RAFIQUE---Respondent

Writ Petition No.1442 of 2004, decided on 1st December, 2004.

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

----Ss. 10 & 11---Penal Code (XLV of 1860), Ss.452 & 506---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of complaint---Alleged abductee who was daughter of complainant, had entered into Nikah with accused with her free-will and consent and Nikah was duly registered with the Registrar---Magistrate did not make any inquiry from any Police Officer regarding alleged occurrence---Matter was not reported by complainant to' the police---Complaint was lodged with delay of about 6 days and said extraordinary delay was not explained---Despite the fact that all accused were armed with pistols, knife and Dandas, not a single injury was sustained by complainant---Complaint seemed to be the result of enmity between the parties because alleged abductee being sui juris had contracted marriage with accused with her own free consent which had annoyed the complainant---Complainant initially got a case registered under Offence of Zina (Enforcement of Hudood) Ordinance, 1979 against accused, but same was cancelled on the basis of statement of alleged abductee recorded under S. 164, Cr.P.C.---Filing of complaint and proceedings on basis of said complaint seemed to be with mala fide intention and without due process of law---Proceedings pending on the basis of complaint filed by complainant under Ss. 452 & 506, P.P.C. before Civil Judge/Judicial Magistrate, were quashed, in circumstances.

Mian M. Waseem for Petitioner.

Ibad-ur-Rehman Lodhi for Respondent.

Date of hearing: 1st December, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 1485 #

2005 M L D 1485

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD SHAHID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1100-B of 2005, decided on 18th April, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10---Bail, grant of---Illicit relations were developed between accused and victim who was working as maidservant and she became pregnant---Medicines were administered to her for abortion, but abortion did not take place which prompted her parents to get, a case registered against the accused---Alleged victim who was found pregnant of 20 weeks, was the sole witness of the entire incident---Conduct of the victim and silence for a period of 5 months apparently had brought the case of accused under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Prosecutrix was a woman of easy virtue admitting two fingers easily per report of Medical Officer; her sole statement without independent corroboration could not be relied upon at stage of tentative assessment---Accused was admitted to bail.

Ch. Imran Asmat for Petitioner.

Badar Munir Malik for the State.

MLD 2005 LAHORE HIGH COURT LAHORE 1487 #

2005 M L D 1487

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ALI---Petitioner

Versus

MUHAMMAD NAVEED and others---Respondents

Revision Petition No.264 of 2004, decided on 21st April, 2004.

Juvenile Justice System Ordinance (XXII of 2000)---

----S.7---Determination of age---Medical Board for determining age of accused having not been constituted properly, order impugned in revision petition was set aside---Medical Superintendent of Services Hospital was directed to constitute a Board consisting of Medical Superintendent, himself, Senior Radiologist, Dental Sergeon, Orthopaedic Surgeon and a Professor of Medicine so that actual age of accused could come on record---Board so constituted after examining accused would submit report before Trial Court who would decide matter after perusing said report in accordance with law.

Maaz Allah Khan Sherwani for Petitioner.

Ch. Abdul Rashid and Muhammad Hanif Khatana Addl. A.-G. for Respondents.

Mumtaz Ahmad Legal Advisor, Services Hospital Lahore.

Date of hearing: 21st April, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 1493 #

2005 M L D 1493

[Lahore]

Before Abdul Shakoor Paracha, J

AMIR AKBAR KHAN---Petitioner

Versus

IRSHAD AHMED KHOKHAR and 5 others---Respondents

Writ Petition No.676 of 2005, decided on 14th June, 2005.

Islamabad Rent Restriction Ordinance (IV of 2001)-

-----Ss. 1(2), 2(k) & 7(3)---S.R.O.83(Re)/02, dated 19-7-2002---Notification S.R.O.83(Re)/02, dated 19-7-2002 was issued under Ss.1(2) & 2(k), Islamabad Rent Restriction Ordinance, 2001 declaring such buildings and rented lands in Islamabad Capital Territory to which the Ordinance would extend and whereby urban area within the meaning as defined under the said Ordinance was to be notified---Institution of application in the Court of Rent Controller being in accord with S.7(3) of the Ordinance was lawful.

Raja Hassan Ali Khan v. Additional District Judge, Islamabad and 2 others 2003 CLC 1819 ref.

(b) Islamabad Rent Restriction Ordinance (IV of 2001)---

----S. 17---Constitution of Pakistan (.1973), Art.199---Constitutional petition---Ejectment of tenant---Petitioner not raising point before the Trial Court or the Court of appeal or before the High Court in first round of litigation was estopped by his conduct to raise such point for the first time in Constitutional petition.

----S. 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bona fide personal need of landlord for himself or his children---Scope---Ejectment of tenant on such ground cannot be refused when statement of the landlord on his need is consistent with his averments in the ejectment petition and which has not been shaken in cross-examination or disproved in rebuttal by the tenant.

Muhammad Shoaib Alam and others v. Muhammad Iqbal 2000 SCMR 903 and Hassan Khan v. Mrs. Munawar Begum PLD 1976 Kar. 832 ref.

(d) Islamabad Rent Restriction Ordinance (IV of 2001)---

----S. 17---Bona fide personal need of landlord---Scope---Temporary job by the landlord, waiting vacation of shops needed by him, in order to meet both ends of life, is neither illegal nor does the same negatively reflect on his personal requirement.

(e) Islamabad Rent Restriction Ordinance (IV of 2001)---

----S. 17---Bona fide personal need of landlord---Scope---Failure of landlord to give details of the business to be started in the shops needed by him, his experience in the business to be started and non-disclosure of funds in that behalf were neither relevant factors nor those furnished a concrete basis for his exclusion to utilize his own property.

Muhammad Ramzan v. Mian Muhammad Shahbaz Ranjha 1998 CLC 607 ref.

(f) Islamabad Rent Restriction Ordinance (IV of 2001)---

---S. 17---Bona fide personal need of landlord---Scope---Plea of landlord of utilization of part of rented shops by his doctor daughter having arisen as an additional ground for eviction of tenant would not negate landlord's bona fide personal need---Protection had been given to the tenant under S.17(6) of Islamabad Rent Restriction Ordinance, 2001 to move re-occupation of the rented premises in case the landlord failed to occupy it for his use.

(g) Islamabad Rent Restriction Ordinance (IV of 2001)---

---Ss. 11, 17 & 6---Constitution Pakistan (1973), Art.199---

Constitutional petition---Ejectment of tenant was sought on the grounds

of personal bona fide need, default, sub-leasing and damage to the

property---Contention of the tenant was that he had entered into the

possession of the shops by paying a considerable amount as "Pagri" and thus provisions of Islamabad Rent Restriction Ordinance, 2001 could not be utilized to the benefits of landlord---Validity---Record had not proved that the tenant had paid amount of "Pagri" to the landlord---Provision of S.6, Islamabad Rent Restriction Ordinance, 2001 contemplated that landlord was not to claim any amount in excess of fair rent---Plea that landlord' having received amount as "Pagri" at time of letting out shop to tenant, was debarred from seeking ejectment was repelled for that being a mutual arrangement between the parties would not debar landlord from instituting eviction proceedings on ground of bona fide personal need.

Muhammad Hanif v. Mumtaz Ahmed PLD 1987 Kar. 16 and Sheikh Muhammad Yousaf v. District Judge, Rawalpindi and 2 others 1987 SCMR 307 ref.

Zaheer Bashir Ansari for Petitioner.

Hassan Ahmad Khan Kanwar for Respondents.

Date of hearing: 2nd June, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1501 #

2005 M L D 1501

[Lahore]

Before Muhammad Jehangir Arshad, J

GHULAM HAIDER---Petitioner

Versus

FATEH MUHAMMAD---Respondent

Civil Revision No.692 of 2004/BWP, decided on 4th March, 2005.

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

----Art.84---Civil Procedure Code (V of 1908), O.XXXVII, Rr.2 & 3---Suit for recovery of amount on basis of pro note---Leave to defend suit---Denial of execution of pro note---Comparison of thumb-impression from Handwriting Expert---Defendant who denied execution of pro note on basis of which suit was filed, filed application before Trial Court praying that his alleged thumb-impressions on disputed pro note and receipt be got compared from Handwriting Expert/Finger Print Expert---Said application was dismissed by Trial Court holding that same having been filed after a period of six years, was liable to be dismissed on ground of inordinate delay---Defendant had filed revision petition against order of Trial Court---Defendant not only had denied his thumb-impressions on pro note and receipt in his written statement, but had also filed a separate suit challenging the propriety of disputed pro note and receipt alleging that same was forged and fictitious---Mere delay was no ground per se to disallow any application unless delay itself operated as estoppel against any party from moving such an application---Article 84 of Qanuh-e-Shahadat 1984 did not prescribe any period, within which said application could be moved---Since production of evidence of a Finger Print Expert, was itself one of the modes of evidence recognized by law, party requiring such evidence, would move the Court when stage for moving such application was set and not at an earlier stage when still evidence of other party had to be concluded---Party intending to bring such evidence may not consider such evidence necessary after recording of other party's evidence---To say that application for comparison of thumb-impressions should have been made at an earlier stage, was neither plausible nor requirement of law---Impugned order passed by Trial Court dismissing application of defendant for comparison of thumb-impression, was set aside and application of defendant, was allowed.

PLD 1995 SC 381 ref.

Mehmood Ahmad Bhatti for Petitioner.

Ch. Muhammad Shariful Hassan for Respondent.

Date of hearing: 4th March, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1504 #

2005 M L D 1504

[Lahore]

Before Sardar Muhammad Aslam, J

HALEEM YOUSAF alias CH. PERVAIZ---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.1761-B of 2005, decided on 17th March, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.15---Pre-arrest bail, grant of---Accused was holding double nationality---Accused left for abroad after grant of bail as challan was not submitted in the Court---On submission of challan notices were issued to accused but he failed to appear on which he was proceeded under Ss.87/88, Cr.P.C. and was declared proclaimed offender--Contention of accused was that. he proceeded abroad on assurance of his counsel for posting an intimation on submission of challan and his absence was neither deliberate nor wilful---Accused on direction of High Court surrendered his passport---Accused was granted bail on merit by Trial Court---Accused who was a national of Netherlands also, his proceeding abroad on the assurance of his counsel could not be doubted---Absence of accused, could not be termed as deliberate---Pre-arrest bail of accused was confirmed, in circumstance.

Pervaiz Inayat Malik for Petitioner.

Wajeed-ud-Din Pervaiz for the State.

Date of hearing: 17th March, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1514 #

2005 M L D 1514

[Lahore]

Before Muhammad Muzammal Khan, J

Syed TARIQ ALI through General-Attorney and 2 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, RAWALPINDI and 3 others---Respondents

Writ Petition No.3551 of 2004, decided on 2nd June, 2005.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for recovery of dower amount, dowry articles and maintenance---All three cases were consolidated by Family Court and consolidated issues were framed---Cases were fixed for cross-examination of witnesses of plaintiffs, but counsel for defendants having failed to appear, ex parte proceedings were initiated against defendants and case was adjourned for ex parte arguments---Application for setting aside ex parte proceedings filed by defendants was dismissed and Family Court after hearing ex parte arguments decreed all three suits vide ex parte judgment/decree---Appeal filed by defendants against judgment and decree of Family Court having been dismissed by Appellate Court, defendants had filed Constitutional petition---Validity---Interim order of Family Court had revealed that defendants were allowed five opportunities to cross-examine witnesses of plaintiffs but on each occasion, needful was not done---On one occasion adjournment was granted subject to payment of heavy costs, but despite that none had appeared on behalf of defendants, whereafter no other option was left with the Family Court except to proceed ex parte---ln absence of any sufficient cause for non-appearance of defendants or anybody else on their behalf, ex parte proceedings could not have been set aside---Plaintiffs had produced ex parte evidence in support of their claim in plaints and they had proved their entitlement to maintenance allowance, outstanding dower amount and of dowry articles lying with the defendant---Both Family Court and Appellate Court had not committed any illegality and judgments returned by both Courts were not arbitrary/fanciful---Just decision taken by a competent Court within the ambit of conferred jurisdiction, could not be substituted in Constitutional petition.

Raja Ikram Ameen Minhas for Petitioners.

Abdur Rasheed Sheikh for Respondents.

MLD 2005 LAHORE HIGH COURT LAHORE 1519 #

2005 M L D 1519

[Lahore]

Before Sardar Muhammad Aslam, J

ABDUL JABBAR alias TERRI---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.2580-B of 2005, decided on 26th April, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 337-A(i), 337-A(ii), 337-L(2), 148 & 149---Bail, grant of---Accused had been declared innocent in investigation---Investigation was complete, challan had been submitted and accused was no longer required---Injury attributed to accused was on non-vital part of body of injured---Accused was behind the bars since long and keeping him behind the bars for an indefinite period would not serve or advance prosecution case---Accused was admitted to bail, in circumstances.

Imran Asmat Chaudhry for Petitioner.

Ghulam Asghar Qadri for the State.

Muhammad Ashraf S.H.O.

MLD 2005 LAHORE HIGH COURT LAHORE 1520 #

2005 M L D 1520

[Lahore]

Before Muhammad Khalid Alvi, J

ARBAB CONTRACTING & CO. through Managing Partner---Petitioner

Versus

TEHSIL MUNICIPAL ADMINISTRATION, MULTAN and 2 others---Respondents

Writ Petition No. 2659 and 2823 of 2004, heard on 16th June, 2004.

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

----S. 54---Punjab Local Government (Auctioning of Collection Rights) Rules, 2003, R.5(v), 9, 16 & 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Publication of programme of auctioning of various functions---Validity---Petitioner had challenged auction proceedings on grounds that reserve price had not been mentioned in public notice as published in newspaper regarding programme of auctioning; that calculation of reserve price had not been made on basis of criteria laid down in R.9 of Punjab Local Government (Auctioning of Collection Rights) Rules, 2003; that earnest money was not collected on basis of reserve price and that all said conditions having not been complied with, auction could not have been conducted---Publication revealed that no reserve price was mentioned in it, which was condition precedent to be mentioned in a public notice---Mode of determination of reserve price was also provided by R.9 of Punjab Local Government Auctioning of Collection Rights) Rules, 2003 and earnest money according to R.16 of said Rules, was also to be calculated on the basis of price so determined and was to be mentioned in the publication---Since the very basis regarding reserve price was not available on record, entire proceedings of auction conducted without that basis, was of no legal consequence---Person to whom contract was granted, was an individual who was not competent under S.54(2) of Punjab Local Government Ordinance, 2001 to have any contract of the any of functions of Local Council---Allowing Constitutional petition, High Court declared that advertisement appearing in newspaper was an illegal publication and as a result thereof, auction conducted and contract awarded to the person was also illegal.

2004 YLR 366 ref.

Shahzad Rabbani for Petitioner, Haji Muhammad Aslam for Respondents Nos.1 and 2.

Kanwar Intizar Muhammad Khan for Respondent No.3.

Date of hearing: 16th June, 2004.

MLD 2005 LAHORE HIGH COURT LAHORE 1528 #

2005 M L D 1528

[Lahore]

Before M. Bilal Khan, J

Rana MUHAMMAD HUSSAIN and another---Petitioners

Versus

THE STATE---Respondent

Crl. Misc. No.4528-B of 2005, decided on 17th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 324, 337-F-1 & 34---Prearrest bail, refusal of---Conduct of accused had been one of defiance all along---By procuring statements of witnesses under S.164, Cr.P.C. whereby accused had been exonerated, in fact accused prima facie had tried to suborn prosecution evidence---Accused had audacity to approach the Court again after their bail application had been dismissed on merits---Accused were playing fast and loose with process of law which could not be allowed---Bail petition being meritless was dismissed, accordingly.

Ch. Abdul Rashid for Petitioners.

MLD 2005 LAHORE HIGH COURT LAHORE 1530 #

2005 M L D 1530

[Lahore]

Before Sh. Hakim Ali and Muhammad Farrukh Mahmud, JJ

LAND ACQUISITION COLLECTOR and others---Appellants

Versus

Mst. FAREENA SHAUKAT and others---Respondents

Regular First Appeal No.10 of 1999/BWP, decided on 6th June, 2005.

Land Acquisition Act (I of 1894)---

----Ss. 11, 18 & 54---Acquisition of land---Award of Collector---Reference to Court---Limitation---Authority, if dissatisfied with award given by Collector, could refer the matter to the Court within a period of six months from the date of announcement of the award---Reference was filed by Authority after about one and a half year from the announcement of award---Reference was clearly barred by time as prescribed by sub-section (3) of S.18 of Land Acquisition Act, 1894---Senior Civil Judge having proceeded and decided case on point of limitation as well as on merits, in accordance with law, appeal against impugned judgment, was dismissed.

Government of West Pakistan through Collector, Gujranwala v. Land Acquisition Collector, District Gujranwala and others PLD 1979 Lah. 54 ref.

Shaheen Masood Rizvi, A.A.-G. for Appellants.

Nemo for Respondents.

Date of hearing: 6th June, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1532 #

2005 M L D 1532

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD SIDDIQUE alias SADOO---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.278-B of 2005, decided on 8th February, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 337-A(i), 337-L(2), 148 & 149---.Bail, grant of---Accused was behind the bars since his arrest---General allegation was levelled against accused and no specific role had been assigned to him to have caused injuries to any person---Mere absconding of accused would not deprive him from concession of bail particularly when he was behind the bars for the last one year and there was no likelihood of conclusion of trial in near future---Accused was admitted to bail, in circumstances.

Imran Asmat for Petitioner.

Irshad Qureshi for the State along with Muhammad Hussain, A.S.-I. with record.

MLD 2005 LAHORE HIGH COURT LAHORE 1533 #

2005 M L D 1533

[Lahore]

Before Muhammad Jehangir Arshad, J

ABDUL AZIZ and others---Petitioners

Versus

LAL KHAN---Respondent

Civil Revision No.639-D of 1994/BWP, decided on 3rd February, 2005.

(a) Land Reforms Regulations, 1972 [M.L.R. 115]---

----Para 25---West Pakistan Land Revenue Act (XVII of 1967), Ss. 42 & 44---Specific Relief Act (I of 1877), Ss. 42 & 54---Mutation---Challenge to---Suit for declaration and permanent injunction---Plaintiff had challenged two mutations in respect of land in dispute alleging that same were based on fraud, without consideration, collusive, violative of Law Reforms Regulations 1972 and were liable to be set aside---Suit filed by plaintiff was concurrently decreed by Courts below---Validity---Both Courts below were not justified in recording findings that mutations in dispute were attested in violation of Land Reforms Regulations 1972; firstly because Additional Commissioner and then Board of Revenue being exclusive authorities under the Regulations, had rightly determined the validity of both said mutations by declaring those as validly and correctly sanctioned---In case there was any defect or want of jurisdiction, plaintiff could challenge the same in High Court by way of Constitutional petition and not through civil suit because jurisdiction of Civil Court in such matters was expressly ousted; secondly it was exclusive jurisdiction of authorities constituted under Land Reforms Regulations, 1972 to see validity or otherwise of mutations, if two Courts below were of view that said two mutations were attested in violation of the Regulations, they could refer same to the Land Commissioner---Under no provision of law Civil Court could exercise such powers and declare mutations being violative of Regulates---Findings of two Courts below on issue regarding illegality of mutations, were not maintainable and same were set aside; but their findings regarding issue to the extent that Civil Court had the jurisdiction to determine question of title and determine the legality or otherwise of both mutations, were maintained.

Nasir Ahmad Khan v. Mst. Ismat Jehan Begum 1968 SCMR 667 ref.

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

----S. 54---Registration Act (XVI of 1908), S. 17---Land Reforms Regulations, 1972, [M.L.R.115] Para.25---Oral sale mutation---Legality---Both disputed mutations were attested in 1972 and Notification No.20 issued in 1931 extending provisions of S.54 of Transfer of Property Act, 1882 to the area where land in question was situated was applicable to said area---At the relevant time when both said mutations were sanctioned sale of immovable property within the area where property was situated, could only be effected through registered document in terms of S.17 of Registration Act, 1908 and in the manner provided by S.54 of Transfer of Property Act, 1882---Since provisions of S.54 of Transfer of Property Act, 1882, per force of said Notification had been extended to territorial area where land in dispute was situated, any sale of immovable property worth more than Rs.100, not effected by registered deed, neither would confer any title or interest to claim ownership on a person claiming such right, except defending possession---Both sales in said mutation having been made in violation of S.54 of Transfer of Property Act, 1882 as well as S.17 of Registration Act, 1908, were illegal, void and findings of two Courts below were maintained---Revision against concurrent judgments of Courts below in that respect was dismissed, in circumstances.

Jandi v. Jhanda and others PLD 1961 (W.P.) Baghdad-ul-Jadid 34; Sohna v. Allah Dad and another PLD 1962 Baghdad-ul-Jadid 17; Muhammad Amin and others v. Mian Muhammad PLD 1970 B.J 5; Muhammad Bakhsh v. Zia Ullah and others PLD 1971 Baghdad-ul-Jadid 42;, Pir Bakhsh v. Budhoo PLD 1978 Baghdad-ul-Jadid 86 and Muhammad Masood Khan Bhatti v. Mst. Ghulam Fatima 1987 SCMR 1206 ref.

----Ss. 124 & 125---Receiving consideration or deriving benefit under void contract---Any person receiving consideration or deriving any benefit under a void contract, was liable to return same or to indemnify promise in terms of Ss.124 and 125 of Contract Act, 1872.

Haji Muhammad Shah v. Sher Khan and others PLD 1994 SC 294 and Federation of Pakistan v. Public at Large 1998 SCMR 2041 ref.

Ch. Wazeer Muhammad and Zafar Iqbal Awan for Petitioners. A.R. Tayyab for Respondent No. 1.

Date of hearing: 17th January, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1543 #

2005 M L D 1543

[Lahore]

Before Maulvi Anwarul Haq and Ijaz Ahmad Chaudhary, JJ

ALLAH BAKHSH and others---Petitioners

Versus

CHAIRMAN, FEDERAL LAND COMMISSION, PAKISTAN, ISLAMABAD and others---Respondents

Writ Petition No.2643 of 1999, heard on 14th April, 2005.

Punjab Land Reforms Rules, 1972-----

----R.13---West Pakistan Land Reforms Regulation, 1959 [MLR 64] Regln. 8---Land Reforms Regulation, 1972 [MLR 115], Para. 18---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Resumption of allotted land---In the matter of allotment of land resumed under MLR 64 and for that matter M.L.R.115, preferential right in the matter of allotment vested in a landless tenant---Though in the order passed under MLR 64 it was mentioned that no person was found to be in cultivating possession of resumed land for the relevant harvests, but no finding was recorded that there was no landless tenant in the village in question or for that matter in possession of said land and it was primarily for that reason that Deputy Land Commissioner, who passed said order, had himself concluded that he had passed a wrong order---Chief Land Commissioner did record an order dismissing revision petition for reasons stated by him and thereafter he found it to be a case for exercise of suo motu revisional jurisdiction and then he proceeded to pass order for reasons which had not even been questioned---Deputy Land Commissioner had been directed to conduct proceedings in accordance with law and consequently all concerned including petitioners, would be heard and thereafter appropriate orders would be passed---Impugned order, apart from being with jurisdiction, was legal and just and same could not be interfered with in exercise of Constitutional jurisdiction.

Federal Government of Pakistan and another v. Khurshid Zaman Khan and others 1999 SCMR 1007 ref.

Mian Muhammad Arshad Latif for Petitioners.

M. Qasim Khan, A.A.-G. for Respondents Nos.1 to 4.

Syed Murtaza Ali Zaidi for LRs for Respondent No.5.

Date of nearing: 14th April, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1545 #

2005 M L D 1545

[Lahore]

Before Fazal-e-Miran Chauhan, J

Mian ALLAH DITTA---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.48 of 2005, decided on 13th June, 2005.

(a) Penal Code (XLV of 180)-----------

---------S. 311--Tazir after waiver or compounding of right of Qisas in Qatl-i-Amd---Mechanism provided under S.311, P.P.C., had manifestly suggested that even after waiver or composition by the Walis/heirs of deceased, the Court was still empowered to convict accused and punish him to imprisonment which could be extended to 14 years by way of Tazir, if all the Walis had not compounded or waived the right of Qisas or accused came within the ambit of terms "Fisad-fil-Arz---In' explanation appended to S.311, P.P.C. "Fisad-fil-Arz" had been defined to include the past conduct of offender as being a previous convict, habitual or professional criminal and brutal manner in which offence was committed.

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

------S. 345(2)(3)-Penal Code (XLV of 1860), S. 302---Compounding of offence---In case of Qatl-i-Amd under S.302, P.P.C., offence could be compounded by the heirs of victim under subsection (2) of S.345, Cr.P.C.---Under subsection (3) of S.345, Cr.P.C., where offence was compoundable under S.345, Cr.P.C., the abetment of such offence or an attempt to commit such offence (when such offence was itself an offence), could be compounded in the like manner, which means, by the legal heirs of victim.

---S. 345---Penal Code (XLV of 1860), Ss. 302, 201, 109 & 34---Appreciation of evidence---Compounding of offence---Case was pending trial before Trial Court in which no sentence had been pronounced---Subsection (2) of S.345, Cr.P.C. had provided that offences punishable under sections of P.P.C., as specified in first two Columns of the Table next following, .could be compounded by the person mentioned in 3rd column of the. table, with the permission of Court, before which any prosecution for such offence was pending---No condition was laid down in that section that offence to be compounded only on completion of trial and not before it---Under S.345(2), Cr.P.C. an offence could be compounded with permission of the Court before which any proceeding for such, offence was pending---Contention that offence was only compoundable and application for compromise could only be entertained after accused were convicted by the Trial Court and not before that, was rejected having no force.

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

---- S. 345---Penal Code (XLV of 1860), Ss. 302, 311, 201, 109 & 34---Appreciation of evidence---Compromise---Case of unseen occurrence as no eye-witness had witnessed the incident---`Qatl-i-Amd' liable, to Qisas was yet to be proved---No confession of accused was on record; in such eventuality question of application of Qisas was ruled out---Legal heirs of victim had forgiven accused' and had no. objection if accused was acquitted--Right of Qisas was waived without any compensation and compromise was effected between accused and legal heirs of victim---Under S..345(2), Cr.P.C. offence under S.302, P.P.C. had been made compoundable by legal heirs of deceased; in view of said clear-cut provision of law, compromise should be implemented---Application of Tazir after waiver or compromise of right of Qisas in Qatl-i-Amd, was applicable in those cases where there was no compromise regarding the case as a whole and only right of Qisas was waived under S.309, P.P.C. or there was a pending right of Qisas under S.310, P.P.C; only then discretion provided under S.311, P.P.C., was available---After compounding of offence under Ss.309 & 310, P.P.C., the Court was left with no option, but to accept the compromise---Principle of S.311, P.P.C., in circumstances was not attracted in the case---Impugned judgment of Trial Court was set aside, with the result that application under S.345, Cr.P.C. would be deemed to be pending which would be decided by Trial Court.

2002 PCr.LJ 16; Ijaz alias Iji v. The State 2000 PCr.LJ 1116 and Moula Bux v. The Sate 1992 MLD 1590 ref.

Malik Muntazir Mehdi and Malik Sajjad Ahmed Wains along with Gohar Mehmood Piracha for Petitioners.

Muhammad Qasim Khan A.A.-G. for Respondent.

Ehtisham Hussain DSP Legal Multan, Talib Hussain Inspector and Muhammad Ismail S.I. Police Station Gulgusht, Multan.

Date of hearing: 23rd May, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1552 #

2005 M L D 1552

[Lahore]

Before Maulvi Anwarul Haq, J

GHULAM SARWAR and others---Petitioners

Versus

ALLAH WASAYA and another---Respondents

C.R. No.568 of 2005, and C.M. No.1-C of 2005, decided on 8th June 2005.

Contempt of Court-

----Suit for permanent injunction restraining defendants from encroachment upon specific Khasra No. of land---Undertaking of defendants not to commit any encroachment---Violation of such undertaking---On filing suit for permanent injunction restraining defendants from encroaching. upon Khasra in question ,or placing any Khokha' thereon, counsel for defendants made a statement that defendants would not make any encroachment and would not place anyKhokha' thereon---On said undertaking suit was dismissed having become infructuous---Plaintiff subsequently filed application stating that defendants had violated their undertaking and had put their Khokha' on the said Khasra No.---Local Commissioner duly appointed had reported thatKhokha' had been placed on said Khasra No. and it had fully been proved that defendants had violated their undertaking and had committed contempt of Court---Undertaking given to the Court by a party or his counsel had exactly the same force as an order made or an injunction issued by a Court---Once an undertaking was given to the Court by a party or on his behalf by his counsel, said party would be bound to fulfil the same---After the Court had sanctioned a particular course of action or inaction according to statement of a party, said party would place himself in a perilous situation if later he would commit a breach of that undertaking and such a conduct on his part would amount to contempt of Court---Defendants were bound to obey order of Trial Court whereby Court had directed to remove alleged `Khokha' from the land of plaintiff---Specific Relief Act (I of 1877), S.54.

Ch. Gulzar Khan and 3 others v. Saghir Ahmed and 7 others 2004 ML D 402; Muhammad Afzal Khan v. Muhammad Sadiq 2003 CLC 1318; Muhammad Fazil v. Ch. Muhammad Ashraf through Legal Heirs and 6 others 1999 YLR 350; Mst. Nasim Akhtar v. Rao Abdul Hameed and another 2001 SCMR 896 and Mst. Kishwar Sultan Jehan Begum v. Aslam Awais and 3 others PLD 1976 Lah. 580 ref.

M.R. Fakhar Baloch Advocate.

MLD 2005 LAHORE HIGH COURT LAHORE 1569 #

2005 M L D 1569

[Lahore]

Before Asif Saeed Khan Khosa, J

Rana NASIR ZAHEER---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4122-B of 2004, decided on 1st July, 2004.

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

-------S. 497(2)-Emigration Ordinance (XVIII of 1979), Ss. 17 & 22---Bail, grant of---Further inquiry---No material whatsoever was collected by Investigating Officer during investigation in support of allegations levelled against accused in F.I.R.---During investigation some oral statements were made by complainant and prosecution witnesses before Investigating Officer and as against that, accused had submitted his written statement before Investigating Officer maintaining his innocence and attributing falsehood to complainant party---F.I.R. showed that complainant's brother had been taken by, accused with him to Iran where accused had disappeared leaving brother of complainant in lurch where after brother of complainant had returned to Pakistan on his own--Investigating Officer had stated that no documentary proof whatsoever was produced by complainant party before him regarding going of brother of complainant and accused to Iran or their returning to Pakistan---Investigating Officer, during investigation had stated that neither Identity Card nor Passport of brother of complainant had been produced by complainant party nor same were recovered from possession of accused---Case against accused in circumstances, was one of oral allegation by complainant party and a written denial by accused before Inquiry Officer---There being no other material available on record, it was not possible for the Court to conclude that reasonable grounds existed to believe involvement of accused in alleged offences---Investigation of case had already been finalized and physical custody of accused was not required for the purpose of investigation---Case against accused calling for further inquiry into his guilt within the purview of subsection (2) of S.497, Cr.P.C., he was admitted to bail.

Fayyaz Ahmad Mehr for Petitioner.

Ishfaq Ahmad Chaudhry for the State.

Shaukat Ali, Inspector, FIA/PC with record.

MLD 2005 LAHORE HIGH COURT LAHORE 1571 #

2005 M L D 1571

[Lahore]

Before Maulvi Anwarul Haq, J

RIASAT ALI and 8 others---Petitioners

Versus

HABIB ULLAH and 4 others---Respondents

Civil Revision No.232-D of 1988, heard on 4th May, 2005.

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

---Ss. 6 & 13---Suit for pre-emption---Superior right of pre-emption, proof of---Plea of estoppel---Plaintiffs filed suit on ground that they being co-owners in Khata in question and owners in estate, had superior rights of ,pre-eruption---Plaintiffs by producing evidence had fully proved their claim that they were owners in estate and had a superior right of pre-emption---Defendants could not prove to be co-owners in suit-land---Defendants had alleged that plaintiffs were party to sale in favour of defendants and said transaction was completed through them and that plaintiffs had promised that they would not file suit for pre-emption--Defendants could not prove said plea of estoppel as defendants witness had simply stated that plaintiffs were present and said evidence was also rebutted by plaintiffs---Suit, in circumstances was rightly decreed concurrently by Courts below and revision against said judgment, was dismissed.

Ali Muhammad v. Shera and another 1987 SCMR 207; Salehon Muhammad and others v. Khan Muhammad and others 1977 SCMR 297; Ghulam Hussain Arshad and others v. Allah Ditta and others 1993 SCMR 1486 and Jam Pari v. Muhammad Abdullah 1992 SCMR 786 ref.

Khadim Nadeem Malik for Petitioners.

Izhar-ul-Haq Gillani for Respondents.

Date of hearing: 4th May, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1574 #

2005 M L D 1574

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

Malik MUHAMMAD SALEEM---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No. 7212-B of 2004, decided on 2nd December, 2004.

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

----S. 497(2)---Emigration Ordinance (XVIII of 1979), Ss. 17 & 22---Bail, grant of---Further inquiry---Allegation against accused was that he had received amount along with Passport etc., from complainant on pretext of sending him abroad for employment, but that commitment was never honoured nor amount had been returned by accused to complainant---Record of case had revealed that a dispute of settlement of. account existed between the parties and a cheque issued by accused in favour of complainant was not honoured---In view of facts/data available on record possibility that dispute was of settlement of account between parties and that case had been got registered by twisting the facts, could not be ruled out---Case against accused being of further inquiry, accused was admitted to bail.

Fayyaz Ahmad Mehr for Petitioner.

Mirza Shabbir Baig for the Complainant.

Muhammad Jahangir Wahlah Standing Counsel with Muhammad Shafique S.I./FIA.

MLD 2005 LAHORE HIGH COURT LAHORE 1577 #

2005 M L D 1577

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ASHIQ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, VEHARI/ ELECTION TRIBUNAL KHANEWAL CAMP AT

VEHARI and others---Respondents

W.Ps. Nos.306 and 1500 of 2005, heard on 31st May, 2005.

(a) Punjab Local Government Election Rules, 2000---

----R.14 (e)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Qualification of candidate---Objection was raised to the qualification of the candidate, for his not being a matriculate-Witnesses who appeared before Election Tribunal stated that the certificate produced by the candidate was bogus---Election Tribunal holding that the candidate had filed bogus matric certificate with his nomination papers rejected the same---Validity---Candidate had neither questioned the statement of the witness nor led any evidence in rebuttal, Election Tribunal rightly declared that the candidate was not qualified to contest the election---High Court declined to interfere in the order passed by Election Tribunal---Petition was dismissed in circumstances.

Ch. Maqbool Ahmad and others v. Malik Falak Sher Farooqa, ADJ/Election Tribunal and others PLD 2003 Lah. 138; Haji Alam Sher v. Malik Muhammad Nawaz and others 2004 SCMR 1021; Mian Ahmed Saeed and others v. Election Tribunal, for Kasur at Okara and others 2003 SCMR 1611; M/s. M.A. Chaudhry and 3 others v. National Bank of Pakistan, Faisalabad through General Attorney 2005 CLD 875; Dr. Liaqat Ali Khan and another v. District Returning Officer, District Sargodha and 3 others 2002 SCMR 1632; Fazal Muhammad v. Mst. Chohara and others 1992 SCMR 2182 and Abdul Nasir and another v. Election Tribunal, T.T. Singh and others 2004 SCMR 602 ref.

(b) Punjab Local Government Election Rules, 2000---

---R.72 (2)---Election petition---Non-assailing of notification---Objection was raised to election petition that the notification was not questioned by the petitioner---Validity---Prayers to be made before Election Tribunal and relief granted were duly specified in Punjab Local Government Election Rules, 2000---No statutory or legal requirement of questioning a notification---Election was to be questioned and the allegations were to be dealt with accordingly by the Election Tribunal---Objection was repelled in circumstances.

--R.72 (3)---Civil Procedure Code (V of 1908), S.139, O.VI, R.15 & O.XIX---Verification of pleadings---Affidavit, proof of fact---Validity---Powers of Court under S.139 C.P.C., pertaining to order proof of facts by an affidavit, are to be read along with the provisions of O.XIX C.P.C.---Verification is neither evidence nor proof and simply because a pleading is verified does not convert same into proof.

Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 other 2000 SCMR 250 rel.

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

---O.XIII, R.4---Endorsement on document admitted in evidence---Document marked instead of exhibit---No objection was noted on the record produced by witness during his evidence and the. same was marked instead of exhibit---Effect---Marking of such documents would not derogate from the probative value of the same.

Tahir Mehmood and Mian Arshad Latif for Petitioner.

Rana Asif Saeed for Respondents Nos. 2 and 3.

Date of hearing: 31st May, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1582 #

2005 M L D 1582

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

ZAFAR IQBAL---Petitioner

Versus

THE STATE---Respondent

CO. Misc. No.7280-B of 2004, decided on 21st December, 2004.

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

----S. 497---Emigration Ordinance (XVIII of 1979), Ss. 17 & 22---Bail, grant of---Accused was behind the bars for the last more than eight months and prosecution had not submitted challan before Trial Court- - Nothing was recovered from accused during investigation and entire case of prosecution rested upon oral statements of prosecution witnesses---Investigation in case was almost complete and accused was no more required for said purpose---In view of conduct of Investigating Agency i.e. delay in submitting challan before the Trial Court, accused was admitted to bail.

Fayyaz Ahamd Mehr for Petitioner.

Munawar Iqbal Ranjha Ispector (Legal) FIA.

MLD 2005 LAHORE HIGH COURT LAHORE 1584 #

2005 M L D 1584

[Lahore]

Before Maulvi Anwarul Haq, J

Miss SUMAIRA KANWAL---Petitioner

Versus

BAHAUDDIN ZIKRIYA UNIVERSITY through Vice-Chancellor, Multan and 2 others---Respondents

Writ Petition No.1849 of 2005, heard on 22nd June, 2005.

Educational institution---

----Examination---Petitioner, who appeared in B.A Examination, was declared passed in second division and a result card was issued to her---Petitioner obtained 442 out of 800 marks, but she came to know that she got 63/200 marks in Economics paper and failed---Petitioner filed regular form disclosing that she wanted to appear yin Economics paper, she paid admission fee and was allocated a roll number---Petitioner appeared in examination and was declared passed with 103/200 marks in Economics paper enabling her to be placed in First Division---Result of petitioner however was not declared and she was asked to surrender her result card---Under University Rules, said result card had been cancelled and her result was also proposed to be quashed on the ground that she had declared that she wanted to improve her division and for that purpose she had to appear in all subjects---Petitioner, who was declared passed in B.A. Examination originally undertaken by her, though had mentioned in Forms that she wanted to improve her division, but at the same time she had duly stated that she would be appearing only in the paper of Economics---Permission was granted to petitioner to appear by University Authorities through some inadvertent error---Petitioner being a bona fide student, should have knowledge of Rules governing her studies in the University, which were applicable to all students and out of way benefit could not be conferred upon petitioner---Constitutional petition was disposed of with the direction that result card already issued to petitioner declaring her pass in original B.A. Examination undertaken by her in all subjects, be released to her as she intended to file an application for admission to a higher class in Economics subject.

Muhammad Rizwan Fayyaz v. Lahore Board of Intermediate and Secondary Education 2000 MLD 108 ref.

Rafiq Ahmad Malik for Petitioners.

Malik Muhammad Tariq Rajwana for Respondents.

Date of hearing: 22nd June, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1593 #

2005 M L D 1593

[Lahore]

Before Muhammad Nawaz Bhatti, J

Syed ZAFAR ALI SHAH-Petitioner

Versus

FALAK SHER FAROOKA, ADDITIONAL DISTRICT & SESSIONS JUDGE, MULTAN and 4 others---Respondents

W.P. No.2762 of 2005, decided on 17th May, 2005.

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

----S. 22-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Powers and duties of Justice of Peace---Section 22-A, Cr.P.C. was intended to lessen the burden of High Court whereby such-like matters ought to be resolved by the Court of first instance by deciding the matter---Article 199 of the Constitution had empowered High Court to review or set aside order passed under S.22-A, Cr.P.C., but such powers could only be exercised if lower Court had not applied mind or had overlooked some material aspect of the case---When lower Court had passed a well-reasoned order keeping in view the facts of the case, no interference was required by High Court and such approach to High Court should be discouraged.

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

----Art. 199---Constitutional jurisdiction---Scope---Constitutional petition under Art. 199 of the Constitution was a discretionary jurisdiction whereby the Court had to be satisfied regarding the matter and when appropriate remedy was available to petitioner Constitutional petition was not competent.

Malik Khalid Mehmood v. Inspector. General of Police Punjab and others 2002 PCr.LJ 1613; Fida Hussain v. The State 1975 SCMR 150 and Abdul Wahid Khan v. Government of the Punjab and others PLD 1989 SC 508 ref.

Mian Ashfaq Ahmad Sial for Petitioner.

Muhammad Qasim Khan, A.A.-G. on Court's call.

MLD 2005 LAHORE HIGH COURT LAHORE 1597 #

2005 M L D 1597

[Lahore]

Before Maulvi Anwarul Haq, J

TEHSIL COUNCIL RAJANPUR through Nazim---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, RAJANPUR and 11 others---Respondents

W.P. No.1966 of 2005, decided on 13th April, 2005.

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

----S.115 & O.XXIII, R.1(2)---Revision---Withdrawal of suit for permanent injunction with permission to file fresh suit for declaration and possession, prayer for---Defendant's counsel expressing no objection---Order of High Court "dismissed as withdrawn"-Defendant pleaded absence of express order of Court permitting withdrawal of suit with permission to file fresh suit---Validity---Court could accept or reject both such prayers, but could not withhold permission to bring fresh suit while allowing withdrawal of suit---Such an order need not be expressed, but same could be inferred from attending circumstances.

S. Nasir Ali v. Feroze Din Rana and another 1969 SCMR 933; Pakistan Industrial Development Corporation v. Pakistan through Secretary, Ministry of Finance Islamabad and another PLD 1984 Kar. 1; Raja Bashir Ahmad Khan v. Azad Government and another 1998 CLC 213 and Karim Gul and another v. Shahzad Gul and another 1970 SCMR 141 fol.

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

---O. XXIII, R.1(2)---Withdrawal of suit with permission to file fresh one---Prayer with such relief must be made by plaintiff either in writing or verbally, and then Court would consider such prayer.

Mian Mushtaq Ahmad, Advocate.

MLD 2005 LAHORE HIGH COURT LAHORE 1600 #

2005 M L D 1600

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUHAMMAD AKRAM---Petitioner

Versus

THE DISTRICT POLICE OFFICER LODHRAN and 6 others---Respondents

W.P. No. 3088 of 2005, decided on.28th June, 2005.

Police Order (22 of 2002)---

---Art. 18(5)(6)---Penal Code (XLV of 1860), Ss. 337-A(ii), 365 & 34--- Constitution of Pakistan (1973), Art. 199---Constitutional petition---Transfer of investigation-Petitioner/complainant had prayed that order passed by District Police Officer for transfer of investigation of case to other Police Station be set aside declaring same to be illegal and without jurisdiction---D.S.P. who, on direction of District Police Officer, investigated the case, declared one of accused persons innocent after thorough investigation---Power of judicial review available to High Court under Art. 199 of the Constitution, would not extend to investigation into question of fact or appraisal of evidence touching issues falling within authority of Administrative Tribunal or executive functionaries---Factual controversy could not be resolved through Constitutional petition---Even otherwise petitioner had got an adequate remedy available, in presence of which no interference was called for.

Aziz Ahmad v. Provincial Police Officer Punjab, Lahore and others PLD 2005 Lah. 185; Ikram ul Haq v. Inspector General of Police, Punjab, Lahore and others 2005 PCr.LJ 754; Muhammad Yaqub v. Zahir Alam and others PLD 1976 Quetta 77; Khadim Hussain v. Assistant Collector PLD 1977 Lah. 194 and Muhammad Ashfaq v. Martial Law Administrator PLD. 1979 Kar. 465 ref.

Muhammad Tariq Nadeem for Petitioner.

Sardar Mehboob for Respondents Nos.4 to 7.

Mubashar Latif Gill, A.A.-G.

Nazar Abbas, DSP and Ghulam Muhammad Inspector.

MLD 2005 LAHORE HIGH COURT LAHORE 1613 #

2005 M L D 1613

[Lahore]

Before Muhammad Nawaz Bhatti, J

Ch. SAEED AHMED---Petitioner

Versus

ABDUL KHALIQ BHATTI and 2 others---Respondents

Cr. Misc. No.145-CB of 2005, decided on 28th June, 2005.

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

----S. 497(5)---Bail, cancellation of---Guiding Principles---Considerations for cancellation of bail were different from the considerations for grant of bail---Strong and exceptional grounds were needed for cancellation of bail when bail was granted by a competent Court---Subordinate Court could cancel the bail if bail was granted by a Court having no jurisdiction to grant it; accused on bail committed same offence for which he was being tried or had been convicted; accused on bail hampered investigation; accused on bail tampered with evidence; accused absconded after grant of bail; accused got bail on basis of false averments regarding his age or illness etc.; accused was implicated as principal offender in several cases badly affecting the society at large such as in cases of heroin smuggling; granting of bail to accused had become a foundation of revenge against complainant party, prosecution or witnesses, etc. and; bail order of subordinate Court was devoid of reasoning while granting bail and facts of case were fully implicating accused for attracting S. 497(1), Cr.P.C.

Muhammad Ramzan v. Taj Muhammad and another 1996 PCr.LJ 2006 and Bashir Ahmad v. Mirza Muhammad Yaqoob 1991 MLD 579 ref.

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

------S. 497(5)-Penal Code (XLV of 1860), Ss. 406 & 506(b)---Application for cancellation of bail---Validity---No evidence was available that accused had put any pressure on complainant---No further proof was on file to show that accused had misused the concession of bail or any likelihood was of his abscondence---Challan of case had been submitted and trial had commenced---Petition for cancellation of bail, was dismissed, in circumstances.

Mirza Ejaz Baig for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 1615 #

2005 M L D 1615

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. MAQSOOD MAI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 3 others---Respondents

W.P. No.3685 of 2004, heard on 21st June, 2005.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition----Suit for jactitation---Petitioner filed suit seeking jactitation that she was not legally wedded wife of respondent but was wife of some other person---Petitioner had alleged that her father took her away and after taking a huge amount, handed over her to the respondent who had obtained her thumb-impressions on various papers---Lady also alleged that she was coerced to make a statement in the High Court when she was produced by Bailiff---Suit filed by petitioner was concurrently dismissed by Courts below---Petitioner who had denied valid marriage with the respondent was not confronted with statement which she had made in the Court allegedly under coercion---In absence of any evidence of valid marriage said statement of petitioner if read as a whole would not constitute evidence of marriage particularly in view of evidence that it was procured under duress---Impugned concurrent judgment and decree of Courts below, were declared to be without lawful authority and were set aside---Resultantly suit filed by petitioner, was decreed against the respondent.

Ch. Anwarul Haq for Petitioner.

Respondent No.3 Ex parte.

Date of hearing: 21st June, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1618 #

2005 M L D 1618

[Lahore]

Before Muhammad Nawaz Bhatti, J

Mst. UZMA BIBI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE, VEHARI and 7 others---Respondents

W.P. No.2989 of 2005, decided on 25th May, 2005.

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

---Ss. 10 & 16---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Transfer of investigation---Competency--Petitioner had prayed for setting aside order whereby Trial Court had transferred investigation of case to another Police Station---Petitioner had alleged that impugned order had been passed without summoning accused and in that they had been condemned unheard and that impugned order was violative of principle of natural justice---Trial Court had recorded finding of fact and had passed a speaking order---No interference was needed in impugned order, in circumstances---Even otherwise Constitutional petition under Art. 199 of Constitution of Pakistan (1973) was a discretionary jurisdiction whereby the Court had to be, satisfied regarding the matter and when appropriate remedy was available to petitioner, Constitutional petition was not competent.

Malik Khalid Mehmood v. Inspector-General of Police Punjab and others 2002 PCr.LJ 1613; Fida Hussain v. The State 1975 SCMR 150 and Abdul Wahid Khan v. Government of the Punjab and others PLD 1989 SC 508 ref.

Muhammad Khalid Ashraf Khan for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 1647 #

2005 M L D 1647

[Lahore]

Before Maulvi Anwarul Haq, J

ALI AHMAD, (SUB-INSPECTOR)---Petitioner

Versus

ADDITIONAL DIRECTOR ANTI-CORRUPTION ESTABLISHMENT, MULTAN REGION, MULTAN---Respondent

W.P. No.5933 of 2004, heard on 22nd June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 154---Penal Code (XLV of 1860), Ss. 161, 380 & 452---Prevention of Corruption Act (II of 1947), S. 5(2)---Punjab Anti-Corruption Establishment Rules, 1985---Constitution of Pakistan (1973), Art. 199--- Constitutional petition---Quashing of F.I.R.---F.I.R. had made out a case of commission of a cognizable offence against petitioner/accused and his accomplices---Petitioner had contended that as complainant had made allegation that some amount had been paid as bribe and remaining was to be paid, but no raid was conducted, case could not have been registered against petitioner without preliminary investigation under Punjab Anti-Corruption Establishment Rules, 1985 framed under Anti-Corruption Establishment Ordinance, 1961-Validity-Rules framed under Anti-Corruption Establishment Ordinance, 1961 were not mandatory and were not to be read in derogation from parent statute itself and it was not at all mandatory requirement of law that a preliminary inquiry be conducted in every case---provisions of Cr.P.C. including S. 154, Cr.P.C: had to take effect---Constitutional petition being frivolous, was dismissed.

M. Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101; Mirza M. Igbal v. Government of Punjab PLD 1999 Lahore 109 and Muhammad Yousaf v. Director Anti-Corruption Establishment, Punjab, Lahore and 5 others PLD 2004 Lahore 284 ref.

Malik Faiz Rasool for Petitioner. M. Qasam Khan, A.A.-G.

Zafarullah Khakwani, A.A.-G.

Ghulam Mustafa, Assistant Director (Legal) and Javed Iqbal CO/ECE, Multan.

Date of hearing: 22nd June, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1649 #

2005 M L D 1649

[Lahore]

Before Muhammad Jehangir Arshad, J

IRSHAD BEGUM ---Petitioner

Versus

CHAIRMAN, ARBITRATION COUNCIL and others---Respondents

W.P. No.2331 of 2005, decided on 4th July, 2005.

Muslim Family Laws Ordinance (VIII of 1961)---

----S. 6---Constitution of Pakistan (1973), Art: 199---Constitutional petition---Competency---On filing application by respondent under S.6 of Muslim Family Laws Ordinance, 1961 seeking permission for contracting second marriage, Chairman Conciliation Council, after completion of procedural requirements, accorded permission---Petitioner lady instead of filing revision against said order of Chairman, in terms of S.6(4) of Muslim Family Laws Ordinance, 1961, had directly filed Constitutional petition-Validity-Order passed by Chairman could not be termed as void order as alleged by petitioner and remedy provided against said order in form of revision before Collector, was quite adequate remedy---In view of availability of alternative remedy of revision, Constitutional petition by petitioner was not competent.

Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 SC 246 ref.

Ch. Naseer Ahmad for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 1657 #

2005 M L D 1657

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD NAEEM---Petitioner

Versus

FAIZ MUHAMMAD and 2 others---Respondents

Criminal Miscellaneous No.52 of 2005/CB, decided on 13th June, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 498---Penal Code (XLV of 1860), Ss. 324, 337-H(2), 427, 452, 148 & 149---Cancellation of bail---Application for---Accused and applicant/complainant were real brothers---Accused were granted interim bail and applicant/complainant made a statement that if respondents/accused would give undertaking that they would not initiate criminal proceedings against him, he would have no objection on confirmation of interim bail granted to accused---Respondents/accused gave undertaking that they would not take any illegal action against complainant---Trial Court after recording statements of parties confirmed ad-interim bail granted to accused---Subsequently, complainant filed application for cancellation of bail, but Trial Court after hearing parties dismissed said application which had no merits and complainant had filed Criminal Miscellaneous Application before High Court against order of Trial Court---Only ground urged by complainant was that respondents had initiated a criminal proceedings under S.145, Cr.P.C. against complainant---Complainant had failed to point out any reasonable ground for cancellation of bail granted to accused---Respondents/accused while giving undertaking had stated that. they would not take any illegal action against complainant---Initiating proceedings under 5.145, Cr.P.C. were legal proceedings and no bar was imposed by Trial Court on accused vide its order from taking legal action through Court of law against complainant---In fact both parties were allowed by the Trial Court to resort to legal proceedings and were restrained from taking any criminal act or action against each other---In absence of any plausible ground for cancellation of bail, application in that respect, was dismissed.

Pir Muhammad Asif Raffi Shah for Petitioner.

Muhammad Javed Iqbal Adum for Respondents.

Rao Muhammad Asif Nawaz State Counsel with Muhammad Ashraf, A.S.-I. P.S. Bohar Gate.

MLD 2005 LAHORE HIGH COURT LAHORE 1663 #

2005 M L D 1663

[Lahore]

Before Maulvi Anwarul Haq, J

Haji SHAH MUHAMMAD---Petitioner

Versus

MEMBER (JUDICIAL-IV) BOARD OF REVENUE, PUNJAB, LAHORE and 2 others---Respondents

Writ Petition No.6488 of 2004, heard on 8th June, 2005.

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

----S. 36---West Pakistan Land Revenue Rules, 1968, Rr. 16 & 17---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Appointment of Lamberdar---Collector appointed petitioner as Lamberdar, but Member, Board of Revenue taking suo motu action, set aside order of Collector observing that a murder case was pending against the petitioner---Validity---Pending criminal proceedings against petitioner would not prove that he was a criminal unless he was convicted by a Court of law---Impugned order passed by Member, Board of Revenue being without jurisdiction, was set aside by High Court accepting Constitutional petition---Order of appointment of petitioner passed by Collector, would remain intact, in circumstances.

Ghulam Abbas v. Member Board of Revenue, Punjab Lahore and 5 others 1992 SCMR 1977 ref.

Ch. Abdul Sattar Goraya for Petitioner.

Zafarullah Khan Khakwani, A.A.-G. (On Court call).

Sagheer Ahmad Bhatti for Respondents Nos.2 and 3.

Date of hearing: 8th June, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1690 #

2005 M L D 1690

[Lahore]

Before Sh. Javaid Sarfraz and Fazal-e-Miran Chauhan, JJ

NIAZ HUSSAIN SHAH---Appellant

Versus

THE STATE---Respondent

Crl. M. No.583-M of 2004 in Criminal Appeal No.945 and Murder Reference No.867 of 2002, heard on 28th April, 2005.

Penal Code (XLV of 1860)---

----Ss.302(b) & 324---Criminal Procedure Code (V of 1898), 5.345---Compromise effected between the parties---Accused acquitted---Surviving legal heirs of the deceased had waived their right of Qisas---Injured persons had also pardoned the accused and had compounded the offence---Mother of the minor son of the deceased had compounded the offence on his behalf by accepting land transferred in the name of the minor---Compromise effected between the parties was genuine, without duress, threat or coercion and had been made voluntarily---Permission to compound the ,offences was consequently granted and the convictions and sentences of accused were set aside accordingly.

Malik Muhammad Salem for Appellant.

Ch. Falak Sher Chidhar for the State.

Date of hearing: 28th April, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1696 #

2005 M L D 1696

[Lahore]

Before Sh. Javaid Sarfraz and Fazal-e-Miran Chauhan, JJ

Mst. AMANA BEGUM---Appellant/Applicant

Versus

DISTRICT COORDINATION OFFICER, KHANEWAL and 15 others---Respondents

I.C.A. No.75 of 2005 in W.P. No.4756 of 2004, decided on 10th May, 2005.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Constitution of Pakistan (1973), Art. 199---Limitation Act (IX of 1908), S. 5---Intra-Court appeal-`-Limitation---Delay, condonation of---Appellant, along with Intra-Court appeal had filed application for condonation of delay---Appellant in her application had submitted that she being a Government employee did not attend the Court on the date impugned order was passed---Appellant had further submitted that when she came to know about fate of her Constitutional petition, she immediately applied for copy of impugned order and filed the present appeal---Appellant was bound to be vigilant about her case, merely because she had engaged an Advocate, would not mean that she was relieved of her duty to keep herself fully informed about proceedings of her case---Constitutional petition was dismissed in presence of counsel for appellant and failure of counsel to intimate appellant in time regarding dismissal of her Constitutional petition, was no ground for condonation of delay---No ground having been made out for condonation of delay application for condonation was rejected and consequently Intra-Court appeal being barred by time, was dismissed.

Jhanda v. Maqbool Hussain and others 1981 SCMR 126 and Muhammad Ramzan and 4 others v. Settlement Authorities and 2 others 1981-SCMR 194 ref.

Rana Muhammad Asif Saeed for Applicant.

MLD 2005 LAHORE HIGH COURT LAHORE 1700 #

2005 M L D 1700

[Lahore]

Before Muhammad Jehangir Arshad, J

Rana ALLAH BAKHSH---Petitioner

Versus

GHULAM SAKINA---Respondent

Civil Revision No.429-D of 2004/BWP, decided on 28th January 2005.

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

----S. 55---Specific Relief Act (I of 1877), S. 12---Limitation Act (IX of 1908), Art. 113---Suit for specific performance of agreement of sale---Limitation---Time as of the essence of contract---Agreement of sale of suit-land was executed between the parties, earnest money was paid to vendor and possession of suit-land was also delivered to vendee/predecessor of plaintiffs by defendant/vendor---Plaintiffs (vendees) were ready and willing to perform their part of contract by making payment of balance amount, but defendant/vendor refused to perform his part of contract and to complete sale-deed and tried to alienate suit property to some other person---Plaintiff/vendee filed suit for specific performance of contract---Defendant resisted suit on ground that predecessor-in-interest of plaintiffs neither turned up to complete sale on date stipulated in agreement nor had made payment of balance amount and that agreement stood rescinded for non-performance of contract within stipulated time---Suit having concurrently been decreed by Trial Court and Appellate Court defendant/vendor had filed revision---Validity---If time was of the essence of the contract, it was duty of defendant to have produced evidence to that effect but defendant had failed to do so--Nothing was on record to suggest that plaintiff or after his death his legal heirs were not willing to pay balance amount or that defendant made any effort to get possession of suit property back to show revocation of contract after expiry of stipulated time---In case of contract for sale of immovable property, mere mention of time in contract for its, performance, would not necessarily mean that time was of the essence of contract and plaintiff could not be non-suited merely on ground that contract was not performed within time stipulated therein---Legislature never intended to make time for specific performance as of the essence of contract---Plaintiffs had rightly filed a suit within period prescribed under Art. 113 of Limitation Act, 1908, which was rightly decreed by Courts below.

Muhammad Sharif v. Mst. Fajji alias Phaji Begum through Legal Heirs and another 1998 SCMR 2485; Haji Abdul Rehman v. Niaz Ali through Legal Heirs 2000 CLC 184 Lah.; Abdul Habib Durrani v. Toriali 1999 CLC 207; Seth Essabhoy v. Saboor Ahmad PLD 1973 SC 39; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Mussaraa Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Faqir Muhammad and 8 others v. Abdul Momin and 2 others PLD 1995 Lah. 405 and Sher Muhammad (deceased) through Legal Heirs v. Ghulam Muhammad and others 2004 CLC 1217 ref.

(b) Interpretation of Statutes---

----Principle of---It was established principle of interpretation that while interpreting certain provisions of law, the Court could not insert which Legislature never intended to nor the Court could sit in judgment over the authority of Legislature by interpreting such provision in a way which Legislature never intended to.

Ch. Tariq Mehmood for Petitioner.

Mian Ameer Ahmed for Respondent.

Date of hearing: 25th January, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1710 #

2005 M L D 1710

[Lahore]

Before Maulvi Anwarul Haq, J

MANZOOR and 9 others---Petitioners

Versus

ALI MUHAMMAD KHAN---Respondent

Civil Revision No.84-D, R.S.A. Nos.8 and 10 of 1991, heard on 7th June, 2005.

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

----Ss. 6 & 13---Suit for pre-emption---Right of pre-emption was claimed by plaintiff on basis of ownership in estate---Suit was resisted by defendants alleging that land owned by plaintiff was not assessed to land revenue and that ownership of such land would not make plaintiff an owner in the estate---Defendants had also alleged that sales were divisible---Suit was concurrently decreed by Courts below---Validity---Plaintiff had fully proved that land being agricultural in nature, he was owner in the estate---Entire land owned by plaintiff, was classified as Nehri or Nul Nehri which was cultivated by tenants at will paying share of produce---Column of Lagan mentioned that owner was liable to provide seed and to dig Khal while tenant was to maintain and clean the same---Plaintiff, in circumstances had proved that he was owner in the estate and had superior right of pre-emption---As for plea of defendant with regard to divisibility of sale, no assertion was made that sale was divisible within the meaning of law---Sale-deeds had shown that price was paid by vendee jointly---Revision petition and appeals filed against concurrent judgments and decrees of Courts below, were dismissed in circumstances.

Ghulam Hussain Arshad and others v. Allah Ditta and others 1993 SCMR 1486; Muhammad Hassan and 12 others v. Mukhtar Ahmad and another 2003 CLC 1073; Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140 and Ahmad and others v. Ghulam Haider 1972 SCMR 357 ref.

Amin-ud-Din Khan for Petitioners.

Sahibzada Mehboob Ali Khan for Respondent.

Date of hearing: 7th June, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1713 #

2005 M L D 1713

[Lahore]

Before Muhammad Jehangir Arshad, J

NAEEM AKHTAR---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

W.P. No.2115 of 2005/BWP, decided on 20th June, 2005.

Civil Procedure Code (V of 1908)---

----O.XVI & Rr.1 & 2---Specific Relief Act (I of 1877), S. 12---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for specific performance of agreement to sell---Failure to submit list of witnesses in time---Effect---Trial Court after framing issues, directed parties to submit their list of witnesses within seven days---Plaintiff who failed to submit list of witnesses in time, filed application for permission to summon two witnesses, which application was allowed by Trial Court and then by Appellate Court subject to payment of costs---Defendant had challenged orders of Courts below through Constitutional petition---Validity---Held, it was true that without disclosing sufficient reason and obtaining permission from the Court, nobody could be permitted to summon or produce witnesses other than those contained in list submitted under O.XVI, R.1, C.P.C., but the Court should not sit as idle spectator without considering the fault of non-submission of list which was usually considered as act of the counsel---Litigant was not aware of procedural requirements of law and to file list of witnesses was a part of procedural activities---Counsel engaged by the parties had to perform such act and for the fault of a counsel especially when no serious prejudice was caused to the other party, no one could be penalized---Court should not deny a legal right to a party just on the basis of technicalities or non-performance of procedural requirement causing no prejudice to other party---No list, in the present case, was submitted by counsel for plaintiff within stipulated time, but authority conferred on the Court to allow summoning or producing witnesses not named in the list or non-submission of list, was always there---Courts, in the present case, while allowing plaintiff to summon/produce witnesses not named in the list had sufficiently compensated defendant by burdening plaintiff with heavy costs---Non-submission of list of witnesses within time was purely due to inaction of counsel for plaintiff and two Courts below by passing impugned order, had not committed any illegality or irregularity, but had corrected procedural wrong causing no prejudice to defendant--Constitutional petition was dismissed.

Bundi Begur, v. Munshi Khan PLD 2004 SC 154 ref.

Ch. Abdul Latif for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 1718 #

2005 M L D 1718

[Lahore]

Before Sh. Javaid Sarfraz and Fazal-e-Miran Chauhan, JJ

MUHAMMAD AKRAM--- Appellant

Versus

THE STATE--- Respondents

Criminal Appeal No.125 of 2004, decided on 26th April, 2005.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Assistant Sub-Inspector of Police was justified in searching the accused without search warrants and arresting him in given circumstances of the case---Section 103, Cr.P.C. being not applicable, respectable persons of locality were not required to be associated with the raiding party---Police officials were as good witnesses as any other witness---No serious prejudice having been caused to the accused by the arrest and investigation done by an A.S.-I., no miscarriage of justice had been caused in the case---Provisions of S.21 of the Control of Narcotic Substances Act, 1997, were directory and not mandatory in nature---Huge quantity of 13 Kgs "Charas" had been recovered from the accused---Chemical Examiner's report was positive---No malice or enmity had been alleged and proved against the recovery witnesses by the accused---Prosecution evidence was consistent in necessary particulars---Minor discrepancies were not fatal to the prosecution case---Impugned judgment did not suffer from any legal or factual infirmity---Conviction and sentence of accused were upheld in circumstances.

2005 PCr.LJ 76; Muhammad Hanif v. The State PLD2002 Lah. 200 and Qimat Hassan v. The State 1999 PCr.LJ 824 ref.

2003 SCMR 881 distinguished.

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

----S.21--Power of entry, search, seizure and arrest without warrant---Nature of proceedings---Provisions of S.21 of the Control of Narcotic Substances Act, 1997, are directory and not mandatory.

Qimat Hassan v. The State 1999 PCr.LJ 824 ref.

Sh. Junaid Riaz for Appellant.

Tanveer Haider Buzdar for Respondent.

Date of hearing: 24th February, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1751 #

2005 M L D 1751

[Lahore]

Before Fazal-e-Miran Chauhan, J

MEHMOOD RAZA---Petitioner

Versus

THE STATE and 3 others---Respondents

Writ Petitions Nos.6142 and 6143 of 2004, decided on 19th May, 2005.

Penal Code (XLV of 1860)---

----Ss.420/482/483/485/468/471---Petroleum Rules, 1971---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Case had been got registered on behalf of Pakistan State Oil by their duly authorized person against the accused who was neither a Dealer nor an Agent of the Marketing Company---Business of the accused who was causing loss of money and damage to the reputation of the Company by selling the substandard stuff using forged stickers, monograms etc., was not covered by the Petroleum Rules, 1971 and no prior permission, therefore, was required of DCO or the Competent Authority before conducting raid by the police---Constitutional petition for quashing the impugned F.I.R. was not maintainable and the same was dismissed accordingly.

Naeem Akhtar and others v. The State 1993 MLD 577 and Tariq Mehmood v. Muhammad Jehangir Carayia 2003 YLR 239.ref.

Mian Muhammad Arshad Latif for Petitioner.

Pir Ajmal Hussain Qureshi for Respondents.

MLD 2005 LAHORE HIGH COURT LAHORE 1756 #

2005 M L D 1756

[Lahore]

Before Muhammad Nawaz Bhatti, J

SABIR HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous. Nos. 1350-B and 1176-B of 2005, decided on 14th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 109 & 34---Bail, grant of---Accused and one of his co-accused after being arrested were declared innocent as they were found not present at the spot at the time of occurrence by police in all three investigations---Inspector of investigation in final investigation also, after accepting plea of alibi, declared accused innocent---Finding of police, though was not binding on the Court, but same could not be ignored---Plea of alibi taken by accused from date of their arrest and findings of Investigating Officers had also shown that accused were not present at the spot at the time of occurrence---Plea of alibi raised in a bail matter could not be outrightly rejected, but could be gone into for the purpose of grant or refusal of bail---Accused were granted bail, in circumstances.

Moin-ud-Diu v. The State 2004 MLD 52; Iqbal ur Rehman v. The State PLD 1974 SC 83; Ch. Muhammad Shafi v. Ch. Muhammad Anwar Samna and another 1975 SCMR 219; Alam Khan and Saif Ullah Khan v. The State NLR 2004 Criminal 514; Zar Gulab and 6 others v. The State and others 2003 PCr.LJ 1404; Ameer Khan v. The State 2002 PCr.LJ 886 and Malik Muhammad Saleeheen and others v. Arshad Siddiq and others 1997 SCMR 1829 ref.

Ch. Pervaiz Aftab for Petitioner.

Syed Muhammad Azhar Trimzy for the Complainant.

Tanvir Haider Buzdar for the State.

Bakhat Ali, S.-I, with record.

MLD 2005 LAHORE HIGH COURT LAHORE 1759 #

2005 M L D 1759

[Lahore]

Before Maulvi Anwarul Haq, J

Miss SUMAIRA NOSHEEN---Petitioner

Versus

PRINCIPAL, GOVERNMENT COLLEGE OF COMMERCE, VEHARI and 3 others---Respondents

Writ Petition No.4113 of 2005, decided 12th July, 2005.

Educational Institution---

----Expulsion from college-,-Petitioner felt aggrieved of report and notification whereby she was expelled from college for one year and her admission B. Com. Part-I, Examination from University had also been withdrawn---Said Notification was subject to review/appeal, which was stated to have been filed by the petitioner---Constitutional petition was disposed of by the High Court with direction that review/appeal be taken up without any further loss of time as examinations were about to begin and that in case petitioner had tendered apology, she would be treated like her co-students in the matter and would be allowed to take part in examination as a regular student---Constitution of Pakistan (1973), Art. 199.

Malik Muntazir Mehdi for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 1761 #

2005 M L D 1761

[Lahore]

Before Muhammad Jehangir Arshad, J

SHAUKAT ALI---Appellant

Versus

PARVEZ AKHTAR---Respondent

Regular First Appeal No.46 of 2003/BWP, decided on 15th February, 2005.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2 & 3---Qanun-e-Shahadat (10 of 1984), Art. 84---Suit for recovery of amount on basis of two cheques---Comparison of signatures on cheques---Request for---Defendant, who was allowed to appear and defend suit, filed written. statement wherein he specifically denied issuance of any cheque in favour of plaintiff and claimed that both said cheques were removed/stolen from his Cheque Book---Defendant moved an application before Trial Court requesting that his signatures on alleged cheques be got compared from the Handwriting Expert, but Trial Court dismissed said application and decreed suit filed---Validity---Evidence of Handwriting Expert was very helpful in such-like cases, though not conclusive---Opinion of Handwriting Expert was also one of the modes of evidence as recognized by Qanun-e-Shahadat, 1984---Trial Court, in circumstances, was not legally justified in rejecting application of defendant for getting his signatures on cheques compared---High Court allowing appeal, set aside judgment and decree passed by Trial Court and remanded case to Trial Court with direction to obtain specimen signatures of defendant and get same compared with disputed signatures of defendant on disputed cheques by a Handwriting Expert and to decide matter afresh accordingly.

Hamid Qayyum and 2 others v. Muhammad Azeem through Legal Heirs PLD 1995 Supreme Court 381 ref.

Mian Muhammad Saeed for Appellant.

Sh. Mehboob Alam for Respondent.

Date of hearing: 15th February, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1764 #

2005 M L D 1764

[Lahore]

Before Maulvi Anwarul Haq, J

ALI NAWAZ KHAN MAZARI---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Health and 6 others---Respondents

W. P. No. 828 and I.C.A. No. 63 of 2005, heard on 3rd May, 2005.

Educational institution---

----.Admission in medical college---Seat reserved for tribal area---Non completion of studies in tribal area---Contention of candidate was that facility of F.Sc. classes was not available in the tribal area to which he belonged, thus Authorities were not justified in refusing admission to him in medical college---Validity---Primary condition for admission on reserved seat for tribal area was that a candidate must be a resident of that tribal area and he must have completed education from that area---Being not possible for any candidate resident of that tribal area to have completed his education in that area as there were no teachers in the college to teach science subjects, in such circumstances exception would have to be made and the candidate was not required to complete his studies only from the district to which the concerned tribal area was attached---Once inability which was beyond the control of candidate in the matter of completing studies in the tribal area concerned stood established, then it would not matter where the candidate had completed his studies---Evaluation of the authorities showed that, the candidate had topped the list of the tribal area in question with the highest score, therefore, High Court directed the Authorities to allow admission to him against the seat reserved for that area.

Arif-ur-Rchman v. Government of N.-W.F.P. through Secretary Education, N.-W.F.P. and others 2005 SCMR 340 ref.

Tahir Mahmood for Petitioner.

M. Qasim Khan, A.A.-G. for Respondents Nos.1 to 3.

Mian Abbas Ahmad for Respondent No.6.

Nemo for others Respondent.

Date of hearing: 3rd May, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1771 #

2005 M L D 1771

[Lahore]

Before Muhammad Khalid Alvi, J

Rao SHAHID ALI KHAN---Petitioner

Versus

SECRETARY HOME DEPARTMENT, GOVERNMENT OF PUNJAB, LAHORE and 4 others---Respondents

Writ Petitions Nos.3580 to 3583 of 2004, decided on 9th July, 2004.

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 16---Penal Code (XLV of 1860), S.341---Constitution of Pakistan (1973), Art.199---Constitutional petition---Detention orders, quashing of---Detention orders having been passed by the Home Secretary, Government of Punjab, representation provided under S.3(6) of the West Pakistan Maintenance of Public Order Ordinance, 1960, was not an adequate remedy and the Constitutional petitions were maintainable---Impugned orders passed in the four cases were absolutely verbatim and identical---No ground whatsoever for the present detention was mentioned in the said orders which had simply stated the style of the personality of the detenus---Sole basis for the detention of the detenus, according to the State counsel, was their involvement in a criminal case .in which they had already been enlarged on bail---Guilt or innocence of the detenus in the said case would be determined by the Trial Court---Detention of the detenus under the impugned orders was not in consonance with law and the same were held to be illegal and without lawful authority.

Writ Petition No.14839 of 1994 dated 24-1-1995 and 1999 PCr. LJ 747 ref.

Maulvi Sultan Alam, Abdul Aziz Khan Niazi and Habib Ullah Shakir for Petitioner.

Mian Jehangir Arshad, A.A.-G. for Respondents,

MLD 2005 LAHORE HIGH COURT LAHORE 1774 #

2005 M L D 1774

[Lahore]

Before Ijaz Ahmad Chaudhary, J

ZAFAR IQBAL---Petitioner

Versus

THE STATE---Respondent

Crl. Misc.No. 1008-B of 2005, decided on 11th May, 2005.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324/334/34---Bail, grant of---Accused was alleged to have made ineffective firing with a pistol on the complainant---Near relatives of the main accused are generally falsely implicated in the case by the complainant by widening the net---Mentioning of the name of a person in the F.I.R. without any role alone, was not sufficient to prima facie connect him with the commission of the crime---Case of accused, thus, needed further probe as envisaged by S.497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Syed Shahbaz Ali Rizvi for Petitioner.

Ch. Ghulam Muhammad for the State.

Abdul Ghaoor, S.-I. along with the record.

MLD 2005 LAHORE HIGH COURT LAHORE 1776 #

2005 M L D 1776

[Lahore]

Before Muhammad Jehangir Arshad, J

AMJAD JAVED---Petitioner

Versus

JFC and others---Respondents

Writ Petition No.3685 of 2004/BWP, decided on 13th January, 2005.

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

------S.8---Constitution of Pakistan (1973), Art. 199 --- Constitutional petition---Schedule of witnesses, amendment of---Defendant's plea was that witnesses mentioned in Schedule had been won over by plaintiff and were not willing to depose on his behalf---Judge, Family Court dismissed defendant's application on the ground that he failed to give rational justification for such amendment at belated stage; and that he had not pointed out how and when he came to know about winning over of his witnesses---Validity---Judge, Family Court had acted too technically---No heavens were to fall if defendant was allowed to amend Schedule of witnesses---Plaintiff by opposing application and Family Court by dismissing same had paved way for defendant to prolong matter by way of approaching High Court, otherwise, matter could have been easily decided at Trial Court stage by burdening defendant with costs---High Court accepted Constitutional petition, set aside impugned order and allowed defendant to amend Schedule of witnesses subject to payment of ,costs of Rs. 1,000 and produce evidence according to amended Schedule.

2003 CLC 1787 ref.

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

---- Ss.7 & 8---Schedule of witnesses, amendment of---Scope---West Pakistan Family Courts Act, 1964 was silent as regards jurisdiction of Judge Family Court to allow such amendment---Judge was, thus, free to evolve his own procedure and act in a judicial manner while deciding such matter.

2003 CLC 1787 ref.

----Justice should not only be done, but should also be seen to have been done.

Muhammnad Ibrahim Khan for Petitioner.

Ch. Shafi Muhammad Tariq for Respondents Nos.2 and 3.

Date of hearing: 13th January, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1779 #

2005 M L D 1779

[Lahore]

Before M. Bilal Kazan, J

Haji MUHAMMAD ISHAQ---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.4945-B of 2005, decided on 28th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Emigration Ordinance (XVIII of 1979), Ss.17/22---Passports Act (XX of 1974), S.6---Bail, refusal of---A large number of persons had got their statements recorded under S.161, Cr.P.C. who had allegedly been deprived of their passports and cash and had levelled serious allegations against the accused for. having deceived them for sending abroad---Mere fact that the accused had procured affidavits of a couple of affected person out of about 35 persons, did not advance his case for bail---Practice of defrauding innocent persons under the guise of sending them abroad, had assumed alarming proportions and this menace had not so far been dealt with the amount of seriousness which it deserved---Bail was refused to accused in circumstances.

Malik Muhammad Afzal Farooka for Petitioner.

Tanvir Ahmed Shami for the State.

Muhammad Nadeem Inspector F.I.A., Faisalabad.

MLD 2005 LAHORE HIGH COURT LAHORE 1781 #

2005 M L D 1781

[Lahore]

Before Asif Saeed Khan Khosa, J

ASRAR KHAN alias CHACHU---Petitioner

Versus

THE STATE---Respondents

Criminal Miscellaneous No.4165-B of 2005, decided on 10th June, 2005.

Criminal Procedure Code (V of 1898)---

----S.498---Punjab Prevention of Gambling Ordinance (VII of 1978), S.5---Pre-arrest bail, grant of---Occurrence had taken place in the dead of the night of 1-45 a.m.---Accused was not apprehended at the spot---Raiding party did not know the accused prior to the occurrence---Name of accused had been disclosed to the riding party by co-accused who was apprehended at the spot---Apart from such disclosure by the co-accused admittedly no other independent evidence was available to connect the accused with the alleged offence---Seeking arrest of the accused in the absence of any independent evidence regarding his complicity might smack of mala fides on the part of the police---Five co-accused in the case, apprehended on the spot, had already been released on bail by the Sessions Court---Accused had joined the police investigation and nothing was to be recovered from his possession---Ad interim pre-arrest bail allowed to accused was confirmed in circumstances.

Muhammad Akram Javed for Petitioner.

Nafeesa Bhatti for the State with Riaz Ahmed, S.-I. with record.

MLD 2005 LAHORE HIGH COURT LAHORE 1782 #

2005 M L D 1782

[Lahore]

Before Maulvi Anwarul Haq, J

GHULAM RASOOL and 7 others---Petitioners

Versus

RASHID and 4 others---Respondents

Civil Revision No. 182 of 2003, heard on 15th June, 2005.

Specific Relief Act (I of 1877)---

----S. 42--7Suit for declaration---Succession---Plaintiff in her suit had claimed that last male owner of suit-land was survived by her as daughter and one son of deceased and had alleged that after death or last male owner/her father, she was being paid her share, but subsequently during consolidation, it was found from Revenue Record that her name was excluded in inheritance mutation---Plaintiff sought declaration to the effect that said mutation was illegal and void and that she was entitled to 1/3rd share in the suit-land---Claim of plaintiff was denied by defendant contending that deceased last male owner/predecessor of parties, was governed by custom in the matter of succession and that plaintiff lady was rightly excluded---Trial Court dismissed the suit, but Appellate Court setting aside judgment of trial Court, decreed the suit---Evidence on record had fully proved that principles of Shariah were applicable and daughters were entitled to succeed to their shares in their father's ancestral property in accordance with Islamic law---Plaintiff being daughter of deceased last male owner; in circumstances, was entitled to take her share according to Shariat applicable to her case---Appellate Court below, in circumstances had rightly decreed suit filed by plaintiff.

Sabhai v. Ali and others 1908 P.R. 136 and Eda Khan v. Mst. Ghanwar and others 2004 SCMR 1524 ref.

Muhammad Akbar Sajid for Petitioner.

Malik Muhammad Shabbir Langarial for Respondents.

Date of hearing: 15th June, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1785 #

2005 M L D 1785

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD SALEEM and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.630 and Criminal Revision No.335 of 2000, heard on 4th March, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Appreciation of evidence---Occurrence though had taken place after dark, but availability of electric light at the spot at relevant time had fully been proved---F.I.R. had been lodged with reasonable promptitude and accused had been specifically nominated therein as principal perpetrator of alleged murder---Place of occurrence was a populated area and it was not believable that after firing at the deceased, accused could have gone away unnoticed and unidentified---Deceased, accused, complainant and one of prosecution witnesses, were nearly related and accused could not point out anything to show that' complainant and prosecution witnesses had any reason to falsely implicate him in murder of deceased---Both eye-witnesses had made consistent statements about main occurrence and no serious and material discrepancy had been found in their statements in that regard---Some contradictions regarding width of street, the base of road and place of making first statement by complainant before police, were not serious enough to warrant discarding statements of eye-witnesses regarding main occurrence---Nothing was on record to suggest that eye-witnesses had any animus or hostility towards accused so as to falsely implicate him on a capital charge---Statements made by said eye-witnesses regarding main occurrence had inspired-confidence and no reason was shown for not placing implicit reliance upon same---Motive set up by prosecution had remained far from being established---Alleged recovery of pistol from possession of accused during investigation of case, was legally inconsequential as no crime empty had been recovered from place of occurrence so as to connect recovery of pistol with alleged murder---Trial Court was justified in discarding said recovery, but said factors had not been found to be relevant to question whether eye-witnesses should or should not be believed regarding the main occurrence itself---Medical evidence had provided full support to ocular account inasmuch as the date and time of occurrence, the weapon used and locale of. injury stated by eye-witnesses, had all been confirmed by medical evidence---Prosecution in circumstances had succeeded in establishing guilt of accused beyond reasonable doubt---Conviction and sentence recorded by Trial Court against. accused, were up held and maintained.

Rao Naeem Hashim Khan for Appellants (in Criminal Appeal No.630 of 2000).

Arshad Ali Chauhan for Petitioner (in Criminal Revision No.335 of 2000).

Liaquat Ali Sial for the State.

Arshad Ali Chauhan for the Complainant.

Date of hearing: 4th March, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1790 #

2005 M L D 1790

[Lahore]

Before Sh. Hakim Ali, J

ABDUL MAJEED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.448(Q) of 2002/BWP, decided on 15th July, 2005.

Criminal Procedure Code (V of 1898)---

-------S.561-A---Penal Code (XLV of 1860), S.337-D---Quashing of imposition and payment of "Arsh" by Sessions Court sought, refusal of---Liability to pay "Arsh" specified and determined as 1/3rd of "Diyat" was mandatory under S.337-D, P.P.C. which had to be imposed on the accused on proof of the charge against him--Court while passing. the sentence had no discretion either to remit the imposition of "Arsh" or to direct the payment of amount less than 1/3rd of "Diyat"---However, in case of passing, sentence of imprisonment under S.337-D, P.P.C. Court had discretion to impose imprisonment or not to pass the same or to award the sentence up to the extent of ten years' R.I.---Conviction of accused had not been challenged---Court having no discretion to reduce the amount of "Arsh" or not to impose the same, the impugned judgment passed by Sessions Court was not open to any exception---Petition under 5.561-A, Cr.P.C. was dismissed accordingly.

Ghulam Yasin and 2 others v. The State PLD 1994 Lah. 392; Muhammad Sharif v. The State PLD 1987 Lah. 312; Magsood Ahmad v. The State 1983 PCr.LJ 2236; Riaz Ahmed v. The State 1975 PCr.LJ 652 and Muhammad Sadiq and others v. The State KLR 1992 Criminal Cases 49 distinguished.

Aslam Javed Minhas for Petitioner.

Syed Saeed Hamayun for Respondent No.2.

Abdul Ghani for the State.

Date of hearing: 1st June, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1794 #

2005 M L D 1794

[Lahore]

Before Muhammad Nawaz Bhatti, J

KHURSHID AHMED and 2 others---Petitioners

Versus

ALI NAWAZ and another.---Respondents

Civil Revision Petition No.378-D of 1991, heard on 30th May, 2005.

Civil Procedure Code (V of 1908)---

------O. XLI, R.27---Production of additional evidence---First Appellate Court did not act in proper exercise of its jurisdiction in declining to grant application for production of additional evidence and acting in haste in rejecting same---Impugned judgment and decree passed by First Appellate Court was set aside and case was remanded to Appellate Court below for decision afresh on merits after giving opportunity of evidence and hearing to both parties.

Dada Steels Mills v. R.N.K. Corporation 1988 MLD 247 ref.

Hameed Azhar Malik and Tahir Mehmood for Petitioners.

Nemo for Respondents.

Date of hearing: 30th May, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1798 #

2005 M L D 1798

[Lahore]

Before Ch. Ijaz Ahmad, J

KHALID MAHMOOD---Petitioner

Versus

STATE BANK OF PAKISTAN through Manager and 3 others---Respondents

Writ Petition No. 13940 of 2005, decided on 29th July, 2005.

Penal Code (XLV of 1860)---

----Ss.406/420---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Accused has sought no relief against the State Bank of Pakistan---Respondent-Bank having been privatized had no concern with the affairs of Federation or a Province, which is the condition precedent qua the maintainability of the Constitutional petition in terms of Article 199(1)(a) of the Constitution---Constitutional petition was dismissed accordingly.

Zainul Abidin v. Multan Central Co-operative Bank Ltd. Multan PLD 1966 SC 445; Sheikh Rasheed Ahmad v. United Bank Ltd. and others PLD 1987 Pesh. 144; 2000 PLC (C.S.) 1355 and 2001 PLC (C.S.) 207 rel.

Syed Imtiaz-ud-Din Hashmi for Petitioner.

Danishwar Malik, D.A.-G. on Court's Call.

Muhammad Hanif Khatana, Addl. A.-G. on Court's call for Respondent.

MLD 2005 LAHORE HIGH COURT LAHORE 1800 #

2005 M L D 1800

[Lahore]

Before Sh. Abdul Rashid, J

Mst. AINEE SHAUKAT---Petitioner

Versus

S.H.O. and others---Respondents

Writ Petition No. 17265 of 2003, decided on 29th June, 2004.

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

---- Ss. 10 & 11---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Both male and female accused, present in Court were major and sui juris and they both had stated 'that they had contracted Nikah with their own free-will and volition---Female accused had further stated that no one had abducted her and she had married with co-accused of her own free-will---Both had placed copy of their Nikah Nama---Police Officer who had brought record had stated that copy of Nikah Nama had also been placed on police file by accused which was verified from office of Nikah Registrar---Allegations in F.I.R. being erroneous and false, F.I.R. was quashed, in circumstances.

Zahid Hussain Khan for Petitioner.

Muhammad Aslam, A.S.-I. with record.

MLD 2005 LAHORE HIGH COURT LAHORE 1801 #

2005 M L D 1801

[Lahore]

Before Muhammad Jehangir Arshad, J

MEHMOOD IQBAL---Petitioner

Versus

FARHAT HUSSAIN and others---Respondents

Office Objection Diary No.9705 of 2004, decided on 4th July, 2005.

Civil Procedure Code (V of 1908)---

----O. XLV, R.2---Constitution of Pakistan (1973), Art. 185(2)(f) & (3)---Supreme Court Rules, 1980, O.I., R.5---Petition for grant of Certificate under Article 185(2)(f) of the Constitution---Objection regarding maintainability of petition---Revision petition filed by petitioner having been dismissed by High Court, petitioner instead of challenging order of High Court by way of filing petition for leave to appeal under Art. 185(3) of the Constitution, opted to file application terming same as one under O.XLV, R.2, C.P.C. for grant of Certificate under Art.185 of the Constitution---Under O.I, R.5 of Supreme Court Rules, 1980, provision of C.P.C. being not applicable to proceedings before Supreme Court, petition under O.XLV, R.2, C.P.C. was not maintainable at all---So far as grant of Certificate in terms of Art. 185(2)(t) of the Constitution, was concerned, that petition not involving any substantial question of law as to the interpretation of Constitution, was not maintainable and same was dismissed---Petitioner, if so advised, could approach apex Court by way of filing petition for leave to appeal in terms of Art. 185(3) of the Constitution.

Muhammad Yaqoob Khan for Petitioner.

2005 M L D 1816

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUHAMMAD ISHAQUE KHAN---Petitioner

Versus

S.H.O.-Respondent

Writ Petition No. 1776-Q of 2005, decided on 19th July, 2005.

Penal Code (XLV of 1860)---

----Ss. 353, 186, 148 & 149---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Grounds for quashing of criminal case---Some grounds on which a criminal case could be quashed by High Court in exercise of its Constitutional jurisdiction were; when case was of no evidence; when very registration of the case was proved to be mala fide on the face of record; when case was of purely civil nature, criminal proceedings were not warranted in law, especially to harass accused; when there was serious jurisdictional defect and when there was unexplained delay in the disposal of case causing deplorable mental, physical and financial torture to person proceeded against---First two conditions being fully applicable to the present case, F.I.R. registered against petitioner was liable to be quashed and its continuation would be abuse of process of law---F.I.R. registered against petitioner, was quashed, in circumstances.

Ch. Pervez Elahi v. The Federation of Pakistan and others 1995 MLD 615; Mirza Naseem Baig v. Muhammad Iqbal and others 1981 SCMR 315 ref.

Muhammad Arif Alvi for Petitioner.

Mubashar Lateef Gill, A.A.-G. for Respondent.

Rao Jamshed Ali for Respondent No.2.

Date of hearing: 19th July, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1819 #

2005 M L D 1819

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD AKRAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4689/13 of 2005, decided on 6th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Agricultural Pesticide Ordinance (11 of 1971), S. 21(1)(a)---Pre-arrest bail, grant of---Accused did not supply pesticide to complainant, but complainant had approached the employee of accused---Under some misconception or misunderstanding, complainant was supplied agricide instead of pesticide, which did cause damage to crops of complainant---No mens rea was attributed to accused---Prima facie, accused had not committed any offence---Finding of Investigating Officer was that pesticide provided to complainant was neither adulterated nor substandard---Available record showed that it could not be resolved as to whether accused or his employee was at fault---Pre-arrest bail already granted to accused was confirmed, in circumstances.

Muhammad Masood Chishti for Petitioner.

Tariq Waheed Khan for the State along with Muhammad Arshad, A.S.-I. with record.

Hassan Ahmad Khan Kanwar for the Complainant.

Petitioner in person on pre-arrest bail.

Date of hearing: 6th July, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1821 #

2005 M L D 1821

[Lahore]

Before Syed Shabbar Raza Rizvi, J

HABIBULLAH---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.4236-B of 2005, decided on 21st June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 109 & 34---Bail, grant of---No specific offence had been attributed to accused and it was not possible at stage of bail to fix responsibility as to which accused had caused injuries to complainant---According to F.I.R. accused was armed, but he did not make any attempt to repeat firing to hit complainant on any of his vital parts---Injury was only caused on right leg which was a non-vital part of body---Accused though was alleged to be armed, but no recovery of weapon of offence had been effected from him---Investigation was complete and accused was not required any more for the purpose of investigation---Accused was admitted to bail, in circumstances.

Muhammad Shoaib Zafar for Petitioner.

Tahseen Irfan for State.

MLD 2005 LAHORE HIGH COURT LAHORE 1822 #

2005 M L D 1822

[Lahore]

Before Muhammad Nawaz Bhatti, J

Mst. SADAF -Petitioner

Versus

JUDGE FAMILY COURT, SAHIWAL another---Respondents

Writ Petition No.209-F of 2003, heard on 23rd May, 2005.

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

----S. 5 & Sched---Suit for dissolution of marriage on ground of Khula---Defendant husband, who claimed that he gave 11 Tolas of golden ornaments to plaintiff, had not produced any receipt in respect of alleged golden ornaments beyond his oral statement---Not only that no proof of any receipt of benefits by plaintiff from defendant was produced but also no such claim was made by defendant in his written statement or in evidence produced on record---In absence of any proof of receipt of benefits by wife from husband, wife would be entitled to grant of Khula without restoration of said unproved benefits.

Mst. Nazir v. Addl. District Judge, Rahimayar Khan and others 1995 CLC 296; Muhammad Musa v. Naheeda Mai and another 1993 MLD 263 and Mst. Parveen Bibi v. Akbar Ali and others 1993 MLD 433 ref.

Abdul Rashid Hijazi for Petitioner.

Hakim Faqir Muhammad, father of Respondent No.2 in person.

Date of hearing: 23rd May, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1825 #

2005 M L D 1825

[Lahore]

Before Mian Muhammad Najum-uz-Zaman, J

Mst. SHAMSHAD and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.50 and 53 and Criminal Revision No. 128 of 2003 and Criminal Miscellaneous Nos.926-M and 927-M of 2005, heard on 11th July, 2005.

Penal Code (XLV of 1860)---

---- Ss. 302(b), 310 & 34---Criminal Procedure Code (V of 1898), S. 345---Compromise between accused and legal heirs of deceased---Trial Court having convicted and sentenced accused, an appeal was filed by accused against judgment of Trial Court---During pendency of appeal a compromise was arrived at between accused and legal heirs of deceased---Sessions Judge to whom matter of compromise was referred to report genuineness of compromise recorded statements of legal heirs of deceased and reported about genuineness of compromise---Compromise arrived at between parties was fully proved and had been effected with their free-will and consent without any external pressure---Legal heirs of deceased having forgiven accused after receipt of entire compensation had stated that they had no objection against acquittal of accused---Appeals filed by accused persons were accepted, their conviction and sentence was set aside and they were acquitted and were released.

M.A. Zafar and Shoaib Zafar for Appellants.

Mrs. Shahzadi Parveen for the State.

Date of hearing: 11th July, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1833 #

2005 M L D 1833

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD IDREES---Petitioner

Versus

THE STATE---Respondent

Crl. Mise No. 1578-B of 2005, decided on 27th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Customs Act (IV of 1969), Ss. 2(s), 16, 156(1)(89), 157(2) & 178---Import and Export (Control) Act (XXXIX of 1950), S. 3(3)---Bail, grant of---Further inquiry---Accused was simply driving vehicle which was hired by a firm for transportation of cloth owned by said firm---Employee of said firm, who was also accompanying the vehicle along with accused, who at the time of seizure, had admitted ownership of cloth to be of said firm which was lawfully purchased---Said employee had produced documents to satisfy Customs Authorities--- . Accused was only a carrier of said goods---Even otherwise offence charged in F.I.R. was punishable with maximum imprisonment of 6 years which did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Case of accused was that of further inquiry and accused was no more required by Customs Authorities for any further interrogation---Accused was admitted to bail, in circumstances.

Mian Abdul Ghaffar for Petitioner.

Ch. Saghir Ahmad, Standing counsel for the State.

MLD 2005 LAHORE HIGH COURT LAHORE 1836 #

2005 M L D 1836

[Lahore]

Before Maulvi Auwarul Haq, J

Mst. NAFEES AKHTAR and another---Petitioners

Versus

CANTONMENT BOARD, MULTAN through Cantonment Executive Officer, Multan and 4 others---Respondents

Writ Petitions Nos.2967 of 2005 and 4464 of 2003, heard on 22nd June, 2005.

Cantonments Act (II of 1924)---

---- Ss.70,80,84,259 & 277---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Recovery of property tax---Appellate forum, non-availability of---Finalization of assessment list---Arrest warrants, issuance of---Petitioners being aggrieved of assessment order contended that in absence of appellate authority, the assessment list could not be finalized---Cantonment Board issued arrest warrants of petitioners for recovery of property tax---Validity---If any owner or occupier of building felt aggrieved and intended to file appeal, then result of appeal would play vital role in the matter of finalization of the assessment list enabling Cantonment Board to impose and recover the tax in the manner prescribed---Omission might lead to the conclusion that the entire process as prescribed in Cantonments Act, 1924, for imposition, recovery and payment of property tax could not be lawfully completed without the appellate authority being there to decide the grievance of the owner, occupier or lessee of the building included in assessment list---Primarily appeal either lay to District Magistrate or to such other officer as might have been empowered by Federal Government---As there was neither District Magistrate nor any other officer empowered by Federal Government in that behalf, therefore, right of appeal could not be effectively exercised so as to give finality to the list and enable to make it acceptable as a conclusive evidence under the terms of S.70 of Cantonments Act, 1924, in cases where a person aggrieved intended to file appeal ---Moreso when the order of appellate authority itself was to attain finality subject to the provisions of revision by Federal Government under S.277 of Cantonments Act, 1924---Issuance of arrest warrants were without lawful authority in view of the mode of recovery provided in S.259 of Cantonments Act, 1924, which had authorized only Magistrate to effect recovery by distress and sale of movable property of the alleged defaulter---Assessment list had not been finalized because of inaction of the part of Federal Government to empower an officer to exercise appellate authority under 5.84(1) of Cantonments Act, 1924---Demand of payment, recovery and proceedings of recovery of immovable property tax from petitioners were illegal and without lawful authority---Petition was allowed accordingly.

State Bank of Pakistan v. The Director, Military Lands and Cantonments, Rawalpindi PLD 1990 SC 287 rel.

Muhammad Ashraf Tasneem for Petitioners.

Syed Muhammad Ali Gillani for Respondents.

Date of hearing: 22nd June, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1843 #

2005 M L D 1843

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SAJJAD HUSSAIN---Petitioner

Versus

S.P. CITY, MULTAN and 3 others---Respondents

W.P. No. 3644 of 2005, decided on 23rd June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 517---Constitution of Pakistan (1973), Art. 199---Constitutional Petition---Detention of vehicle at Police Station---Acquittal of accused---Effect---F.I.R. lodged against petitioner regarding car in question, having been found false, petitioner was acquitted of charge finally, but despite his acquittal Police took the car in question into possession from petitioner and detained the same at Police Station---Police could not decide about the fate of car and possession thereof under any provisions of Criminal Procedure Code, 1898 was unlawful when a Court of competent jurisdiction had already acquitted petitioner and no appeal had been filed against said order which had attained finality---Police had no authority to intercept car in question after acquittal of petitioner from the case without any orders of the Court of competent jurisdiction---Such action of police was declared to be illegal and without any lawful authority---High Court accepting Constitutional petition, directed Police to hand over car in question to petitioner, immediately---Complainant, however could seek alternate remedy provided under law.

Ch. Muhammad Anwar-ul-Haq, for Petitioner.

M.R. Khalid Malik Addl.A.-G. along with Fayyaz Ahmad Khan, Inspector/SHO and Khalid Mahmood S.-I. for Respondents.

MLD 2005 LAHORE HIGH COURT LAHORE 1844 #

2005 M L D 1844

[Lahore]

Before Muhammad Muzammal Khan, J

Messrs FUEL AUTO SUPPLY COMPANY through Managing Partners and 6 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Communications and others---Respondents

W.Ps. Nos. 2589/RWP, 12693, 2078/RWP, 2705/RWP, 2725/RWP, 2853/RWP and 2941/RWP of 2004, heard on 6th July, 2005.

(a) National Highway Authority Act (XI of 1991)---

----S.10(2)---National Highway Authority (Control) Rules, 1998---Government of Pakistan, Ministry of Communication, Letter No.9(2)/97-Roads-Vol.,II---Constitution of Pakistan (1973), Art 199---Constitutional petition---Locus poenitentiae, principle of---Applicability---Vested right of lessees---Policies, implementation of---National Highway Authority completed leases in favour of petitioners which were cancelled on the direction of Ministry of Communication---Validity---General directions, administration, management and affairs of National Highway Authority vested in its Executive Board, which was governed by National Highway Authority, Act, 1991 and National Highway Authority (Control) Rules 1998---National Highway Authority was empowered to implement its policies of preservation/commercial use of Right of Way regarding establishment of filling/Compressed Natural Gas Stations etc.---Ministry of Communication did not figure anywhere to take action of cancellation/rescission of acts done by National Highway Authority---Ministry of Communication, in its Letter No.9(2)/97-Roads-Vol.I1, did not mention any reason for cancellation of already concluded transactions---Leaseholders were not given any notice earlier to taking such decision and they were not provided any opportunity of hearing and explaining their stance/position --- Rule of locus poenitentiae was fully attracted because completion of leases and taking over of possession by the petitioners was not disputed by any of the Authorities and out of such process, vested right of users and protection of leased properties occurred in. favour of petitioners, which could not be defeated or taken away at their back---Action by Ministry of Communication reflected in the Letter No.9(2)/97-Roads-Vo1.11, was illegal, unwarranted and without jurisdiction, and the same was set aside---Petitioner was allowed in circumstances.

Administrative Law by H.W.R. Wade and C.F. Forsyth, Seventh Edition, Halsbury's Laws of England, Fourth Edition; Haji Noor Muhammad v. Karachi Development Authority and others PLD 1975 Kar. 373; Commissioner of Police, Bombay v. Gordhandas Bhanji AIR (39) 1952 SC 16; Taj Muhammad v. Town Committee, Fatehjang through Chairman and 3 others 1994 CLC 2214; Superintendent of Police, Special Branch, Karachi and others v. Abubakar and another 1972 SCMR 154; The Majlis-i-Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur v. The Secretary to Government of West Pakistan, Communication and Works Department, Lahore PLD 1975 SC 355; Barkat Ali and another v. Ch. Fazal Hussain and another 1989 CLC 1255; Ahmad Khan v. Member (Consolidation), Board of Revenue, Punjab, Lahore and others PLD 1990. SC 1070; Muhammad Nawaz v. Federation of Pakistan and 61 others 1992 SCMR 1420; Pakistan International Airlines Corporation through Chairman v. Inayat Rasool 2003 SCMR 1128 and Muhammad Zakir Khan v. Government of Sindh and others 2004 SCMR 497 ref.

(b) Natural justice, principles of---

----Principles of natural justice have to be read in every statute irrespective of the fact that no such provision is incorporated therein---One of the cardinal principles of natural justice is that no one should be condemned unheard.

Mst. Sattan and others v. Group Captain Masroor Hussain, Officer Commanding P.A.F. Station Sargodha Cantt. PLD 1962 Lah. 151; Mst. Abeda Begum v. Government of Pakistan and others 1985 CLC 2859; Muhammad Tufail v. Government of Punjab 1990 MLD 327; Messrs Murree Brewery Company Limited v. Director-General, Excise and Taxation and 3 others 1991 MLD 267; Gul Muhammad and .8 others v. Buxal and 2 others 1991 CLC 229 and Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408 rel.

----S.24---Decisions/orders---Principle---Under law, Court or authority dispensing judicial or quasi-judicial functions is required to give reasons in support of its decisions/orders, especially when they deprive someone of his vested rights.

Messrs Airport Support Services v. The Airport Manager, Quaid-a-Azam International Airport, Karachi and others 1998 SCMR 2268 and Col. (Retd.) Ayub Ali Rana v. Dr. Carlite S. Pune and another PLD 2002 SC 630 rel.

Raja Muhammad Akram for Petitioners.

Dr. Danishwar Malik, Deputy Attorney-General for Respondent No. 1.

Jehanzeb Khan Bharwana with Muhammad Younas Chaudhry, Director, Legal NHA for Respondents Nos 2 and 3.

Date of hearing: 6th July, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1859 #

2005 M L D 1859

[Lahore]

Before Muhammad Nawaz Bhatti, J

ABDUL RASHID alias BUTT---Petitioner

Versus

GULZAR AHMAD and another---Respondents

Crl. Misc. No.227-M of 2005, decided on 25th April, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 540 & 561-A---Penal Code (XLV of 1860), S.458/380/440/337-H (ii)/506/148/149---Witness other than mentioned in gist of evidence allowed to be summoned---Complainant had filed an application under S.540, Cr.P.C. for summoning a witness in his private complaint on the ground that the prosecution witnesses cited in the gist of evidence had been won over by the accused---Trial Court had allowed the said application and the revision petition filed by the accused against that order was dismissed by the Sessions Court vide impugned order---Validity---Court enjoyed wide powers under S.540, Cr.P.C. to summon any person as witness at any stage of the proceedings whose statement appeared to be essential for just decision of the case---No prejudice would be caused to the accused by examining the, said person as a prosecution witness in his evidence by the complainant, as the accused would have a right to cross-examine him---Impugned order did not suffer from any illegality---Petition was dismissed in limine.

Sardar Mahboob for Petitioner.

MLD 2005 LAHORE HIGH COURT LAHORE 1861 #

2005 M L D 1861

[Lahore]

Before Muhammad Muzammal Khan, J

NIZAM-UD-DIN---Petitioner

Versus

MUHAMMAD RAMZAN and 2 others---Respondents

Civil Revision No.2152 of 2004, heard on 19th July, 2005.

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

----O. XLI, R.27---Specific Relief Act (I of 1877), Ss. 8 & 42---Suit for declaration of title---Additional evidence, production of---Principles---Owner of suit house died issueless and plaintiffs being his legal heirs, claimed to be the owners of suit house---Defendant resisted the suit on the ground of being its purchaser from the deceased owner, for valuable consideration---Trial Court decreed the suit in favour of plaintiffs---Defendant preferred appeal against the judgment and decree passed by Trial Court and also filed application under O.XLI, R.27, C.P.C. for producing additional evidence---Appellate Court dismissed the application and appeal as well---Validity---Document sought to be produced was not tendered before Trial Court for the first time, was sought to be produced in appeal, as such, none of the reasons on which Appellate Court could allow or refuse permission to produce additional evidence, could be determined without looking into the merits of the case---Application under O.XLI, R.27, C.P.C. could not be decided in isolation from the appeal and should have been decided along with it because while hearing appeal, Court would look into the merits of the case and in case of necessity, it could have allowed the prayer of defendant---Entry of purchase of stamp paper for inscribing agreement in stamp vendor register which also contained thumb-impression of deceased owner was not only a relevant piece of evidence but also would have enabled Appellate Court to pronounce a just decision between the parties---Judgment and decree passed by Appellate Court tainted with illegalities/irregularities was set aside by High Court in exercise of revisional jurisdiction and matter was remanded to Appellate Court for decision afresh on the application under O. XLI, R.27, C.P.C. and appeal filed by defendant---Revision was allowed accordingly.

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

----O. XLI, R.27---Qanun-e-Shahadat (10 of 1984), Art.87---Additional evidence---Register of stamp vendor---Status of public document---Application was filed before Appellate Court seeking permission to produce certified copy of register of stamp vendor containing entry of stamp paper, as additional evidence---Appellate Court dismissed the application on the ground that the register being a private document, the same was not admissible per se---Validity---Register of stamp vendor was not a private document as the same was prepared under Stamp Act, 1899 and Rules thereunder---Register of stamp vendor was maintained/kept under the directives of District Officer (Revenue) concerned---Certified copies of such register were issued under Art.87 of Qanun-e-Shahadat, 1984---Refusal to grant permission to produce such document by way of additional evidence on the ground that it was a private document,' was unwarranted and superfluous---Order passed by Appellate Court was set aside and matter was remanded for decision afresh on the application under O. XLI, R.27, C.P.C.---Revision was allowed accordingly.

Sarfraz Ali for Petitioner.

Nisar Ahmad Dhillon for Respondents.

Date of hearing: 19th July, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1866 #

2005 M L D 1866

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD MOMIN and another---Appellant

Versus

THE STATE---Respondent

Crl. Appeal No.355 of 2002/BWP, decided on 21st June, 2005.

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

----S. 302(c)----Appreciation of evidence---Presence of the deceased in the house of the accused at the odd hour of 2 a.m. in the night was admitted, which the prosecution had failed to explain---Impression in the circumstances would be created that the deceased had entered the house of accused with the intention of committing theft, dacoity or robbery or committing illicit intercourse with the suspected woman---Contents of the F.I.R. were itself a witness which had corroborated in defence plea---Narration in the F.I.R. that the said woman had fled away from that place, otherwise she was to be met with the same treatment as given to the deceased, was res gestea, which was the statement of the informant immediately after the occurrence and the same had depicted the real state of affairs---No chance of consultation or premeditation was there to concoct or cook up a story---Possibility, therefore, could not be ruled out that the accused had seen the deceased with their sister-in-law in an objectionable position---Prosecution having failed to explain the presence of the deceased in the house of the accused at such an odd hour of the night, statement of accused recorded under S.342, Cr.P.C. would have to be accepted and believed in toto for his or for his companion's conviction---Use of iron rod of a hand pump by the accused also gave out the real picture that the commission of the offence was not a premeditated one, but was the consequence of instantaneous and spontaneous provocating acts of the deceased which might be an outraging of modesty of a woman or the impious deed of, commission of illicit intercourse with their lady---Conviction of accused was consequently maintained, but their sentence of 14 years' R.I. was reduced to 7 years' R.I. each in circumstances.

Muhammad Ishaque alias Baig v. The State 1998 PCr.LJ 1110; Muhammad Sharif v. The State PLD 1987 Lah. 312; Munir Ahmad v. The State 1994 SCMR 80; Munawwar alias Shabboo v. The State 1999 MLD 76; Muhammad Ramzan v. The State Criminal Appeal No.132-2000/BWP; Muhammad Akram Khan v. State PLD 2001 SC 96 and Muhammad Yaqub v. State 2000 SCMR 1827 ref.

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

----S. 302(c)---Appreciation of evidence---Principles---When the statement of accused has to be accepted in toto---Rule of sifting of grain from the chaff applies to the statement of a prosecution witness and not to the statement of an accused---Where the prosecution fails to prove its case and the accused has given an eye-witness account of the occurrence, then it has to be accepted in its entirety---If participation of accused and his actions in the occurrence are to be believed true, then such facts are to be accepted with cohesion or to be rejected as a whole---Acceptance of the incriminating part of the statement of accused alone would tantamount to granting an assistance to the prosecution which has failed to prove its case whose duty was to establish the same independently through its evidence.

Sardar Ahmad Khan and A.R. Tayyib for Appellants.

Wajid Aftab Missan for State.

Muhammad Asif Chohan for The Complainant.

Date of hearing: 10th June, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1872 #

2005 M L D 1872

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD IDREES ---Petitioner

Versus

SHER MUHAMMAD---Respondent

C.R. No.190 of 2005, decided on 9th May, 2005.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---

Interim injunction, grant of---Imposing of condition--Plaintiff averred in the plaint that the defendant, after receipt of a sum of Rs.55,000 as earnest money, executed agreement to sell but subsequently he refused to take the balance amount and forcibly snatched the original agreement to sell from him---Trial Court granted interim injunction subject to deposit of balance sale consideration---Order passed by Trial Court was maintained by Appellate Court-Plea raised by the plaintiff was that the condition imposed by Trial Court was harsh---Validity---Non-availability of agreement to sell was a question of fact which was yet to be determined after recording of evidence, that too by way of secondary evidence---When the plaintiff stated that he was willing to enforce the contract after payment of alleged balance amount, the presumption was that he was having money in his pocket and sitting outside the Court awaiting direction of the Court---Plaintiff was allegedly enjoying the possession of land valuing Rs.2,00,000 just by payment of 1/4th of the price---Execution of agreement of sale was not only denied by the defendant but also termed as forged and fictitious---Plaintiff even by way of precaution in order to show his bona fides should have frankly offered for the deposit of the balance amount as ordered by Trial Court---Resistance of plaintiff with the order of Trial Court, prima facie, was neither reasonable nor based on norms of justice---No illegality or irregularity was committed by the two Courts below while passing the interim injunction with the condition---Relief for specific performance being equitable one, Court could refuse such relief even accepting the execution of agreement to sell, hence, by attaching condition, the Trial Court did not exercise his jurisdiction wrongly---High Court, to dispel the apprehension of plaintiff that order of deposit of entire balance amount was harsh and also to strike balance, reduced the amount to be deposited from Rs.1,45,000 to Rs.1,00,000.

Messrs Bin Bak Industries (Pvt.) Ltd., and another v. Friends Associates (Regd.) and others 2003 SCMR 238 and Friends Associates (Regd.) through Managing Partner, Lahore and 3 others v. Messrs Binn Bak Industries (Pvt.) Limited through Chief Executive, Faisalabad and 9 others: PLD 2003 Lah. 17 distinguished.

Khizar Hayat Khan v. Mussarat Rabbani PLD 1995 Lah. 438; Muhammad Banaras Khakan v. Miss Rubina Chaudhary and others 1997 CLC 997 and Muhammad Yousuf v. Messrs Urooj (Private) Ltd., through Managing Director and another PLD 2003 Kar. 16 rel.

Ms. Samina Qureshi for Petitioner.

Nadim Iqbal Chaudhry and Rana Rizwan Ahmad for Respondent.

Date of hearing: 5th May, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1876 #

2005 M L D 1876

[Lahore]

Before Khawaja Muhammad Sharif, J

MAHMOOD AHMAD---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, GUJRANWALA and 2 others---Respondents

Criminal Miscellaneous No.36-Q of 2005, decided on 18th April, 2005.

Criminal Procedure Code (V of 1898)---

----S.561-A---Quashing of proceedings---Complainant at the relevant time had no authority to lodge the complaint---No retrospective effect could be given to a penal provision---Impugned orders were consequently set aside and the proceedings pending against the accused petitioner in the Court of Magistrate were quashed accordingly.

PLD 1993 SC 399 and 1996 PCr. LJ 200 ref.

Muhammad Akram Javed for Petitioner.

Chaudhry Muhammad Hanif Khatana, Addl. A.-G. Punjab for Respondents.

MLD 2005 LAHORE HIGH COURT LAHORE 1877 #

2005 M L D 1877

[Lahore]

Before Muhammad Jehangir Arshad, J

GHULAM YASIN---Petitioner

Versus

ELECTION TRIBUNAL and others---Respondents

W.P. No.977 of 2003, decided on 3rd May, 2005.

Punjab Local Government Elections Ordinance (V of 2000)---

----Ss.2 (6) & 14 (o)---Punjab Local Government Ordinance (XIII of 2001), Ss.2 (xvi) & 152 (o)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Disqualification of candidates---"Zila Council" and "Union Council"---Distinction---Engaging in any transaction involving pecuniary interest with the Local Government of which the candidate was a member---Petitioner was a contractor of District Government and was elected as Nazim of union council---Election Tribunal disqualified the petitioner on the ground of having been engaged in the transactions involving pecuniary interest with the union council and directed for holding of fresh elections---Plea raised by the petitioner was that he was not engaged in any transaction involving pecuniary interest with the Local Government of which lie was elected as Nazim---Validity---Election Tribunal under no provision of law had right to disqualify him in the absence of any evidence that the petitioner was either a contractor of the union council for which he was elected or engaged in any transaction involving pecuniary interest with the local Government of which he was member---District Government and Union Government, Zila Council and Union administration/Union Council were distinct and independent powers, under the provisions of S.2(xvi) of Punjab Local Government Ordinance, 2001 and S.2(6) of Punjab Local Government Elections Ordinance, 2000, within their specific spheres of administration---District Government or for that purpose Zila Council and Union administration or Union Council were two different and separate legal entities having their functions and working independent of each other---Election Tribunal while deciding the question of disqualification of the petitioner misconceived that Union Council was part of Zila Council and contractor of Zila Council meant contractor of Union Council---Such approach of Election Tribunal was neither based on proper understanding of distinction between Zila Council and Union Council, nor based on proper construction as well as interpretation of law as contained in Punjab Local Government Ordinance, 2001 or Punjab Local Government Elections Ordinance, 2000---Petitioner neither violated provisions of S.14(o) of Punjab Local Government Elections Ordinance, 2000, nor he incurred disqualification of either being a candidate or to hold elective office or membership of Union Council either in view of bar contained in S.14(o) of Punjab Local Government Elections Ordinance, 2000, or S.152(o) of Punjab Local Government Ordinance, 2001---Order passed by Election Tribunal was set aside---Petition was allowed in circumstances.

Ijaz Ahamd Chaudhry for Petitioner.

M. Aslam Khan Dhukkar for Respondent No.4.

Mirza M. Nadim Asif for Respondents Nos.3 and 8.

Date of hearing: 3rd May, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1896 #

2005 M L D 1896

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD IRFAN---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.4198-13 of 2005, decided on 27th July, 2005.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Name of accused did not appear in the F.I.R---Complainant for the first time in his supplementary statement after the registration of the F.I.R. nominated the accused involving him in the case---Statements of two prosecution witnesses that they had learnt that the accused and his co-accused had stolen the articles and had murdered the deceased, were based on hearsay and, prima facie, were not admissible---No recovery had been effected from the accused---Case against accused needed further inquiry as envisaged by S.497(2), Cr.P.C. in circumstances and he was allowed bail accordingly.

Rana Tahir Mehmood for Petitioner.

Ch. Zafar Iqbal for the State.

Muhammad Khalil, A.S.-I. Police Station Baghbanpura, Lahore with police file.

MLD 2005 LAHORE HIGH COURT LAHORE 1898 #

2005 M L D 1898

[Lahore]

Before Maulvi Anwarul Haq, J

AKBAR ALI---Petitioner

Versus

AFTAB AHMED and another---Respondents

C. R. No. 1117-D of 2004, heard on 6th July, 2005.

Civil Procedure Code (V of 1908)---

----O. XXXVII & Rr. 2 & 3---Suit for recovery of amount---Execution of decree---Release of arrested Judgment-debtor subject to furnishing of a surety---Discharge of surety---Suit having been decreed, decree was put into execution---Judgment-debtor who was sent to Judicial Lock-up, prayed to be released subject to furnishing surety bond so that he could challenge order of his arrest---Judgment-debtor was ordered to be released subject to furnishing of a surety bond equivalent to decretal amount and petitioner filed surety bond in that respect---Subsequently a compromise was arrived at between Judgment-debtor and Decree-holder to which petitioner/surety was not party---Petitioner/surety filed application to the effect that as during pendency of execution petition, both Judgment-debtor and Decree-holder had entered into a compromise whereby Judgment-debtor had mortgaged his land with decree-holder, and matter had been disposed of, he should be relieved, but said application of petitioner/ surety was dismissed by the Executing Court---Petitioner/surety not only was not party to agreement/compromise arrived at between Decree-holder and Judgment-debtor, but no allegation or finding was recorded by Executing Court that consent of petitioner was ever sought by Judgment-debtor or Decree-holder or even by the Executing Court qua arrangement for re-payment of decretal amount entered into between Judgment-debtor and Decree-holder and endorsed by the Court---Petitioner/surety, in circumstances was no longer bound by terms of agreement in said change of circumstances---Executing Court had acted with material irregularity in exercise of its jurisdiction by passing impugned order---Impugned order whereby application of petitioner/surety to relieve him from surety bond was dismissed by Executing Court, was set aside and petitioner was discharged and relieved of his obligation.

Jafar Khan v. Arbitration Board through Chairman, Arbitration Board Market Committee, Chishtian District Bahawalnagar and 2 others 1997 MLD 434; Dr. M.A. Qadir Khan v. The Bank of Bahawalpur Ltd. and another PLD 1984 Kar. 211 and Federation of Pakistan v. National Bank of Pakistan, Karachi and another 1981 CLC 847 ref.

Muhammad Tufail Alvi for Petitioner.

Nasir Ali Shah for Respondent No. 1.

Nemo for others.

Date of hearing: 6th July, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1904 #

2005 M L D 1904

[Lahore]

Before M. Bilal Khan, J

AKHTAR HUSSAIN and another---Petitioners

Versus

THE STATE---Respondent

Crl. Misc. No.3470/B of 2005, decided on 28th July, 2005.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/148/149/109---Bail, grant of---Accused while carrying fire-arms were allegedly present at the scene of occurrence and after the fatal shot had been fired by their co-accused, they decamped making aerial firing---Accused had been found innocent in four successive police investigations---No crime weapon was recovered from the accused---No crime empty of the weapons attributed to accused was recovered from the venue of occurrence---Motive was not attributed to accused---Vicarious liability of accused would be determined at the trial---Submission of challan in the Court would not render the provisions of S.497(2), Cr.P.C. nugatory, if otherwise the accused were entitled to the concession of bail---Case of accused was of further inquiry within the meaning of S.497(2), Cr.P.C.---Accused were admitted to bail in circumstances.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/148/149/109---Bail, grant of---Challan submitted in the Court---Effect---Submission of challan in the Court will not render the provisions of S.497(2), Cr.P.C. nugatory, if otherwise the accused are entitled to the concession of bail.

Ch. Farooq Haider for Petitioners.

Ch. M. Lehrasib Khan Gondal for the Complainant.

Naseem Noor for the State with Qaiser Abbas, A.S.-I.

MLD 2005 LAHORE HIGH COURT LAHORE 1906 #

2005 M L D 1906

[Lahore]

Before Muhammad Jehangir Arshad, J

FAZAL BIBI---Petitioner

Versus

Syed JIND WADDA SHAH and others---Respondents

Civil Revision No.626 of 1994/BWP, decided on 15th February, 2005.

Civil Procedure Code (V of 1908)---

---O.XIV, R.1, O.XLI, R.23 & Ss. 99 & 115--- Specific Relief Act (I of 1877), S.42---Proceedings not affecting merits of case---Non-framing of proper issues---Remanding of case after framing additional issues---Plaintiff being real sister of defendants filed suit assailing gift deed allegedly executed by her in favour of defendants---Trial Court decreed the suit in favour of plaintiff but Appellate Court remanded the case to Trial Court after framing of additional issues with regard to oral gift followed by acknowledgment through gift deed being two distinct issues---Validity---Issues already framed by Trial Court and recast by Appellate Court in his remand order did not reflect any controversy other than those already framed by Trial Court---In either eventuality it were the defendants being beneficiaries of the alleged gift, who had to prove the existence/making of valid and lawful gift, may be oral or through written document---Both the pleas were already taken in the plaint and evidence on that was also led---To prove the existence of valid gift by plaintiff was the duty of defendants---By bifurcating oral and written gift into two issues, Appellate Court provided the defendants opportunity of filling in the lacunas in their evidence. In the light of pleadings of parties and evidence led by them, there was no necessity of recasting any issue---Appellate Court could easily decide the controversy on the basis of material available on the record---Order of Appellate Court remanding the case to Trial Court for deciding the matter afresh was not only violative of the law declared by Supreme Court but also excessive exercise of jurisdiction, which was not sustainable and High Court must interfere in exercise of its revisional jurisdiction under S. 115 C.P.C. by declaring the same as without lawful authority---Judgment passed by Lower Appellate Court, was set aside and the case was remanded to it for deciding the appeal afresh---Revision was allowed in circumstances.

Ashiq Ali and others v. Mst. Zamir Fatima and others PLD 2004 SC 10 and Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs 2005 SCMR 152 ref.

Sardar Hussain Amin Khan Lodhi for Petitioner.

Ms. Samina Qureshi for Respondents.

Date of hearing: 15th February, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1922 #

2005 M L D 1922

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD MUNIR---Petitioner

Versus

THE STATE---Respondents

Crl. Misc. No.4717-B of 2005, decided on 12th July, 2005.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII 1979), S.11---Bail, grant of---Present F.I.R. contained almost similar allegations levelled in the previous F.I.R. which had been cancelled---Vital ingredients of forcible abduction were conspicuously missing in the facts narrated in the present F.I.R. and some element of consent of the alleged abductee was also indicated therein---Story as stated in the F.I.R. did not inspire confidence as it did not appeal to reason that father, mother, brothers, sisters and all other relatives would get together and abduct a female with a view to subjecting her to Zina-bil-Jabr---Accused was an elderly man of about sixty years---Main accused with whom the abductee had allegedly eloped had still not been arrested---Culpability of accused in the offence needed further probe within the meaning of S.497(2), Cr.P.C.---Accused was in custody for the last four and a half months and he could not be retained as such as a measure of punishment---Bail was granted to accused in circumstances.

Major (R) Aftab Ahmad Khan for Petitioner.

Tanvir Ahmad Shami for the State.

Abdul Naeem, A.S.-I. Police Station Baghbanpura, Gujranwala with Police file.

MLD 2005 LAHORE HIGH COURT LAHORE 1925 #

2005 M L D 1925

[Lahore]

Before Maulvi Anwarul Haq, J

Malik NASEEM AHMAD through Legal Representatives---Petitioner

Versus

Malik MUHAMMAD AKBAR through Legal Representatives and others---Respondents

Civil Revisions Nos.262 and 263 of 1992, heard on 21st June, 2005.

Civil Procedure Code (V of 1908)---

----O.VII, R.10 & S.96---Transfer of suits from one District to another---Jurisdiction of Appellate Court---Suits filed by plaintiffs against defendants in Courts at District were transferred under order of High Court to Courts at District M' which were decided by concerned Civil Judges of transferee District---Appeals, against judgments and decrees of said Courts were filed in the Court of District Judge from which District, suits were transferred to DistrictM'---District Judge dismissed one appeal after holding that he had no jurisdiction in the matter, while Addl. District Judge returned other appeal for its presentation before a Court of competent jurisdiction under O.VII, R.10, C.P.C.---Suits were transferred out of District under the orders of High Court; the moment inter-District transfer was ordered, the Court at ceased to have any jurisdiction---Decrees in both cases having been passed by Senior Civil Judge at District M' where suits were transferred and in terms of S.96, C.P.C. appeals would lie to District Judge at DistrictM' who was authorized to hear appeals from the decisions of Trial Courts of District M'---District Judge or Addl. District Judge had no jurisdiction to entertain appeals filed therein. District Judge had dismissed appeal holding that he had no jurisdiction while Addl. District Judge had returned appeal---Revision petitions filed against judgments of Appellate Courts were disposed of with direction that both appeals would be heard by District JudgeM' accordingly.

Mian Shamas-ul-Haq Ansari for Petitioners.

M. Naveed Hashmi and Sarwar Khalil Samdani for Respondents.

Date of hearing: 21st June, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1934 #

2005 M L D 1934

[Lahore]

Before Muhammad Nawaz Bhatti, J

ZAHID HUSSAIN---Petitioner

Versus

THE STATE---Respondent

C.M. No.1 of 2005 in Criminal Appeal No.180 of 2005, decided on 7th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 324 & 337-D---Suspension of sentence--Application for---Sentence awarded to accused was short and hearing of appeal could take some time---Sentence of accused was suspended in circumstances.

Abdul Hameed v. Muhammad Abdullah 1999 SCMR 2589 and Nazir Ahmad v. The State 2005 PCr.LJ 657 ref.

Sardar Noor Akbar Khan for Petitioner.

Muhammad Munir Badar for the State.

MLD 2005 LAHORE HIGH COURT LAHORE 1940 #

2005 M L D 1940

[Lahore]

Before Sh. Hakim Ali, J

Prince AZIZ-UR-RASHID ABBASI---Petitioner

Versus

Begum KATHERINE ABBASI and 4 others---Respondents

Civil Revision No.182 of 2005/BWP, decided on 21st June, 2005.

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

----S. 42---Limitation Act (IX of 1908), Arts. 90 & 120---Suit by principal against agent---Limitation---Agent acting beyond authority---Validity---Plaintiffs assailed transfer of their property by their attorney having general power without any specific authority in that respect---Plea raised by attorney was that suit was barred by limitation as Art.90 of Limitation Act, 1908, was applicable---Validity---Present was the case where general attorney acted beyond the scope of his authority, as in the general power of attorney deed, he was never conferred the power to transfer the property of plaintiffs to anyone---Such---Situation was to be governed by Art.120 and not by Art.90 of Limitation Act, 1908.

Muhammad Akram through his heirs and legal representatives v. The Habib Bank Limited Karachi PLD 1960 (W.P.) Kar. 484 and S.A.A. Anamalai Chettyar v. N.M. Cowasjee and others AIR 1938 Rangoon 258 ref.

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

----O.VII, R.11---Rejection of plaint---Object and scope---Incompetent, illegal, vexatious and frivolous suits must be buried at their provenance, as the birth of those suits would not only prolong agony of parties but wastage of precious time of Courts as well---Fruitless and useless litigation must not be encouraged---While deciding application under O.VII, R.11, C.P.C. care and caution has also to be exercised, because no party should be deprived of his lawful rights, by such summary manner of disposal of a suit by rejection of plaint under O.VII, R.11, C.P.C.---When suit of a party has got sound footings on factual as well as on legal plane, it should not be rejected.

---O.VII, R.11---Rejection of plaint---Material to be relied upon---Assertions/averments contained in plaint, unless proved otherwise, are to be presumed to be correct for the purpose of decision of application under O.VII, R.11, C.P.C.

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

----O.VII, R.11(d)---Phrase appears from the statement in the plaint'---Scope---Wordsappears from the statement in the plaint' are of vital significance for the decision of the application filed under O.VII, R.11, C.P.C., as these words have limited the scope of Court-Although other material can also be seen/examined at the stage, yet such is not the enlargement of the provision but the supportive material for reaching at a conclusion, as to whether the suit was barred by law or, not---Words in the plaint are the basis and foundation stone, upon which the edifice for conclusion has to be constructed.

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

----O. VII, Rr.10, 11 & S.115---Specific Relief Act (I of 1877), S.42---Rejection of plaint---Material to be relied upon---Suit by principal against agent---Agent acting beyond authority---Plaintiffs assailed transfers of their property by their general attorney without any specific authority in that respect---Trial Court instead of rejecting the plaint, returned the same to plaintiffs under O.VII, R.10, C.P.C.---Appellate Court set aside the order passed by trial Court, declined to reject the plaint and remanded the same to Trial Court for decision on merits---Validity---Power of general attorney having been disputed and brought into challenge, it required evidence from both the parties to prove their view point and assertions---Many factual questions and controversies were there, which were found in the case and were to be resolved by and through eliciting of evidence, examining/analyzing of record and hearing of parties on merits of the case---Order/judgment passed by Appellate Court had no jurisdictional defect, attracting exercise of jurisdiction of High Court under S.115, C.P.C.---Revision was dismissed in circumstances.

Ghulam Ali Shah and another v. Abbas Ali and 5 others 1995 CLC 1977; Nazar Gul v. Islam and 3 others 1998 SCMR 1223; Sheikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628; Nawab Din v. Muhammad Hussain 2004 CLC 269; Ahmad Khan v. Settlement Commissioner and others 1975 SCMR 64; Haji Allah Bakhsh v. Abdul Rehman and others 1995 SCMR 459; Muhammad Altaf and others v. Abdul Rehman Khan and others 2001 SCMR 953; Cotecna Inspection SA and another v. Messrs Ismail & Co. and 6 others 2001 CLC 899; Kanwar Qutubuddin Khan v. Karachi Development Authority through Director-General 2002 CLC 634; Muhammad Zaman and others v. Shah Wazir Khan PLD 2002- Pesh. 45; Shipyard K. Damen International, Karachi v. Karachi Shipyard and Engineering Works Ltd. Karachi 2003 YLR 879; Gulshan-e-Faisal Cooperative Housing Society Limited v. Muhammad Arif and others 2003 CLC 224; Muhammad Tariq Mahmood and 2 others v. Anjuman Kashmiri Bradari Khisht Faroshan through President Abdul Ashfaq and 21 others 2003 CLC 335; Anwar Khan v. Abbas Khan 2003 YLR 712; Ehsan Ali Alibhoy and others v. Industrial Development Bank of Pakistan 2003 CLD 440; Pak Sports Writer Federation .v Sardar Khan Ranor 2004 YLR 353; Mst. Siraj Zamani v. Kh. Azhar Iqbal and 9 others 2004 MLD 337; Muhammad v. Shahbaz and 21 others 2004 YLR 1180; Muhammad Hanif Bukhari v. President, National Bank of Pakistan and others 2004 PLC (C.S.) 1014; Muhammad Khan and others v. Muhammad Khaliq and another 2005 MLD 307 and Khairat Masih and others v. Aziz Sadiq 2004 MLD 943 ref.

Ch. Naseer Ahmad for Petitioner.

Syed Muhammad Ibrahim Shah Bukhari and Syed Muhammad Arshad Bukhari for Respondents.

Date of hearing: 14th June, 2005.

MLD 2005 LAHORE HIGH COURT LAHORE 1974 #

2005 M L D 1974

[Lahore]

Before Nazir Ahmad Siddiqui, J

LIAQUAT ALI---Petitioner

Versus

THE STATE-Respondent

Crl. Misc. No.674-B of 2005, decided on 28th March, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497--Penal Code (XLV of 1860), S. '380---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 11---Bail, grant of---Alleged abductee had not been recovered from accused who was behind the bars since long and complete challan had not been submitted to the Trial Court---Delay of eight days was made in lodging F.I.R.---Alleged abductee, in her statement under S.164, Cr.P.C., had levelled allegation of Zina against accused and all other accused named in F.I.R., but all except accused were enlarged on bail---No evidence was available against accused except solitary statement of alleged abductee which was not fully believed by Trial Court while granting bail to other accused named in F.I.R. with similar allegation---Accused was admitted to bail, in circumstances.

Abid Hussain Bhutta for Petitioner.

Tahir Mahmood for the Complainant.

Azmat Ali Khanzada for the State.

MLD 2005 LAHORE HIGH COURT LAHORE 1979 #

2005 M L D 1979

[Lahore]

Before Fazal-e-Miran Chouhan, J

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY through Executive Engineer MEPCO Ltd.---Petitioner

Versus

Messrs HUSNAIN INDUSTRIES (PVT.) LTD. through Managing Director Amir Azwar Khan and 3 others---Respondents

Amended Writ Petition No.436 of 2005, decided on 13th June, 2005.

(a) Electricity Act (IX of 1910)---

----Ss.26(2) & 36---Electrical Inspector, role of---Status of Arbitration Court---Scope---Electrical Inspector has been assigned important role so far as determination of dispute arising under Electricity Act 1910 was concerned---Legal character of Electrical Inspector in deciding cases under Electricity Act, 1910, is not that of Court---Role assigned to Electrical Inspector is to determine dispute under Electricity Act, 1910---Electrical Inspector so nominated by Federal Government or Provincial Government does not act as a Court or arbitrator under Arbitration Act, 1940.

(b) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)---

----Art.9---Electricity Act (IX of 1910), Ss.26(2) & 36---Proceedings before Electrical Inspector---Bar on jurisdiction of Ombudsman---Scope---When the consumer initiated proceedings before Ombudsman, the matter was pending before Electrical Inspector---Plea raised by licensee was that the proceedings before Ombudsman were barred under Art. 9 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983---Validity---Proceedings before Electrical Inspector were not proceedings pending before a Court or Tribunal creating bar on the jurisdiction of Ombudsman conferred under Art.9 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983---Ombudsman had the jurisdiction to entertain the complaint/reference, when the matter was pending before Electrical Inspector or the same had already been decided by him.

----S.32---Constitution of Pakistan (1973), Art.199---Constitutional petition---Remedy of appeal, non-availing of---Petitioner was aggrieved of the order passed by Ombudsman in reference filed by respondent---Order passed by Ombudsman was assailed in Constitutional petition without availing the remedy of appeal---Validity---If the petitioner was aggrieved of the order of Ombudsman, he had a remedy under S.32 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, to make representation to President of Pakistan---Petition was dismissed in circumstances.

(d) Equity---

----One who seeks equity must show that equity leans in his favour.

(e) Electricity Act (IX of 1910)---

----S.26(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Laches, principles of---Applicability---Condonation of delay---Position of Government vis-a-vis ordinary litigant---Electrical Inspector on 24-6-1998 directed licensee to refund the amount, received illegally from consumer---Advisory Board maintained the order passed by Electrical Inspector---Licensee being aggrieved of the order passed by Electrical Inspector assailed the same before High Court in Constitutional jurisdiction, after lapse of more than four years---Plea raised by licensee for condonation of delay was that the file was misplaced in its office---Validity-.-Explanation given in application for condonation of delay was not self-explanatory and did not inspire confidence---Misplacement of file in the office of licensee was not supported by any evidence showing bona fides of licensee---Government was not in a better position than the ordinary litigants in such matters---Licensee failed to give any plausible explanation for not filing Constitutional petition within reasonable time and the petition was hit by laches---Petition was dismissed in circumstances.

L.H. Shaikh v. General Manager, Karachi Telecommunication Region and others 1974 SCMR 82; Chief Settlement and Rehabilitation Commissioner and another v. Ghulam Ghaus and others 1974 SCMR Kar. 38; Member (S&R)/Chief Settlement Commissioner Board of Revenue, Punjab, Lahore v. Syed Ashfaque Ali and others PLD 2003 SC 123 and Pakistan Railway v. Abdul Barik Khan and other PLD 2004 SC 127 ref.

Muhammad Ashraf Sh. for Petitioners.

Malik Muhammad Latif Khokhar for Respondent No.1.

Ch. Saghir Ahmad, Standing Counsel with Haq Nawaz, Asstt. Wafaqi Mohtisab, Regional Office, Multan and Muhammad Sabir, Electric Inspector, Multan.

MLD 2005 LAHORE HIGH COURT LAHORE 1989 #

2005 M L D 1989

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. RAFIA BIBI---Petitioner

Versus

S.H.O. and others---Respondents

W.P. No.231 of 2005, decided on 3rd February, 2005.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Interference by police in peaceful enjoyment of matrimonial life of petitioners-Police refrained from causing such interference---Petitioners appeared personally in High Court who being major had contracted marriage of their own---Petitioners had admitted themselves as husband and wife---Respondent S.H.O. had no authority to interfere in the peaceful enjoyment of the marital life" of the petitioners and he was consequently restrained from doing so or causing any illegal harassment to them---Constitutional petition was allowed accordingly---However, the husband on asking of the Court willingly raised the amount of dower from a meagre amount of Rs.500 to Rs.50,000 keeping in view the present socio-economic conditions of the country and also the fundamental principle of Muslim Jurisprudence equally protecting the rights of the female.

Abdul Waheed v. Asma Jehangir PLD 2004 SC 219 rel.

Malik Mehboob Ahmad along with petitioner and her husband Ashiq Hussain.

MLD 2005 LAHORE HIGH COURT LAHORE 1994 #

2005 M L D 1994

[Lahore]

Before Muhammad Muzammal Khan, J

LAKHI---Petitioner

Versus

MEMBER (COLONIES) BOARD OF REVENUE, PUNJAB and others---Respondents

W.P. No.3020 of 2005, decided on 11th July, 2005.

Colonization of Government Lands (Punjab) Act (VI of 1912)---

----S.30(2)---West Pakistan Board of Revenue Act (XI of 1957), S.8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Review by Board of Revenue---Necessary parties---Petitioner filed application before Revenue Authorities for cancellation of conveyance deeds executed in favour of allottees---Application of petitioner was entertained by Board of Revenue and allottees were restrained from transferring the lands in question---Respondents being purchasers from allottees, assailed the restraining order in review petition---Board of Revenue allowed the review on the ground that the lands were rightly allotted and respondents were bona fide purchasers---Petitioner assailed the order in second review petition on the ground that he was not arrayed as party in the review petition filed by respondents---Second review petition filed by the petitioner was dismissed by Board of Revenue---Plea raised by the petitioner was that as the initial restraining order was passed on his application, therefore, he was a necessary party to the review petition filed by the respondents---Validity---Petitioner was not made party by respondents while filing review petition against restraining order which had been passed on his application---No notice was issued to the petitioner by Board of Revenue earlier to passing of order in favour of respondents, which was contrary to the provisions of law and principles of natural justice---Petitioner might have no right, title or interest in the property in question but since the restraining order was passed on his application, he had a right of hearing earlier to review of order on his petition which was being recalled against his interest---Board of Revenue should have decided the entire lis pending before it, including the application of petitioner, and if according to the estimation of the Board, the petitioner had no right to the land allotted to allottees, application of petitioner should have been dismissed---Orders passed by Board of Revenue in review petitions were set aside and the matter was remanded to Board of Revenue for decision afresh on the review petition of respondents---Petition was allowed in circumstances.

Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408; Messrs Murree Brewery Company Limited v. Director General, Excise and Taxation and 3 others 1991 MLD 267; Gul Muhammad v. Buxal and 2 others 1991 CLC 229; Collector, Sahiwal and 2 others v. Muhammad Akhtar 1971 SCMR 681 and Fateh Muhammad v. Mushtaq Ahmad and 9 others 1981 SCMR 1061 ref.

Aamir Majeed Rana for Petitioner.

Ch. Muhammad Sadiq, Addl. A.-G. for Respondent No.1.

Naveed Shaharyar for Respondent No.6.

Pakistan Bar Council

MLD 2005 PAKISTAN BAR COUNCIL 340 #

2005 M L D 340

[Pakistan Bar Council]

Before Chaudhry Muhammad Ashraf Wahlah, Chairman, Hamid Khan and Rasheed A. Razvi, Members

IRSHAD AHMED CHEEMA and another‑‑‑Appellants

Versus

Chaudhry GHAZANFARULLAH CHEEMA and another‑‑‑Respondents

Appeal decided on 26th June, 2004.

(a) Punjab Legal Practitioners and Bar Council Rules, 1974‑‑‑--

‑‑‑‑R. 7.10‑‑‑Punjab Rules of Business of Bar Associations‑‑Memorandum of Association, 1981, R.5(d)(e)‑‑‑Entitlement of Advocate to become Member of more than one Bar Associations‑‑‑Advocate was entitled to become Member of more than one Bar Associations, but would be entitled to the right of vote in one District Bar Association and in one High Court Bar Association‑‑‑Advocate could not exercise his right of vote in two Districts and two High Court Bar Associations‑‑Advocate, however, would be entitled to all privileges and entitlements of those Bar Associations.

(b) Punjab Legal Practitioners and Bar Council Rules, 1974‑‑‑--

‑‑‑‑Election‑‑‑Election proceedings‑‑‑Proceedings before an Election Tribunal, was quasi‑civil and quasi‑criminal and any doubt arising therefrom must be extended to returned candidate‑‑‑In order to prove allegation of corrupt practices in election, same must be specifically pleaded in petition.

Syed Saeed Hassan v. Pyar Ali PLD 1976 SC 6 ref.

‑‑‑‑R. 7.10‑‑‑Punjab Rules of Business of Bar Associations Memorandum of Association, 1981, R.46‑‑‑Objection in respect of final list of eligible voters‑‑‑Once a final list of eligible voters was published/circulated/ displayed 30 days before Polls, candidate or any eligible voter would be entitled to raise objection before Election Board which was competent under R.46 of Memorandum of Association to decide such objection.

(d) Punjab Legal Practitioners and Bar Council Rules, 1974‑‑‑--

‑‑‑‑Rr. 7.10 & 65‑‑‑Violation of rules‑‑‑Professional misconduct‑‑Declaring election void‑‑‑Provisions of R.7.10 of Punjab Legal Practitioners and Bar Council Rules, 1974, were mandatory and an Advocate found violating said provisions would be guilty of professional misconduct to be tried before concerned Disciplinary Committee of Bar Council and it would be legally difficult to say that an election would be liable to be declared void on basis that R.7.10 of Punjab Legal Practitioners and Bar Council Rules, 1974 were violated‑‑‑Burden lay on un‑returned candidate who had challenged election of returned candidate to prove beyond reasonable doubt that a member/Advocate had cast his vote in violation of R.7.10 of Punjab Legal Practitioners and Bar Council Rules, 1974 with active consent of candidate or with his connivance‑‑Returned candidate could not be unseated for the wrong committed by another person.

Yahya Bakhtiar v. The State PLD 1983 SC 291; Mian Allah Nawaz Advocate v. Muhammad Asghar Ali Bhatti PLD 1977 Jour. 203; Ajmal Khan v. Mirza Khalid Beg alias Billa 1988 CLC .1992 and M. Suleman v. S. Zahid Qadri 1980 CLC 783 ref.

(e) Punjab Legal Practitioners and Bar Council Rules, 1974‑‑‑-

‑‑‑‑Election‑‑‑Challenging election of returned candidate‑‑‑Once a candidate had contested an election without objection on electoral roll he could not be permitted to challenge same after losing elections.

Ch. Javed Bashir Cheema for Respondent No.1.

Peshawar High Court

MLD 2005 PESHAWAR HIGH COURT 332 #

2005 M L D 332

[Peshawar]

Before Shahzad Akbar Khan and Fazlur Rehman Khan, JJ

MUHAMMAD KHALID alias KHALID HUSSAIN and 3 others‑‑‑Petitioners

Versus

PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL, BAGNOTAR and 4 others‑‑‑Respondents

W.P. No.211 of 2004, decided on 2nd December, 2004.

Civil Procedure Code (V of 1908)‑‑‑--

‑‑‑‑O.XVII, R.3‑‑‑Land Acquisition Act (I of 1894), S.18‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Acquisition of land‑‑‑Claim for enhanced compensation of acquired land‑‑‑Reference to Civil Court‑‑‑Closing of evidence‑‑‑Petitioners/landowners dissatisfied with compensation amount of their acquired land brought an independent case before Civil Court by filing, application under S.18 of Land Acquisition Act, 1894, but they failed to make out a case in their favour by producing cogent evidence despite they were liberally granted various opportunities for producing their evidence‑‑‑Non‑production of evidence by petitioners resulted into dismissal of their case under O.XVIT, R.3, C.P.C.‑‑‑Application of O.XVII, R.3, C.P.C. gave it a status of a decree to decision of Trial Court‑‑‑Decree of Civil Court was operating against petitioners and same was still holding field‑‑‑When claim of petitioners was denied on the basis of judgment and decree of a Civil Court no benefit contrary to said judgment and decree could be claimed by petitioners, as on the basis of judgment and decree rendered against petitioners rights of opposite party had come into existence which in presence of such judgment and decree, could not be violated.

Rehmatullah Khan v. Saadat Ali Khan 1991 MLD 1017 ref.

S. Iltaf Hussain Shah for Petitioners.

Qari Abdur Rashid D.A.‑G. for Respondents.

Date of hearing: 2nd December, 2004.

MLD 2005 PESHAWAR HIGH COURT 348 #

2005 M L D 348

[Peshawar]

Before Tariq Parvez Khan and Ijaz‑ul‑Hassan Khan, JJ

MUSHTAQ AHMED ‑‑‑Petitioner

Versus

Mst. KALSOOM BIBI and 2 others‑‑‑Respondents

Writ Petition No.80 of 2004, decided on 13th October, 2004.

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

‑‑‑‑S.5 & Sched‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Suit for recovery of amount of maintenance, dowry articles and dower amount‑‑‑Plaintiff had produced sufficient material to substantiate her claim‑‑‑All the witnesses produced by plaintiff consistently supported her claim‑‑‑Said witnesses were cross examined at considerable length by defendant, but he failed to derive any advantage out of such exercise and their testimony remained unshaken‑‑Both Courts had made extensive reference to evidence while dealing with issues regarding dowry and dower‑‑‑Appreciation, appraisal and interpretation of evidence on record made by Trial Court and affirmed by Appellate Court, were based on correct analysis thereof‑‑‑Nothing was in rebuttal to suggest that claim of plaintiff was satisfied in earlier round of litigation between the parties and that defendant was relieved of his obligation‑‑‑View so taken by two Courts, was absolutely justified from evidence on record and found support from the law applicable‑‑Constitutional petition against concurrent judgments of two Courts, was dismissed, in circumstances.

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

‑‑‑‑S.5 & Sched‑‑‑Muslim Family Laws Ordinance (VIII of 1961), S.10‑‑‑Dower‑‑‑Meaning and importance of‑‑‑Dower was a debt and unless wife would waive the same, it would be payable to her‑‑‑Islamic Law ordained that there should always be a consideration made by the husband in favour of wife; it was a settlement in favour of wife made prior to completion of marriage contract and was a pre‑condition and pre‑requisite of a valid marriage‑‑‑Dower was indispensable, so much so that in its absence, relationship between husband and wife could not be legitimized and would be regarded as a sinful union.

‑‑‑‑S.5 & Sched‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑When Courts below had jurisdiction and lawful authority to decide the matter on merits, it was not open to interference in Constitutional jurisdiction, unless and until miscarriage of justice was established by party in Constitutional petition‑‑‑High Court would not interfere in judgment and decree passed by Court of competent jurisdiction for the reason that it was within the exclusive jurisdiction of Judge Family Court to believe or disbelieve evidence and that the Judge had given reasons in support of his conclusionNo Constitutional petition lay when evidence in case had been properly appreciated and analyzed.

Ghazanfar Abbas Sandeela for Petitioner.

MLD 2005 PESHAWAR HIGH COURT 371 #

2005 M L D 371

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

SALAH‑UD‑DIN and another‑‑‑Appellants

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.70 of 2004, decided on 1st December, 2004.

(a) Criminal Trial‑‑‑

‑‑‑‑Charge‑‑‑Proof‑‑‑Burden to prove all ingredients of charge lay on prosecution and it never would shift on accused who was entitled to stand on innocence assigned to him under law till it was dislodged‑‑‑Where defence plea, on its face, appeared to be sham prosecution was not absolved of the duty to prove its case‑‑‑Court while deciding a case, should, at first, evaluate prosecution evidence and see as to whether it had the capacity to bring home charge against accused and if answer was in affirmative, only then plea of accused along with defence evidence, if any, could be weighed so as to reach at a definite conclusion‑‑‑Court in order to award or maintain conviction had to base the findings on evidence and that too having come from an unimpeachable source.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.392‑‑‑Appreciation of evidence‑‑‑Complainant in his statement recorded at the trial, charged two unknown persons for the commission of crime and admitted in cross‑examination that he had identified accused at the time of occurrence‑‑‑Accused were not those persons who had snatched money from shop of complainant‑‑‑Complainant had seen accused while in police custody and after arrest accused were brought to shop of complainant‑‑‑Prosecution evidence, on material particulars, was inconsistent and full of doubts and same even in absence of defence evidence, could not result into conviction of accused‑‑‑Two witnesses examined in defence had totally narrated a different story and negated version of prosecution‑‑‑Even if both the versions, one put forward by accused and other put forward by prosecution, are considered in juxta position then the version of accused seemed more plausible and convincing and near to truth while version of prosecution was totally false‑‑‑Case of prosecution was full of doubts and contradictions‑‑Conviction was to be based on evidence on record and in the present case evidence did not prove beyond a reasonable doubt that accused were perpetrators of crime‑‑‑Prosecution having failed to bring home charge to accused, conviction and sentence recorded against them were set aside and they were acquitted of the charge and were set free.

Ahmad Sher and another v. The State PLD 1995 FSC 20; Ihsanullah v. The State PLD 1995, Pesh. 106; Muhammad Asghar alias Pappu v. The State 1999 PCr.LJ 1575; Muhammad Riaz and 3 others v. The State PLD 1994 Pesh. 102; Muhammad Aslam and others v. State PLJ 2004 Cr.C Lah. 826; Riaz Maseeh alias Mithu v. State 1995 SCMR 1730 and Saeedullah v. Shah Nazar and others 2001 PCr.LJ 1740 ref.

---S. 392---- Appreciation of evidence---Enmity, grudge and malice of police or witness--- Not the quantity but quality of evidence which would weigh with the court while appreciating evidence---Even one reason or factor if created any reasonable doubt in the probability of a version being true same could be taken as sufficient to clinch the matter and not many factors were required‑‑‑Mere absence of enmity, was not sufficient to stamp statement of a witness with truth‑‑‑Mere fact that police witnesses had no enmity or grudge or malice against accused, by itself, was not strong circumstance to hold that whatever had been alleged by prosecution, should be implicitly relied upon without asking for supporting evidence.

Malik Ehsanul Haq for Appellants.

Muhammad Sharif Chaudhry, D.A.G. for the State.

Date of hearing: 8th November, 2004.

MLD 2005 PESHAWAR HIGH COURT 386 #

2005 M L D 386

[Peshawar]

Before Ijaz‑ul‑Hassan Khan and Ejaz Afzal Khan, JJ

Mst. ANARA BIBI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.60 of 2004, decided on 6th December, 2004.

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

‑‑‑‑S.9‑‑‑Appreciation of evidence‑‑‑Witnesses produced by prosecution had fully proved factum of apprehension of accused while travelling in bus and recovery of contraband Charas from his possession‑‑‑Factum of arrest of accused had not been denied‑‑‑Both prosecution witnesses had fully supported prosecution version‑‑‑One of prosecution witnesses in his cross‑examination had clearly stated that four grams of Charas was separated from one packet for the purpose of Chemical Analysis and it was not discernible from the record whether samples for Chemical Analysis were obtained from other packet or not‑‑‑Accused at the most could be held responsible for being in possession of one packet containing Charas‑‑‑Recovery had been effected and samples were received in the office of Chemical Examiner‑‑‑Delay in dispatch of samples had not been explained‑‑‑Accused in facts and circumstances of case, having undergone maximum portion of her sentence, deserved some leniency‑‑‑Sentence awarded to accused was reduced to one already undergone by her and amount of fine was also reduced.

Mushtaq v. The State 2002 PCr.LJ 1312 ref.

Noor Gul Khan Marwat for Appellant.

S. Abid Hussain Bukhari for the State.

Date of hearing: 6th December, 2004.

MLD 2005 PESHAWAR HIGH COURT 663 #

2005 M L D 663

[Peshawar]

Before Fazl-ur-Rehman Khan, J

Haji MUHAMMAD ASHRAF---Petitioner

versus

Mst. SHAHEEN AKHTAR---Respondent

C.R. No.219 of 2003, decided on 17th January, 2005.

(a) North-West Frontier Province Pre-emption Act (IV of 1987)---

----Ss. 6, 13 & 17---Suit for pre-emption---Preferential right of pre-emption---Decree, meaning of---Plaintiff/pre-emptor in order to be able to maintain a suit for pre-emption, must establish his right of pre-emption on three crucial dates, namely; the date of sale, the date of institution of suit and the date of final decree of Trial Court---Word decree appearing in S. 17(1) of North-West Frontier Province Pre-emption Act, 1987, would clearly mean the final decree of Trial Court.

AIR 1924 Allababad 82; 1994 CLC 2020 and Ram Gopal v. Piari Lal (1891) 21 All. 441 ref.

(b) Interpretation of statutes---

----Legislature must be presumed to know the course of Legislation as well as the course of judicial decisions in the country, particularly of superior Courts.

----Legislative language would be given its plain meaning.

Mehoboob Ahmad for Petitioner.

Siddique Awan and Ghulam Younis Khan Tanoli for Respondent.

Date of hearing: 17th January, 2005.

MLD 2005 PESHAWAR HIGH COURT 678 #

2005 M L D 678

[Peshawar]

Before Talaat Qayum Qureshi, J

NOOR MUHAMMAD---Appellant

versus

GUL ZAMIN---Respondent

R.F.A. No.132 of 2004, decided on 4th February, 2005.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 45 & 113---Suit for specific performance of contract---Admission in pleadings---Appeal had been directed against judgment and decree passed by Trial Court whereby suit filed by plaintiff was decreed---Suit was resisted by defendant firstly on ground that agreement in question having not been signed/executed by him, he was not bound by the same; secondly that suit was barred by time as same was filed after about 5 years of execution of alleged agreement whereas period of limitation for enforcement of said agreement was 3 years---Pivotal point which needed determination in the case was whether defendant was bound by agreement to supply wood to plaintiff and in case of his failure he was liable to pay amount thereof to plaintiff---Answer to said question was in the affirmative---Admitted position was that parties executed agreement through which defendant sold his 60% royalty rights with timber in question to plaintiff; in addition to agreement, defendant also executed power of attorney in favour of plaintiff in that respect---Plaintiff had filed suit against defendant after his refusal to hand over agreed quantity of wood to him---Since defendant in his written statement had admitted having executed alleged agreement, he could not deny its execution and he was bound by the same and was liable to either hand over timber mentioned in said agreement or in alternative was liable to pay amount thereof to plaintiff---Plea of defendant that suit was barred by time, also had no force as defendant neither in his written statement, nor in preliminary objections nor while replying factual aspects of suit, had stated that suit was time-barred but instead he took plea that suit filed by plaintiff was pre-mature and his such stand remained the same throughout trial, but in appeal he had taken altogether a different plea viz. bar of limitation which was never raised in the trial---Party could not be permitted to raise an altogether new ground of attack or defence by departing from his pleadings, especially when opposite party had no opportunity of adducing evidence in that behalf---Suit filed by plaintiff in circumstances was rightly decreed by Trial Court and in absence of any illegality, judgment and decree of Trial Court could not be interfered with in appeal

Mst. Niaz Begum v. Waris Khan 1995 MLD 690; Mst. Murad Begum and others v. Muhammad Rafiq and others PLD 1976 SC 322; Citi Bank v. Riaz Ahmad 2000 CLC 847; Din Muhammad and others v. Sardar Muhammad Zaman 2001 SCMR 1992 and Binymin and 3 others v. Chaudhry Hakim and others 1996 SCMR 336 ref.

Mazullah Barkandi for Appellant.

Hidayatullah Khan for Respondent.

Date of hearing: 4th February, 2005.

MLD 2005 PESHAWAR HIGH COURT 690 #

2005 M L D 690

[Peshawar]

Before Talaat Qayum Qureshi, J

MUHAMMAD QAYUM---Petitioner

versus

ABDUL BASEER---Respondent

C.R. No.393 of 2004, decided on 16th February, 2005.

Tort---

----Malicious prosecution---Suit for damages for malicious prosecution---Suit having concurrently been decreed by two Courts below, defendant had filed revision against concurrent judgments and decrees of Courts below---Plaintiff, in order to get decree for malicious prosecution, must establish factors; that plaintiff was prosecuted by department; that prosecution ended in favour of plaintiff; that defendant acted without reasonable and probable cause; that defendant was actuated by malice; that proceedings had interfered with plaintiffs liberty and had also affected his reputation and that plaintiff had suffered damage---Plaintiff in the present case had fully fulfilled the criteria---Defendant earlier had filed complaint against plaintiff under S. 145, Cr.P.C. and after dismissal of said complaint he filed complaint under S. 188, P.P.C. in which plaintiff was arrested and subsequently was bailed out and thereafter Magistrate cancelled F.I.R. lodged by defendant and defendant filed appeal against order of Magistrate which too was dismissed by Sessions Judge---All said facts had shown that plaintiff was prosecuted by defendant---Plaintiff had suffered damages as protracted litigation initiated by defendant against plaintiff not only caused plaintiff financial loss in shape of engaging counsel to pursue his case, but also had caused him mental agony and torture---Defendant at time of levelling false charges against innocent person/plaintiff had not considered that one would be liable to pay in same coin and in addition would be answerable to God in the time to come---Plaintiff, in circumstances had proved his case against defendant by establishing all factors---Both Courts below had properly appreciated evidence available on record and decided case properly---In absence of any misreading/non-reading of evidence or any material irregularity or any jurisdictional error or defect, concurrent findings of Courts below could not be interfered with by High Court.

Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28 and Subedar (Retd.) Fazal Rahim v. Rab Nawaz 1999 SCMR 700 ref.

Sheikh Wazir Muhammad for Petitioner.

Abdul Mabood Khattak for Respondent.

Date of hearing: 16th February, 2004.

MLD 2005 PESHAWAR HIGH COURT 711 #

2005 M L D 711

[Peshawar]

Before Talaat Qayum Qureshi, J

GHAFOOR KHAN and others---Petitioner

versus

SHAHZADA AMAN-E-ROOM and others---Respondents

Civil Revision No.1089 of 2003, decided on 28th February,2005.

Civil Procedure Code (V of 1908)---

----O.XLI, Rr. 23 & 24---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and perpetual injunction---Remand of case by Appellate Court---Suit was decreed by Trial Court, but Appellate Court set aside the same in appeal but instead of deciding the case itself, remanded same to Trial Court---Validity---Remand of case by Appellate Court to Trial Court was uncalled for, because sufficient material was available on record on basis of which Appellate Court could itself decide controversy between parties, which was not done---Under O.XLI, R. 23, C.P.C., Appellate Court, no doubt had power to remand case to Trial Court, but said power was to be exercised when available record was not sufficient for deciding points of controversy---Where sufficient evidence was available on record to resolve the controversy then Appellate Court under O. XLI, R. 24, C.P.C., after re-setting the issues, if necessary, would finally determine suit and question of its remand would not arise---Remand of case on technical reasons, keeping in view increasing bulk of pendency, could not be appreciated---Where Appellate Court itself could dispose of the case, it should refrain from remanding same---High Court allowing revision, set aside impugned judgment and decree passed by Appellate Court and remanded case with direction to decide appeal on basis of available record and in case it would feel necessary to appoint Local Commission, it could do so and could decide appeal in the light of his report.

Ashiq Ali and others v. Mst. Zamir Fatima and others PLD 2004 SC 10 and Anwar Ahmed v. Mst. Nafis Bano through legal heirs 2005 SCMR 152 ref.

Mazullah Barkandi for Petitioner.

Mian Iqbal Hussain for Respondent.

Date of hearing: 28th February, 2005.

MLD 2005 PESHAWAR HIGH COURT 786 #

2005 M L D 786

[Peshawar]

Before Muhammad Raza Khan, J

MUHAMMAD ISMAIL and 2 others---Petitioners

versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous Bail Petition No.423 of 2004, decided on 15th February, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 429 & 34---Bail, grant of---Detailed appreciation of evidence though was not possible at the stage of bail, but delay of 1-1/2 hours in lodging F.I.R., where distance between scene of occurrence and Police Station was only 4/5 Kilometers, was of significant importance particularly when occurrence took place at day time and no traffic deficiency was there---Said delay had raised doubt of pre-planning because nature of weapon had been assigned to each of accused in F.I.R. and corresponding recovery of empties of same weapon was shown in site-plan---In a state of tension, as reported in F.I.R., where complainant and his real brother were being attacked by assailants, one could not have the courage and photographic sense of perception to identify the specific nature of weapon held by each accused which could be subsequently supported by recoveries shown in the site-plan from their respective points---Such though could be a strong case during the trial when memory as well as sense of appreciation of weapons was to be tested through cross-examination, but at the stage of bail, one would wonder whether such accuracy was humanly possible or it was the result of pre-planned and fully deliberated action---Occurrence had not taken place as alleged---Arbitrators and elected representatives of area had informed police in their statements under S. 161, Cr.P.C. that real story was otherwise---Arbitration Committee which probed into the matter had fairly reported that accused was guilty, but there was a concurrence of opinion that co-accused were not present at the scene of occurrence---Nothing was recovered from said two co-accused and case was ready for trial---No useful purpose would be served in keeping those two accused behind the bars during entire period of trial---Request of accused who was found guilty, was declined, whereas remaining two were admitted to bail.

Sanaullah Khan Gandapur for Petitioners.

Muhammad Sharif Chaudhry D.A.G. for the State.

Abdul Latif Baloch for the Complainant.

Date of hearing: 15th February, 2005.

MLD 2005 PESHAWAR HIGH COURT 906 #

2005 M L D 906

[Peshawar]

Before Dost Muhammad Khan, J

ABDUL AZIZ---Petitioner

versus

NISAR MUHAMMAD KHAN and others---Respondents

Civil Revision No.299 of 2004, decided on 30th April, 2004.

Civil Procedure Code (V of 1908)---

----O.XLI, R.31---Judgment of Appellate Court---Trial Court had decided each issue and had made appraisal of evidence recorded thereon and thereafter had drawn conclusion therefrom but Appellate Court had taken the matter very lightly, had failed to perform his judicial obligation and decided the matter not in accordance with law, but in a slipshod manner---Appellate Court was under obligation to comply with mandatory provision of O.XLI, R.31, C.P.C., in ordinary course and no departure or short cut bypassing the law was allowed---Impugned judgment of Appellate Court was not a judgment in the eye of law and being not maintainable, was set aside along with decree and case was remanded to Appellate Court, which after hearing parties, would re-write judgment according to requirements of O.XLI, R.31, C.P.C. and would decide matter within specified period.

Javed A. Khan for Petitioner.

Khan Ghawas Khan for Respondents.

Date of hearing: 30th April, 2004.

MLD 2005 PESHAWAR HIGH COURT 911 #

2005 M L D 911

[Peshawar]

Before Nasir-ul-Mulk C.J. and Muhammad Qaim Jan Khan, J

GADOON TEXTILE MILLS LIMITED---Petitioner

versus

FEDERATION OF PAKISTAN through, Secretary, Ministry of Water and Power, Islamabad and 6 others---Respondents

Writ Petition No.510 of 2000, decided on 8th February, 2005.

Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----Ss. 2(i), 7, 15 & 30---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Issuance of notices---Constitutional petition had been directed against notices issued by respondent-Authorities to petitioner to stop self-powered generation---Local capacity sanctioned to petitioner being not sufficient for running its Mills, petitioner approached the Authorities/WAPDA and requested for enhancement of load for requirements of the Mills---Authorities in response to such request asked petitioner to deposit huge amount of rupees fifty millions, which in fact was a way to deter petitioner from demanding enhanced load requirements---Petitioner being disappointed from the Authorities, in the light of incentives for self-generation coupled with urgency to meet increased load requirements, opted to install generators for operation---Petitioner, after commissioning said generators, applied to the competent Authority for grant of licence for self-generation electric power and said Authority undertook to grant said licence in due course of time---Department issued notices to petitioner wherein petitioner had been directed to stop self-generation without giving any reason for such drastic action, except that same was not allowed by the High-ups---Validity---WAPDA itself was a licensee for generation power and it was unable to support impugned notices by any law, rules or regulations---WAPDA, in circumstances had no authority to stop any concern from self-generation of power---National Electric Power Regulation Authority which was empowered under Ss.7 & 15 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 to issue licences for generation of power and said Authority had never objected to self-generation by the petitioner---Producer of power who sell it alone were required to obtain a licence---Petitioner, in circumstances did not even require a licence from the Authority---WAPDA having no authority to issue impugned notices to petitioner to close self-power generation, High Court allowing Constitutional petition struck down impugned notices as illegal and without lawful authority.

Tariq Javed for Petitioner.

Syed Attique Shah for Respondent No.2.

Said Rehman for Respondents Nos.3 to 6.

Date of hearing: 8th February, 2005.

MLD 2005 PESHAWAR HIGH COURT 922 #

2005 M L D 922

[Peshawar]

Before Muhammad Raza Khan, J

Mst. SHEHNAZ BIBI---Petitioner

versus

THE STATE---Respondent

Crl. Rev. No. 6 of 2005, decided on 11th March, 2005.

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

----Ss. 497, 499 & 439---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(2), 11, 16 & 19(2)---Bail, grant of---Furnishing of bail bond---Accused was granted bail subject to furnishing bail bond in sum of Rs.1,00,000 with two sureties each in like amount with a condition that "one of sureties of lady accused should be related to her in prohibited degree"---Said condition annexed to order of bail had been challenged in revision petition, contending that imposition of such condition was unprecedented and beyond the scope of law and was required to be annulled---Accused contended that she had a right to furnish surety of his own choice and under law could not be compelled to produce particular person as his surety---Validity---Accused could not prove that her Nikah was duly solemnized on the date alleged by her and that no offence stood committed and that F.I.R. lodged against her was not maintainable as alleged Nikah Nama and her own statements were belied by her own affidavit wherein she had recorded that "our Nikah would be performed under Shariah Muhammadi" in such a situation if Court had imposed a condition that at least one of the sureties should be nearer relative of accused, was with a purpose and was logical---Condition imposed by Trial Court that one of two sureties should be a close relative of accused lady, was not illegal---Impugned order not suffering from any illegality or even irregularity, petition filed by accused/petitioner, was dismissed.

Mst. Manzoor Bibi alias Manzooran v. The State 1988 PCr.LJ 564 distinguished.

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

----Ss. 497 & 499---Bail, grant of---Furnishing sureties---Principles---Court accepting bail application of an accused was duty bound to prescribe conditions about the type of sureties and the satisfaction of the officer accepting surety bond---Even a routine order contained certain conditions between the lines---Imposition of conditions with regard to sureties was not illegal, rather it was a practice and a requirement of administration of justice---Court could not pass bail orders mechanically, rather it had to take into stock the status of sureties, their availability in case their presence was needed by the Court, their capability of having access to accused as well as the circumstances which would provide satisfaction to the Court that the order would not be misused for the continuation of an illegality.

Noor Gul Khan for Petitioner.

Muhammad Daud Khan for the State.

Saleem Nawaz Awan for the Complainant.

Date of hearing: 11th March, 2005.

MLD 2005 PESHAWAR HIGH COURT 932 #

2005 M L D 932

[Peshawar]

Before Ejaz Afzal Khan and Muhammad Raza Khan, JJ

HIDAYATULLAH---Appellant

versus

THE STATE and 3 others---Respondents

Criminal Appeal No.123 of 2004, decided on 21st March, 2005.

\Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Parties were related to each other and there was no possibility of false accusation---Incident was seen by large number of people---Witnesses being inmates of house, were natural witnesses---Weapon of offence was snatched from accused by eye-witnesses and was presented to police---Occurrence was a bright-day-light one in a village within four walls of a house where close relatives of deceased were present in connection with preparation for a marriage ceremony---Accused was over-powered there and then and was detained in a room---Immediate efforts were made to shift deceased, then injured, in state of emergency to the hospital for any possible medical help, but he breathed his last on the way to hospital---Narration of occurrence was such that even a single doubt or lapse could not be inferred anywhere---Promptly lodging of report could be essential, but making efforts for protecting life of injured was more emergent in nature---Distance between police station and scene of occurrence as recorded in F.I.R. was about 9/10 Kilometers and preparation for shifting of injured in state of shock and panic after occurrence, justified period elapsed between occurrence and report---Delay, if any in lodging report, had fully been explained, in circumstances---No indication was found to the effect that accused fired during process of grappling or when he was being held by those around him---No ambiguity or conflict was found in F.I.R., site-plan and Medical evidence---Case against accused, in circumstances had fully been proved in most convincing and logical order---Even a single ambiguity or doubt could not be convincingly urged in entire prosecution version and the trial---Trial Court, in circumstances had rightly convicted and sentenced accused.

Gouhar Zaman Khan Kundi for Appellant.

Muhammad Sharif Chaudhry, D.A.G for the State.

Sanaullah Khan Gandapur for Respondent.

Date of hearing: 21st March, 2005.

MLD 2005 PESHAWAR HIGH COURT 954 #

2005 M L D 954

[Peshawar]

Before Shah Jehan Khan and Salim Khan, JJ

ABDUR REHMAN---Petitioner

versus

GHAZAN and 5 others ---Respondents

Writ Petition No.1645 of 2004, decided on 8th February, 2005.

Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)----

----S.17(2)(4)---Criminal Procedure Code (V of 1898), Ss.190 & 204---Anti-Terrorism Act (XXVII of 1997), Ss.7, 21-D, 21-G & 23---Penal Code (XLV of 1860), Ss.148 & 149---West Pakistan Arms Ordinance (XX of 1965), S.13---Constitution of Pakistan (1973), Art.199---Constitutional petition---Jurisdiction to try case---Transfer of case from special Court to ordinary Court---On filing bail application by accused before Special Judge Anti-Terrorism, said Court, after hearing arguments, came to conclusion that case was not triable by Special Court, but it fell within the exclusive jurisdiction of Sessions Judge---Special Court observed that petitioner/complainant could seek his remedy in the proper forum---Petitioner/complainant in his Constitutional petition had contended that Special Judge Anti-Terrorism Court did not have power to decide at such premature stage that case against accused was not triable by Special Judge Anti-Terrorism Court and that it fell within the exclusive jurisdiction of Sessions Judge---Plea of petitioner/complainant was that it was after taking cognizance of the offence only and not before that, Anti-Terrorism Court could transfer case---Validity---Recording of evidence or conducting trial after taking cognizance was not the necessary conditions for taking such cognizance--Court would take cognizance of a case when it would apply its mind to the facts of case and relevant law, it could be done at any stage because cognizance in its general meaning would mean, identification, ascertainment of and getting knowledge about the facts and relevant law of the case---Special Judge Anti-Terrorism Court took cognizance of case when Public Prosecutor, who was incharge of prosecution and was the guide to Investigating Officer, brought to his notice that case was not triable by that Court and Court reached to the same conclusion by applying its mind---No defect was found in impugned order and same could not be interfered with by High Court in exercise of its Constitutional jurisdiction.

Gul Rahman Mehmand for Petitioner.

Nazar Muhammad D.A.-G. for the State on notice.

MLD 2005 PESHAWAR HIGH COURT 960 #

2005 M L D 960

[Peshawar]

Before Shahzad Akbar Khan and Fazal-ur-Rehman Khan, JJ

WALIYAT KHAN and another---Petitioners

versus

JM/CJ-V, ABBOTTABAD and 2 others---Respondents

W.P. No.243 of 2004, decided on 11th January, 2005.

Criminal Procedure Code (V of 1898)---

----S.164---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.5 & 10---Constitution of Pakistan (1973), Art. 199----Constitutional petition---Recording of statement under S.164, Cr.P.C.---Constitutional petition was moved for setting aside orders passed by Judicial Magistrate and then Additional Sessions Judge in revision whereby they concurrently rejected request of petitioners for recording statement under S. 164, Cr.P.C.---Statement of one petitioner only was sought to be recorded as the other petitioner was a complainant and his version was duly recorded in the concerned F.I.R.---Petitioners had contended that no bar existed in relevant provision of law for recording statement of a witness---Deputy Attorney General did not oppose request of petitioners when request was confined only to the petitioner and not the complainant---Request of petitioner for recording his statement was valid as recording of statement would promote the ends of justice and would help in arriving at a correct conclusion by the Court---Allowing petition a direction was issued to record statement of petitioner under S.164, Cr.P.C.

1993 SCMR 550; PLD 1953 Lah. 495 and 1999 PCr.LJ 2044

S. Amjad Ali Shah for Petitioners.

Qari Abdur Rashid D.A.-G. for Respondents.

Date of hearing: 11th January, 2005.

MLD 2005 PESHAWAR HIGH COURT 963 #

2005 M L D 963

[Peshawar]

Before Talaat Qayum Qureshi, J

Mst. GULSHAN BIBIPetitioner

Versus

THE STATE‑--Respondent

Crl. Misc. No.203 of 2005, heard on 31st March, 2005.

Criminal Procedure Code (V of 1898)

‑‑Ss. 497 & 52Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 34‑‑‑S.R.O. 596(I)/97, dated 7‑7‑1997‑Bail refusal of‑Accused was found in conscious possession of 15 K.Gs. Charas and recovery had been supported by witnesses of recovery memo. and report of Chemical Analyst was also in positive‑Accused had been charged under S.9(c) of Control of Narcotic Substances Act, 1997 and since contraband Charas of huge quantity was recovered from her possession, punishment provided under said section was death or imprisonment for life or imprisonment for a term which could extend to 14 years and also liable to payment of fine which could be up to one million rupees‑‑Contention of accused that she was not searched in accordance with S.52, Cr.P.C., was repelled as she was searched by Lady Head Constable and from personal search of accused 12 packets containing 15 K.Gs. contraband Charas were found wrapped with her body‑‑‑Other contention of accused that Assistant Chemical Examiner was not notified under S.34 of Control of Narcotic Substances Act, 1997, was also repelled in the light of Notification No.S.R.O. 596(I)/97 dated 7‑7‑1997 wherein all Narcotics Testing Laboratories set up by Provincial Government had been classified to be Federal Narcotics Testing Laboratories for the purpose of Control of Narcotics Substances Act, 1997.

Zulliqar Ali Chamkani for Petitioner.

Tariq Khan Kakar for the State.

Date of hearing: 31st March, 2005.

MLD 2005 PESHAWAR HIGH COURT 1228 #

2005 M L D 1228

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

GOVERNMENT OF N.-W.F.P.---Appellant

Versus

ZIAULLAH---Respondent

Civil Revision No.753 of 2003, decided on 20th May, 2005.

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

----O. VII, R.2, O.XLI, R.31 & S.115---Suit for recovery of amount---Trial Court in the light of material available on record decreed suit vide its judgment which was maintained in appeal by Appellate Court---Defendant challenged such judgment and decree in revision alleging that same suffered from vice of misreading and non-reading of evidence and that said judgments and decrees were recorded in a mechanical manner without application of mind in total disregard to requirements of O.XLI, R.31, C.P.C.---Validity---Findings of fact recorded by Trial Court and affirmed by Appellate Court were based on correct and fair appraisal of evidence and grounds urged stood conclusively determined by judgments of Courts below---Statement of plaintiff was not controverted expressly by Deputy Attorney-General---Mere allegation in absence of any documentary proof was not a valid piece of evidence and could not be considered for brushing aside genuine and bona fide claim of plaintiff---Where Trial Court had exercised jurisdiction which was upheld by First Appellate Court, High Court would seldom interfere unless and until discretion was exercised arbitrarily---High Court had very limited jurisdiction to interfere in concurrent findings of Courts below while exercising jurisdiction under S. 115, C.P.C., unless and until judgments of Courts below were result of misreading or non-reading of evidence or decision of case was in violation of parameters prescribed by superior Courts.

Mst. Wajida Begum and others v. Mst. Shamim Akhtar and others 2004 CLC 231 Pesh. ref.

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

----O.VII, R. 2, O.XLI, R.31 & S. 115---Suit for. recovery of amount---Non-compliance of requirements of O.XLI, R.31, C.P.C.---Allegation of---Petitioners had alleged that impugned judgment of Appellate Court below had been recorded in a mechanical manner without application of mind in total disregard to requirements of O.XLI, R.31, C.P.C.---Validity---All legal formalities had been duly complied with and no prejudice seemed to have been caused to petitioners---Appellate Court had given elaborate findings on each and every point and judgment had been recorded keeping in view the provisions contained in O.XLI, R.31, C.P.C. and it had properly appreciated evidence as well as law applicable to case---Neither any non-reading or misreading of evidence nor any material irregularity nor any jurisdictional defect could be pointed out to justify interference of High Court, in revisional jurisdiction.

Muhammad Ayaz Khan for Petitioner.

Rasheed Ali for Respondent.

Date of hearing: 13th May, 2005.

MLD 2005 PESHAWAR HIGH COURT 1242 #

2005 M L D 1242

[Peshawar]

Before Talaat Qayum Qureshi, J

SALAT KHAN---Petitioner

Versus

ZIBAN SHAH and another---Respondents

Crl. Misc. B.C.A. No.295 of 2005, heard on 23rd May, 2005.

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

----S. 497(5)---Penal Code (XLV of 1860), S. 324---Application for cancellation of bail--No delay was found in lodging F.I.R.---Investigating Officer prepared site plan on the same day in the light of torch---Neither any empty was recovered from the spot nor was any blood-stained earth taken into possession by Investigating. Officer---Locale of injury on the body of injured had shown that-injury was not on the vital part of his body---Accused though was armed with .12 bore shotgun at the time of occurrence and injured was at his mercy, but he did not repeat fire which had shown that accused had no intention to kill him---Regarding alleged abscondence, accused had produced a photostat copy of Passport which had shown that he had left for Saudi Arabia for earning his livelihood and that immediately after his arrival on coming to know of registration of case against him, he surrendered himself before Police---Trial Court had properly appreciated material available on record---Bail granting order was neither perverse nor fanciful and same had not been obtained by fraud or misrepresentation---Accused had not misused concession of bail---Impugned hail granting order, could not be interfered with---Bail cancellation application was dismissed, in circumstances.

Abdul Jabbar Khan for Petitioner.

Hazrat Said for Respondent.

Ms. Farrah Attaullah for the State.

Date of hearing: 23rd May, 2005.

MLD 2005 PESHAWAR HIGH COURT 1294 #

2005 M L D 1294

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

YAR MUHAMMAD KHAN alias YARAK and others---Petitioners

Versus

MUHAMMAD JAN and others---Respondents

Civil Revision No.335 of 2004, decided on 23rd May, 2005.

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

----O.XLI, Rr.25 & 31---Remand of case---Scope---Appellate and revisional Court was always empowered to remand case in terms of O.XLI, R.25, C.P.C. but said discretionary power was to be used only in exceptional situation and if parties had led evidence with regard to particular point and the Court of first instance by giving specific finding on said point decided same in the light of evidence available on record, remand of case in appeal or revision was not proper exercise of jurisdiction---Power to order remand was no doubt wide, but it should be exercised only in those cases wherein omission of a party was accidental---Sufficient evidence being available on record for decision of appeal, Appellate Court, instead of remanding case to Trial Court should have pronounced judgment itself---Court of appeal while setting aside judgment and decree of Trial Court and remanding case without considering finding of Trial Court had not only acted illegally, but also against mandatory provisions of O.XLI, R.31, C.P.C.---Litigation between parties being going on since 1985 for more than twenty years, remand of case by Court of appeal would only prolong agony of parties---Impugned judgment and decree of Appellate Court below were set aside and that of Trial Court was restored.

Ashiq Ali v. Zameer Fatima PLD 2004 SC 10; Mansoor Hassain v. Mst. Siftan and others 2002 CLC 456 Lahore; Ghulam Ahmad Chaudhry v. Iqbal Hussain through L.Rs. and another PLD 2002 SC 615 and Muhammad Shafi v. Abdul Ghani through L.Rs. and others 2000 SCMR 1124 ref.

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

----O. XLI, R. 27---Production of additional evidence---Limitations---Additional evidence could not be received to fill in the lacuna or provide for deficiency in the case of a party---Additional evidence was permitted if the Court needed same for purpose of disposal of case---Powers under O.XLI, R.27, C.P.C. dealing with additional evidence were to be exercised only if the Court considered that it would not be able to pronounce judgment without evidence---Said provisions could not be used for benefit of a party which had not been vigilant enough to see that no weaknesses were left in its case---Where important evidence having a material bearing on the merits of suit was subsequently discovered, there were three courses open to such party; (i) it could apply for admission of fresh evidence before judgment; (ii) it could apply for review of judgment after it had been pronounced and (iii) it could appeal from the judgment and apply for admission of additional evidence before Appellate Court.

Saeed Baig for Appellants.

Mian Iqbal Hussain for Respondents.

Date of hearing: 16th May, 2005.

MLD 2005 PESHAWAR HIGH COURT 1329 #

2005 M L D 1329

[Peshawar]

Before Muhammad Raza Khan, J

QAMAR JAVED---Appellant

versus

GUL JAHAN---Respondent

Civil Appeal No.9 and R.F.A. No.9 with C.M. No.5 of 2005, decided on 28th April, 2005.

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

----O. XXXVII, Rr.2 & 3---Suit for recovery of amount on the basis of pro note--Leave to defend suit---Payment of security---Defendant refused to fulfil condition of payment of security or deposit contending that appeal had been filed under S. 96 of C.P.C. and there was no provision in S.96, C.P.C. to the effect that decretal amount must either be deposited or security be provided for such payment---Defendant further contended that since original Court had not imposed any such condition, same could not be imposed at appellate stage---Validity---Regular first appeal, though was filed under S.96, C.P.C., but it could not be ignored that Order XXXVII, C.P.C. was also a part of C.P.C. and the spirit of said O.XXXVII, C.P.C. had to be kept in view while processing appeals against decrees under O.XXXVII, C.P.C.---Object of grant of conditional leave to defend was to ensure the authenticity of negotiable instrument---When the Trial Court passed a decree on the basis of correctness and validity of negotiable instrument, its credibility was further enhanced and admission of appeal in the mechanical and routine way was likely to damage such credibility---Leave granting order needed proper application of mind as to whether the leave be granted conditionally or without conditions---If leave was granted conditionally it was to be determined whether the total amount or part thereof would be required to be deposited in the Court or the security would be required to be obtained from defendant--Introduction of concept of leave to defend was with a purpose to narrow down objections of defendants to specific issue and on certain conditions, he could be allowed to defend---If conditions of O.XXXVII, C.P.C. were not complied with in letter and spirit and matters were processed like routine civil suits, the very purpose of negotiable instruments and "summary suits" based thereon would be defeated.

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

----O.XXXVII, Rr. 2 & 3---Negotiable Instruments Act (XXVI of 1881), Ss. 118 to 122--Suit for recovery of amount on basis of pro note---Leave to defend suit---Procedure of trial of suits based on negotiable instrument as stated in O.XXXVII, C.P.C. had to be followed having regard to special rules of evidence contained in Chapter 13 of Negotiable Instruments Act, 1881---In view of presumptions and estoppels stated in Ss.118 to 122 of Negotiable Instruments Act, 1881, matter of burden of proof had also to be decided by the Court with proper application of mind and not mechanically---Summary procedure required that the aim of Legislature being expeditious disposal of cases, same must be kept in view instead of following the routine civil procedure---If leave to defend was allowed mechanically and defendant was allowed to file written statement without any conditions and without restricting to the points on which leave to defend was granted and if issues were framed on allegations raised in the written statement and the onus to prove was fixed without caring for the presumptions and estoppels contained in Negotiable Instruments Act, 1881 and evidence was recorded like a normal civil suit, entire purpose of law would be defeated.

(b) Appeal (Civil)---

---Appeal being a continuation of the process of civil suit, had to be heard and decided with same spirit.

---When the law required a thing to be done in a particular manner, it would be legal and valid only if it was done in that manner and not otherwise.

Syed Mastan Ali Zaidi for Appellant.

Malik Rabnawaz Awan for Respondent on Pre-admission Notice.

MLD 2005 PESHAWAR HIGH COURT 1451 #

2005 M L D 1451

[Peshawar]

Before Ijaz-ul-Hassan Khan and Fazl-ur-Rehman Khan, JJ

FAZAL AKBAR alias BABAR---Appellant

Versus

THE STATE and another---Respondents

Crl. A. No.211 of 2004, decided on 20th June, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Injured who subsequently died, was initially treated locally, but due to critical condition, was referred to Medical Complex where he remained under treatment of a Doctor who was Incharge of Neurosurgery Unit, but injured expired---Such doctor was stated to have left service and gone abroad---Chief Executive of the Medical Complex was directed time and again to depute Medical Officer well conversant with handwriting of Doctor under whose treatment injured remained in Medical Complex, but that was not done and accused was convicted and sentenced---Such omission on the part of the Court had materially prejudiced interest of accused and resulted in complete miscarriage of justice---Impugned judgment was set aside and case was remanded to trial Court for re-writing the judgment.

Qazi Sirajuddin v. Misbahul Islam and 3 others PLD 1997 SC 14; The State v. Bakhtiar and another PLD 1969 Pesh. 335; Muhammad Akbar v. The State 1994 MLD Lah 1289; Muhammad Shafi convict-petitioner v. The State 1973 PCr.LJ Lah. 1066 and Muhammad Usman and 2 others v. The State 1991 MLD 17 ref.

Iqbal Hussain Khalil for Appellants.

Muhammad Zafran for the State.

Mian Iqbal Hussain for the Complainant.

Date of hearing: 6th June, 2005.

MLD 2005 PESHAWAR HIGH COURT 1668 #

2005 M L D 1668

[Peshawar]

Before Salim Khan, J

WALI DAD---Petitioner

Versus

GUL BAB KHAN---Respondent

C.R. No.904 of 2004, decided on 18th July, 200.5.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----Preamble, Ss. 6, 12, 13, 32 & 33---Right of pre-emption---Difference between Haq-e-Shufaa and right of pre-emption---Difference between "Haq-e-Shufaa" and "right of pre-emption" always existed---Old law of pre-emption was the product of Anglo-Saxon Judicial System and right of pre-emption was created for the benefit of landlords---Such right was a right in preference of one purchaser against another genuine purchaser and the purpose of that right was the accumulation of further property with landlords---Pre-emption was such a right which might have necessitated jumping over the property and snatching it, but jumping etc. was not required for demand in relation to Haq-e-Shufaa---Purpose of Haq-e-Shufaa was never the accumulation of property, but was always the avoidance of stranger and to keep him away from property of land-owner whether he needed or not the other property---Right holder of Haq-e-Shufaa was obliged to. meet the need of vendor and to spend his own money in accordance with market value of the suit property in order to properly compensate the vendee---Vendor, in the first case was bound to sell the property to the pre-emptor and not to any other person and its effect was to compel the vendor to sell his property to the pre-emptor on the value agreed to by the pre-emptor or as could be fixed in the market while in the second case, the need of vendor was to be met by the right-holder of Shufaa and stranger was to be compensated properly instead of keeping him away---Right holder of Shufaa would stand deprived of that facility when vendor would not follow law and fail to give notice by ignoring the Court, the mosque and public place---Adverse inference had to be taken against vendor concerning the sale price due to his failure to follow said law---Burden was not to be shifted to the right-holder of Shufaa to prove non-payment of sale consideration as alleged by vendor and vendee it was for the vendee and vendor, in case of failure to give notice under S.12 of North-West Frontier Province Pre-emption Act, 1987 to positively prove that sale consideration was fixed in good faith and was actually paid---Contents of registered deed had to be proved by independent cogent evidence.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 32---Responsibility of Registrar---Section 32 of North-West Frontier Province Pre-emption Act, 1987 declared the responsibility of Registrar registering the sale-deed or Revenue Officer attesting mutation of a sale to give public notice in respect of such registration or attestation within two weeks of the registration or attestation of mutation---Law did not expect the pre-emptor to run after the deed or mutation within the period of first two weeks after registration or attestation---Vendee was responsible to pay charges for the notice---Failure of vendee to prove that such charges were paid by him and that such notice was issued by Registrar or Revenue Officer, would adversely hit the vendee defendant and not the plaintiff pre-emptor---Fault of Registrar or Revenue Officer and Vendee, could in no way be considered as the fault of pre-emptor.

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Purpose of making and proving `Talb-i-Muwathibat' or Talb-i-Ishhad before Talb-i-Khusulnat was to ascertain that plaintiff pre-emptor intended, from the very start to avoid the entry of stranger to his locality and was ready, even to spend his own money to purchase disputed property in order to meet the need of vendor-pre-emptor was to prove his intention while the vendee was to prove waiver by and estoppel of pre-emptor---Majlis/meeting was necessary for making Talb-i-Muwathibat and it could be made only when there were one or more persons available to pre-emptor to announce his Talb in their presence, within their hearing and attention---There could be occasions when pre-emptor could receive a telephonic call, a letter or chit or copy of registered deed or mutation and their was no person who could be attentive to his---Pre-emptor was not required to shout as a crazy person and attract witnesses of Talb, he would have to wait for a Majlis---There could be no Talb-i-Muwathibat unless there was a person giving information to the pre-emptor and there was a Majlis/mecting of persons who could hear his demand attentively---Such demand was neither jumping nor immediate and could be delayed upto and before the end of that Majlis---Purpose of mentioning of date, time and place in the plaint regarding Talb-i-Muwathibat was that it would facilitate the counting of time of notice of Talb-i-Ishhad from the time of Talb-i-Muwathibat---Court was not duty bound to defeat the valuable right of plaintiff/pre-emptor by labouring to search out contradictions in the evidence of plaintiff---Plaintiff was to prove by evidence, whether documentary or oral or circumstantial, that he had made Talb-i-Muwathibat and Talb-i-Ishhad---Making of first two Talbs themselves was a pre-requisite for Talb-i-Khusumat and was not mere technicality---Processes of making those Talbs were procedural in nature.

(d) Administration of justice---------

----It was not only principle of Sharia, by itself, but it was also an established principle of judicial system prevailing in Pakistan that valuable rights should not be defeated either by technicalities or by minor contradictions and unintentional faults, errors and lapses.

(e) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Plaintiff had proved to have made Talb-i-Muwathibat, Talb-i-Ishhad and Talb-i-Khusumat with continued intention of Shufaa---Judgment and decree of Trial Court for purpose of Talb-i-Muwathibat, waiver, estoppel, cause of action and relief, were not based on solid reasons---Judgment and decree of appellate Court were also bad in law as those were not based on sound reasons for the purpose of Talbs---Concurrent judgments and decrees of Courts below, were set aside---Decree for possession of suit property through pre-emption was granted in favour of plaintiff as prayed.

Abdul Samad Khan for Appellant.

Tajuddin Khan for Respondent.

Date of hearing 10th June, 2005.

MLD 2005 PESHAWAR HIGH COURT 1685 #

2005 M L D 1685

[Peshawar]

Before Salim Khan and Muhammad Raza Khan, JJ

HAKIM KHAN---Petitioner

Versus

THE STATE and 4 others---Respondents

Writ Petition No.203 of 2005, decided on 29th June, 2005.

Frontier Crimes Regulation (III of 1901)-------

-----S. 40--Criminal Procedure Code (V of 1898), S.86-A---Constitution of Pakistan (1973), Arts. 199, 1, 246 & 247---Constitutional Petition---Maintainability---Petitioner, a resident of Federally Administrated Tribal Areas was arrested under the provision of law and not administratively, whereunder special forums were available for adjudicating upon the judicial matters---Petitioner had the remedy to go to said forums but had no locus standi to come to the High Court through a Constitutional petition---Principles.

Abdur Rashid Khan for Petitioner.

MLD 2005 PESHAWAR HIGH COURT 1770 #

2005 M L D 1770

[Peshawar]

Before Muhammad Qaim Jan Khan and Salim Khan, JJ

ATTAUR REHMAN and another---Petitioners

Versus

GOVERNMENT OF N.-W.F.P. through Secretary, Local Government, Elections and Rural Development Department Peshawar and 10 others---Respondents

Writ Petition No.1343 of 2005, decided on 10th August, 2005.

North-West Frontier Province Elections Rules, 2000---

----Rr. 4, 16 & 18---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Nomination papers---List of voters---Correction of voters list---Name of petitioner was available in voters list of the year 2002 for the area of "Khat Kaal"---Address of petitioner had been mentioned as "Khad Gal" in nomination papers---Petitioner submitted an affidavit to the effect that Khat Kaal' was in factKhad Gal' and it was only the difference of writing in Urdu and English, which changed Khad Gal' toKhat Kaal'---Effect---Voters list of year 2002 was an official document and presumption of truth was attached to it---Both the lists of years 2000-2001 and year 2002 were prepared by same office, though under different laws---Said office could have corrected the voters list of years 2000-2001 in the light of the list prepared for the year 2002---When it was proved that a person was resident of all area for the purposes of elections to the National and Provincial Assemblies, he was proved to be resident for local government elections also for the same area, which were to be held in year 2005---Constitutional petition was admitted for full hearing and allowed, holding that petitioners be declared as validly nominated candidates for the seats of Nazim and Naib Nazim of Union Council; that they be enlisted in the list of contesting candidates for said scats; that symbols be allotted to them; that they be allowed to contest election against mentioned seats; and that result should be announced in accordance with election law/rules.

Naveed Akhtar for Petitioner.

Muhammad Saeed Khan Addl. A.-G. for Respondent.

Date of hearing: 10th August, 2005.

MLD 2005 PESHAWAR HIGH COURT 1883 #

2005 M L D 1883

[Peshawar]

Before Ijaz-ul-Hassan Khan and Shah Jehan Khan Yousafzai, JJ

THE STATE through Advocate-General N.-W.F.P.---Petitioner

Versus

UBAIDULLAH and another---Respondents

Cr. M. Qs. Nos. 87 and 132 of 2005, decided on 17th August, 2005.

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

---Ss. 63, 169 & 173---Discharge of accused---Sections 63 and 169, Cr.P.C. empowered the Magistrate to discharge accused before Trial---Section 63, Cr.P.C., had laid an embargo on discharge of accused under arrest---Such an accused could be discharged only on obtaining sureties bail bond or his personal bond on a special order of Magistrate---Special order was made during investigation on request/case diary of investigation only---Magistrate could not sit to decide a criminal case during investigation---If Magistrates were given the powers to discharge and release an accused at the very initial stage, there would be no room for success in blind heinous criminal case which were always investigated on different theories of probabilities based on spy information---Once an accused was apprehended and found innocent, he could be set free during investigation by obtaining discharge order from the Court---Discharge of an accused was also governed by S.169, Cr.P.C. which was at the conclusion of investigation and on submission of report under S. 173, Cr.P.C.

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

----S. 195---Embargo on taking cognizance by a Court---Section 195, Cr.P.C. had laid down embargo on taking cognizance by a Court in given circumstances---Stage of taking cognizance would come on conclusion of investigation---Magistrate would control and supervise investigation and during that period Magistrate could not pass order as a Court---That was why any order passed by Magistrate pertaining to investigation was not amenable to revisional jurisdiction of Sessions Court or High Court---Magistrate in his executive or administrative capacity could not press into service provisions contained in S.195, Cr.P.C.

Mst. Parveen Akhtar and others v. The State 1991 PCr.LJ Note 274 at p. 193 ref.

----S. 167---Custody of accused during investigation---If investigation in a case could not be completed within twenty four hours fixed under S., 61, Cr.P.C., accused under arrest, was to be forwarded to a Magistrate along with diaries of proceedings in investigation---Magistrate could competently grant police custody irrespective of the fact as to whether he possessed or not the jurisdiction in the matter---Magistrate on examination of investigation diaries could authorize detention which would not exceed 15 days in all---If Magistrate was not satisfied with the diaries, submitted by Investigating Officer along with request for police custody and he had got no jurisdiction in the matter, he could refuse further detention and direct to produce accused before a Magistrate having jurisdiction in the matter.

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

----S. 561-A---Penal Code (XLV of 1860), Ss. 419, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Quashing of order---Petition for---Magistrate, who had passed impugned order, had no jurisdiction in the matter being a scheduled offence triable exclusively by a Judge Special Court under Anti-Corruption laws---Magistrate was either to grant requisite police custody or in the alternative he was required to direct Investigating Officer for production of accused before the Court of competent jurisdiction---Vide impugned order, Magistrate had not properly applied his judicial mind while passing discharge order of accused/respondents---Magistrate, who had passed impugned order, had altogether ignored the material collected by Investigating Officer before registration of case and arrest of accused/respondents---Even if disputed materials collected during enquiry were found not sufficient for grant of further police custody, he should have refused custody with the direction to get same from Court of competent jurisdiction---Vide impugned order, Magistrate had not noticed that the case was registered after due process in accordance with law and before production of disputed relinquishment deed in the Civil Court and had misinterpreted the law by saying that no case could be registered on basis of fraudulent document produced in Civil Court except on direction of said Court---Magistrate had also ignored the fact that accused/respondents were not only charged for committing forgery in preparation of relinquishment deed, but also for cheating punishable under Ss. 419, 420 & 468,P.P.C. and S. 5(2) of Prevention of Corruption Act, 1947 which sections of law were not covered by sub-clause (c) of Part-I of S.195,Cr.P.C.---High Court accepted petitions to secure ends of justice and impugned orders passed by Magistrate were quashed accordingly.

Dr. Ishtiaq Hussain and another v. Special Judge Anti-Corruption 2004 YLR 716; Muhammad Shafi and others v. S.H.O. and others 1999 PCr.LJ 1345; Muhammad Sharif and others v. The State 1997 SCMR 304; Bahadur and another v. The State PLD 1985 SC 62; Rasool Khan and others v. Haji Banaras Khan and others PLD 2004 SC 364; Aabid v. State 1995 PCr.LJ 22; 1997 MLD 2097; Ashiq Hussain v. Sessions Judge PLD 2001 Lah. 271; 1989 PCr.LJ 2241 and 2002 PCr.LJ 1570 ref.

Shah Nawaz Khan for the State (Petitioner).

Abdul Samad Khan for Respondent and Amir Hussain for Respondents Nos. 1 and 2.

Ishtiaq Ibrahim for the Complainant.

Date of hearing: 28th July, 2005.

MLD 2005 PESHAWAR HIGH COURT 1927 #

2005 M L D 1927

[Peshawar]

Before Ijaz-ul-Hassan Khan and Muhammad Raza Khan, JJ

RABNAWAZ KHAN---Appellant

Versus

JALIL KHAN and 2 others---Respondents

Criminal Appeal No.45 of 2001, decided on 8th September, 2005.

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

----S. 417(2)(a)-Penal Code (XLV of 1860), Ss.302 & 34---Appeal against acquittal---To convict a person on capital charge, evidence should be of high quality and good standard which was not available in the present case---Prosecution primarily was supposed to establish guilt against accused beyond shadow of reasonable doubt by bringing trustworthy, convincing and coherent evidence for purpose of awarding conviction---Person charged with a criminal offence was to be saddled with liability only if prosecution had established its case against him beyond all reasonable doubts---To inflict capital punishment of death or that of life imprisonment, prosecution was under statutory obligation to furnish high quality evidence reasonably creating nexus of accused with commission of offence---Judgment written by Trial Court was fair, based on proper, just and legal appreciation of evidence on record---Appellant had failed to show that impugned judgment of acquittal was fanciful or based on no evidence---Evidence of prosecution had been fairly and properly appreciated to secure ends of justice---Respondent/accused, though stood directly nominated in promptly lodged report for the commission of crime, but prosecution had failed to produce evidence, which could connect accused with commission of crime---Only one wound had been found on chest of deceased, whereas three persons had been charged for firing---It was not certain as to whose fire shot proved fatal and resulted in death of deceased---Motive had not been satisfactorily proved---Deceased was suspected of having made an abortive attempt to outrage modesty of wife of absconding co-accused---Possibility of absconding co-accused having a hand in occurrence, could not be ruled out---Alleged abscondence had been denied by accused and had claimed that they appeared before police of their own---Even otherwise abscondence alone, could not be a substitute for real evidence---Mere abscondence of accused could not be considered enough to sustain conviction of accused---Accused was found innocent during investigation of case---Plea of alibi raised by accused had rightly been taken into consideration and made basis for acquittal of accused---Judgment of acquittal was balanced and well-reasoned and enough evidence for conviction of accused was not available in the case---Accused after acquittal, enjoyed double presumption of being innocent as the first presumption was awarded to him by law of land, while second presumption was created by impugned judgment of acquittal---To do away with both said presumptions, prosecution was required to produce confidence-inspiring evidence, which was not available in the present case---Judgment of acquittal of accused was maintained, in circumstances.

Khushi Muhammad v. The State 1983 SCMR 697; Amal Sherin and another v. The State through A.G. N.-W.F.P. PLD 2004 SC 371; Farman Ali and others v. The State PLD 1980 SC 201 and Muhammad v. Pesham Khan 1986 SCMR 823 ref.

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

----Ss.417(2)(a) & 410---Appeal against acquittal and appeal against conviction---Appreciation of evidence---Standards of assessing evidence in appeal against acquittal were quite different from those laid down for appeal against conviction---Marked difference existed between appraisement of evidence in appeal against conviction and in appeal against acquittal---In appeal against acquittal same 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---Superior Courts while dealing with appeal against acquittal interfered only in such cases where judgment of acquittal was based on misreading, non-reading of evidence or it was speculative.

Muhammad Usman and 2 others v. The State 1992 SCMR 498; Muhammad Ali v. Muhammad Yaqoob and 3 others 1998 SCMR 1814; Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11 and Hameed-ur-Rehman v. Said Rehman and 5 others 2005 PCr.LJ 53 ref.

S. Zafar Abbas Zaidi for Appellant.

S. Abid Hussain Bukhari for Respondent.

Muhammad Sharif Chaudhry D.A.-G. for the State.

Date of hearing: 8th September, 2005.

MLD 2005 PESHAWAR HIGH COURT 1935 #

2005 M L D 1935

[Peshawar]

Before Ijaz-ul-Hassan Khan and Jehan Zaib Rahim, JJ

MUHAMMAD SAUD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.369 of 2005, decided on 25th August, 2005.

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

----Ss. 9(c) & 25---Appreciation of evidence---Huge quantity of Charas weighing seven kilo grams had been recovered from secret cavity of "teapais" in question, owned by accused---Trial Court had discussed every aspect of the case with minute particulars against accused and after appraising evidence had rightly convicted accused---Discrepancies highlighted by counsel of accused were neither material nor substantial to dislodge story of prosecution---Prosecution witnesses had been absolutely consistent, coherent and resolutely withstood lengthy cross examination---Witnesses seemed to be independent having no reason to falsely implicate accused in the case---Defence had not been able to shatter their testimony or pinpoint any ill-will which could have been harboured by said witnesses against accused---Trial Court was quite justified to place implicit reliance on their statements and make the same basis for conviction of accused---Objection of accused regarding non-compliance of provisions of S.103, Cr.P.C., was misconceived as S.25 of Control of Narcotic Substances Act, 1997 had specifically ousted applicability of S.103, Cr.P.C.---Parcel of sample duly prepared for Chemical test, was kept in safe custody in Police Station "Malkhana" and thereafter was sent to Laboratory through constable as a routine procedure---Which had lent confidence to the reliability of reports of Expert---No doubt at all existed to the effect that Charas in said quantity was recovered on given date, time and place---Presence of accused in bus and their apprehension by officials had not been denied---Mere assertion of accused that they were falsely implicated in the case, without positive attempt on their part to substantiate same, was of no consequence---Story of accused that Charas was planted on them, was not at all worthy of any belief and seemed to have been fabricated in order to absolve them of liabilities---Defence could not point out any defect in the investigation---No legal prohibition existed for a police officer to be a complainant if he was a witness to commission of offence and also to be an Investigating Officer, so long as it did not, in any way, prejudice accused---Objection of defence, in that regard was without force---Accused having already been treated leniently and sentence awarded to them being legal and proper, same could not be reduced.

Muhammad Khan v. The State 1994 SCMR 1543 and State through Advocate-General Sindh v. Bashir and others PLD 1997 SC 408 ref.

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

----S. 103---Search and recovery proceedings---Main aim and object of enacting of S.103, Cr.P.C. was to ensure that search and recovery was conducted honestly and fairly excluding any possibility of concoction and transgression and was never meant to disbelieve statements of official witnesses in any other circumstance---Testimony of a police official could not be discarded only on ground that he was a police official as official witnesses were as good as private witnesses and police officials were competent witnesses of recovery memo.

Fida Jan v. The State 2001 SCMR 36 ref.

Miss Neelam A. Khan for Appellant.

Sajid Ali for Respondent.

Date of hearing: 25th August, 2005.

MLD 2005 PESHAWAR HIGH COURT 1949 #

2005 M L D 1949

[Peshawar]

Before Ijaz-ul-Hassan Khan and Jehanzaib Rahim, JJ

KHAN SAHIB alias DOCTOR---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.420 of 2005, decided on 23rd August, 2005.

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

----S. 9(c)---Appreciation of evidence---Both the prosecution witnesses were fully consistent on all important material particulars and had not waived at all---Said witnesses were subjected to lengthy and searching cross-examination, but they stood to the test successfully and their evidence had established that Charas in alleged quantity was recovered at given 'date, time and place---Defence could not prove as to why police would involve accused falsely especially when none of the members of raiding party had any enmity against accused---Prosecution witnesses had made consistent statements on material points and accused had failed to point out any discrepancy in their statements---Discrepancies alluded to by counsel of accused were not sufficient to rob said witnesses of their credence---Trial Court had rightly believed their evidence---Factum of recovery, had been proved and there was no doubt that substance allegedly recovered was found Charas by Chemical Examiner in his report---No malice had been attributed to Investigating Officer---Sending of recovered material to expert with delay could not be termed fatal as defence had not been able to establish malice on part of police---Accused could not point out any serious defect in investigation other than minor lapses which did not affect validity of trial nor caused dent in prosecution case---Taking of small quantity for Chemical Examination was enough to prove that entire recovered material was contraband---Failure of Investigating Officer to prepare site-plan of place of occurrence, amounted to an irregularity which did not seem to have prejudiced interest of accused---Sufficient evidence led by prosecution On record had conclusively proved that accused was guilty of offence alleged against him---Trial Court having already taken a lenient view the Request of accused to reduce his sentence to one which he had already undergone was not accepted---Impugned order was maintained and appeal, of accused against his conviction and sentence was dismissed.

Attaullah v. The State and another 2005 YLR 5 Peshawar ref.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Evidence of police---Recovery proceedings---Contention of accused concerning violation of S.103, Cr.P.C. seemed to be fallacious when examined in the light of provisions as contained in S.25 of Control of Narcotic. Substances Act, 1997, which had provided exclusion of S.103, Cr.P.C.---Police witnesses were as good witnesses as any other witness, unless any mala fide was established against them---Deposition of police witnesses could not be brushed aside simply on the bald allegation that they belonged to police department---Recovery could not be treated as violative of provision of S.103, Cr.P.C., unless it was shown that there was enmity between police officials and accused who appeared as witnesses or there was an ill-will on part of said police officials---Evidence of police would stand at par with that of any other witness from public, but subject to test of cross-examination.

Muhammad Hanif v. The State 2003 SCMR 1237 ref.

Miss Farhan Maqbool for Appellants.

Muhammad Saud D.A.-G. for Respondents.

Date of hearing: 23rd August, 2005.

MLD 2005 PESHAWAR HIGH COURT 1991 #

2005 M L D 1991

[Peshawar]

Before Ijaz-ul-Hassan Khan and Muhammad Raza Khan, JJ

Syed WALI---Appellant

Versus

THE STATE---Respondent

Criminal Jail Application No.80 of 2005, decided on 9th September, 2005.

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

----Ss. 9(c) & 25---Appreciation of evidence---Prosecution witnesses had fully supported prosecution story and had remained absolutely consistent, coherent and had resolutely withstood lengthy cross-examination---Evidence of said witnesses had established that Charas in alleged quantity was recovered from possession of accused at given date, time and place---Incriminating statements of prosecution witnesses on oath were enough to connect accused with commission of crime---Defence had not been able to shatter testimony of said witnesses or pinpoint any ill-will which could have been harboured by said witnesses against accused---Mere fact that said witnesses belonged to police department, by itself, could not be considered a good ground to discard their statements---Police officials were as good witnesses as any other witness---As so far as violation of S.103, Cr.P.C. was concerned, S.25 of Control of Narcotic Substances Act, 1997, had excluded application of Criminal Procedure Code, 1898---Nothing in support of plea that accused was implicated falsely in case, had been brought on record by accused to believe that it was actually so---Late dispatch of sample to Laboratory for Chemical Examination, was of no consequence and did not demolish prosecution case in any manner---Onward transmission of four grams sample taken out from total narcotic material recovered from accused to office of Chemical Examiner, was also proved beyond any shadow of doubt---Accused had not challenged recovery of substance being not Charas or narcotic before Trial Court or High Court---Report of Chemical Examiner was in positive, which had supported prosecution story as well as recovery of narcotic in case---Accused was apprehended by police and was found in possession of Charas weighing one thousand grams---Trial Court having already taken a lenient view while awarding sentence to accused, his plea to reduce sentence, could not be accepted.

Feroz Shah v. The State 2000 PCr.LJ 1470 and Muhammad Amin v. The State 1999 SCMR 1367 ref.

Zahid Muhibullah for Appellant.

Muhammad Sharif Chaudhry, D.A.-G. for Respondent.

Date of hearing: 9th September, 2005.

Quetta High Court Balochistan

MLD 2005 QUETTA HIGH COURT BALOCHISTAN 486 #

2005 M L D 486

[Quetta]

Before Amanullah Khan and Fazal‑ur‑Rehman, JJ

SHER JAN‑‑‑Appellant

Versus

STATE‑‑‑Respondent

Crl. A. No.278 of 2001, decided on 30th June, 2004.

(a) Criminal trial‑‑‑

‑‑‑‑ Appreciation of evidence‑‑‑Interested witness‑‑‑Interested witness was one, who had animosity towards accused and mere relationship with deceased was not enough to discard his testimony and in fact it was the inherent worth of testimony of a witness to determine his credibility‑‑‑Principle that statement of a witness related to deceased should be corroborated was not absolute‑‑‑Statement of a worst enemy could be relied upon, if it inspired confidence and intrinsic worth of a statement was not shaken‑‑‑Mere relationship of witnesses with deceased was no ground for discarding their statements, when otherwise their statements were confidence‑inspiring and were corroborated with independent witnesses.

Raqib Khan v. The State and another 2000 SCMR 163 ref.

(b) Criminal trial‑‑‑

‑‑‑‑Motive‑‑‑Motive could be used as a double edged weapon cutting both sides.

‑‑‑‑Ss.302(b)/324‑‑‑Appreciation of evidence‑‑‑Both witnesses were present at the place of incident and one of them also sustained serious injuries, whereby he was shifted to hospital where he remained under treatment for a considerable long period‑‑‑Incident occurred in a broad-daylight and the injured as well as deceased were fired at from a very close range and Medical Certificate supported that fact‑‑‑Phenomena of substitution was very rare and in given facts and circumstances of case, it was absolutely unbelievable‑‑‑Both witnesses had unequivocally attributed role of firing to accused and absconding accused, whereas injuries sustained by injured were attributed to absconding accused‑‑Firing having been made from a close range in a broad‑daylight there could be no case of mistaken identity‑‑‑Witnesses were put to a lengthy cross‑examination, but nothing favourable could be extracted to impeach their credibility‑‑‑Both prosecution witnesses had corroborated each other on material points and their testimony was in consonance with medical evidence‑‑‑On independent reappraisal of evidence, no infirmity was found in judgment of Trial Court, whereby testimony of said witnesses was accepted‑‑‑Contention that accused had no motive to do away with deceased, had no substance as crime could be committed without any motive and the real motive was always in the mind of a person committing the crime‑‑‑Accused remained absconder for a considerable period and no explanation had come on record to give sufficient explanation for his being a fugitive from law, during that period‑‑‑Abscondence, in circumstances could be considered as a corroborative piece of evidence, lending support to the involvement of accused in the commission of offence‑‑‑Plea of alibi raised by accused being afterthought, was rejected‑‑‑Two Investigating Officers had stated that as per their own knowledge prosecution version was not true‑‑‑Said opinion of Investigating Officer was not binding on Court as deep scrutiny of record had indicated that said Investigating Officers had not conducted investigation properly‑‑‑Statements of Investigating Officers were based on hearsay as they only deposed what they came to know at the place of incident that firing was done by one person, but they had not stated as to who informed them nor they recorded statement of such person‑‑‑Opinion of Investigating Officers being weightless, was not acceptable and even otherwise it was not binding on the Court‑‑Statements of prosecution witnesses and material collected by prosecution, had established guilt of accused‑‑‑Prosecution case having been fully proved by confidence‑inspiring evidence which had satisfied the conscience of the Court, appeal against judgment of Trial Court convicting and sentencing accused, was dismissed being devoid of merits.

Pira v. State 1998 SCMR 1749 ref.

Muhammad Aslam Chishti for Appellant.

Malik Sultan Mehmood, A.A.‑G. for the State.

Date of hearing: 12th May, 2004.

MLD 2005 QUETTA HIGH COURT BALOCHISTAN 718 #

2005 M L D 718

[Quetta]

Before Fazal-ur-Rehman and Amanullah Khan, JJ

Dr. ZAHOOR AHMED SHAH---Petitioner

versus

PAKISTAN MEDICAL AND DENTAL COUNCIL through Secretary and another---Respondents

Civil Petition No.146 of 2004, decided on 29th November, 2004.

(a) Pakistan Registration of Medical and Dental Practitioners Regulations, 1966-

----Reglns. 6 & 21---Civil Procedure Code (V of 1908), S.20(c)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Territorial jurisdiction---Principles---Request for issuance of Provisional Registration Certificate---Request of petitioner for issuance of Provisional Registration Certificate, having been turned down by the Pakistan Medical and Dental Council, petitioner had challenged the refusal through Constitutional petition---Pakistan Medical and Dental Council functioned at Islamabad and College wherefrom petitioner did his graduation also located at Islamabad; while the Medical University with which college concerned was allegedly to be affiliated was at Karachi---Cause of action had accrued to the petitioner at Islamabad as Pakistan Medical and Dental Council which had refused to grant Provisional Registration Certificate, was located in Islamabad---Constitutional petition filed by petitioner in High Court of Balochistan, Quetta, was not maintainable for want of territorial jurisdiction---Section 20(c), C.P.C. provided that an appropriate writ could be claimed from a High Court within whose territorial limits cause of action wholly or in part arose---Court was to see, what was the dominant object of filing of Constitutional petition---Dominant object in the present case was registration of petitioners qualification with Pakistan Medical and Dental Council, office of which was located at Islamabad while the Medical University which had conducted examination of petitioner was at Karachi---Cause of action in case having arisen at Islamabad, Constitutional petition filed in Balochistan High Court, was not maintainable.

(b) Pakistan Registration of Medical and Dental Practitioners Regulation, 1966--

----Part V, Reglns. 6 & 21---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction---Scope---Territorial jurisdiction---Pakistan Registration of Medical and Dental Practitioners Regulation, 1966, was sub-servient to Pakistan Medical and Dental Council placed at Islamabad---Regln. 6 of the Regulation had laid down procedure of registration as Medical practitioner with the Pakistan Medical and Dental Council while Regln. 21 thereof had provided for appeal against refusal of registration---Complete procedure was provided regarding the institution, hearing and disposal of appeals in Part-V of Pakistan Registration of Medical and Dental Practitioners Regulation, 1966---Where an appeal was competent, but was not filed, High Court could not issue writ---High Court in exercise of its Constitutional jurisdiction would not allow petitioner to seek such relief through Constitutional petition which otherwise was not competent for want of territorial jurisdiction.

PLD 1997 SC 334 ref.

M. Aslam Chishti and M. Wassay Tareen for Petitioner.

H. Shakeel Ahmed for Respondents.

Mumtaz Yousaf, Federal Standing Counsel.

Amanullah Tareen A.A.-G.

Date of hearing: 11th November, 2004.

MLD 2005 QUETTA HIGH COURT BALOCHISTAN 727 #

2005 M L D 727

[Quetta]

Before Amanullah Khan and Fazal-ur-Rehman, JJ

Messrs QASIM & CO. through L.Rs.---Appellant

versus

Messrs BOLAN BANK LIMITED through Manager---Respondent

R.F.A. No.58 of 1999, decided on 14th December, 2004.

Civil Procedure Code (V of 1908)

----O.XXXVII, Rr.1 & 2---Banking Companies (Recovery of Loans, Advances Credits and Finances) Act (XV of 1997), S.9---Suit for recovery of amount---Father of appellants opened an account with Bank and appellants were also allowed to operate said account---Father of appellants died and appellants continued operating said account and at their request said account was converted in the name of company with the name and style of their late father and huge transactions were carried out in said account---Prior to death of father of appellants, a construction company/Principal Debtors was awarded a contract for development of a Housing Scheme and said Company/Principal Debtors furnished a Performance Guarantee in favour of Authority under control of which Housing Scheme was to be developed, which was issued by Bank on behalf of Principal Debtors---Father of appellants who at the relevant time was alive, stood guarantor for Principal Debtors and executed Guarantee Bond---Subsequently certain cheques issued by appellants were dishonoured by the Bank and on inquiry appellants were informed that suit amount had been deducted from their account on account of liability towards Principal Debtors as their late father stood guarantor thereof---Suit for recovery of said deducted amount filed by appellants having been dismissed by the District Judge, appellants filed appeal before High Court which was allowed and Bank was directed to make payment of amount deducted from account of appellants along with interest---On filing petition for leave to appeal, Supreme Court remanded case to High Court with direction to determine question of jurisdiction of Banking Court---Transaction i.e. the act of deduction of amount by Bank from account of appellants not falling within definition of Loan or Finance for which a suit under S.9 of Banking Companies (Recovery of Loans, Advances Credits and Finances) Act, 1997 could be filed---Banking Court, in circumstances had no jurisdiction in the matter---Contention that since account in question was opened by late father of appellants, Bank had a lien over same, was repelled because neither late father of appellants nor appellants had authorized the Bank to deduct from their account---Account in question was operated by appellants in their personal capacity and nothing was on record that any amount was left by deceased---Merely because appellants were doing business in the name of Company, it could not be held that amount belonged to their deceased father---If any pecuniary obligation arose out of a contract by deceased it would only bind legal representatives to the extent of estate left by deceased---Where a security was delivered to a Bank for specific purpose, if it was inconsistent with the right of lien and impliedly if it was an agreement to the contrary, a Bank could not exercise lien over such property---Deduction of amount by the Bank from account of appellants, was illegal as neither the Bank had a lien over the money belonging to appellants nor they could be held responsible for personal acts of their late father---Appellants would be entitled to disputed amount with mark-up from date of institution of suit till date of realization of decretal amount.

PLD 1980 Kar. 115; AIR 1960 Punjab 632; AIR 1966 Madras 265; Chatinad Mercantile Bank Ltd., by its Agent and Secretary T. Subramania Ayyar v. PLA Pichammai Achi and another AIR 1945 Madras 447; Fancy Investments Ltd. Karachi v. United Bank Limited and 2 others PLD 1982 Kar. 200; Sh. Abdul Majid v. Syed Akhtar Hussain Zaidi PLD 1988 SC 124 and Muhammad Abdullah Sufi v. Messrs Muhammad Bux and Son and others PLD 1957 (W.P.) Karachi 445 ref.

Syed Ayaz Zahoor for Appellants.

H. Shakeel Ahmed for Respondent.

Date of hearing: 13th October, 2004.

MLD 2005 QUETTA HIGH COURT BALOCHISTAN 744 #

2005 M L D 744

[Quetta]

Before Mehta K.N. Kohli, J

Haji ABDUL SALAM---Appellant

versus

Haji BASHIR AHMED and 11 others---Respondents

F.A.O. No.66 of 2002, decided on 21st December, 2004.

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

----Ss.13(2)(i)(ii)(a) & 15---Ejectment of tenant on ground of default in payment of rent and subletting of the premises---Ejectment application alleged that tenant had failed to pay rent of premises from April, 1999 to 14-12-2000, the date of filing of ejectment application and that the tenant had handed over/sublet premises to sub-tenant without written consent or permission by landlord---Tenant in his written statement had asserted that disputed rent was paid to landlord, but landlord had not issued receipt of said rent---Tenant could not prove by whatever evidence he had paid rent in dispute to landlord whereas landlord had proved that tenant had failed to pay or tender rent in dispute within a period of sixty days from the date same was payable---Tenant, in circumstances was proved to be a defaulter.

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

---Ss.13(2)(ii)(a) & 15---Tenant had stated that alleged sub-tenant was his Munshi and was occupying premises in the capacity of his Munshi---Alleged Munshi/sub-tenant neither was produced before Rent Controller nor any record showing that said sub-tenant was his Munshi was produced by tenant---Tenant, in circumstances had failed to discharge his burden to prove that sub-tenant was working as Munshi and was not user of premises as a sub-tenant---Subletting by tenant, in circumstances had been established---Rent Controller, therefore, had rightly ordered ejectment of tenant on ground of default in payment of rent and subletting.

1995 SCMR 262; 1984 CLC 2420; Masroor Hassan v. Abbas Ali Khan 1981 CLC 669; Malik Sajawal Khan v. The Deputy Commissioner Sargodha and others PLD 1968 Lah. 527; AIR 1961 Bom. 292; AIR 1923 Bom. 44(1); AIR 1936 Bom. 41; AIR 1932 Bom. 367; AIR 1925 All, 79; AIR 1925 Sindh 275 and PLD 1961 Kar. 486 ref.

Kamran Murtaza for Appellant.

Aminuddin Bazai for Respondents.

Dates of hearing: 13th and 15th December, 2004.

MLD 2005 QUETTA HIGH COURT BALOCHISTAN 755 #

2005 M L D 755

[Quetta]

Before Raja Fayyaz Ahmed, C.J. and Nadir Khan Durrani, J

NAJEEBULLAH and 8 others---Petitioners

versus

GHULAM FARID and 4 others---Respondents

C.P. No.408 of 1998, decided on 24th January, 2005.

Balochistan Civil Disputes (Shariat Application) Regulation, 1976---

----Arts. 3 & 4(b)---Civil Procedure Code (V of 1908), S.115---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Revisional jurisdiction of Majlis-e-Shoora---Scope---Majlis-e-Shoora by means of sub-cl(2) or Art.4 of Balochistan Civil Disputes (Sharait Application) Regulation, 1976, was to be deemed to be a District Court within meaning of C.P.C.---Majlis-e-Shoora acting under Balochistan Civil Disputes (Sharait Application) Regulation, 1976, deemed to be District Court, had powers to exercise revisional authority under S.115, C.P.C.---Order passed by Majlis-e-Shoora whereby revision petition filed by predecessor-in-interest of petitioners before it was dismissed on ground of lack of revisional jurisdiction, being against relevant provisions of the Regulation, was declared as illegal by High Court who set aside the same with direction that revision petition filed before Majlis-e-Shoora would be deemed to be pending and would be decided on merits in accordance with law.

Basharatullah for Petitioner.

Mujeeb Ahmed Hashmi for Respondents.

Date of hearing: 11th November, 2004.

MLD 2005 QUETTA HIGH COURT BALOCHISTAN 764 #

2005 M L D 764

[Quetta]

Before Raja Fayyaz Ahmed, C.J. and Akhtar Zaman Malghani, J

Haji AGHA MUHAMMAD and 5 others---Petitioners

versus

NIAZ MUHAMMAD and 5 others---Respondents

C.P. No.530 of 2004, decided on 18th January, 2004.

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

----O.VI, R.17---Amendment of pleadings---Object of R.17 of O.VI, C.P.C. was that if amendment in pleadings was necessary for the purpose of determining the real matter in controversy, it should be allowed provided other party was not prejudiced---All rules of Court were intended to secure the proper administration of justice---Powers of amendment conferred upon the Court should be liberally exercised---Courts were also required to avoid multiplicity of litigation and if it could be avoided by allowing amendment in pleadings, same should be allowed.

PLJ 1978 SC 209 ref.

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

----O.VI, R.17---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction---Scope---Amendment in pleadings---Trial Court and Appellate Court in revision concurrently allowed application of plaintiff for amendment of pleadings---In absence of any illegality, grave irregularity or jurisdictional defect in concurrent judgments of Courts bellow, impugned judgment could not be interfered with in Constitutional jurisdiction by High Court---Constitutional petition being devoid of merits, was dismissed.

Malik Azamtullah Kasi for Petitioners.

Nemo for Respondent.

Date of hearing: 29th December, 2004.

MLD 2005 QUETTA HIGH COURT BALOCHISTAN 1489 #

2005 M L D 1489

[Quetta]

Before Muhammad Nadir Khan, J

DOST MUHAMMAD alias SOWALI---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.(S)11 of 2005, decided on 16th April, 2005.

Penal Code (XLV of 1860)---

----Ss. 324 & 353---Appreciation of evidence---Evidence on record did not show that accused was known to police party prior to the incident---Prosecution witness in his cross-examination had stated that it was already dark when incident took place---Identification of accused by prosecution witnesses, in circumstances called for explanation which found no trace on the record---Two witnesses in their statements did not state about accused being accompanied by two others, whereas in Marasla one of said witnesses had stated that accused was accompanied by two others who were also armed and made firing on police party---According to one of the witnesses the raiding party consisted of police as well as levies, but no levies personnel had been made witness in the case---No empty of Kalashnikov had been recovered from the place wherefrom accused and his two companions allegedly made indiscriminate firing on police party---When the very identification of accused was doubtful and statement of witnesses were found to be not in consonance with each other, which also found no support from any independent source, same could not be made basis for conviction of accused---Findings of Trial Court, in circumstances, could not be agreed with---Prosecution having failed to prove charge against accused, judgment of Trial Court was set aside and accused was acquitted of charge and was released.

Nazir Aftab for Appellant.

Abdul Rahim Mengal, Assistant Advocate-General for the State.

Date of hearing: 14th April, 2005.

MLD 2005 QUETTA HIGH COURT BALOCHISTAN 1603 #

2005 M L D 1603

[Quetta]

Before Ahmad Khan Lashari and Amanullah Khan Yasinzai, JJ

GUL MUHAMMAD and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No.162 of 2002 and C.P. No.332 of 2002 decided on 4th May, 2005.

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

------Ss. 302(b) & 324---Appreciation of evidence---Site sketch prepared in the case which had supported the defence version had remained unchallenged---Independent witness, though cited in the calendar of witnesses, had not been examined by the prosecution for unknown reasons---Plea of self-defence and grave and sudden provocation taken up by the accused was more probable than the prosecution version and appealed to the prudent mind being reasonably true and its benefit had to be extended to him---Deceased along with his sons and others had gone to the house of accused with a Kalashnikov, when the accused in grave and sudden provocation and in exercise of his right of the self-defence had made firing upon the deceased and the prosecution witnesses---Accused had not exceeded the limits in such exercise to constitute an offence of "Qatl-i-amd" with a motive set up by the prosecution---Accused was acquitted in circumstances.

1995 SCMR 1846; 1992 PCr.LJ 1219; 1980 PCr.LJ 191; 1992 SCMR 1983; PLD 1974 Lah. 274; PLD 1988 SC 25; 1999 PCr.LJ Lah: 1381; 1998 SCMR 1823 (f); 1995 SCMR 236; 2003 PCr.LJ Lah. 97(b); MLD 2000 Lah. 20; 1985 .SCMR 2055 (c); PLD 1996 SC 274; 1999 SCMR 1668 (b); 1999 SCMR 89 and 2001 PCr.LJ 445 ref.

1995 SCMR 236; 2003 PCr.LJ Lah. 97(b); MLD 2000 Lah. 20 and 1985 SCMR 2055 (c) distinguished.

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

----Ss. 302(b) & 324---Burden of proof---Principles---Burden of proof in a criminal case remains on the prosecution throughout the trial and it never shifts to the defence--Prosecution has to prove its case against the accused beyond reasonable doubt---Fact that the plea raised by the accused was found by the Court to be untrue, would not relieve the prosecution from its said burden, nor any adverse inference could be drawn against the accused on account of his failure to prove the plea raised by him---Burden on the accused to establish the plea raised by him is not as heavy as it is on the prosecution, inasmuch as, accused discharges his burden if he 'succeeds in creating a reasonable doubt in the prosecution case.

----Burden of proof---Principle.

Shams-ud-Din for Appellants (in Cr1. Appeal No.162 of 2002).

Sardar Munir Durrani and Qahir Shah for the Complainant (in Crl. Appeal No.162 of 2002).

Qahir Shah for Petitioner (in C.P. No.332 of 2002).

Munir Ahmed Durrani for the State (in C.P. No.332 of 2002).

Shams-ud-Din for Respondent (in C.P. No.332 of 2002).

Date of hearing: 6th April, 2005.

MLD 2005 QUETTA HIGH COURT BALOCHISTAN 1620 #

2005 M L D 1620

[Quetta]

Before Amanullah Khan Yasinzai and Fazal-ur-Rehman, JJ

THE STATE and others---Appellants

Versus

RAHIM DAD and others---Respondents

Murder Reference No.30 of 2002, Criminal Jail. Appeal No.72 of 2002, Criminal' Appeals Nos.73, 76 of 2002 (ATA) and Criminal Acquittal Appeal No.89 of 2002 (ATA), decided on 11th April, 2005.

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

---Art. 40---How much of information received from accused may be proved---Information supplied by the accused in police custody under Article 40 of the Qanun-e-Shahadat, 1984 would be admissible only to the extent where it relates to disclosure of recovery of incriminating articles---If, however, an accused states before the Police Officer that he could lead the police to the place of crime weapon such statement of accused would not be admissible being not related to discovery of weapon.

Sukhan v. Emperor AIR 1929 Lah. 344; Pulukuri Kottaya v. Emperor AIR 1947 Privy Council 67; The State through the Advocate-General Province of Balochistan, Quetta v. Jamil Iqbal PLD 1974 Quetta 28 "On Evidence" Tenth Edition p. 270 and Khalid Javed and another v. The State 2003 SCMR 1419 ref.

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

---Arts. 37, 38 & 39---Confession---Nature, scope and admissibility---Voluntary and true are two different terms related with confession and each of them has its own significance---Confession which is voluntary is admissible in evidence even though it may be incorrect in its contents---Whereas a confession which is not. voluntary is not admissible though it may be true---Whether a confession is voluntary and true is a question of fact and is to be determined keeping in view the attending circumstances of each case---Voluntariness relates to the admissibility of the confession, while its truth is looked into the purpose of assessing its value---Therefore, for proving confession it shall be both voluntary and true.

Sheikh Muhammad Ajmad v. The Sate PLD 2003 SC 704 ref.

---S.164---Power to record statements and confessions---Statement of witness not a substantive piece of evidence---Statement of a witness recorded under S. 164, Cr.P.C. cannot be considered as a substantive piece of evidence and can only be used to contradict the person in the Court who made the statement.

Salehon v. The State 1971 PCr.LJ 224 ref.

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

----Ss. 302(a) & 365-A---Anti-Terrorism Act (XXVII of 1997), Ss. 7(e) & 7(a)[as amended by Anti-Terrorism (Amendment) Ordinance (XXXIX of 2001)]---Appreciation of evidence---Accused had been acquitted of the charge under S. 302, P.P.C. on the basis of a compromise between them and the legal heirs of the deceased---Prosecution witnesses had no enmity to falsely implicate the accused in the case---Abductee and other prosecution witnesses' had identified the accused in the identification parade as well as in the Court---Presence of accused at the place of incident and their actual participation in the abduction of the minor girl was established, except one accused who had only received the ransom amount and had acted as a mediator between the actual culprits and had given assistance to them---Confessional statement of accused was supported by the recovery of the pistol and crime empties as well as the report of the Ballistic Expert---Conviction of accused under S.365-A, P.P.C. was consequently upheld but sentence of death awarded to them thereunder was reduced to imprisonment for life in circumstances.

Ayyam Perumal Pillai v. Emperor AIR 1925 Madras 879; Nisar Muhammad v. Khanzali and another PLD 1959 Pesh. 115; Muhammad Bashir Alam v. The State PLD 1958 SC (Pak.) 01; Sheru v. The State PLD 1960 (W.P.) Kar. 195; Salehon v. The State 1971 PCr.LJ 224; The State through the Advocate-General Province of Balochistan, Quetta v. Jamil Iqbal PLD 1974 Quetta 28; Saleem Pervaiz v. The State 1978 PCr.LJ 458; Lal Pasand v. The State PLD 1981 SC 142; Arif Nawaz Khan and 3 others v. The State PLD 1991 FSC .53; Faqirullah v. Khaliluz-Zaman and others 1999 SCMR 2203; Saeed Ahmed v. The State PLD 2003 SC 389 Sheikh Muhammad Ajmad v. The Sate PLD 2003 704; Khalid Javed and another v. The State 2003 SCMR 1419; Fazal Rehman and others v. The State and another PLD 2004 SC 250; Pehalwan and others v. The State 2000 PCr.LJ 299; Muhammad Anwar alias Lalu v. The State 2003 YLR 300; Sukhan v. Emperor AIR 1929 Lah. 344; Pulukuri Kottaya v. Emperor AIR 1947 Privy Council 67 and "On Evidence" Tenth Edition p. 270 ref.

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

----Ss.365-A, 302, 102-B, 109 , 449 & 34---Anti-Terrorism Act (XXVII of 1997), S.25---Appeal against acquittal---Appeal had neither been filed by the competent person i.e., the Advocate-General, nor any directions had been issued by the Federal or Provincial Government and the same was not competent---Accused admittedly had not participated in the commission of the offence and he had only allegedly made a disclosure before the police that conspiracy was hatched in his presence---Disclosures made by the accused in police custody had been ruled out by High Court---No case was made out against the accused on merits--Appeal against acquittal of accused was dismissed in circumstances.

Muhammad Khalid Dogar, Public Prosecutor for Appellants (in Murder Reference No.30 of 2002).

Muhammad Aamir Rana for Respondents (In Murder Reference No.30 of 2002).

W.N. Kohli for Appellants (In Criminal Jail Appeal No.72 of 2002 ATA).

Muhammad Khalid Dogar, Public Prosecutor for Respondents '(in Criminal Jail Appeal No.72 of 2002 ATA).

Basharatuiah for Appellant (In Criminal Appeal No.73 of 2002 ATA).

Muhammad Khalid Dogar, Public Prosecutor for Respondents (In Criminal Appeal No.73 of 2002 ATA).

Baz Muhammad Kakar for Appellants (In Criminal Appeal No.76 of 2002 ATA).

Muhammad Khalid Dogar, Public Prosecutor for Respondents (In Criminal Appeal No.76 of 2002 ATA).

Muhammad Khalid Dogar, Public Prosecutor for Appellants (In Criminal Acquittal Appeal No.89 of 2002 ATA).

Ch. Muhammad Rafique Ahmed for Respondents (In Criminal Acquittal Appeal No.89 of 2002 ATA).

Date of hearing: 16th March, 2005.

Shariat Court Azad Kashmir

MLD 2005 SHARIAT COURT AZAD KASHMIR 1425 #

2005 M L D 1425

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

THE STATE through Ulfat Khan and others---Petitioners

2005 M L D 1301

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed C.J. and Chaudhary Muhammad Taj, J

Raja NIAZ HUSSAIN---Appellant

Versus

MUHAMMAD KHURSHID and 3 others---Respondents

Civil Appeal No.98 of 2004, decided on 21st April, 2005.

(On appeal from the judgment of the High Court dated 24-5-2004 in Criminal Revision No.11 of 2004).

Penal Code (XLV of 1860)---

----Ss. 427, 435 & 436---Postponement of criminal proceedings till the decision of civil suit---Appeal to Supreme Court---Case under Ss.427, 435 & 436, P.P.C. was registered against accused/respondents on the complaint of appellant who, after investigation, were challaned before Magistrate concerned---During pendency of trial an application was moved on behalf of accused/respondents to postpone criminal trial till disposal of a civil suit filed for damages by father of complainant---Said application was accepted and trial was postponed till. decision of civil suit---Such order was upheld by High Court in revision and appellant-complainant had filed appeal before Supreme Court against judgment of High Court---Validity---Offence committed by an accused had to be tried and decided in accordance with law unless nature of case was such which could depend upon decision of civil suit irrespective of fact whether or not a civil suit challenging same subject-matter had been filed---Cognizable offences were committed by accused/respondents in the present case, for which trial was in progress when trial Magistrate postponed proceedings till the decision of civil suit---No grounds whatsoever were given by trial Magistrate as well as by High Court as to how the fate of case was dependant upon decision of civil suit---Both proceedings were independent in nature---Criminal trial was being conducted on behalf of State against accused/respondents and offences against respondents, if proved, they were to be punished---Other proceedings in the nature of civil suit were filed on behalf of father of complainant claiming damages---Proceedings of challan or its ultimate decision would not bar the institution of proceedings such as suit for damages---Conversely, civil suit would not be a bar for proceedings against accused against whom a challan had been submitted under certain offences---Criminal proceedings could not be postponed or stayed as both civil and criminal proceedings were independent and were not dependant upon each other---Order passed by Trial Magistrate and upheld by High' Court being against law was not maintainable.

N. Manak Ji v. Fakhar Iqbal and another 1969 SCMR 198; Faqir Muhammad and others v. Ch. Ali Muhammad and others 1992 PCr.LJ 1085; Tahirul Islam v. The State and another NLR 1984 SCJ 368; Adam. v. Collector of Customs, Karachi PLD 1969 SC 446; Central Board of Revenue and another v. Khan Muhammad PLD 1986 SC 192; Government of N.-W.F.P. through Secretary, Finance, Excise and Taxation Department, Peshawar and 2 others v. Aurangzeb 2003 SCMR 338; Amir Abdullah v. Superintendent of Police and others 1989 SCMR 333; Penumarti Janikamma v. Chunduru Appanna AIR 1957 Andh. Pra. 771 and M. S. Sherif v. State of Madras AIR 1954 SC 397 (A) ref.

Raza Ali Khan, Advocate for Appellant.

Muhammad Farid Khan, Advocate for Respondents.

Raja Ibrar Hussain Advocate-General for the State.

Date of hearing: 14th April, 2005.

MLD 2005 SUPREME COURT AZAD KASHMIR 1310 #

2005 M L D 1310

[Supreme Court (AJ&K)]

Present: Syed Manzoor Hussain Gilani and Chaudhary Muhammad Taj, JJ

MOHABAT KHAN---Appellant

Versus

ROBKAR-E-ADALAT and 2 others---Respondents

Civil Appeal No.49 of 2004, decided on 1st April, 2005.

(On appeal from the judgment of the Shariat Court dated 26-2-2004 in Revision Petition No.52 of 2003).

Guardians and Wards Act (VIII of 1890)---

----S. 25---Custody of minors---Wife moved application for custody of minors in Family Court and her application for temporary custody of minors was allowed and temporary custody was handed over to her subject to furnishing a bail bond in sum of Rs.10,00,000 (rupees ten lac) with direction that minors would not be removed from territorial jurisdiction of the Court---Appellant furnished bail bond before Trial Court---Neither the wife of minors appeared in the Court nor minors were brought before the Court, on the relevant date; the Court ordered confiscation of bail bond executed by the appellant---Appellant did not dispute correctness of order whereby bond was confiscated, but he raised only point that a notice was required to be issued to him as to why amount should not be recovered from him---Evidence on record had shown that after confiscation of bond a notice was issued to appellant which had been placed on record by appellant himself, thereafter, other necessary proceedings were taken as appellant could not be served for being out of the country---Trial Court had undertaken all proceedings which were in accordance with law in view of facts and circumstances of case---Revision filed before Shariat Court was correctly dismissed after taking all aspects, factual as well as legal---In absence of any illegality in order passed by Shariat Court, appeal to Supreme Court, was dismissed.

M. Yunus Tahir, Advocate for Appellant.

Ch. M. Reaz Alam, Advocate for Respondent No.3.

Date of hearing: 24th March, 2005.

MLD 2005 SUPREME COURT AZAD KASHMIR 1462 #

2005 M L D 1462

[Supreme Court (AJ&K)]

Present: Syed Manzoor Hussain Gilani and Chaudhary Muhammad Taj, JJ

MUHAMMAD SARWAR and others---Appellants

Versus

SARDAR AHMAD and others---Respondents

Criminal Appeals Nos.41 and 39 of 2002, decided on 6th May, 2005.

(On Appeal from the judgment of the Shariat Court dated 27-2-2002 in Criminal Appeals Nos.28 and 31 of 1998).

Penal Code (XLV of 1860)---

----S. 302/34---Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act (IX of 1974), S.26---Procedure adopted by trial Court challenged---Incriminating evidence was neither put to the accused while recording their statements under S.342, Cr.P.C., nor they were provided any opportunity to rebut the same by producing defence evidence---No purgation of the witnesses was conducted as required by the mandatory provisions of S.26 of the Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act, 1974---Impugned judgment convicting the accused was set aside in circumstances and the case was remanded to trial Court for fresh decision after redressing the above mentioned wrongs in accordance with law---Appeal was accepted accordingly.

Khushal Khan and another v. State (Criminal Appeal No.23 of 2001) ref.

Ch. Muhammad Azam Khan and Muhammad Yunus Tahir Advocates for Appellants (in Criminal Appeal No.41 of 2002).

Ch. Ali Muhammad, Advocate for Respondents (in Criminal Appeal No.41 of 2002).

Sardar Abdul Razzik Khan Additional Advocate-General for the State (in Criminal Appeal No.41 of 2002).

Ch. Ali Muhammad, Advocate for Appellants (in Criminal Appeal No.39 of 2002).

Ch. Muhammad Azam Khan and Muhammad Yunus Tahir, Advocates for Respondents (in Criminal Appeal No.39 of 2002).

Sardar Abdul Razzik Khan Additional Advocate-General for the State (in Criminal Appeal No.39 of 2002).

Date of hearing: 2nd May, 2005.

MLD 2005 SUPREME COURT AZAD KASHMIR 1474 #

2005 M L D 1474

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed, CJ and Chaudhary Muhammad Taj, J

THE STATE through Advocate-General Azad Jammu and Kashmir, Muzaffarabad---Petitioner

Versus

SHABBIR ABBASI and 3 others---Respondents

Criminal Revision Petition No.9 of 2003, decided on 20th May, 2005.

(On appeal from the judgment of the Shariat Court dated 20-8-2003 in Revision Petition No.91 of 2003).

Criminal Procedure Code (V of 1898)---

----Ss.54 & 56---When police may arrest without warrant---Nature and scope,-Police Officer under S. 54, Cr.P.C. may arrest any person without a warrant who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned---Scope of Ss. 54 and 56, Cr.P.C. is wholly different---While the Authority to arrest under S.54, Cr.P.C. is limited to the conditions laid down in clauses first to ninthly, the power to arrest under S.54, Cr.P.C. without warrant is subject to the requirement only of a written order by a senior police officer specifying the offence or other cause for which arrest is to be made.

Nazir Ahmad alias Jeera Guddi v. The State 1970 PCr.LJ 250 and Muhammad Siddiq v. Province of Sindh and 2 others PLD 1992 Kar. 358 ref.

Raja lbrar Hussain, Advocate-General for Petitioner.

Abdul Rashid Abbasi, Advocate for Respondents.

Date of hearing: 4th April, 2005.

MLD 2005 SUPREME COURT AZAD KASHMIR 1586 #

2005 M L D 1586

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed, CJ and Chaudhary Muhammad Taj, J

Civil Appeal No.168 of 2004.

MASHKOOR HUSSAIN SHAH and 3 others---Appellants

Versus

MUNAWAR SHAH and others---Respondents

(On appeal from the judgment and decree of the High Court dated 9-9-2003 in Civil Appeals Nos.93 and 100 of 2003).

Civil Appeal No.169 of 2004.

ARSHAD AHMAD---Appellant

Versus

Syed MUNAWAR HUSSAIN SHAH and 2 others---Respondents

(On appeal from the judgment and decree of the High Court dated 9-9-2003 in Civil Appeals Nos.93 and 100 of 2003).

Civil Appeals Nos.168 and 169 of 2004, decided on 9th May, 2005.

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

----Ss.42 & 54---Suit for declaration and permanent injunction---Pleadings of the parties showed that no dispute existed about specific Survey number and all the Courts also had found no controversy in that regard---Courts, including the High Court had found that parties were owners in equal shares so far as said Survey number was concerned---Controversy in the case was confined to another Survey number---Respondents had claimed that by virtue of an agreement they were the owners in possession of suit-land while appellants had claimed its ownership to the extent of one half of share in respect of said suit-land---Prima facie, no agreement was available in respect of said another Survey number---Decree for permanent injunction passed in favour of respondents in respect of said another Survey number was not maintainable---Courts below and High Court were under mistaken impression that a compromise was effected in respect of the said Survey number during the earlier litigation---Order of High Court was set aside by the Supreme Court and matter was remanded to the Trial Court which would proceed in accordance with law.

Mir. Sharafat Hussain, Advocate for Appellant in Civil Appeal No. 168 of 2004).

Imdad Ali Mallick and Kh. Shahad Ahmed, Advocate for Respondents (in Civil Appeal No. 168 of 2004).

Kh. Shahad Ahrnad for Appellant (in Civil Appeal No.169 of 2004).

Imdad All Mallick and Mir Sharafat Hussain for Respondents (in Civil Appeal No.169 of 2004).

Date of hearing: 25th October, 2004.