MLD 2006 Judgments

2006 M L D 12

[High Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan, J

Mst. SARWAR JAN and 8 others---Petitioners

Versus

DISTRICT JUDGE, BAGH and others---Respondents

Writ Petition No.23 of 2005, decided on 16th September, 2005.

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

---O.VII, R.11, Ss. 96 & 2(2)(d)---Rejection of plaint or suit---Remedy---Scope---Such order, if' passed by a Court of competent jurisdiction, would be a decree and appealable under S.96, C.P.C.

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

----O.VII, R.11---Civil Procedure Code (V of 1908), S.115---Rejection of plaint---Scope---Revision---Not only Trial Court, but District Judge on a revision petition would be competent to reject plaint, if otherwise permissible under law.

Muhammad Shafi's case 2005 MLD 559; Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97; H.M. Saya & 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 Saleem and others v. D.C.O. and others 1994 MLD 295 and Muhammad Zaleem and another v. Mst. Zarina Begum and 4 others 1996 MLD 1959 rel.

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

----S.115---Revision---Concurrent jurisdiction of District Judge and High Court---Effect---Party filing revision petition before District Judge or High Court could not invoke jurisdiction of another Court---Purpose of S.115(3), C.P.C., was to avoid conflicting judgments of District Judge and High Court simultaneously on the same cause before them.

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

----S.115---Azad Jammu and Kashmir Interim Constitution Act, 1974, S.44---Order of District Judge passed on revision petition---Writ petition---Maintainability---Such order was neither appealable nor revisable in view of S.115(4), C.P.C.---High Court being a constitutional Court had power to rectify or undo a legal error by invoking its inherent powers available under the Constitution, if such error was brought or came in its knowledge even suo motu---High Court in such case would not sit with folded arms---Points raised by petitioner merit consideration, which could not be possible without exercising Constitutional jurisdiction available to High Court---Writ petition was admitted for regular hearing.

(e) Azad Jammu and Kashmir Interim Constitution Act, 1974---

----S.44---Writ petition---Impugned order suffering from legal error---No remedy available to aggrieved person under normal course of law---Writ jurisdiction of High Court---Scope---High Court being a constitutional Court had powers to rectify or undo a legal error by invoking its inherent powers available under the Constitution, if such error was brought or came to its knowledge even suo motu---High Court in such case would not sit with folded arms.

Sardar Muhammad Suleman Khan for Petitioners.

Sardar Khan for the Respondents.

2006 M L D 53

[High Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan, J

MUHAMMAD YOUSAF KHAN and others---Appellants/Respondents

Versus

ABDUL GHAFOOR and others---Respondents/Appellants

Civil Appeals Nos.21 and 28 of 2004, decided on 16th September, 2005.

(a) Pleadings---

----Evidence beyond the pleadings could not be considered nor a decision traveling beyond the pleadings of parties would be possible---Principles.

(b) Islamic Law---

----Dower---Gift---Transfer of property in lieu of dower at the time of Nikah---Validity ---Such transfer would take effect as a gift---Gift by a Muslim would become complete, if declaration was' made, gift was accepted expressly or impliedly by or on behalf of donee and delivery of possession of subject-matter by donor to donee took place---Upon fulfilment of such three conditions, neither any writing would be required to complete gift nor any document acknowledging transfer of property by way of gift would require registration---Principles---Transfer of Property Act (IV of 1882), S. 129.

PLD 2000 Lah. 236; PLD 1976 BJ 37; 1977 SCMR 154; 1987 SCMR 1403 and PLD 1975 Lah. 1399 rel.

Syed Habib Hussain Shah for Appellants /Respondents.

Said Hassan Kiani for Respondents/Appellants.

2006 M L D 19

[Karachi]

Before Maqbool Baqar, J

MUSHTARI---Plaintiff

Versus

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

Suit No.392 of 1997, decided on 4th October, 2005.

Fatal Accidents Act (XIII of 1855)---

----S.1---Fatal accident---Suit for compensation---Determination of compensation---Plaintiff/widow of deceased had proved her case through her evidence and evidence of eye-witness, which had clearly established the factum of negligence of driver/defendant---Accident which resulted in death of deceased was solely caused due to reckless and negligent driving of Trailer by the driver---Neither any of defendants filed written statement nor did they record any evidence, though in view of the doctrine of "res ipsa loquitur", once factum of a fatal accident was proved, the burden of plaintiff was discharged and presumption of negligence would arise against defendants---Defendants were to prove absence of negligence and rashness on their part and that failure to produce driver of vehicle involved in the accident would create adverse presumption against defendant---Plaintiff and witness had withstood the test of cross-examination and counsel for defendants had failed to create any dent in their version ---Factum of rash and negligent driving of trailer by defendant driver which caused fatal accident resulting in death of decease stood proved beyond any doubt---Plaintiff/widow of deceased and other legal heirs/statutory beneficiaries of deceased, in circumstances were fully entitled to be compensated by defendants---Amount of compensation was determined keeping in view the age of deceased, his life expectancy, his earning capacity and other relevant factors with the direction that said determined amount should be paid by defendants to plaintiff within specified period.

Aijaz and 6 others. v. The Karachi Transport Corporation 2004 MLD 491; Najma Parveen and another v. Karachi Transport Corporation 2004 MLD 518; Aijaz and 6 others v. Karachi Transport Corporation 1995 MLD 1992 and Government of Pakistan through Secretary of Defence and another v. Ishrat Begum 1999 MLD 768-II ref.

Nasir Maqsood for Plaintiff.

Major (Retd.) Abdul Rauf for Defendant No. 1.

M. Sulheri for Defendant No.2.

Date of hearing: 8th September, 2005.

2006 M L D 57

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Moosa K. Leghari, JJ

MIRAJ MUHAMMAD QURESHI---Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, MIRPUR KHAS and 19 others---Respondents

Constitutional Petition No.D-304 of 2005, decided on 4th October, 2005.

Sindh Local Government Elections Rules, 2005---

---Rr.7, 8, 9, 10, 11, 12, 13, 14(4), 16, 17, 18, 19 & 20---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Rejection of nomination papers---Nomination papers filed by the petitioner for the office of the member District Council were rejected by the Returning Officer at the time of scrutiny on the ground that proposer of the petitioner's name had also earlier proposed the name of another candidate for the same office---Appeal filed by the petitioner against the rejection of nomination papers before the District and Sessions Judge was dismissed---Validity---Contention of the petitioner was that since the other candidate had subsequently withdrawn his nomination papers, therefore, the Returning Officer and Appellate Authority were not justified in rejecting the nomination papers of the petitioner by applying the bar contained under sub-rule 7 to rule 12 of the Sindh Local Government Elections Rules, 2005, moreover the orders of the rejection of nomination papers were, no doubt, legal, but they would result in a technical knockout of the petitioner from contesting the elections, which would be against the spirit of election laws, especially, when the other candidate had withdrawn his nomination papers---Validity---Scheme of filing of nomination' papers, its scrutiny, etc. which was regulated by rules 12 to 20 of the Sindh Local Government Elections Rules, 2005, did not contain any provision for withdrawal of nomination papers which was once submitted before the Returning Officer, particularly after its acceptance and scrutiny---Rule 16 of the Sindh Local Government Elections Rules, 2005, specified the procedure for withdrawal of candidature or retirement by the candidate, which was quite different legal proposition than the withdrawal of nomination papers---Other candidate was therefore, only allowed withdrawal of his candidature and not the withdrawal of his nomination papers---Nomination papers of the petitioner was rightly rejected---Withdrawal of candidature of any other candidate would have no material bearing over the case of the petitioner---Petition was dismissed in circumstances.

Munawar Ali Shah for Petitioner.

Masood A. Noorani Addl. A.-G.

Nemo for Respondents Nos.4, 5, 8, 11 to 15.

Date of hearing: 4th October, 2005.

2006 M L D 62

[Karachi]

Before Rahmat Hussain Jafferi, J

MUHAMMAD FEROZE PANJANI---Plaintiff

Versus

Mrs. MEHR-UN-NISA and another---Defendants

Suit No.793 of 1994, decided on 26th August, 2005.

Damages---

----Malicious prosecution---Cancellation of F.I.R.---Defendant lodged F.I.R. for cheating, misappropriation of amount and forgery against plaintiff but allegations made in F.I.R. were found to be baseless hence the plaintiff was released and F.I.R. was cancelled---Plaintiff bought recovery of Rs.2 crore as damages and compensation---Validity---Defendant knew that the allegations levelled in F.I.R. were baseless and he had no evidence to substantiate his allegations, which were levelled with mala fide intention in view of the background of civil litigation pending between the parties---Plaintiff was a businessman, therefore, when he was arrested then it must have adversely affected his reputation and goodwill in business. community---Arrest of plaintiff must have further destroyed his image created in his neighbourhood where he was residing and in the entire business community---Plaintiff must have suffered mental shock as he was detained first in police custody and thereafter he was remanded to judicial custody and was confined in jail, which must have further deteriorated his health and mental condition---Defendant was liable to pay compensation to plaintiff for the sufferings of plaintiff---Loss and suffering suffered by plaintiff because of filing of criminal case against him by defendant would be adequately compensated by awarding compensation of Rs.1 crore against defendant---Suit was decreed accordingly.

S.M. Akhtar and Arshad Mubeen Ahmed for Plaintiff.

Khalid Javed for Defendants.

Date of hearing: 17th August, 2005.

2006 M L D 71

[Karachi]

Before Maqbool Baqar, J

Mst. NASIM AKHTAR---Plaintiff

Versus

KARACHI TRANSPORT CORPORATION, through its Chairman, Managing Director or Directors Karachi and 2 others---Defendants

Suit No.619 of 1992, decided on 4th October, 2005.

Fatal Accidents Act (XIII of 1855)---

----S.1---Fatal accident--Suit for compensation---Determination of amount of compensation---Plaintiff/widow of deceased, had filed suit for recovery of amount of compensation for herself and on behalf of other statutory beneficiaries of deceased who died in a road accident at the age of 28 years by rash and negligent driving of defendant---Plaintiff in addition to her affidavit-in-evidence, had also filed affidavit-in-evidence of an eye-witness of accident and got examined Investigating Officer, who produced original copy of Roznamcha, original copy of application of post-mortem, copy of medical report and other relevant documents---Plaintiff by producing oral and documentary evidence on record, had fully proved that accident in which her husband had died, occurred due to rash, negligent and careless driving of defendant driver of bus in question---Defendants cross-examined plaintiff and witnesses produced by her at length, but they failed to create any dent in case of plaintiff---Where factum of accident was admitted, the onus to prove absence of negligence on part of defendants lay on them, but defendants had neither examined driver of the bus or conductor nor any passenger---Fact that death of deceased was caused due to rash and negligent driving of bus by defendant driver having clearly been established plaintiff and other statutory beneficiaries of deceased, being his legal heirs, were entitled to compensation---Amount of compensation payable to plaintiff and other statutory beneficiaries of deceased, was determined taking into consideration age of deceased at time of death, his expected future life, and his earning capacity etc. and suit was decreed accordingly.

Nasir Maqsood for Plaintiff.

Chudhary Muhammad Rafiq Rajorvi, Addl. A.-G. for Defendant No. 3.

Date of hearing: 15th September, 2005.

2006 M L D 81

[Karachi]

Before Anwar Zaheer Jamali, J

MUHAMMAD ASIF---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.439 of 2004, decided on 13th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 34---Bail, grant of---Further inquiry---Accused had not been nominated in the crime and after his arrest he was not put to identification test---No recovery of any weapon or other incriminating material had been made from accused and two witnesses examined in Court by prosecution, had also not implicated him in the crime---Only piece of evidence available with prosecution against accused was his alleged admission before police by pointing out place of incident, which was of no evidentiary value---Case of accused, in circumstances needed further inquiry which had entitled him to grant of bail---Accused was released on bail, in circumstances.

Ejaz Ahmed v. The State 1997 SCMR 1279 and Muhammad Arif v. The State 1997 SCMR 462 ref.

Aamir Mansoob Qureshi for Applicant.

Sardaruddin Qureshi for the State.

Date of hearing: 13th September, 2004.

2006 M L D 89

[Karachi]

Before Saiyed Saeed Ashhad C.J. and Maqbool Baqar, J

SHAHID THAHEEM --- Petitioner

Versus

ELECTION AUTHORITY SINDH, through Chairman, Karachi and 2 others---Respondents

Constitutional Petitions Nos.D-864 and D-891 of 2004, decided on 9th February, 2005.

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

----S. 24---Constitution of Pakistan (1973), Art. 199 --- Constitutional petition---Internal recall motion ---Petitioner was Zila Nazim against whom internal recall motion was moved---Session was duly attended by 76 out of 83 members of Zila Council and proceedings were presided over by the officer nominated by Chairman Election Authority---Contents of the motion were read with the permission of the Presiding Officer, in presence of petitioner, who in rebuttal addressed the house at length, whereafter the Presiding Officer invited members to express their views---Members of the house requested Presiding Officer to put the motion to vote, whereupon members were allowed to cast their votes through secret ballots---Before voting commenced, empty ballot box was shown to members and to representatives of press and media---Out of 68 members who attended the motion, 64 voted in favour of the motion and only 3 members voted against the motion, whereas one ballot paper was found blank---Internal recall motion against petitioner was approved---Validity---No irregularity or illegality was found in the proceedings of session in question---Entire proceedings pertaining to internal recall motion against Zila Nazim commencing with the conception of motion and culminating into its approval by Zila Council in its session were lawful and were in conformity with the provisions of Sindh Local Government Ordinance, 2001---High Court directed Election Authority to cause a vote to be cast by members of union councils in that District as required by S.24(4) of Sindh Local Government Ordinance, 20p1, without any further delay---Petition was disposed of accordingly.

Khawaja Ahmed Hassaan v. Government of Punjab and others PLD 2004 SC 694 distinguished.

Ghulam Mustafa Insari and 48 others v. Government of the Punjab and others 2004 SCMR 1903; Mian Muhammad Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583; Zubair Ahmad and another v. Shahid Mirza and 2 others 2004 MLD 1010 and Muhammad Younus Khan and 12 others v. Government of N.-W.F.P., through Secretary, Food and Agriculture, Peshawar 1993 SCMR 618 ref.

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

---S. 24(1)---Internal recall motion---Pre-conditions---Recall motion against Zila Nazim, can be moved under S.24(1) of Sindh Local Government Ordinance, 2001, only when there are reasons to believe that Zila Nazim, is acting against public policy or interest of people or is being negligent or is responsible for loss of opportunity for improvement in governance and service to people within the ambit of his responsibilities.

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

--S.24---Sindh Local Government (Election Authority) Rules, 2001, R.3---Constitution of Pakistan (1973), Art. 199 --- Constitutional petition---Internal recall motion against Zila Nazim---Presiding Officer, nomination of---Criteria---Internal recall motion was initiated and approved by house against petitioner being Zila Nazim---Petitioner assailed the proceedings of recall motion on the ground that Presiding Officer was a retired BS-20 officer of civil service who was not competent to preside over such proceedings---Validity---Nomination of such Authority did not require that the offices of Chairman and Members of the Authority be held by Judge of High Court or by District Judge---No illegality was found in appointment/nomination of such Presiding Officer---Order of Chairman Election Authority nominating Presiding Officer to call and conduct session of Zila Council for consideration of and for voting on disputed motion had attained finality---Petitioner could not assail nomination of Presiding Officer after the motion was approved by the house with vast majority---Petitioner also failed to point out as to how and in what manner he was prejudiced by appointment of Presiding Officer, who was rightly nominated in circumstances.

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

---S. 10(2)---Zila Nazim, election of---Electoral College---Scope---Zila Council forms Electoral College for election of Zila Nazim, who is enacted through votes of Zila Council and union councils falling within Zila.

?

Muhammad Ramzan and 3 others v. Government of Pakistan through Secretary of Law, Justice and Parliamentary Affairs 2004 YLR 1856 rel.

Abdul Mujeeb Pirzada for Petitioner (in C.P. No.D-891 of 2004).

Kamal? Azfar, Amin Lakhani and Ali Sher Habibani for-Petitioner (in C.P. No.D-864 of 2004).???????????

Rasheed A. Razvi for Respondent No.5 (in C.P. No.D-891 of 2004).

Irfan Ahmed Memon for Respondent No.6 (in C.P. No.D-891 of 2004).

Jhamat Jethanand for Respondent No.3 (in C.P. No.D-864 of 2004).

Muhammad Sarwar Khan Additional Advocate-General.

Dates of hearing: 20th October, 3rd November, 24th November, 1st, 8th, 22nd 23rd and 24th December, 2004.

2006 M L D 103

[Karachi]

Before Azizullah M. Memon, J

ASIF---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-465 of 2005, decided on 10th

November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail grant of---Bail was sought on the grounds that no theft property of the complainant was recovered from the accused; that one of co-accused stood admitted to bail by Trial Court for the reason that complainant had filed affidavit stating therein that his name was given due to bona fide mistake of misidentification---Bail application was disposed of with the direction to the Trial Court to examine complainant within specified period, whereafter applicant/accused would file fresh bail application, which would be heard and decided on merits---If complainant was not examined within specified period, applicant would stand admitted to bail.

Irfan Ahmed Qureshi for Applicant.

Muhammad Azeem Panhwar for the State.

2006 M L D 113

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Moosa K. Leghari, JJ

NOOR ASLAM and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.65 of 2004, decided on 15th September, 2005.

(a) Control of Narcotic Substances Ordnance (XIII of 1996)---

----S.9(c)---Appreciation of evidence---Incident had taken place on 16-3-1996 when Control of Narcotic Substances Ordinance, 1996, was in force and the proceedings were to be regulated under the provisions of the said Ordinance---Only public witness who joined to attest recovery search, arrest etc., had been given up by the prosecution without assigning any reason despite being present in Court and adverse inference, therefore, was essentially to be drawn against the prosecution---Evidence of recovery witnesses had glaring contradiction in material particulars---Despite an encounter allegedly having taken place between the raiding party and the accused in which one accused had received fire-arm injuries, no crime empties were secured from the place of occurrence---Even the raiding party did not say that they had made a firing---Such aspect of the case had enormously enhanced the justification to doubt the prosecution story, which was otherwise shrouded in mystery---Accused were acquitted in circumstances.

1995 SCMR 1414; 1996 SCMR 167; 1997 SCMR 1494; PLD 2001 SC 107 and 2002 PCr.LJ 1475 ref.

(b) Control of Narcotic Substances Ordinance (XIII of 1996)---

---S.9(c)---Appreciation of evidence---Witness non-production of---Effect---When a private Mashir cited in the challan is given up in the Trial Court by the prosecution without assigning any reason, then adverse inference may be drawn that had he been examined he would not have supported the prosecution case and in the event accused is entitled to its benefit.

1996 SCMR 167 ref.

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

----S.103---Search to be made in presence of witnesses---Failure of police to join two respectable persons to witness the recovery makes the accused entitled to the benefit of doubt.

1995 SCMR 1414 ref.

Anwar H. Ansari for Appellants.

Muhammad Iqbal Kalhoro/Special Prosecutor Narcotics for the State.

Dates of hearing: 14th September and 15th September, 2005.

2006 M L D 124

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Moosa K. Leghari, JJ

Syed GHULAM RASOOL SHAH---Petitioner

Versus

DISTRICT RETURNING OFFICER, DISTRICT, UMERKOT and 6 others---Respondents

C.P. No. D-302 of 2005, decided on 27th September, 2005.

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

----S. 152(1)(e)---Sindh Local Government Elections Rules, 2005, Rr.14, 65 & 71---Constitution of Pakistan (1973), Art.199---Constitutional petition---Rejection of nomination papers on the ground of educational qualification being not a matriculate---Genuineness of matriculation certificate, determination of---Nomination papers tiled by the petitioner for the office of Nazim was challenged by one of the contesting respondents before the Returning Officer on the basis that the matriculation certificate filed by the petitioner was false and a managed one---Said certificate was confirmed to be bogus on verification by the Controller of Examinations and in the light of the verification report of the Controller of Examinations the Returning Officer rejected the nomination papers of the petitioner---Appeal was filed by the petitioner against the rejection of nomination papers before the District Returning Officer with an additional plea that he had also subsequently passed intermediate examination and sought admission in B.A. and had been overlooked---District Returning Officer re-verified the authencity of the matriculation certificate through the Controller of Examinations and it y was re-confirmed that the certificate was bogus, and the appeal was thus dismissed---Contention of the petitioner was that the scrutiny under rule 14 of the Sindh Local Government Elections Rules, 2005, was only summary in nature, wherein a detailed inquiry could not be held as to the genuineness of the matriculation certificate of the petitioner, therefore, the nomination papers should have been accepted and matter left open for contesting candidates of the same office to take up such grounds by way of election petition under S.65 of the Sindh Local Government Elections Rules, 2005 where a detailed procedure under R.71 of the Rules could be followed to determine the genuineness of the matriculation certificate of the petitioner and that the officers had failed to take into consideration the documents relating to the intermediate examination and admission of the petitioner in B.A. class---Rebuttal of the respondents was that according to the official result gazette the petitioner had never appeared or cleared the matriculation examination and moreover, at the time of filing of nomination papers, the petitioner had himself disclosed his educational qualification as matriculate and therefore a higher qualification if was pleaded later, was an afterthought and fabricated---Validity---Record available with the Education Board and the verification of the Controller of Examinations, revealed that the petitioner was not a candidate who had appeared or cleared the matriculation examination and any subsequent entries that were made in this regard were a case of tampering with the official record---Enquiry held by the Returning Officer was found to be within the parameters of "scrutiny" of nomination papers as contemplated under R.14 of the Sindh Local Government Elections Rules, 2005---Ample documentary evidence was available on record from various independent sources to show that the claim of the petitioner that at the time of filing his nomination papers he was matriculate was ill-founded---Findings of facts recorded by the Returning Officer upon holding of summary inquiry under R.14 had their own significance, therefore, they could not be brushed aside only for the reason that same pleas or objections could also be raised through Election Petition, where a detailed inquiry could be held by the Election Tribunal by following the procedure prescribed under R.71 of the Sindh Local Government Election Rules, 2005---Petitioner if had educational qualification above that of matriculation he would not have mentioned to the contrary in the column of educational qualification in the nomination papers as such contradictory stand disentitled him to the grant of any equitable and discretionary relief under constitutional jurisdiction---Constitutional petition was dismissed in circumstances.

(b) Sindh Local Government Elections Rules, 2005---

----Rr. 14, 65 & 71---Rules 14 & 71 of the Sindh Local Government Elections Rules, 2005---Comparison---Rules 14 & 71 of the Sindh Local Government Elections Rules, 2005 are quite independent and different in nature and have been framed by the lawmakers, to deal and operate in different situations---When the two rules are placed in juxta-position it is seen that neither the same are overlapping nor have any nexus to each other---Findings of facts recorded by the Returning Officer upon holding of summary inquiry under R.14 had their own significance and they could not be brushed aside only for the reason that same pleas or objections could also be raised through election petition, where a detailed inquiry could be held by the Election Tribunal by following the procedure prescribed under R.71 of the Sindh Local Government Elections Rules, 2005.

(c) Sindh Local Government Elections Rules, 2005---

----R. 14---Scope and object of R.14---Rule 14 deals with the scrutiny of nomination papers of the candidates during pre-election process, and empowers the Returning Officer either suo motu or upon any objection, to conduct such summary inquiry as he may think fit to satisfy himself for rejection or otherwise of the nomination papers of any candidate on any of the grounds enumerated in sub-rule 3(i) to (iv) of R.14---Scope of summary inquiry under rule 14 was neither subject to any specific procedural rigors nor was restricted to any bounds, rather it had been left open at the discretion of Returning Officer, for his satisfaction---Returning Officer, in the process of holding summary inquiry, can undertake any steps to satisfy himself before taking his decision as to the acceptance or rejection of any nomination papers.

(d) Sindh Local Government Elections Rules, 2005---

----Rr.71 & 65---Scope and object of rule 71---Rule 71 of the Sindh Local Government Elections Rules, 2005, relates to the procedure which is followed by the Election Tribunal while dealing with the election petitions filed before it in terms of rule 65 of the Rules---According to rule 71, the Tribunal while dealing with election petitions would follow, as nearly as possible, the same procedure as provided in the Code of Civil Procedure, 1908 for the Civil Courts dealing with the suit.

Raja Qureshi for Petitioner.

Masood A. Noorani Addl. A.-G. Sindh.

Jhamat Jethanand for respondent No.3

Abdul Hafeez Soomro Controller of Examinations Board of Intermediate and Secondary Education Hyderabad.

2006 M L D 135

[Karachi]

Before Sabihuddin Ahmed, CJ

IRFAN AHMED---Petitioner

Versus

II-JUDICIAL MAGISTRATE EAST, AT KARACHI and another---Respondents

Constitutional Petition No.460 of 2005, decided on 20th October, 2005.

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

----Ss.5 & Sched., 14(3) [as amended by Family Courts Act (Amendment) Ordinance (LV of 2002).] & 17---Constitution of Pakistan (1973), Art. 199---Constitutional petition, maintainability of----Custody of minors---Section 14(3) of West Pakistan Family Courts Act, 1964 had provided no appeal or revision against an interim order of Family Court, constitutional petition being the only remedy same was maintainable---Petition was admitted to regular hearing by consent, and date of hearing was fixed---Both counsel of parties agreed that they would make efforts to work out amenable `settlement' between the parties---Petitioner undertook that he would comply with impugned order subject to result of present constitutional petition---Respondent also agreed that visitation rights would be available to petitioner for four hours on every Friday so that he could collect the minors.

Zaibun Nisa v. Muhammad Muzzamil PLD 1972 Karachi 401 ref.

Sathi M. Ishaque for Petitioner.

Nehal Hashmi for Respondent.

2006 M L D 148

[Karachi]

Before Muhammad Moosa K. Leghari and Azizullah M. Memon, JJ

Mirza BASHIR AHMED and another---Petitioners

Versus

HABIB and 6 others---Respondents

Constitutional Petition No.D-64 of 1993, decided on 5th August, 2003.

Constitution of Pakistan (1973)---

---- Art. 199 --- Constitutional jurisdiction---Nature---Discretionary---Concealment of material facts from Court---Consequence---Principle of equity---Applicability---Coming to the Court with the unclean hands---Land was granted to the petitioners and one of the respondents by the Colonization Officer---Appeal filed by one of the petitioners challenging the grant to the extent of the said respondent was dismissed by the Additional Commissioner; --Further appeal before the Board of Revenue was unsuccessful and order of the Additional Commissioner was upheld---Constitutional petition was filed by the petitioners to have the order of the Board of Revenue declared as void and without lawful authority---Validity---Petitioners before filing the constitutional petition had already filed a review application before the Board of Revenue under S.8 of the West Pakistan Board of Revenue Act, 1967 whereby relief being prayed in the constitutional petition had already been granted---Fact of filing of the review application was not disclosed in the constitutional petition---Effect---Relief claimed under Art. 199 of the Constitution was a discretionary relief and could not be granted as a, matter of right---Person disentitles himself from relief, when he approaches the Court with unclean hands---Since in the instant case the petitioner, had concealed material facts, therefore, it had come to the, Court with unclean hands and was not entitled to any relief---Constitutional petition was dismissed in circumstances.

D.M. Lohano for Petitioners.

Masood A. Noorani, Additional A.-G. for Respondents Nos.2 to 7.

Ghulam Rasool Qureshi for Respondent No. 1.

Date of hearing: 5th August, 2003.

2006 M L D 163

[Karachi]

Before Mushir Alarn and Syed Zawwar Hussain Jaffery, JJ

Sardar MUQEEN KHAN KHOSO---Petitioner

versus

DISTRICT RETURNING OFFICER and others---Respondents

C.P. No.D-1274 of 2005, decided on 5th October, 2005.

Sindh Local Government Ordinance (XXVII of 2001)--

----S. 1520)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Disqualification provisions in election laws---Object---Wilful defaulter---Determination---Principles---Disqualification in terms of S. 152(J), Sindh Local Government Ordinance, 2001 explained.

The disqualification provisions in the election laws, have been provided to ostracize delinquent, dishonest deceitful persons and to pave way for and encourage upright, honest and clean persons to come forward and contest. Such, provisions tend to sift the grain from the chaff and discourage persons not suitable to hold elected or public office. Under new dispensation of Local Government Ordinance, 2001, Nazim hold key position in the district administration. He is incharge and manager of entire district. He not only manages the administrative affairs of the district, but is also trustee and custodian of substantial public funds and property. It needs no wild imagination to visualize the havoc that might be done to the system if dishonest, corrupt and indolent persons are allowed to contest the election.

Disqualification in terms of section 1520) of the Sindh Local Government Ordinance, 2001 is attracted the moment it is shown that a Court of a competent jurisdiction has "adjudged" the intending candidate or the returned candidate on the date of scrutiny, a defaulter and a judgment and decree is passed. It matters not whether the judgment and decree determining the liability is outcome of full-fledged adjudication, trial or may be just a result of compromise or settlement. Adjudication of intending candidate or the returned candidate being a defaulter or in arrears of outstanding loan by a Court of "competent jurisdiction" is sufficient to attract disqualification under section 152 (j) of Sindh Local Government Ordinance, 2001. Once such disqualification is attracted, it is not relevant for the purpose of the Ordinance whether any steps were taken by the Financial Institution for the recovery of the amount adjudged by the Court or not.

Bar of limitation only extinguishes the remedy and does not wipe out the right. In the present case admittedly the Banking Court had passed a judgment and the decree against the petitioner. It was not the case of the petitioner that the Banking Court was not competent to adjudicate or pass such judgment and decree.

Merely because the Returning Officer or the District Returning Officers have described the petitioner to be in arrears of Bank instead of using the statutory phrase "adjudged wilful defaulter" as used in section 152(j) of the Sindh Local Government Ordinance, 2001, would not make any difference. Fact remains that, the petitioner was adjudged defaulter by the Banking Court of competent jurisdiction. Such adjudication alone disqualified the petitioner from the contest of Election for the seat of Zila Nazim in terms of disenfranchise embargo imposed by section 1520). Petitioner's refuge behind the bar of limitation, to avoid the payment of decretal amount reflected his mind set that he had no intention to pay the outstanding amount. What could be expected of a person who failed to live up to his own solemn commitment to pay the amount after negotiating a settlement in execution proceedings. It needed 'no wild imagination to presume, if persons like petitioner were allowed to contest and were elected what they would do with huge public funds at their disposal.

In the present case, admittedly, judgment and decree had been given by the Banking Court on merit. No appeal admittedly had been filed. Concession to pay the amount in instalments extended in the first execution filed by the Bank was not availed rather defied fragrantly, yet the petitioner had the audacity to argue that he was not adjudged wilful defaulter.

If it is presumed for the sake of argument that bank, on account of indolence, allowed the execution to become barred by time, even then, the adjudication of default or the liability determined under the judgment and decree is not wiped out and such stigma will continue to stick on as long as the amount adjudged is not repaid. The question whether the adjudged decretal amount is recoverable or not may be relevant for the purposes of execution proceedings, is not a relevant' consideration to attract disqualification within the contemplation of section 152(j) of the Ordinance. What is relevant is that, the intended or returned candidate was adjudged wilful defaulter by the competent Court of law as on the date of scrutiny of Nomination papers.

Execution proceedings are merely mechanism to enforce the judgment and decree. Execution Court cannot go behind the decree or reopen the controversy as to liability to pay decretal amount, which is the domain of the trial Court, or by the appellate Court for that matter. No appeal admittedly was filed. Judgment and decree of the Banking Court now cannot be questioned.

A person cannot be disenfranchised merely because there is suspicion and doubt as to his disqualification in terms of section 152 of the Ordinance. In cases of doubt or suspicion, where there is no tangible evidence or material before the Returning Officers, superior Courts have invariably allowed such candidates to contest, subject to proof of disqualification, in regular election petition, if they are elected. In the present case, it is noted that, the conclusion of the Returning and the District Returning Officers that the petitioner was disqualified under section 152(j), was not based on mere suspicion or doubt alone. Judgment and decree of the Banking Court was placed on record, to establish that the petitioner was found to be in arrears of loan and, to all intent and purposes, was adjudged a wilful defaulter within the contemplation of section 1520). Outstanding decree was sufficient to prove that the petitioner was a wilful defaulter.

Nasrullah and another v. Haji Usman Ghani-and 5 others 2002 CLC 1925; Lt. General (Retd.) Abdul Majid Malik v. District Returning Officer, Rawalpindi and others in Civil Petition No.2485 of 2005; Samar Pervaiz v. Board of Intermediate and Secondary Education Lahore 1971 SCMR 838; Abdul Shakoor Kaloochi and another v. The State SBLR 2002 Sindh 1263; Asif Jatoi v. The Election Commissions of Pakistan 2004 YLR 2192; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994 SCMR 1299; Sardar Ahmed Bhatti v. Assistant Registrar, Co-Operative Societies Lyallpur East and another 1983 CLC 790; Nazim Union Council No.6 v. Election Tribunal 2003 MLD 582; Zubair Ahmed Chandio v. District Returning Officer 2002 CLC 1807; Tahir Anwer v. District and Sessions Judge/Appellate Authority Lahore. 2001 YLR 1537; Riaz Hussain Gillani v. Returning Officer 'Halqua 85' 2001 YLR 971 and Muhammad Altaf Mithro v. Additional District Judge 2004 YLR 585 ref.

Abid S. Zuberi and Umer Soomco for Petitioner.

Ali Hyder Qureshi for the Respondents No.2.

Faisal Arab, Standing Counsel.

Ahmed Pirzada, A.A.-G.

Date of hearing: 5th October, 2005.

2006 M L D 178

[Karachi]

Before Muhammad Afzal Soomro, J

SHABOO alias ALI KHAN---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.383 and M.As. Nos.798, 799 of 2005, decided on 7th November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Bail, grant of---Accused after his arrest on 13-9-2001, had remained in continuous custody without any progress in the case, so far only charge had been framed---Case diaries had revealed that even after grant of bail to co accused, prosecution had not been able to produce a single witness---Such conduct on part of prosecution was shocking---No one could be detained in jail for indefinite period---Accused having been able to make out a case for bail, he was released on bail.

Jai Jai Veshnu Mange Ram for Applicant.

Muhammad Ismail Bhutto, State Counsel.

2006 M L D 183

[Karachi]

Before Sarmat Jalal Osmany and Azizullah M. Memon, JJ

MUHAMMAD ASHRAF SHAHEEN---Petitioner\

versus

THE STATE---Respondent

Criminal Appeals Nos.248 and 278 of 2004, decided on 31st March, 2005.

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

----S. 9(c)---Appreciation of evidence- -Possession---Connotation---Allegation against accused was that three packets of heroin powder and one packet of heroin were recovered from Almirah and a wooden box in a room in possession of accused---Alleged Almirah and wooden box were not in exclusive possession and/or control of accused, but room in question was in common use of other officers and subordinate staff of the Department who used to perform their official duties there---Word `possession' implied a physical capacity to deal with a thing as one liked to the exclusion of everyone else and a determination to exercise that physical power on one's own behalf and implied dominion over an object showing that he could use it as he wished---Possession must be conscious and not merely the physical presence of accused in proximity to the object---Identification of recovered material as heroin powder, was also stated by witnesses to be stone like material---Officials of Narcotics Force entered into official premises in joint possession of many officials/officers of Department concerned---Evidence showed that most of properties found lying in said Almirah were case properties of the cases, trial wherein had either proceeded before competent Courts of law or were still pending---All such facts had clearly indicated that accused were neither in exclusive use of Almirah nor in exclusive possession of recovered material which were alleged to be in their possession---Prosecution, having failed to prove its case against accused, impugned judgment of conviction and sentence awarded to accused by Trial Court, was set aside and accused was acquitted of charge and was released.

(b) Words and phrases---

----`Possession'---Meaning and scope of---Word possession implied a physical capacity to deal with the thing as one liked to the exclusion of everyone else and a determination to exercise that physical power on one's own behalf---"Possession" implied domain over an object that he had it and that he could exercise it---Possession must be conscious and intelligent and not merely the physical presence of accused in proximity to the object.

Shaukat Hayat for Appellant (in Cr.A. No.248 of 2004). Amir Mansoob Qureshi for Appellant.

S. Mahmood Alam Rizvi for the Counsel (in Cr.A. No.278 of 2004).

Date of hearing: 31st March, 2005.

2006 M L D 205

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Moosa K. Leghari, JJ

Dr. MANOJ KUMAR MALANI---Petitioner

Versus

RETURNING OFFICER and 2 others---Respondents

C.P. No.D-298 of 2005, decided on 5th October, 2005.

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

----S.152(1)(i)---Sindh Local Government Elections Rules, 2005, Rr.14 & 65---Constitution of Pakistan (1973), Art.199---Constitutional petition---Rejection of nomination papers---Nomination papers filed by the petitioner for the office of Nazim were rejected by the Returning Officer on the ground that the declaration of assets made by the petitioner was incorrect, as several assets belonging to the petitioner were not disclosed---Appeal filed by the petitioner against the rejection of nomination papers before the District Returning Officer was dismissed---Contention of the petitioner was that there was a gross violation of the principles of natural justice as no proper opportunity of hearing was afforded to him before rejection of his nomination paper; that Returning Officer and the District Returning Officer had been entertaining new and false pleas by one of the respondents in order to reject the nomination papers of the petitioner; that respondent by the support of governmental machinery had been manipulating and fabricating supporting documents for seeking disqualification of the petitioner; that in case there was a doubt of the alleged claim of ownership of the petitioner in respect of certain movable and immovable properties attributed to him by the respondent, it either needed holding of detailed inquiry within the scope of summary inquiry under R.14 of the Sindh Local Government Elections Rules, 2005 or the petitioner should have been allowed to contest the elections, leaving these disputed issues to be raised and decided by the Election Tribunals through election petition in terms of R.65 of the Sindh Local Government Elections Rules, 2005---Validity---Nomination papers of the petitioners were rejected and his appeal dismissed without holding proper summary inquiry in terms of R.14 of the Sindh Local Government Elections Rules, 2005 and without affording him due opportunity of rebuttal and hearing---Elementary rule for safe dispensation of justice was the principles of audi alteram partem which was to be read in each and every statue, whether specifically provided or not, more particularly when a panel action was being taken against any person---Failure of any authority, Tribunal or Court to meet such bare minimum standard would vitiate the whole action---Principles of natural justice having not been judiciously followed in the present case, impugned orders were set aside, and the Returning Officer was directed to decide the question of rejection/acceptance of the nomination papers of the petitioner afresh.

(b) Natural justice, principles of---

----Audi alteram partem---Elementary rule for safe dispensation of justice was the principle of audi alteram partem which was to be read in each and every statute, whether specifically provided or not, more particularly when a penal action was being taken against any person---Failure of any authority, Tribunal or Court to meet such bare minimum standard would vitiate the whole action.

Allah Bachayo Soomro for Petitioner.

Masood A. Noorani, Addl. A.-G. Sindh.

Jhamat Jethanand for Respondent No.3.

Date of hearing: 3rd October, 2005.

2006 M L D 235

[Karachi]

Before Syed Zawwar Hussain Jafery, J

NAZIR AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-219 of 2005, decided on 1st December, 2005.

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

----S.161---Examination of witnesses by police---Further statement of complainant after registration of F.I.R.---Intrinsic worth of---Further statement of the complainant can be recorded after the registration of the F.I.R. as the same is not restricted under the law, but it can neither be treated as F.I.R. nor a part of it---Object of further statement of the complainant is to enable him to clarify the facts which require some explanation, but if complexion of the case is changed by such statement as regards the identity of the culprits, then the onus would be on the prosecution to cast away the same at the trial.

Shahzado v. The State PLD 2002 Kar. 402; Muhammad Riaz Munna v. The State 1993 SCMR 1321; Yaroo v. The State 2004 SCMR 864; Tahir Abbas v. The State 2003 SCMR 426; Saeed Muhammad Shah v. State 1993 SCMR 550 and Falak Sher v. State 1995 SCMR 1350 rel.

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

----S.497--Penal Code (XLV of 1860), Ss.302/109/34---Bail, grant of---Further inquiry---Complainant and the eye-witnesses admittedly had not seen the killing of the deceased as according to them when they reached the place of incident on hearing cries they had seen four culprits duly armed with hatchets running away from there---F.I.R. had been recorded against four unknown culprits---Name of the accused was disclosed by the complainant in his further statement and in other statements of the prosecution witnesses made after twenty days of the occurrence, for which there was no rational explanation---Guilt of accused in such circumstances called for further inquiry and he could not be kept in jail for indefinite period as a punishment---Accused was admitted to bail accordingly.

Shahzado v. The State PLD 2002 Kara 402; Muhammad Riaz Munna v. The State 1993 SCMR 1321; Yaroo v. The State 2004 SCMR 864; Tahir Abbas v. The State 2003 SCMR 426; Saeed Muhammad Shah v. State 1993 SCMR 550 and Falak Sher v. State 1995 SCMR 1350 ref.

M.B. Khagaija and Syed Mushtaque Hussain Shah for Applicant.

Habibur Rehman Shaikh A.A.-G. for the State.

Farman Ali Kanasiro for the Complainant.

Date of hearing: 1st December, 2005.

2006 M L D 248

[Karachi]

Before Muhammad Moosa K. Leghari and Shamsuddin Hisbani, JJ

BUXAN---Appellant

Versus

THE STATE---Respondent

Criminal Special ATA J. Appeal No.103 of 2003, decided on 12th December, 2005.

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

----Ss. 302, 324, 353 & 149---Offence Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Anti-Terrorism Act (XXVII of 1997), S.7---Qanun-e-Shahadat (10 of 1984), Art.132---Appreciation of evidence---Prosecution witness, who was S.H.O. concerned, had specifically stated in his crass-examination that he was not able to see dacoits due to continuous firing and had no acquaintance with the accused---Said witnesses had not stated that accused along with culprits armed with deadly weapons formed an unlawful assembly and in prosecution of common object thereof, . had committed murder of deceased and had inflicted injuries to other police constables---Examination of a witness would mean examination-in-chief, cross-examination and re-examination---Cross-examination was a continued integral part of whole statement, rather more important than examination-in-chief---Second and vital part of examination of said prosecution witnesses received no attention of Trial Court---None of eye-witnesses had implicated accused in commission of crime---Identity of accused as one of co-accused was not established by prosecution---Mere recovery of empties from Vardat being of no legal significance, in no way had connected accused with commission of offence---Weapon of offence was not recovered from possession of accused or on his pointing---Prosecution, in circumstances had failed to bring home the guilt of accused beyond shadow of doubt---Conviction and sentence awarded to accused by Trial Court were set aside extending him benefit of doubt and he was acquitted and released accordingly.

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

---Art. 132---Examination of witness---Meaning---Examination of a witness would mean examination-in-chief, cross-examination and re­examination---dross-examination was a continued integral part of whole statement, rather more important than examination-in-chief.

Nandan A. Kella for Appellant.

Mashooq Ali Samo, Asst.A-G., Sindh for the State.

Date of hearing: 23rd November, 2005.

2006 M L D 259

[Karachi]

Before Zia Perwaz and Amir Hani Muslim, JJ

GHULAM AKBAR and another---Petitioners

Versus

RETURNING OFFICER, U.C. SEHWANI/5TH ADDITIONAL SESSIONS JUDGE, TALUKA LAKHI, DISTRICT SHIKARPUR and others---Respondents

Constitutional Petition No.179 of 2005, decided on 11th August, 2005.

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

---S. 14---Sindh Local Government Election Rules, 2000, Rr.16 & 18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Disqualification of candidate---Rejection of nomination papers---Petitioner was disqualified to contest election on the ground that he had failed to disclose in his nomination papers his residential plot---Respondent had claimed that plot in question was owned by the petitioner which the petitioner had disclaimed despite entry maintained in the Revenue record-Petitioner had sworn three affidavits by different persons who were residents of the same village who had stated that there was no vacant plot in the village and that the entry in revenue record was fabricated---Scope of scrutiny in Constitutional petition being limited, no finding could be given on the issue in that respect without recording evidence, Constitutional petition however, was allowed in circumstances and impugned order was set aside with observation that issue in question could only be decided by leading evidence---Petitioners were allowed to contest election accordingly.

Inayatullah Morio for Petitioners.

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

Date of hearing: 11th August, 2005.

2006 M L D 272

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD YOUNUS SOOMRO---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.40 of 2005, decided on 16th May, 2005.

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

----Ss. 561-A & 403---Emigration Ordinance (XVIII of 1979), Ss.10, 18 & 22---Constitution of Pakistan (1973), Art.13---General Clauses Act (X of 1897), S.26---Application for quashing of proceedings---F.I.R. in the present case was registered against applicant/accused under Ss.18 & 22 of Emigration Ordinance, 1979 under verbal order of Deputy Director F.I.A. Immigration of Airport at 'K'---Earlier F.I.R. was lodged by F.I.A. Immigration Airport "I" under Ss.10 & 22 of Emigration Ordinance, 1979 with the same facts and on the same prosecution story---Accused had appeared before the Court of Special Judge Central "I" where Judge called Investigating Officer and on statement of Prosecutor, accused had been found innocent and not involved in the case---Accused having been declared innocent in the case on same facts and circumstances, case of prosecution against accused before Special Court at "K" on the same issues would amount to double jeopardy and would be hit by Art.13 of Constitution, S.26 of General Clauses Act, 1897 and S.403, Cr.P.C.---Accused though was alleged to be an agent of an enterprise at "K" but no documentary evidence was brought on record to prove any connection of accused with said enterprise or that he had collected any amount as agent of said enterprise from any individual or a group of individuals with regard to commission of offence---Prosecution had got recorded statements of four witnesses under S.161, Cr.P.C. at "R", out of whom two were not traceable, whereas others two had exonerated the accused---No case had been made out against accused at the time of conclusion of trial and no probability was of his conviction in the alleged offence---Mali fide on part of F.I.A. Authorities appeared in the proceedings against the accused---Case was fit where proceedings pending before Special Judge at "K" against accused be quashed---Proceedings pending against applicant/accused before Special Judge at "K", were quashed.

Muhammad Sharif v. Mazharul Haq and 5 others 1983 PCr.LJ 1440; Aarub Khan v. Haris M.B. Ahmad and others PLD 1996 Kar. 253 and Zahoor-ud-Din v. Khushi Muhammad and 6 others 1998 SCMR 1840 ref.

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

----S. 561-A---Inherent powers of High Court--Object of S.561-A, Cr.P.C.---Object of S.561-A, Cr.P.C. whereby inherent powers were conferred upon High Court, was to do the real and substantial justice and to prevent abuse of process of Court---Powers of High Court were very wide to secure ends of justice.

M.S. Khawaja v . The State PLD 1965 SC 287 and Meraj Khan v. Gul Muhammad 2000 SCMR 122 ref.

M/s Raza Hashmi, Hassan Sabir and Arshad Warsi for Applicant.

S. Mehmood Alam Rizvi, Standing Counsel along with Arnjad Shaikh, Inspector (Legal) FIA, Passport Cell.

Date of hearing: 16th May, 2005.

2006 M L D 288

[Karachi]

Before Sarmad Jalal Osmany, J

JAMSHED AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 160 of 2005, decided on 24th November, 2005.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302---Bail, refusal of--Accused was last seen twice in terms of space and time in the company of the deceased before the latter met with his death---According to the version of accused he and the deceased were together at the time of accident, but instead of taking the deceased to the Hospital and informing the police, accused chose to inform his family who thereafter informed the family of the deceased regarding his death in the accident---Such fact alone was sufficient to disentitle the accused to bail---Last seen evidence was independently corroborated by the incriminating recoveries and the medical report according to which the deceased did not die due to an accident but as a result of two injuries sustained by him on his back from a hard and blunt weapon---Bail was declined to accused in circumstances.

Ijaz Ahmad v. The State PLJ 1994 SC 510; 1984 P.Cr.LJ 1678; Mst. Riaz Bibi v. Sardar 1999 PCr.LJ 1323; Abdul Saleem v. The State 1998 SCMR 1578; Muhammad Jamil v. Shaukat Ali 1996 SCMR 1685; Anwar Shah v. Sher Muhammad 1988 PCr.LJ 30, Liaquat Ali v. The State 1993 PCr.LJ 1737; Ghulam Mustafa v. The State 1985 PCr.LJ 2924; Muhammad Akbar Tariq v. The State 1977 PCr.LJ 540; Pinio v. The State 1981 PCr.LJ 1007; Muhammad Ilyas v. The State 2003 MLD 1530; Gul Sher v. The State 2001 PCr.LJ 1864; Muhammad Akbar Samo v. The State 2000 PCr.LJ 1473; Fayyaz Ali Shah v. Khursheed 2002 PCr.LJ 170, Suhrab v. The State 2001 PCr.LJ 366; Abdullah Khan v. The State 2001 PCr.LJ 1679; Dildar v. The State 2002 PCr.LJ. 1640; Muhammad Idrees v. The State 2004 PCr.LJ 280 and Abdul Ghafoor v. The State 1979 PCr.LJ 27 ref.

Sher Muhammad Shar for Applicant.

M/s Liaquat Ali Shar, Ghulam Shabbir Shar and Abdul Qadir Shaikh for the Complainant.

Muhammad Mahmood S. Khan Yousifi A.A.-G. on behalf of the State.

Date of hearing: 17th November, 2005.

2006 M L D 305

[Karachi]

Before Zia Perwaz, J

Syed RASHID IQBAL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1118 of 2005, decided on 30th November, 2005.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.419/420/467/471/161/34---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of---Abscondence---Statements made by the witnesses, mentioned in the Challan, before the Investigating Officer had not been deliberately substantiated by making the SSP a witness to the prosecution case---Reply of the State Counsel that the SSP would be joined as a witness after report of the Handwriting Expert was hardly satisfactory---Background of enmity was reflected from the documents produced by the accused along with his bail application, which were not denied by the prosecution---Case of accused, thus, needed, further inquiry---Abscondence of co accused could .not be made a ground for denying bail to the accused---Accused was admitted to bail in circumstances.

Faqirullah v. Khalil-uz-Zaman 1999 SCMR 2203; M. Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101 and Zaheer Behzad v. The State 2003 YLR 1582 ref.

M. Ilyas Khali for the Applicant.

Sohail Jabbar and Sabir Haider A.A.-G. for the State along with I/O SIP Hameedullah.

2006 M L D 320

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Sajjad Ali Shah, JJ

MUHAMMAD AFTAB SIDDIQUI---Petitioner

Versus

S.H.O. SHAH FAISAL COLONY POLICE STATION---Respondent

C.P. No.D-1503 of 2005, decided on 24th November, 2005.

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

----Art. 22---Identification parade---Merely picking a person in identification test by witnesses was not sufficient until and unless it was explained as to how and in what circumstances a person had been identified by them; reason being that it was very convenient for Investigating Officer to intimate witnesses of identification that person/persons of such and such description was/were to be picked up from the dummies in presence of the Magistrate.

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

----Art. 199(1)(b)(i)---Habeas corpus petition---Detenu in case, after filing of petition and issuance of 'rule nisi', had been arrested in a blind F.I.R. and Assistant Advocate-General had conceded that he had not been provided with any evidence/material showing involvement of detenu in crime---Detenu, in circumstances had been arrested in order to cover up his illegal detention---Police officials could easily involve any person in a blind F.I.R.---Instances of such colourable and mala fide exercise of power and misuse of authority, were not wanting---Petition was allowed and detenu present in the Court was directed to be released forthwith---Police officials were directed to remove hand-cuffs and to set detenu at liberty.

Government of Sindh v. Raessa Farooq 1994 SCMR 1283 ref.

Petitioner present in person.

Habib Ahmed, Asstt: A.-G. along with Sultan Ali Khawaja, TPO, Inspector Irshad Abidi, S.I. Saeedullah and A.S.-I. Badar Shakeel.

Date of hearing: 24th November, 2005.

2006 M L D 327

[Karachi]

Before Zia Perwaz, J

MUHAMMAD NASIR---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.87 of 2005, decided on 30th November, 2005.

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

----S.540---Penal Code (XLV of 1860), S.302---Application for recalling of witnesses was dismissed by trial Court---Validity---Failure of the defence counsel to appear in the Court on the date when the case was fixed for evidence had led to the filing of an application under S.540, Cr.P.C. by the accused for recalling of the witnesses examined on that date---Said application had been made after the examination of witnesses was concluded and the case was fixed for recording of the statement of

accused under S.342, Cr.P.C.---Held, opportunity to cross-examine a witness was not a mere formality but a valuable right and best method for ascertaining the truth---Accused could not be penalized for the absence of his counsel who had chosen to remain absent on the date of recording of evidence---Fear of accused was not ill-founded that if the prosecution witnesses were not subjected to cross-examination, he might be straightaway convicted for putting up no defence---Impugned order was consequently set aside with the direction to Trial Court to afford an opportunity to the accused for cross-examining the prosecution witnesses after resummoning them on the next date of hearing---Revision petition was allowed accordingly.

Altaf Hussain Shamim v. The State PLD 1992 Kar. 91; Khizar Hayat v. The State 2001 YLR 19; Najmul Hassan v. The State 2002 MLD 477 and Abdul Raoof v. The State PLD 2001 Lah. 463 ref.

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

----S.540---Power to summon material witness etc.---Recalling of prosecution witness for cross-examination---Intent and import---Opportunity to cross-examine a witnesses contemplated by law is not an empty formality but a valuable right and best method for ascertaining forensic truth and it must be real, fair and reasonable---Accused being not a trained person id legal procedure could not be expected to cross-examine the prosecution witness in the absence of his Advocate and he cannot be penalized for the absence of his Advocate who had chosen to remain absent on the date when the case proceeded against him---Fear of accused that if the witnesses against him were not subjected to cross-examination, he might be straightaway convicted for putting up no defence, could not be ill-founded.

Altaf Hussain Shamim v. The State PLD 1992 Kar. 91 ref.

Intikhab Ahmed for Petitioner.

Ms. Shahida Jatoi for the State.

Date of hearing: 30th November, 2005.

2006 M L D 343

[Karachi]

Before Muhammad Sadiq Leghari, J

MUHAMMAD AMIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.403 of 2005, decided on 20th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.457---Bail, grant of---Prosecution witnesses claimed to have first identified the persons in the light of electric bulbs but Mashirnama of Wardat did not indicate presence of any bulb outside the hedge---Investigating Officer came to the conclusion that case was false---Accused was admitted to bail, in circumstances.

Muhammad Ayaz Soomro for Applicant.

Ghulam Saghir Baloch for the Complainant.

Mushtaque Ahmed Abbasi, Asstt. A.-G.

Date of hearing: 20th July, 2005.

2006 M L D 401

[Karachi]

Before Muhammad Sadiq Leghari, J

ARAB and 10 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.S-555 and S.-570 of 2005, decided on 17th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 337-A(i), 337-F.A, 147, 148 & 149---Bail, grant of---Accused though were nominated in F.I.R. as assailants and in statements of witnesses under S.161, Cr.P.C. some of them were assigned special role, but later on in statements under S.164, Cr.P.C., six injured witnesses levelled general allegations of assault against them---In view of that position and the fact that Investigating Officer had declared eight persons as innocent, possibility of exaggeration in prosecution version, could not be excluded---Accused were admitted to bail, in circumstances.

Manzoor Ahmed Z. Siddiqui for Applicants (in Criminal Bail Application No.S-555 of 2005).

Khadim Hussain D. Solangi for Applicants (in Criminal Bail Application No.S-570 of 2005).

Anwar Hussain Ansari for the State.

2006 M L D 411

[Karachi]

Before Nadeem Azhar Siddiqui, J

LAKHE DINO and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-718 of 2005, decided on 18th January, 2006.

Criminal Procedure Code (V of 1898)---

--S. 497(2)---Penal Code (XLV of 1860), Ss.380, 457 & 459---Bail, grant of---Further inquiry---Delay of about three months in lodging F.I.R. was not satisfactorily explained and as incident had occurred at midnight, possibility of mistaken identity could not be ruled out---F.I.R. itself was contradictory---Injuries having been caused on non-vital parts of the body of injured, case against accused was of further inquiry---F.I.R. revealed that complainant had identified accused, while on the other hand it was stated that later on father of injured and others, traced out the footprints which led them to the house of accused---Such two divergent versions had created doubts---When accused persons were identified, there was no need of tracing their footprints and immediate course available was to lodge F.I.R. and to recover allegedly stolen buffalo---Where doubt was created, accused was entitled to its benefit---Reasonable grounds not appearing for believing that accused was guilty of an offence punishable with death or transportation of life, he was admitted to bail.

Khudo v. The State 1995 PCr.LJ 452; The State v. Fazal Ahmed 1970 PCr.LJ 633; Mukhtar Ahmed v. The State 2000 PCr.LJ 186 and Meeran Bux v. The State PLD 1989 SC 347 ref.

Akbar Ali Khan Jatoi for Applicants.

Mushtaq Ahmed Abbasi Asst. A.-G for the State.

Date of hearing: 16th January, 2006.

2006 M L D 431

[Karachi]

Before Nadeem Azhar Siddiqui, J

BARKAT ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-772 of 2005, decided on 23rd January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of--Further inquiry---Delay of eight hours in lodging F.I.R. had not at all been explained, whereas place of wardat was situated at a distance of four furlongs from the Police Station---Accused was in custody since his arrest, but no recovery had been made and no incriminating evidence was available on record except identification by complainant---F.I.R., showed that other family members of complainant were present at the time of incident, but accused was not put before them for the purpose of identification, which had created doubts---Witnesses cited in F.I.R. were resident of the house where incident allegedly took place and they were all closely related to each other---Nothing had to be recovered from accused---Fact that other co-accused were not arrested had created some doubt about the genuineness of the incident---Accused was under custody in other case in same Police Station, possibility could not be ruled out that accused might have been shown to complainant by police at that Police Station prior to holding of identification parade---Since doubt had been created, benefit of same would go to accused, which had made the case as that of further inquiry---In absence of reasonable grounds to believe that accused was guilty of an offence punishable with death, transportation of life or imprisonment for more than ten years, accused was admitted to bail.

Muhammad Yaseen v. The State 1995 PCr.LJ 711 and Moula Bakhsh v. The State 2003 PCr.LJ 394 ref.

Habibullah G. Ghori for Applicant.

Mushtaq Ahmed Abbasi, Asstt. A.-G.

2006 M L D 452

[Karachi]

Before Anwar Zaheer Jamali and Nadeem Azhar Siddiqi, JJ

AYAZ YOUNUS---Petitioner

Versus

THE STATE through Chairman National Accountability Bureau and another---Respondents

Constitutional Petition No.D-1535 of 2004, decided on 9th January, 2006.

Constitution of Pakistan, 1973---

----Art. 199---Criminal Procedure Code (V of 1898), S.497---National Accountability Ordinance (XVIII of 1999), Ss.16 & 18(g)---Constitutional petition---Bail, grant of---Accused was under custody for the last more than three years---Out of 191 witnesses only 22 witnesses were examined and there appeared to be no chance of early disposal of the Reference---Non-conclusion of trial within the statutory period of 30 days would amount to abuse of process of law and would give right to accused to seek his release on bail, especially when no plausible reasons were shown for such inordinate delay---Even otherwise for grant of bail, it was sufficient that 19 other co-accused in the same Reference had been released on bail---Accused was also entitled to grant of bail in view of rule of consistency---Accused was admitted to bail, accordingly.

Agha Jehanzeb v. NAB and others 2004 PCr.R 1508; Muhammad Salim Yousuf v. State C.P. No.D-252 of 2004; Nasrullah Qureshi v. The State; Ahmed Ali Qureshi v. The State; Muhammad Yahya v. The State C.Ps. Nos.D-1307 to 1309 of 2004; 2003 MLD 777 and Ch. Zulfiqar Ali v. The State PLD 2002, SC 546 ref.

Mrs. Ismat Mehdi for Petitioner.

Shafaat Nabi Khan Sherwani, Deputy Prosecutor-General, NAB for Respondents.

Date of hearing: 3rd January, 2006.

2006 M L D 468

[Karachi]

Before Mrs. Qaiser Iqbal, J

BABY MAHEK alias SAKEENA and 4 others---Plaintiffs

Versus

Miss AISHA QAYYUM and 2 others---Defendants

Suit No.1633 of 2001, decided on 13th January, 2006.

Fatal Accidents Act (XIII of 1855)---

----S. 1---Fatal accident---Suit for recovery of compensation---Determination of amount of compensation---Deceased, aged 27 years having died on account of fatal injuries caused to him in traffic accident, by a truck, his legal heirs had filed suit for 'recovery of compensation against defendants, who were owners and driver of the Trailer involved in the accident alleging that accident had occurred due to rash, negligent and careless driving of the trailer by the driver---Defendants (employer of driver) and driver who remained absent and did not contest suit, were declared ex parte---Plaintiffs by producing affidavit-in-ex parte proof, ' had fully proved that accident causing death of deceased occurred due to rash, negligent and careless driving by the driver of the defendant's trailer---Defendants, in circumstances, were liable to pay compensation to plaintiffs/legal heirs of deceased for the damages sustained by them due to death of deceased---Fatal Accidents Act, 1855 did not lay down any principle for calculating measure of loss, but estimate was to be made by court---Award of damages would vary from case to case---Evidence brought on record was not controverted from the side of defendants---Would be just and proper to hold that deceased who died at the age of 27 years would have survived up to age of 70 years on account of long life in his family pedigree---Amount of compensation payable to plaintiffs/legal heirs of deceased, was determined by taking into consideration expected life span, his earning capacity and other relevant facts---Suit was decreed accordingly with direction that decreed amount would be apportioned amongst legal heirs of deceased according to Sunni, Hanafi law of inheritance.

Sri Manmatha Nath Kuri v. Moulvi Muhammad Kokhlesur Rehman PLD 1969 SC 565; Saghir Ahmed Ansari v. Karachi Electric Supply Corporation 2001 YLR 788; Raghunath v. G.I.P. Rly. Col. AIR 1968 Bombay 269 Para.II; Muhammad Moosa v. Karachi Water and Sewerage Board 1997 CLC 925; Pakistan Steel Mills Corporation Limited v. Malik Abdul Habib 1993 SCMR 848 and Mst. Farzana Shabbir v. Islamic Republic of Pakistan 2005 MLD Kar. 401 ref.

Nasir Maqsood for Plaintiffs.

Date of hearing: 10th November, 2005.

2006 M L D 485

[Karachi]

Before: Muhammad Mujeebullah Siddiqui, J

IRFAN PARKAR---Applicant

Versus

THE STATE---Respondent

Special Criminal Bail Application No.55 of 2005, heard on 19th December, 2005.

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

----S. 498---Sales Tax Act (VII of 1990), S.37---Pre-arrest bail, refusal of---Accused could not show any act of mala fide on the part of prosecution and for the purpose of granting bail before arrest, condition precedent was that there should be mala fide on part of prosecution---If no evidence was at all available with prosecution and a citizen apprehended his arrest, then in such circumstances, it would be treated as an act of mala fide because a citizen could be deprived of his liberty if there was something tangible against him constituting commission of cognizable offence---Once it was shown that there was some evidence, then it was for the person approaching the Court to show that his intended arrest was mala fide for ulterior purpose or for political reasons or on account of some enmity or vengeance---If said condition precedent was not fulfilled in the wake of some evidence in possession of prosecution, then bail before arrest was not to be granted as provision for bail before arrest was not meant to hinder or hamper investigation, but was meant to protect the citizens from unnecessary humiliation or harassment and insult--,-Since no case of mala fide was made out, case was not fit for grant of pre-arrest bail.

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

----Ss. 497(2) & 498---Grant of pre-arrest and after arrest bail--Consideration for---Distinction---Condition precedent for grant of pre-arrest bail was establishment of mala fide and for the purpose of granting bail after arrest, that was not the condition precedent and the Court while considering the plea of bail, would consider if there was any prima facie case made out against accused and whether it was a case of further inquiry under S.497(2), Cr.P.C.---Considerations for pre-arrest bail and post-arrest bail were entirely different.

Khawaja Shamsul Islam for Applicant.

Mehmood Alam Rizvi, Standing Counsel for the State.

Tanveer Sibtain Mahmud for the Sales Tax Department assisting the learned Standing Counsel.

Date of hearing: 19th December, 2005.

2006 M L D 496

[Karachi]

Before Mrs. Yasmin Abbasey, J

AKHLAQ AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.1125 and 1126 of 2005, decided on 5th December, 2005.

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

----S. 103---Search and recovery proceedings---Each case was to be looked into and examined in the circumstances of its own facts---If for one reason or ,the other strict compliance of S.103, Cr.P.C. was not done, it would ipso facto not discard the very existence of any fact or recovery---Object of enacting S.103, Cr.P.C. was to guard against possible chicanery and unfair dealing on the part of officers entrusted with the purpose, but non-compliance of same would not mean that statements of Police Officers should not be accepted in any circumstance---Evidence of Police Officers was as good as that of a person taken from general public until and unless their veracity was challenged and found to be not in conformity with legal requirement.

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

----S. 497---Penal Code (XLV of 1860), Ss.120-B, 161, 162, 163, 409, 420, 468, 471 & 34---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, refusal of---Occurrence of incidents during the relevant period had shown that act charged against both accused were part of a series of similar nature of acts committed by them during the period mentioned in F.I.R.---Accused with the helping hand of co-accused and under the protection of absconder accused, was dealing with government property and files---Such dealing was a matter of public nature wherein safety and security of public property could not be over-looked merely on technical grounds---As a rule the duties of such persons were of a highly confidential character, including enormous power of control over the property entrusted to them and a breach of trust by such persons could often induce serious public and private calamity---Accused had sought bail on the ground of sickness---Accused was stated to be suffering from heart disease and high blood pressure---Test reports placed on record somehow had supported version of accused, but documents as produced, did not disclose that nature of illness was of such serious nature as to make out a ground for grant of bail---Applications of bail of accused were rejected in absence of sufficient ground for grant of bail.

1998 SCMR 487 ref.

Iqtidar Ali Hashmi and Muhammad Saleem Samo for Applicants.

Muhammad Sabir for the State.

Date of hearing: 5th December, 2005.

2006 M L D 507

[Karachi]

Before Ali Sain Dino Metlo, J

WAHID BAKHSH KHOSO---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application No.S-733 of 2005, decided on 20th December, 2005.

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

----S. 497---Penal Code (XLV of 1860), S.302---Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b), 4(3), 7 & 10---Bail, grant of---School Leaving Certificate of accused and Medical Certificate issued by Medical Officer of Civil Hospital concerned and counter-signed by Civil Surgeon, showed that accused, at the time of commission of offence being less than eighteen years of age, was a child within meaning of S.2(b) of Juvenile Justice System Ordinance, 2000---Trial Court refused to try accused under Juvenile Justice System Ordinance, 2000 mainly for the reason that accused was a well built person and police had shown him of twenty years of age and for the same reasons he was refused benefit of bail under S.10 of the Ordinance---Validity---After referring accused to Civil Hospital, for determination of his age, Medical Certificate counter-signed by Civil Surgeon should not have been ignored simply on basis of age given by police without any supporting evidence or on account of well built physique of the accused---Section 7 of Juvenile Justice System Ordinance, 2000 had provided for determining age of a person on the basis of Medical Report---No justification existed for Trial Court for not relying upon Medical Certificate issued by Civil Surgeon on its own reference---If the Court had doubted correctness of the certificate, it could constitute a Medical Board and resolve the issue by taking into consideration the findings of the Board---Evidence available on record having clearly shown that accused was less than 18 years of age at the time of commission of offence and he being a child, his case would come within exclusive jurisdiction of Juvenile Court---Accused being entitled to bail, was released on bail.

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

----S. 497---Penal Code (XLV of 1860), S.302---Juvenile Justice System Ordinance (XXII of 2000), S.10(7)---Grant of bail to a child --A child, accused of an offence punishable with death would become entitled to bail under S.10(7) of Juvenile Justice System Ordinance, 2000, if he had remained in custody for a continuous period exceeding one year and his trial had not concluded---In view of the Proviso to subsection (7) of S.10 of Juvenile Justice System Ordinance, 2000, the Court could refuse to grant bail if reasonable grounds were to believe that such child was involved in an offence which, in the opinion of the Court, was, serious, heinous, gruesome, brutal, sensational in character or shocking to public morality or he was a previous convict of an offence punishable, with death or imprisonment for life---Charge against accused was framed after more than one and half years of his arrest for which delay accused was not responsible---Accused was also not a previous convict---According to Post-mortem examination report deceased had sustained only one injury caused by a single fire---Accused, in circumstances, had not acted desperately or brutally---In such circumstances, it could not be said that accused was involved in an offence of serious, heinous, gruesome, brutal, sensational in character or shocking to public morality---Accused, in circumstances was entitled to be released on bail.

Asif Ali Abdul Razak Soomro for Applicant.

Muhammad Ismail Bhutto, State Counsel.

?

Date of hearing: 20th December, 2005.

2006 M L D 513

[Karachi]

Before Mrs. Qaiser Iqbal, J

Syed HAMID KARIM---Plaintiff

Versus

M/s. ZAHRA TRAVELS through Proprietors/ Partners or Secretary and 6 others---Defendant

Suit No.356 of 1999, heard on 13th January, 2006.

Fatal Accidents Act (XIII of 1855)---

----S. 1---Fatal accident---Suit for recovery of amount of compensation---Determination of amount of compensation---Plaintiff who was father of deceased aged about 13 years, had filed suit for recovery of amount against defendants, on ground that deceased died due to fall of a heavy iron advertisement signboard owned by defendants, due to their negligence---Overwhelming evidence was on record to suggest that unnatural death of deceased, was the result of fall of the iron signboard, which was temporarily erected without any foundation by affixing same with a Pole---Since defendants had remained absent, burden shifted upon them, was not discharged---Overwhelming evidence produced by plaintiff which was. mostly based on document, had suggested the manner in which accident occurred---Death of deceased was proved to have occurred due to gross negligence and lack of care on part of defendants---No mathematical formula had been set up by Court to arrive at the factum of compensation, award of same thus would vary from case to case---Amount of compensation was determined taking into consideration age of deceased, his expected life in view of long span of life in his family, his expected earning capacity and other relevant facts---Suit was decreed accordingly with direction that amount of compensation upon recovery would be distributed among legal heirs of deceased according to Sunni Law of inheritance.

Pakistan Steel Mills Corporation Limited v. Malik Abdul Habib 1993 SCMR 848 and Punjab Transport Board v. Abdul Wahid and others PLD 1980 Lah. 584 ref.

Nasir Maqsood for Plaintiff.

Date of hearing: 13th January, 2006.

2006 M L D 521

[Karachi]

Before Khilji Arif Hussain, J

KHATOON BIBI and 5 others---Plaintiffs

Versus

KARACHI ELECTRIC SUPPLY CORPORATION through Chairman and another---Defendants

Suit No.21 of 1993, decided on 23rd December, 2005.

Fatal Accidents Act (XIII of 1855)---

----S. 1---Fatal accident---Suit for compensation---Determination of amount of compensation---Deceased died by coming into contact with live electric wires loosely hanging from the Pole at main road allegedly on account of negligence of Electric Supply Corporation---Deceased, who at the time of accident was 35 years of age had left behind his mother,. widow and six daughters---Plaintiffs/legal heirs of deceased, had been deprived of expected pecuniary benefits due to death of deceased--Accident allegedly had occurred due to negligence of Electric Supply Corporation---Burden was on Electricity Supply Corporation to prove that all possible reasonable care had been taken by them and incident had not taken place due to their negligence---General rule was though that it was for the plaintiff to prove negligence and not for defendant to prove it, but in case where true cause of incident lay solely within the knowledge of defendant, that hardship was awarded by invoking the use of 'res ipsa loquitur'---Evidence on record had shown that defendant had failed to discharge burden upon it---Defendant had not produced the record of maintenance, installation, grid wires, periodical checking report with regard to wires in question, which had clearly established that incident had occurred due to negligence of the defendant (Electric Supply Corporation)---Amount of compensation to be paid to plaintiffs/legal heirs of deceased was determined keeping in view age of deceased, his expected future life and his earning capacity etc.---Suit was decreed accordingly.

Barkat Ali Khan and others v. KESC and others PLD 1983 Kar. 453; Syed Iqbal Hussain Jafri v. KESC 1994 CLC 1903 and Sultan Bibi and others v. KESC 1999 CLC 273 ref.

Nasir Maqsood for Plaintiffs.

Saeed Ahmed for Defendant No.1.

Date of hearing: 8th December, 2005.

2006 M L D 530

[Karachi]

Before Maqbool Baqar, J

QURBAN ALI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.553 of 2005, decided on 7th December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 353 & 34---Bail, grant of---Was strange to note that encounter involving three culprits and a police party consisting of about eight police personnel and specially when such firing was initiated by the culprits, none from the police party received an injury nor their vehicle was hit by a single bullet whereas only accused and their deceased accomplice received injuries; and it was only their motorcycle and gun that was hit by bullets---Arms and ammunition though had been recovered in the incident, but same had not been sent to Ballistic Expert so as to show whether weapons allegedly recovered from accused and deceased co-accused were functional and whether the bullets secured from the scene were in fact fired from such weapons---Accused was in custody since 14-10-2004, but recording of evidence had not commenced---Accused was admitted to bail.

Muhammad Saleem G.N. Jessar for Applicants.

Mushtaq Ahmed Korejo for the State.

2006 M L D 549

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Sajjad Ali Shah, JJ

RAJ KUMAR alias RAJA GUL and others---Petitioners

Versus

HYDERABAD CANTONMENT BOARD and others---Respondents

C.P. No.D-687 of 2001, decided on 8th November, 2005.

Cantonments Act (II of 1924)---

----Ss. 25, 60, 61, 62, 63 & 200---Constitution of Pakistan (1973), Art. 199--Constitutional petition---Charging of parking fee---Petitioners had challenged charging of parking fee by Cantonment Board on commercial vehicles---Tax toll or fee could not be imposed and/or levied by any government agency without appropriate legislative authority and since there were no provisions in the Cantonments Act, 1924 empowering Cantonment Board to charge parking fee, such levy was without lawful authority---Under provisions of S.25 of Cantonments Act, 1924, Executive Officer of the Board, in cases of emergency, was empowered to incur certain expenses for a work which required immediate execution involving safety of public, but said section did not confer any power upon the Executive Officer to charge or enhance fee even if it would have been covered/prescribed under S.200 of said Act---Since S.200 of Cantonments Act, 1924, had conferred exclusive powers upon Cantonment Board to charge fee for the purposes prescribed therein, said powers could not be exercised by anyone else including the Executive Officer of the Board---Charging of parking fee by Board, was declared by High Court as illegal, null and void.

Aijaz Shaikh and Suleman Habib for Petitioner.

Nasiruddin Shah and Muhammad Rafique for Respondent No.1.

Adnan Memon for Respondent No.7.

S. Tariq Ali, Standing Counsel on Court notice.

Ahmed Pirzada, Addl. A.-G.

Date of hearing: 8th November, 2005.

2006 M L D 573

[Karachi]

Before Mrs. Qaiser Iqbal, J

Mst. MUSHTARI BEGUM and others---Petitioners

Versus

Mst. ZARQA BEGUM and others---Respondents

Civil Petition No.S-441 of 2004, decided on 16th December, 2005.

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

----Ss. 15 -& 18---Ejectment application without notice under section 18, Sindh Rented Premises Ordinance, 1979-Maintainability-Notice under S.18 of Ordinance, would not be necessary when tenant continued to pay rent after death of deceased landlord---Ejectment application without notice under S.18 of Sindh Rented Premises Ordinance, 1979 would be maintainable in such a case---Filing of ejectment application, would tantamount to notice within the meaning of S.18 of Sindh Rented Premises Ordinance, 1979 and non-service of such notice would not amount to negation of the relationship of landlord and tenant between the parties---Non-payment of rent within 30 days from the service of notice of ejectment application would constitute default in payment of rent and make tenant liable to be ejected.

Razia v. Muhammad Kamil Qureshi 1995 CLC 472 and Abdul Malik v. Ejaz Ahmed 1985 CLC 1546 ref.

Khalil Imran for Petitioners.

Khizer Askar Zaidi for Respondents.

Date of hearing: 1st December, 2005.

2006 M L D 595

[Karachi]

Before Nadeem Azhar Siddiqui, J

GHULAM ABBAS---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.788 of 2005, decided on 17th January, 2006.

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

----S.497---Penal Code (XLV of 1860), Ss.302/34/114---Bail, grant of---Medical evidence was in conflict with ocular evidence---Victim had sustained injury on non-vital part of his body and subsequently expired---Bail could not be refused as a punishment merely on the allegation of the accused having committed an offence punishable with death or imprisonment for life, unless his complicity therein was disclosed by reasonable grounds---Medical evidence showed that the deceased had not expired due to firing---Contents of the F.I.R. implicating the accused in the offence, thus, required further inquiry---Placing of the names of the two co-accused in Column No.2 of the Challan who were allegedly holding pistols in their hands, had further created doubts about prosecution story, benefit of which would go to accused---Accused was admitted to bail in circumstances.

Meeran Bux v. The State and another PLD 1989 SC 347; Master Dur Muhammad and 2 others v. The State 1994 PCr.LJ 1769; Muhammad Nawaz v. The State 1999 PCr.LJ 184 and Abdul Latif v. The State and 5 others 1986 PCr.LJ 208 ref.

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

----S.497---Penal Code (V of 1860), Ss.302/34/114---Bail in cases punishable with death or imprisonment' for life---Principles---Bail cannot be refused as a punishment merely on the allegation that a person has committed an offence punishable with death or imprisonment for life, unless reasonable grounds appear to exists to show his complicity therein.

Muhammad Ayaz Soomro for Applicant.

Muhammad Ismail Bhutto for the State.

2006 M L D 605

[Karachi]

Before Rahmat Hussain Jafferi, J

WASEEM HAROON---Plaintiff

Versus

ABDUL SHAKOOR TABBANI and another---Defendants

Civil Suit No.1707 of 2000, heard on 31st August, 2005.

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

----Ss. 12, 42, 54 & 55---Civil Procedure Code (V of 1908), O.I, R.10(2)---Suit for specific performance of agreement, declaration, prohibitory and mandatory injunction---Impleading of party---If the Court found the presence of any person necessary in order to enable it to adjudicate upon and settle all the questions involved in the suit effectively and completely, then said party could be added in the suit---In the present case, the intervenor, who had filed application to be impleaded as party in the suit, had claimed a right in the suit property to the extent of 20% share by claiming that transaction entered into between defendants was benami transaction to the extent of his share---Term 'questions involved' mentioned in Order I, R.10(2), C.P.C., would include all matters material to the proper decision of the case, but the object of making such persons parties, was to prevent multiplicity of proceedings---Person, in circumstances, must be a person whose interest was likely to be affected even though no relief was claimed against him---All persons having interest in the property, should be before the Court and heard to defend their right---Applicant/intervenor, in the present case, though was not a proper party as the suit could be decided in his absence, but he was coming within the definition of "necessary party whose presence was necessary"; and his rights, as alleged by him, were involved and the decision would affect his right---Intervenor, in circumstances was a necessary party.

Uzin Export Import Enterprises v. Union PLD 1994 SC 1995 ref.

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

----Ss. 12, 42, 54 & 55---Limitation Act (IX of 1908), S.22---Civil Procedure Code (V of 1908), 0.I, R.10(2)---Suit for specific performance of agreement, declaration, prohibitory and mandatory injunction---Impleading of party---Question of limitation---Under provisions of S.22 of Limitation Act, 1908, if a new plaintiff or defendant was added, then suit would be deemed to have been instituted when he was made a party---Relevant date for the purpose of limitation would be the date on which application for impleading the new defendant had been made for joining him as party---Applicant/intervenor seeking to be impleaded as party in suit came to know about the suit in the year 2000, but his application for impleading him as party was made on 16-12-2004---Application being beyond the period of limitation, suit would be time-barred even if intervenor was impleaded in the suit.

Hayat v. Amir PLD 1982 SC 167 ref.

Irfan Ahmed Memon for Plaintiff.

Muhammad Saleem Samo for Defendant No. 1.

Mushtaq A. Memon for Defendant No.2.

Sh. Javed Mir for Intervenor along with Zulfiqar Haider Shaikh.

Date of hearing: 31st August, 2005.

2006 M L D 616

[Karachi]

Before Muhammad Sadiq Leghari, J

TAYYAB---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.65 of 2001, heard on 24th November, 2005.

Penal Code (XLV of 1860)---

----Ss. 320, 337-G & 427---Appreciation of evidence---Evidence of only one eye-witness had been made basis for conviction of, accused by the Trial Court---Said witness had only stated that he had heard people present there saying that accused was driving the bus in question---Eye­witness had not named any such person whom he heard saying all that---Claim of said witness that injured were removed in the same bus, had been belied by other evidence on record---Evidence of the witness about taking of the injured in the same bus driven by accused, could not be accepted safely---Conviction awarded to accused by the Trial Court, in circumstances, was set aside---Appeal against conviction and sentence of accused, was accepted and he was released.

Abdul Razzak for Appellant.

Date of hearing: 24th November, 2005.

2006 M L D 630

[Karachi]

Before Nadeem Azhar Siddiqui, J

GHULAM RASOOL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.322 of 2005, decided the 16th January, 2006.

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

----S.497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Ground of long delay---Despite lapse of about six years not a single witness was examined in the case and there was no likelihood of the early conclusion of the trial---Accused, no doubt, was facing trial under S.302, P.P.C., but he could not be detained as a punishment-Fair and early conclusion of trial being the right of every accused person, he could not be deprived of the same---Delay itself was not a valid ground for grant of bail, but to avoid injustice and abuse of process of law, long delay in conclusion of trial could be a good ground for bail, when delay was not to the accused---Long unexplained delay in conclusion of the trial amounted to abuse of the process of law---Accused was admitted to bail accordingly.

Ghulam Abbas v. The State PLD 2005 Kar. 255 rel.

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

----S.497---Penal Code (XLV of 1860), S.302/34---Bail---Inordinate delay in conclusion of trial---Principles enunciated to deal with such delay---Delay in each case is to be judged and weighed on its own merits---Inordinate delay if not explained amounts to abuse of process of law even in cases of capital punishment, where prosecution is unwilling or reluctant in submitting the challan, is slow in producing witnesses, fails to produce the accused without any justification or delaying tactics are used by the persons other than the accused including the complainant---Non-compliance of directions of superior Courts without any justifiable reasons may furnish a good ground for bail---No likelihood of conclusion of trial in foreseeable future in view of the assessment of the police papers and conduct of the prosecution, e.g., where proceeding against the absconding accused would take time, or where Court may be lying vacant for long period or even where dispute as to jurisdiction of Court takes unreasonable time for decision, all such factors may also serve as grounds for bail.

Ghulam Abbas v. The State PLD 2005 Kar. 255 ref.

Ali Nawaz Ghanghro for Applicant.

Muhammad Ismail Bhutto for the State.

Date of hearing: 13th January, 2006.

2006 M L D 639

[Karachi]

Before Nadeem Azhar Siddiqui, J

ABDUL LATIF---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.753 of 2005, decided on 24th January, 2006.

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

----S.497---Penal Code (XLV of 1860), Ss.302/148/149---Bail, refusal of---Accused was named in the F.I.R. with a clear allegation of-having fired with his gun along with his co-accused on the two deceased, who died at the spot---Accused armed with a gun had fired at the victims along with co-accused, which showed that he had shared common intention in killing them---Statements of prosecution witnesses, recovery of cartridges from the crime spot and the post-mortem report, prima facie, had established the case against the accused---Bail could not be granted to accused on the only ground that at this stage it was not ascertainable as to which of the accused had caused fatal injuries to the deceased persons---Such question could not be gone into at bail stage, as deeper appreciation of evidence was neither desirable nor permissible---Reasonable grounds existed to believe that the accused was guilty of the offence with which he was charged---Bail was declined to accused in circumstance.

Nadeem Burney v. The State 1999 MLD 1259.; Allah Bux v. The State 2005 PCr.LJ 698; Shafi Muhammad v. The State 2002 PCr.LJ 494; Mumtaz Hussain v. The State 1995 SCMR 1125; Shoaib Mehmood Butt v. Iftikhar-ul-Haq 1996 SCMR 845; Ghulam Nabi v. The State 1996 SCMR 1023; Muhammad Hanif v. Manzoor 1982 SCMR 153; Umar Farooq v. The State 2001 PCr.LJ 1059; Khadim Hussain v. Shoaib Afzal 2000 PCr.LJ 974 and Sohail Ahmed v. The State 2000 PCr.LJ 235 ref.

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

----S.497---Penal Code (XLV of 1860), Ss.302/148/149---Bail---Police opinion---Effect---Opinion of the Investigating Officer and his observation in the police diaries are not binding upon the Court and the. same cannot be used as a piece of evidence for a simple reason that it is not clear as to how and on what basis he has formed such opinion.

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

----S.497---Penal Code (XLV of 1860), Ss.302/148/149---Bail---Assessment of evidence---Deeper appreciation of evidence at the stage of bail is neither desirable nor permissible.

Umar Farooq v. The State 2001 PCr.LJ 1059 ref.

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

----S.497---Penal Code (XLV of 1860), Ss.302/148/149---Bail---Vicarious liability, determination of---Where circumstances of the case show that the accused pre-planned a scheme, hatched a conspiracy and in execution of that plan or conspiracy participated in the commission of the offence, the principle of vicarious liability applies with full force even at bail stage.

Khadim Hussain v. Shoaib Afzal 2000 PCr.LJ 974 ref.

Muhammad Ayaz Soomro for Applicant.

Mushtaq Ahmed Abbasi, Asst. A.-G. for the State.

Ali Murad Abro for the Complainant.

Date of hearing: 17th January, 2006.

2006 M L D 663

[Karachi]

Before Sajjad Ali Shah, J

DAWOOD KHAN and 8 others---Applicants

Versus

AHSAN-UR-REHMAN and 2 others---Respondents

Criminal Miscellaneous Applications Nos.165 and 171 of 2006, decided on 20th February, 2006.

Penal Code (XLV of 1860)---

----Ss.365/109---Criminal Procedure Code (V of 1898), Ss.169, 173(3) & 561-A---Quashing of order---Magistrate while passing order on the report of the Investigating Officer under S.173(3), Cr.P.C. did not agree with the same and directed the attendance of the complainant, accused and witnesses---However, Magistrate was bound to consider all the material collected during the investigation and then to pass a just, fair and speaking order---If the Investigating Officer was found not to have properly investigated the matter and to have submitted the report under the influence of accused, Magistrate could disagree with the same, but his such order of disagreement should have reflected reasons therefor---Impugned order passed by the Magistrate whereby he had called the parties, accused, complainant and his witnesses, amounted to taking cognizance of the matter without assigning any reason for disagreeing with the report of the Investigating Officer---Said order as well as the order of the Magistrate of the same date directing to record the statement of the abudctee were consequently quashed---Magistrate was directed to first pass a judicious and speaking order after considering all the material produced with the final report of the Investigating Officer in accordance with law and thereafter, if necessary, to consider the application of the complainant for recording the statement of the abductee under S.164, Cr.P.C. afresh.

Hussain Aluned v. Irshad Bibi 1997 SCMR 1503 and Sufi Abdul Qadir v. The State 200 PCr.LJ 520 ref.

Mehmood A. Qureshi for Applicants.

Jawed Mir for the Complainant.

Sardaruddin Qureshi for the State.

2006 M L D 685

[Karachi]

Before Muhammad Moosa K. Leghari and Shamsuddin Hisbani, JJ

KHALIL AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.136 of 2004, decided on 26th October, 2005.

Penal Code (XLV of 1860)---

----S. 302(a)---Criminal Procedure Code (V of 1898), S.. 243---Appreciation of evidence---Awarding.death sentence on basis of plea of guilt alone---Validity---Capital punishment was awarded to accused solely for the reason that he had admitted his guilt, without requiring accused to show-cause as to why he should not be convicted---Conviction of accused thus was against provisions of S.243, Cr.P.C.---Trial Court had acted in hot haste and proceeded to record judgment warranting death penalty in a cursory, careless, rather in an over zealous manner---Such disgusting attitude and conduct demonstrated by a Senior Judicial Officer, could hardly be approved---Impugned judgment was set aside and case was remanded to the Trial Court for de novo trial with the direction that Trial Court would frame a fresh charge against accused and proceed with the case strictly in accordance with law.

Muhammad Shafquat v. The State 2005 PCr.LJ 1884 ref.

Appellant has been produced in custody by the jail authorities.

Mashooq Ali Sarno, Asstt: A.-G. for the State.

Date of hearing: 26th October, 2005.

JUDGMNET

MUHAMMAD MOOSA K. LEGHARI, J.---Appellant was convicted by (Mr. Khan Parvez Chang), Sessions Judge, Sanghar vide judgment dated 30-7-2004 in Sessions Case No.97 of 2004, arising out of Crime No.76 of 2004 registered at Police Station, Sanghar.

The appellant was convicted under section 302(a), P.P.C. He was awarded death sentence only on the basis of his plea of guilt. Apparently the appellant was not given show-cause notice as to why he was pleading guilty.

Learned A.A.-G. after going through the judgment reported in 2005 PCr.LJ 1884 arising out of the same point, has candidly conceded that the judgment was against settled principle of law, thus it was not sustainable and liable to be set aside.

We have perused the impugned judgment and minutely examined the R and Ps of the case.

Capital punishment was awarded to the appellant solely for the reason that the appellant has admitted his guilt without requiring him to show cause as to why he should not be convicted. Evidently the conviction handed down to the appellant militates against the provisions of section 243, Cr.P.C. Regrettably, the trial Judge acted in hot haste, and proceeded to record judgment warranting death penalty in a cursory, careless, rather over zealous manner. Such disgusting attitude and conduct demonstrated by a Senior Judicial Officer could hardly be approved.

In the similar circumstances, judgment awarding death penalty was set aside and murder reference was rejected in the judgment delivered in the case of Muhammad Shafquat v. The State reported in 2005 PCr.LJ 1884 authored by one of us (Muhammad Moosa K. Leghari, J).

Following the rule laid down in the above case, impugned judgment is set aside and the case is remanded to the trial Court for de novo trial. The trial Court shall frame a fresh charge against the appellant and proceed with the case strictly in accordance with law.

For the above reasons, the murder reference is not confirmed.

2006 M L D 697

[Karachi]

Before Gulzar Ahmed and Muhammad Athar Saeed, JJ

KARACHI ELECTRIC SUPPLY CORPORATION through Secretary ---Appellant

Versus

AISHA KANWAL and 3 others-Respondents

H.C.A.No.242 and C.M.A. No.1490 of 2005, decided on 22nd February, 2006.

Fatal Accidents Act (XIII of 1855)---

----S.2---Limitation Act (IX of 1908), S.6 & Art.21---Suit for compensation by minor children of deceased---Limitation---Incident causing death of deceased took place on 5-9-2000, but minors filed suit on 12-1-2002--Suit was within time by extending the benefit of S.6 of Limitation Act, 1908.

Iftikhar Hussain v. K.E.S.C. PLD 1957 Kar. 552 and Ms. Shamsunnisan v. Karachi Road Transport Corporation PLD 1975 Kar. 914 ref.

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

----S.1---Electricity Rules, 1973, R.76---Death of deceased on account of electrocution owing to negligence of Karachi Electric Supply Company---Snapped overhead electric distribution wire lying on iron railings/fences of football ground energizing and electrifying same---Non-installation of guard wire by the Company---Deceased accidentally touched such fences and died on account of electrocution---Suit for compensation by heirs of deceased---Company pleaded negligence of deceased---Proof---Company did not deny factum of snapping of wire, death of deceased on account of electrocution from snapped wire and non-installation of guard wire---Negligence of deceased was not proved in circumstances.

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

----Ss.1 & 2---Fatal accident---Suit for compensation by minor children of deceased---Widow and mother not plaintiffs in suit---Decree in favour of minors extending its benefit to widow and mother of deceased---Such decree was not open to objection.

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

---S.1---Fatal accident---Quantum of damages---Deceased at the time of death was 35 years age and drawing salary of 4500 per month---Decree awarding compensation of income of deceased for 25 years i.e. till date of his retirement at 60 years age---Prayer in appeal by heirs of deceased for granting compensation of income for additional 10 years (i.e. from date of retirement at the age of 60 years upto normal expectancy of life of 70 years) at the rate of salary drawn by deceased during employment, and compensation for loss of love and company of deceased---Validity---Income of employment could not form basis for granting of compensation from date of retirement upto age of expectancy of life as in majority cases, retired personnel was unable to draw same income as drawn by him during employment, but was able to get much lesser income, if he got employment---Minimum wage of Rs.3,000 per month would be an appropriate amount as compensation for such additional 10 years, wherefrom 1 /6th would, be deducted as personal expenses of deceased---High Court accepted appeal and modified decree by awarding additional compensation of income for 10 years and Rs.1,00,000 each for widow and children for loss of affection and association of deceased.

Farazuddin v. Pakistan Navy 1991 CLC 1886; Bakhtawar Shah v. Karachi Transport Corporation 2004 MLD 528 and Karachi Water and Sewerage Board v. Muhammad Moosa 2001 CLC 221 ref.

K.E.S.C. v. Syed Iqbal Hussain Jafry 2004 MLD 1696 and Zuljan v. Tariq Ahmed 2005 MLD 210 rel.

Raghib Baqi for Appellant.

Nasir Maqsood for Respondent.

2006 M L D 786

[Karachi]

Before Khilji Arif Hussain, J

Mst. FEROZA WAJID---Plaintiff

Versus

GOVERNMENT OF SINDH and others---Defendants

Suit No.1344 of 1989, heard on 6th December, 2005.

Fatal Accidents Act (XIII of 1855)---

----S. 1---Fatal accident---Suit for damages---Determination of amount of damages---Plaintiff, widow of deceased, had alleged that road accident in which her husband had died, had occurred due to negligent driving of defendant who was driving the bus which dashed against the car driven by her deceased husband, but said defendant denied his liability---From the evidence of Police Officer who recorded F.I.R., it could not be said whether accident had taken place due to any act of negligence on the part of deceased or defendant---Inquiry Committee gave finding that deceased tried to avoid accident by giving emergency horn to defendant bus driver by applying brakes and moving his car to the left side, was helpless and the defendant, driver of bus in process of overtaking another bus at very high speed caused accident---From evidence on record it was very difficult to give a definite finding as to whose negligence had caused the accident---Findings recorded in Inquiry Report could not be relied upon unless author of said report himself appeared in the Court to give evidence---Possibility of negligence on the part of deceased as well as defendant, could not be ruled out, but had the defendant driving his bus at the normal speed, then it was not difficult for him to avoid such major accident---Defendants were jointly and severally liable to pay compensation to plaintiff and other legal heirs of deceased---Amount of compensation was determined taking into consideration age of deceased, his earning capacity and other future expectations---As accident had been caused due to negligence of deceased and defendant, damages were reduced by 25%-Suit was decreed accordingly.

Abdul Kadeer Ebrahim Sura and another v. Koshinath Moreshwar Chandain AIR 1968 Bombay 269; Barry v. Humm, and Co. 1951-1 KB 627; Karachi Water and Sewerage Board v. Muhammad Moosa 2001 CLC 221 and Arifuddin v. Government of Sindh PLD 1991 Kar. 291 ref.

Nasir Maqsood for Plaintiff.

Muhammad Qasim Mirjat, Asstt. A.-G. for Defendant No.1.

Dilawar Hussain for Defendant No.2.

Date of hearing: 6th December, 2005.

2006 M L D 802

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

MUHAMMAD ALI alias MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.207 of 2005 and Confirmation Case No.2 of 2005, decided on 23rd February, 2006.

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

----S. 302(a)-Appreciation of evidence---Prosecution case rested upon judicial confession of accused, which had been recorded by Judicial Magistrate in accordance with law performing all formalities---Said confession was voluntary and was not the result of any inducement, coercion or maltreatment by police---Accused retracted from confession, but retracted confession could be made the basis for conviction, if it was found to be voluntary and true, but as a rule of procedure, caution and prudence, confession should be corroborated on material particulars---Judicial Magistrate took all precautions before recording confession of accused---Confession of accused was further corroborated by the fact that both deceased had injuries and injuries caused by hard and blunt substance as per medical evidence---Judicial confession of accused, was not only voluntary and true, but it was also supported and corroborated by other pieces of evidence available on record---Such confession was sufficient to convict accused---Blood-stained articles recovered from place of incident and blood-stained clothes of accused, were not sent to Chemical Analyzer for examination to ascertain that articles were stained with human blood---Prosecution had also not produced any Chemical Analyzer's report to prove said fact---Said piece of evidence, was of no help to prosecution---When accused reached house where he saw his wife and deceased sleeping together in half-naked condition, he did not lose his control and went to his brother and informed him about incident and thereafter he called his cousins and then murdered deceased while sleeping; it was in circumstances a premeditated murder and not murder under sudden and grave provocation---Both deceased were found simply sleeping in half-naked position and were not found in committing act of sexual intercourse so as to attract provisions of 'Zinc" as defined under Offence of Zina (Enforcement of Hudood) Ordinance, 1979---For proving such fact, penetration was essential ingredient, but such ingredient was missing in the case as accused did not see offence of "Zina" being committed, which entailed death penalty---No justification existed for accused and his companions to cause murders of deceased---Case was that of preplanned and premeditated murders, which did not require any leniency to be taken in awarding sentence---Trial Court, in circumstances had awarded adequate sentence to accused, which was maintained and confirmed.

?

Muhammad Gul v. State 1991 SCMR 942; Muhammad Yaqoob v. State 1992 SCMR 1983; Haq Nawaz v. State 2000 SCMR 785 and Federation of Pakistan v. Gul Hassan PLD 1989 SC 633 ref.

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

----S. 4---Zina---Man and woman having been found simply sleeping in half-naked position and not found in committing of sexual intercourse, provisions of S.4, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was not attracted.

S.M. Amir Naqvi for Appellant.

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

Date of hearing: 6th February, 2006.

2006 M L D 834

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

MUHAMMAD SHAHID HANIF and others---Appellants

Versus

THE STATE---Respondent

Special Anti-Terrorism Appeals Nos.39 to 42, 28 of 2002 and Confirmation Case No.2 of 2002, decided on 9th March, 2006.

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

----Ss.302(b) & 34---Anti-Terrorism Act (XXVII of 1997), Ss.6(a) & 7(i)(a)---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Appreciation of evidence---Prosecution case rested upon four pieces of evidence; ocular account; identification test; confessions; and recoveries---Ocular testimony consisted of sole witness who was driver of car of deceased and his statement was fully supported and corroborated by medical evidence and complainant who was wife of deceased and one other who was son of deceased---Presence of said prosecution witness at the scene of incident had been fully established---Minor discrepancies in evidence of said prosecution witness, could not affect his veracity, whose evidence was supported and corroborated by other pieces of evidence---Witness was a natural witness and had no motive or cause to falsely implicate accused persons in such heinous crime---No enmity existed between witness and accused persons---Mere delay of few hours in recording his evidence, per se was not fatal to his evidence---Prosecution, in circumstances had provided ocular testimony---Identification test was conducted by Judicial Magistrate completing all formalities and fulfilling requirements of law and no illegality was pointed out in identification test---All required formalities were completed by Magistrate while recording confessions of accused---Magistrate gave two hours time to accused for reflection and thereafter he again warned them separately, but accused were ready to confess their guilt---Said confessions of accused were supported and corroborated by other pieces of evidence---Accused, in confessional statements had also shown motive for causing murder which was sectarian killing---Confessions were voluntary and true, which were sufficient to convict accused---Delay in recording judicial confession per se was no ground to discard it as same was not obtained by coercion, threat or pressure---Accused though had retracted confessions, but retracted confessions could be based for convicting accused if it was voluntary and true---Defect in framing charge, if any could be cured under S.535, Cr.P.C.---Three empty bullet shells were secured from the place of incident and other offensive weapons were also recovered and were sent for examination and Ballistic Expert Report was positive---Prosecution, had proved recoveries of weapons used in murder of deceased---Prosecution, in circumstances had proved case against accused persons beyond any reasonable doubt---Accused were dealt with, as per law prevailing at the time of incident and were convicted and sentenced accordingly.

Gulistan v. State 1995 SCMR 1789; Taha v. State 2003 YLR 166; Dur Muhammad v. State 1994 MLD 1493; Hamid Javed v. State PLD 1988 SCMR 39; Solat Ali Khan v. State PLD 2002 SCMR 820; Muhammad Gul v. State 1991 SCMR 942; Muhammad Yaqoob v. State 1992 SCMR 1983; Haq Nawaz v. State 2000 SCMR 785 and Muhammad Ismail v. State 1995 SCMR 1615 ref.

(b) West Pakistan Arms Ordinance (XX of 1965)----

--S. 13(d)---Anti-Terrorism Act (XXVII of 1997), S.23---Appreciation of evidence---Prosecution had failed to connect arms and ammunition secured from co-accused with Scheduled Offence---Said co-accused had not committed offence punishable under S.13(d) of West Pakistan Arms Ordinance, 1965, conjointly with any offence of Anti-Terrorism Act, 1997---Anti-Terrorism Court, in circumstances had no jurisdiction to try said co-accused---Cases of co-accused required to be transferred from the Court of Anti-Terrorism to ordinary Court having jurisdiction in the matter.

M.R. Sayed and Raza Hashmi for Appellants.

Habib Ahmed Assistant Advocate-General for Respondent.

Date of hearing 22nd February, 2006.

2006 M L D 896z

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

ATTAULLAH and others---Appellants

Versus

THE STATE---Respondent

Spl. Anti-Terrorism Appeals Nos. 51, 52 of 2003 and Confirmation Case No.13 of 2003, decided on 8th March, 2006.

Penal Code (XLV of 1860)---

-----S. 302(b)-Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---Case of prosecution rested upon three pieces of evidence; ocular testimony; identification test; and recoveries---Two prosecution witnesses gave ocular account in detail---Both of them had given different places of meeting---Both witnesses were unanimous that two motorcycles came from their back side and proceeded to place of­occurrence---Said witnesses had no occasion to see faces of said motorcyclists as it was slightly dark and they were coming from back side of prosecution witnesses---Witnesses were not able to see the incident as alleged by them from the place where they were allegedly present---Mistaken identity of accused could not be ruled out in the circumstances of the case---Presence of prosecution witnesses at scene of incident had not been established from any of the persons who were present there---Contention of accused that both witnesses were set up witnesses, could not be ruled out of consideration which appeared to have been supported and corroborated by other pieces of evidence, available on record---Said prosecution witnesses being unreliable and untrustworthy, no implicit reliance could be placed on their evidence---Dummies who were mixed up with one of accused persons were again mixed up with other accused when their identification tests were held---Identification test in such a manner could not be termed as an identification test fulfilling requirements of law, but on the contrary it would be against the spirit of identification test---Prosecution witnesses, had already seen the faces of dummies very clearly and minutely before identification test---Such identification test carried no weight at all---Contradictory statements of two witnesses, who were mashir and Investigating Officer and Motawalli of Imam Bargah with regard to recoveries of empties, had created doubt with recovery of crime empties from the place of incident---If a doubt was created in the evidence, then its benefit must be given to accused---If recovery of crime empties was doubtful; then the report of Ballistic Expert also would become doubtful---No implicit reliance could be placed on such piece of evidence---Prosecution having failed to prove case against accused beyond any reasonable doubt, accused were given benefit of doubt---Conviction and sentences awarded to accused by the Trial Court were set aside and they were acquitted and were set at liberty accordingly.

M.R. Syed and Sarfraz Khan Tanoli for Appellants.

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

Date of hearing: 17th February, 2006.

2006 M L D 927

[Karachi]

Before Sarmad Jalal Osmany, J

RAZA MUHAMMAD alias RAZOO and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No.S-86 of 2000, heard on 2nd September, 2005.

Penal Code (XLV of 1860)---

----Ss. 302 & 460---Appreciation of evidence---Eye-witness account was full of contradictions and inconsistencies, both as to availability of eye-witnesses at the scene when alleged murder took place and their recognition of accused at that time---Medical evidence, though collaborated with prosecution case as to the manner in which deceased was done to death, but it could not be made the basis of any conviction as same was only of corroborative value---Confessional statements of accused which were retracted, would require corroboration from independent sources, which was missing in the case---Delay in lodging F.I.R. of about 14 hours had not been explained at all---Accused, in circumstances, were acquitted of the charge against them and were directed to be released.

Rahmatullah v. State 2005 PCr.LJ 60; Mehmood Ahmed v. State 1995 SCMR 127 and Iftikhar Hussain v. State 2004 SCMR 1185 ref.

Ghulam Shabbeer Shar for Appellants.

Zuber Ahmed Rajput for the State.

Date of hearing: 2nd September, 2005.

2006 M L D 949

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

ZULFIQAR ALI---Appellant

Versus

THE STATE---Respondent

Special Anti-Terrorism Appeal No.13 of 2004 and Confirmation Case No.6 of 2004, decided on 14th March, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 353, 392 & 397---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Criminal Procedure Code (V of 1898), S.231---Appreciation of evidence---Evidence on record had established beyond any shadow of doubt that accused was the person who had snatched the SMG Rifle from the prosecution witness and that accused was correctly identified to be the said person in identification test---All prosecution

witnesses were thoroughly cross-examined by defence counsel, but nothing came on record to discredit their evidence---All witnesses were unanimous on the points of their evidence and neither any contradiction or discrepancy was found in their evidence nor any such contradiction or discrepancy was pointed out by counsel for the accused---Presence of witnesses had also not been challenged by accused in cross­ examination---Evidence of prosecution witnesses which was fully supported and corroborated by circumstantial evidence, was natural and fitting in circumstances of the case---No reason existed, in circumstances to disbelieve their statements---Prosecution had established case against accused beyond any reasonable doubt---Accused had contended that after amendment of charge, witnesses having not been examined again, provisions of S.231, Cr.P.C. had been violated and case thus should have been remanded---Validity---Accused after amending the charge having not requested the Court for recalling witnesses, there was no illegality in the trial---Contention of accused was repelled---Case was of a premeditated incident which was committed in a planned manner and same had created terror in the Police Department and in the general public-Grounds taken by accused for reduction of sentence, were not sufficient grounds to reduce sentence awarded to accused---Trial Court had rightly appreciated evidence of persons who were experts in the field with regard to mental fitness of accused and reached a right conclusion that accused was not a psychiatric patient---Action of accused was an act of terrorism which required serious handling and persons involved in the act of terrorism did not deserve leniency---Accused, in circumstances, was not entitled to a lesser sentence---Sentence awarded to accused by the Trial Court, was maintained.

Muhammad Ashraf v. State 1994 MLD 692; Abdul Ghaffar v. State 2005 SCMR 56; Hifazat Hussain v. State 1987 PCr.LJ 403; Rahim Jan v. Ahmed Jan 1986 PCr.LJ 122; Abdul Ghaffar v. State 2006 SCMR 56; Konmal and another v. Emperor AIR 1930 All. 215; Masahru and others v. Emperor AIR 1930 Pat. 355 and Muhammad Bakhsh v. The State 1968 PCr.LJ 1901 ref.

Abdul Waheed Katpar for Appellant.

Habib Ahmed, A.A.-G. for Respondent.

Date of hearing: 2nd March, 2006.

2006 M L D 980

[Karachi]

Before Mrs. Yasmin Abbasey, J

ABDUL BASIT---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.40 of 2006, decided on 27th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.420---Pre-arrest bail, refusal of---Despite submission of challan, accused was avoiding to appear in Court and one after the other was moving applications for pre-arrest bail with no sufficient grounds and his non-appearance was a cause of delaying trial of the case---Proper course for accused was to join investigation and bring correct picture on record but he failed to do that---Pre-arrest bail was rejected.

1993 PCr.LJ 446; 2000 PCr.LJ 1230; 1985 PCr.LJ 85; 2004 PCr.LJ 1000; PLD 1995 SC 34 and PLD 1994 SC 133 ref.

Syed Ehsan Raza for Applicant.

Sohail Jabbar for the State.

2006 M L D 1046

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD MITHAL alias MITHO and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications No.191 of 2006, decided on 5th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(i), H(i), 403, 504, 148 & 149---Interim pre-arrest bail, confirmation of---All sections of P.P.C. applied in F.I.R. were bailable and did not come within the ambit of S.497, Cr.P.C.---Earlier interim pre-arrest bail granted to accused was confirmed on same terms and conditions.

Jai Jai Veshno for Petitioner.

M. J. Bhutto State Counsel.

2006 M L D 1059

[Karachi]

Before Ghulam Rabbani and Azizullah M. Memon, JJ

JAN-E-ALAM---Appellant

Versus

THE STATE---Respondent

Spl. Cr. A.T.A. No.19 of 2005, decided on 21st, September, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 476(2)(a), 182 & 195(1)(a)---Prosecution for contempt of lawful authority of public servants---Procedure---Provisions of S.476(2)(a), Cr. P. C. were not punitive and no conviction and sentence could be maintained under said provisions of law---Trial Court while passing impugned judgment had convicted and sentenced accused under S.476(2)(a), Cr.P.C. which could not have been done legally---If the Trial Court was of the opinion that accused was guilty for having falsely lodged report with the police, only penal action that could have been taken against him, was that a complaint should have been filed under S.182, Cr.P.C. and then the procedure as provided under S.195(1)(a) could alone have been adopted to proceed further thereon---Impugned judgment was illegal, unlawful and without jurisdiction---Same was set aside in appeal.

1992 SCMR 1229 and PLD 2003 SC 19 ref.

Muhammad Ikram Siddiqui for Appellant.

Habib Ahmed, Assistant Advocate-General for the State.

Date of hearing: 21st September, 2005.

2006 M L D 1075

[Karachi]

Before Nadeem Azhar Siddiqi, J

Mst. SURIYA WASEEM USMANI and others---Applicants

Versus

L & M INTERNATIONAL (PVT.) LTD.---Respondent

Execution Application No.56 of 2002 and C.M.A. No.1736 of 2005, decided on 17th January, 2006.

(a) Counsel and client---

----When a counsel was going out of country, it was his duty to inform the office or to obtain general adjournment or to request his colleagues at bar to inform the Court.

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

----O. XXI, R.10---Execution of decree---Objection application---Dismissal of objection application for non-prosecution---Recalling of dismissal order---For recalling of order, objector had to show sufficient cause for his absence when case was called and application was dismissed but objector had failed to show sufficient cause for recalling the order---Sufficient opportunity was provided to objector to prove his contention, but he was not at all interested to avail said opportunity and was only interested in delaying the proceedings which could not be allowed for unlimited period as there should be an end to the matter and other side could not be punished for such lethargy---Application recalling order was dismissed, in circumstances.

Muhammad Swaleh and another v. M/s. United Grain & Fodder Agencies PLD 1964 SC 97 and Hassan Din and another v. Jalal Din and 2 others 1992 CLC 33 ref.

Bilal A. Khawaja and Muhammad Nasir Khan for the Applicants.

Nemo for the J.D.

Sardar Qasim for Intervenor/objector.

2006 M L D 1093

[Karachi]

Before Mrs. Qaiser Iqbal, J

RIAZ AHMED---Plaintiff

Versus

I.-G. OF POLICE and 9 others---Defendants

Suit No.1383 of 2001, decided on 2nd May, 2006.

Tort---

----Unlawful confinement---Suit for damages---Plaintiff had claimed that' he was unlawfully arrested, seriously humiliated in front of 'people of area, and miserably beaten by police officials during illegal confinement---Plaintiff further claimed that due to high-handedness of police officials concerned, plaintiff had sustained serious damages to his reputation, so much so that on account of brutality of police, his old parents became seriously ill---Plaintiff in the present case, was arrested under S.54, Cr.P.C. on account of suspicion that he was an activist of a Political Party---No report was lodged against the plaintiff at Police Station concerned nor incriminating articles were recovered on his personal search---Plaintiff, was not produced by police before Magistrate for seeking remand--Plaintiff in illegal exercise of power, was arrested by police when no material was available to detain him in commission of any crime---Arresting officer did not have sufficient material leading to necessary suspicion that plaintiff had committed offence triable by Anti-Terrorism Court---Police having arrested and dragged plaintiff to a police van, had committed a wrongful action, on account of deprivation of person's liberty---In a case of tort of strict liability, no onus was on plaintiff to prove that imprisonment was unlawful or malicious---Once plaintiff established the fact of imprisonment, it was sufficient to make out a prima facie case and onus would fall to defendants to prove that detention was lawful---Arrest of plaintiff in blind F.I.R. without first collecting material, could not be treated as bona fide act of police officers in exercise of lawful authority vested in them by law---Illegal and wrongful prosecution, in absence of specific truth of good faith resulting in mental torture and agony, was the most important criteria to adjudge the conduct of defendants---Arrest and detention of plaintiff by defendants was not in accordance with law as they had acted arbitrarily and in excess of authority---No reasonable ground existed for arrest of plaintiff and plaintiff was not informed regarding any ground of his arrest---Arrest and detention of plaintiff, having been fully proved to be not in accordance with law, his suit was decreed and .amount of compensation was determined taking into consideration, loss of liberty, damage to reputation, humiliation, shock and injury to feelings and other circumstances.

Muhammad Siddique v. Province of Sindh PLD 1992 Kar. 358; Faingaa v. Lelea and others 2005 TOSC-6 (Tonga); Hague v. Deputy Governor of Parkhurst Prison 1993-1 LRC 659; R.B. Governor Brock Hill Prison Ex parte Evan No.2 All England Law Reports 2000 AER 15; Muhammad Ishaq v. Metropolitan Corporation, Lahore through Mayor PLD 1996 SC 737; Mazhruddin v. The State 1008 PCr.LJ Kst. 1035; Maharaj v. The Attorney General of Trinidad and Tobago 1979 AC 385; Nilabati Behera v. The State of Orissa and others (1993) 2 SC cases 746 IOWA Des Moines National Bank v. Bennett (1931) 284 US 239; Abdul Rahim Beg v. Abdul Haq PLD 1994 Kar. 388; F.M. Shefta v. Federation of Pakistan PLD 1959 678; Pakistan v. Muhammad Yaqoob Butt PLD 1963 SC 627; Sadruddin Ansari v. Dost Ali PLD 1968 Kar. 673; Muhammad Zubair Qureshi v. Munir Hussain Shirazi PLD 1991 Kar. 214; Corporation Sole, Secretary, B&R Government of West Pakistan v. Fazal Ali Khan PLD 1971 Kar. 625; Muhammad Mohsin and others v. Mozammel Haq Paramanic PLD 1964 Dacca 195 and Murray v. Ministry of Defence 1988 L.R.C. (Const 519 to 529) ref.

Abid S. Zuberi and Muhammad Haseeb Jamali for Plaintiff.

Abdul Jabbar Lakho, A.A.-G. for Defendants.

Date of hearing: 16th March. 2006.

2006 M L D 1135

[Karachi]

Before Mrs. Yasmin Abbasey, J

DANIYAL PERVAIZ---Petitioner

Versus

VIIth ADDITIONAL DISTRICT JUDGE, KARARHI and 2 others---Respondents

Constitutional Petitions Nos.S-510 to S-513 of 2005, decided on 22nd February, 2006.

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

----Ss. 15(1)(ii), 16(1) & 18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Default in payment of rent---Tentative rent order---Transfer of ownership---Plea of petitioner/tenant was that after death of the original landlady of premises in question he did not receive any notice of transfer of ownership and till filing of the application and receipt of its notice he was unaware of transfer of ownership of premises in favour of respondent and that landlady used to collect rent annually at her own, petitioner, therefore, remained unaware about her death---When petitioner came to know about change of ownership, he consented to' grant of application filed by respondent under S.16(1) of Sindh Rented Premises Ordinance, 1979 and deposited rent in the Court in compliance of tentative rent order---Petitioner, in circumstances, had not committed any default in payment of rent of premises---Filing of ejectment application against petitioner/tenant on ground of default in payment of rent would be a surprise for him as when he came to know about change of ownership, he deposited rent in Court just four days of the passing of rent order---Imposing of penalty on petitioner under S.18 of Sindh Rented Premises Ordinance, 1979, was misuse of law---Impugned judgment of Appellate Court below was set aside and that of Rent Controller was maintained.

Syed Ehsan Raza for Petitioner.

Syed Ishrat Hussain Rizvi Respondent No.3.

2006 M L D 1179

[Sindh Bar Council]

Before Justice Sarmad Jalal Osmany, Chairman, Bhajandas Tejwani and Faheem Riazuddin Siddiqui, Members

PRESIDENT DBA, MIRPUR KHAS---Complainant

Versus

AMANULLAH SOOMRO, ADVOCATE---Respondent

Tribunal Reference No. 8 of 1998, decided on 17th March, 2006.

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

----S. 41(1)---Professional misconduct---Proceedings against advocate were originally initiated by Disciplinary Committee of Sindh Bar Council on complaint of Vice-President of Bar Association to the effect that advocate concerned was not practising as an advocate and he was engaged in work of Stamp Vendor and Notary Public; that said advocate had always been allegedly speaking and using un-parliamentary language against advocates and also against Judges of Lower and High Judiciary; that due. to his such activities, District Bar Association had cancelled his membership and his name was struck off the role of District Bar; and that in General Body Meeting of District Bar. Association, it was unanimously resolved to file complaint with Sindh Bar Council for disciplinary action against the advocate on account of his acts of misconduct being repeatedly committed by him---Disciplinary Committee took cognizance of matter and issued notice to the advocate, but despite service, he did not appear---No controversy and rebuttal being available against assertions made in the complaint against him, Disciplinary Committee found the advocate guilty of professional misconduct and referred the matter to the Tribunal for trial and action against the advocate---Advocate remained absent despite service---Overwhelming documentary and oral evidence adduced in support of complaint having remained unchallenged and unrebutted, presumption, in circumstances, would be that complaint and case against accused advocate had been proved and allegation against him were deemed to be correct---Reference made by Disciplinary Committee was allowed and advocate concerned was removed from the practice and his enrolment was cancelled with immediate effect.

2006 M L D 1194

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Ather Saeed, JJ

NATIONAL LOGISTIC CELL (NLC)---Appellant

Versus

IRFAN KHAN and 5 others---Respondents

High Court Appeal No.329 of 2005, decided on 26th April, 2006.

Fatal Accidents Act (XIII of 1855)---

----S. 1---Law Reforms Ordinance (XII of 1972), S.3---Fatal accident---Suit for compensation---Determination of amount of compensation---High Court appeal---Not only City Development Authority was responsible for negligence in performance of its legal obligation, but National Logistic Cell and their driver, were also equally responsible---National Logistic Cell's Trailer was driven by the driver in a rash and negligent manner; on the wrong side of the road due to repairing work, but even then he did not bother to take care of such facts and did not slow down the speed of vehicle---View of Single Judge of High Court that all four defendants in the suit were jointly liable for payment of compensation to bereaved family of deceased---Compensation awarded to minor children of deceased and widow of deceased, was appropriate, which required no interference---Awarding of compensation to minor children of deceased at the rate of Rs.300,000 per child, seemed to be on much higher side, which was reduced and modified to Rs.100,000 per child in Intra-Court Appeal---Compensation/amount of Diyat awarded to minor children having not been claimed, there was no occasion for awarding of such compensation while determining compensation claim of minor children under Fatal Accidents Act, 1855---Such claim awarded in the. judgment of Single Judge, was also set aside and it was further ordered that share of minors from total claim of compensation awarded, be deposited with Nazir of the Court, which would be immediately invested in some profit bearing government saving scheme for the benefit of minors till they attained age of majority.

Mukhtiar Ahmed Kuber for Appellant.

Nasir Maqsood for Respondents Nos.1 to 3.

Nemo for Respondents Nos.4 to 6.

2006 M L D 1206

[Sindh Bar Council]

Before Justice Sarmad Jalal Osmany, Chairman, Bhajandas Tejwani and Faheem Riazuddin Siddiqui, Members

REHANA PARVEEN, ADVOCATE---Complainant

Versus

JAWED AHMED KHAN, ADVOCATE and others---Respondents

Reference No.05 of 2001, decided on 10th December, 2005.

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

----S. 41(4)---Complaint case---Misconduct of advocate---Reference to Tribunal---Allegation levelled in complaint against advocates was that they had filed Wakalatnama and affidavit of a dead person in the Court---Such factual position had not been controverted and same was deemed to have been admitted in view of documentary evidence and reply of accused advocates who had specially pleaded that all that was not done by them with any mala fide or bad intention, but was done in good faith as they had trusted relatives of said dead person---From evidence of complainant, nowhere it was alleged that above acts were committed knowingly, wilfully and mala fide in order to achieve some ulterior purpose and to have some personal gain---Record showed that even the suit of complainant was decreed by the Trial Court in her favour---Word 'misconduct', literary, would mean wrong or improper conduct, failure to act honestly, some decree of mens rea on the part of person concerned---Chapter XII of Legal Practitioners and Bar Councils Act, 1973 dealt with canons of professional conduct for an advocate and Part B of said Chapter laid down the rules with regard to the conduct of advocates with his clients and any violation of said Rules could also be termed as 'misconduct'---Said ingredients of established misconduct, were lacking in the present case, particularly in view of evidence of the complainant, who had denied in clear terms that advocates concerned had acted with mala fide intention or with ulterior motives in filing affidavits and wakalatnama having signature of deceased and further that said advocates had frankly conceded to have acted in good faith and with bona fide intention---Complaint against advocates concerned, was directed to be consigned to record as no misconduct had been established against advocates---Said advocates, however, were warned to be careful in future and see that no such acts were repeated.

(b) Misconduct-----

--Connotation.

2006 M L D 1223

[Karachi]

Before Zia Perwaz and Rahmat Hussain Jafferi, JJ

RIAZ AHMAD---Appellant

Versus

THE STATE---Respondent

Spl. Anti-Terrorism Appeal No.46 of 2004 and Confirmation Case No.16 of 2004, decided on 16th May, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 396 & 34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(4)---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Appreciation of evidence---Sole witness in the case had improved his evidence from his earlier statement in which he did not name accused nor any role was assigned to him---Said witness was untrustworthy and improvements made by him in his earlier statement were unworthy of reliance and required to be taken out of consideration---If evidence of said prosecution witness was taken out of consideration, then nothing was left with prosecution to implicate accused---Oral evidence, in circumstances was insufficient to involve accused with commission of crime---Evidence of identification test, could be used as a corroboration to substantive piece of evidence---Substantive piece of evidence in shape of ocular testimony of prosecution witness, having already been discarded, no substantive piece of evidence was left in the case, to base conviction solely on corroborative piece of evidence---Identification test, carried no weight, in circumstances---Prosecution had not led any evidence to show that accused had produced golden chains, in question---Jeweller to whom accused had allegedly sold said golden chains had not supported prosecution case as he had categorically stated that accused did not bring chains before him---Prosecution had failed to prove case against accused beyond any reasonable doubt---Accused was acquitted extending him benefit of doubt and confirmation case was dismissed.

Saeed Muhammad Shah v. State 1993 SCMR 550 ref.

Ali Jailer for Appellant.

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

Date of hearing: 9th May, 2006.

2006 M L D 1277

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Faisal Arab, JJ

Haji KHAN MUHAMMAD alias DAKHAN---Appellant

Versus

GHULAM RASOOL and 3 others---Respondents

Criminal Acquittal Appeal .No. D-8 of 2005, decided on 24th May, 2006.

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

----S. 417(2-A)-Penal Code (XLV of 1860), Ss.302, 114 & 34---Appeal against acquittal---Only witness who was examined at trial, was not resident of the village where incident took place, but was resident of other village which was about 2/3 miles away from the place of incident---Prosecution had not brought home the guilt to accused up to hilt and sole ocular testimony of a chance witness, was not sufficient to award conviction and sentence for commission of murder---Complainant was not eye-witness of the incident---Impugned judgment of the Trial Court being not open to any exception acquittal of accused was upheld---Acquittal appeal being without substance, stood dismissed.

Muhammad Saleem GN Jessar for Appellant.

Muhammad Hashim Chandio for Respondents Nos. 1 to 3.

Muhammad Ismail Bhutto for the State.

Date of hearing: 24th May, 2006.

2006 M L D 1286

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

AZIZ AHMAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.82-S of 2006, decided on 29th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 337-A(I), 148 & 149---Bail, grant of---Further inquiry---Case was that of counter versions and no explanation was given for delay in lodging of F.I.R.---Matter of further inquiry as envisaged under S.497(2), Cr.P.C.---Despite lapse of two years, even charge had not been framed---Accused was entitled to be released on bail in circumstances.

Muhammad Saleem GN Jessar for Applicant.

M.I. Bhutto for the State.

2006 M L D 1301

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Faisal Arab, JJ

TALIB---Appellant

Versus

THE STATE---Respondent

Criminal Appeal D-7 of 2005 and C.Ms. Nos.80-7, 785 of 2006, decided on 2nd June, 2006.

Penal Code (XLV of 1860)---

--------S. 302(b)(c)---Appreciation of evidence---Sentence in reduction---Mitigating circumstances---Accused was 82 years old and except allegation of instigation no overt act had been attributed to him and contents of F.I.R. as well as eye-witnesses revealed that accused was empty-handed at the time of incident--By consent, conviction of accused was upheld, but same was converted from S.302(b), P.P.C. to S.302(c), P.P.C. and sentence of imprisonment was reduced to already undergone, and he was directed to be released accordingly.

Muhammad Saleem GN Jessar for Appellant.

Muhammad Ismail Bhutto for the State.

2006 M L D 1311

[Karachi]

Before Sabihudin Ahmed, CJ and Maqbool Baqar, J

ARSHAD ALI KHAN and another---Petitioners

Versus

RETURNING OFFICER and others---Respondents

C.P. No.D-1379 of 2002, decided on 26th May, 2005.

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

----Ss. 8, 9 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election of Nazim and Nail) Nazim---Consideration of the votes cast by non-Muslim---Election of respondents as Nazim and Naib Nazim had been called in question by petitioners in their constitutional petition on the ground that votes cast by non-Muslims were illegally taken into consideration---Contention of petitioners was that since respondents as well as petitioners happened to be Muslims, votes of non-Muslims minority could not be taken into consideration---Validity---No specific provision existed regarding electoral college for Nazim and Naib Nazim and such representatives were elected on the basis of adult franchise in terms of S.10(a) of Sindh Local Government Elections Ordinance, 2000---Exclusion of minorities from elections to the office of Nazim and Naib Nazim, merely because the candidates did not belong to their communities, would not amount to following the principle of separate electorate , but would entail their total disenfranchisement---Whole scheme of Sindh Local Government Ordinance, 2001 and the Sindh Local Government Elections Ordinance, 2000 had shown that minorities were entitled to participate in the process of participatory democracy at all levels.

Muhammad Afzal and another v. D.R.O. and another 2001 SCMR 1709 ref.

Muhammad Nawaz Shaikh for Petitioners.

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

Muhammad Shoaib for Respondents Nos.2 and 3.

Nemo for remaining Respondents.

Date of hearing: 26th May, 2005.

2006 M L D 1321

[Karachi]

Before Munib Ahmed Khan, J

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN---Petitioner

Versus

Messrs FRENCH FOOD PRODUCTS (PVT.) LTD.---Respondent

J.M. No.31 of 2005, decided on 26th January, 2006.

Civil Procedure Code (V of 1908)---

----Ss. 73, 151 & O. XXXIV, Rr.12, 13---Sale of property subject to prior mortgage---Application of proceeds---Prior mortgagee had precedence over subsequent mortgagee---Right of mortgagee for distribution of proceeds had clearly been given in Rules, 12 & 13 of O.XXXIV, C.P.C.---Obvious distinction existed between S.73, C.P.C. and O.XXXIV Rr.12 & 13, C.P.C. which could be noted very easily.

PLD 1973 Lah. 682; PLD 1970 Kar. 481; PLD 2005 Lah. 5 and IDBP v. Maida Limited 1994 SCMR 2248 ref.

Salman Hamid for Petitioner.

Masood Sheharyar for Respondent.

2006 M L D 1334

[Karachi]

Before Faisal Arab, J

TAJU---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.122 of 2006, decided on 21st April, 2006.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 114, & 34---Bail, grant of---Further inquiry---Case against accused was of ineffective firing which required further inquiry---Accused was enlarged on bail, in circumstances.

Nisar Ahmed G. Abro for Applicant.

Mushtaque Ahmed Abbasi, Asst. A.-G. for Respondent.

2006 M L D 1342

[Karachi]

Before Ghulam Nabi Soomro, J

BAHADUR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.S-540 and 541 of 2001, decided on 24th August, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---West Pakistan Arms Ordinance (XX of 1965), S.13---Surrender of Illicit Arms Act (XXI of 1991), S.7(c)---Bail, grant of---Was yet to be determined whether in circumstances and facts disclosed in F.I.R., offence would fall under West Pakistan Arms Ordinance, 1965 or under Surrender of Illicit Arms Act, 1991---Under Surrender of Illicit Arms Act, 1991, also maximum sentence for three years' R.I. was provided---Bail was granted to accused, in circumstances.

Nisar Ahmad Abro for Applicant.

Muhammad Ismail Bhutto for the State.

2006 M L D 1365

[Karachi]

Before Sabihuddin Ahmed and Ali Sain Dino Metlo, JJ

Sardar NOOR MUHAMMAD KHAN BIJARANI and another---Petitioners

Versus

FEDERAL LAND COMMISSION, ISLAMABAD---Respondent

C.Ps. Nos.D-1884 and 1885 of 2001, decided on 8th March, 2006.

Land Reforms Regulation, 1972 [M.L.R. 115]---

----Para.7(1)(b), Explanation-l---Constitution of Pakistan (1973), Art.199---Constitutional petition---Administration of justice---Transfer in favour of grandsons---Federal Land Commission declared transfer of land by way of gift, as void, which was made in favour of the petitioners as they were grandsons of the original owner and their father was also alive---Contention of petitioners was that Land Commission was not justified in holding grandsons as non-heirs---Validity---Such contention of petitioners was without any force---Neither according to the definition given in law i.e. para. 7(1)(b) of Land Reforms Regulation, 1972, nor under Islamic Law, petitioners could be treated as heirs, inasmuch as their father was alive---Donees who availed full opportunity of hearing before High Court had failed to make out any case in their favour; in such circumstances, remand of case to lower forum would not advance any cause of justice---Such remand would not serve any useful purpose and on the contrary would have the effect of only further prolonging the litigation which had already protracted unduly---Petition was dismissed in circumstances.

K.B. Bhutto for the Petitioners.

Nemo for Respondents.

Date of hearing: 2nd February, 2006.

2006 M L D 1380

[Karachi]

Before Rahmat Hussain Jafferi and Ali Sain Dino Metlo, JJ

MUHAMMAD FAISAL alias PEHALWAN---Appellant

Versus

THE STATE---Respondent

Special Anti-Terrorist Appeal No.16 of 2003, decided on 19th

November, 2005.

Penal Code (XLV of 1860)---

----S. 302---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Prosecution witness was neither residing nor working at the place of incident, but happened to pass from there while he was on his way to Mosque for offering Friday prayer---Said chance witness was also not an independent or straightforward person and was also a zealous witness---Evidence of such witness required scrutiny with more care and caution and it would be unsafe to rely upon testimony of such witness without independent corroboration, which was lacking in the case---Evidence of the witness, otherwise being intrinsically weak due to many inherent defects, did not inspire confidence---Except for own claim of said sole witness, his presence at the spot of incident was not supported by any other evidence---All such circumstances had created a serious doubt regarding his presence at the spot of incident---Even otherwise conduct of the witness being quite unnatural, had provided sufficient justification for doubting his very presence at the spot---Evidence regarding identification parade held before Magistrate was also not of much value as Magistrate had stated that witnesses, accused and dummies were produced before her together---Interpolation was also in the memo. of identification parade regarding removal of handcuffs and muffle of accused---Intrinsically weak and inherently defective ocular evidence of prosecution witness could not be improved by evidence of identification parade which too was not free from defects---Weak piece of evidence could not be improved by another weak piece of evidence---Evidence of complainant being hearsay, was inadmissible and same could not lend any support to evidence of prosecution witness---Evidence regarding pointation of place of incident by accused while in police custody, was also inadmissible as place of incident was known to every one---Prosecution having failed to prove charges against accused, his conviction and sentence, could not be sustained---Accused was acquitted in circumstances.

M.A. Kazi and Saleeha Naeem for Appellant.

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

Date of hearing: 8th November, 2005.

2006 M L D 1397

[Karachi]

Before Nadeem Azhar Siddiqui, J

Messrs CREATIVE INFORMATION SERVICES (PVT.) LTD. through Principal Officer---Plaintiff

Versus

KARACHI PORT TRUST through Chairman and another---Defendants

Suit No.345 of 2001 and C.M.A. No. 6031 of 2001, decided on 15th June, 2006.

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

---O.VII, R.11---Rejection of plaint---Cause of action---Determination---For determining cause of action, entire plaint has to be seen and contents thereof have to be taken at their face value to be true.

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

---Ss.80 & 82---Recovery of land revenue---Coercive action---Principles---Unless amount is determined, coercive action under West Pakistan Land Revenue Act, 1967, cannot be initiated.

(c) Karachi Port Trust Act (VI of 1886)---

----S. 87---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), O.VII, R.11---Words "purporting to have been done"---Applicability---Rejection of plaint---Barred by law---Statutory notice, non-issuance of---Plaintiff assailed notice of demand issued by Karachi Port Trust for recovery of its dues---Authorities sought rejection of plaint as no notice under S.87 of Karachi Port Trust Act, 1886, was issued by the plaintiff to the authorities---Validity---Plaintiff had cause of action to approach the Court for determination of dispute with regard to the period of rent and extension fee but since the act of Authorities in issuing notice of demand was covered by words "purporting to have been done" the suit was not maintainable without first serving notice under S.87 of Karachi Port Trust Act, 1886---Plaint was rejected in circumstances.

Haji Allah Baksh v. Abdul Rehman 1995 SCMR 459; Province of Punjab v. Muhammad Azam 1989 SCMR 1419; Ark Ocean Lines Ltd., Karachi v. Director Industries & mineral Development PLD 1976 Karachi 610 and Agricultural Development Bank v. Sanaullah Khan PLD 1988 SC 67 ref.

Messrs Muhammad Ismail & Co. Ltd. v. Karachi Port Trust, Karachi PLD 1978 Kar. 892; Messrs General Carriers Ltd., Karachi and others v. Karachi Port Trust PLD 1978 Karachi 1041; Samanthala Koli Reddi v. Pothuri Subbiah and other AIR 1918 Madras 62 and Province of W.P. v. Ghulam Qadir and others PLD 1963 Karachi 337 rel.

Kh. Shamsul Islam for Plaintiff.

Riaz Malik for Defendant No.1.

Defendants No.2 & 3 called absent.

2006 M L D 1413

[Karachi]

Before Nadeem Azhar Siddiqi, J

Malik NAZAR AHMED---Plaintiff

Versus

CITY DISTRICT GOVERNMENT, KARACHI through District Coordinator

Officer and others---Defendants

Suit No.319 of 1998, decided on 2nd June, 2006.

(a) Sindh Katchi Abadis Act (II of 1987)---

----S.19---Allotment of Katchi Abadi---Fraudulent allotment of amenity plot---Recovery of damages---Plaintiff was allotted a plot in Katchi Abadi and dues were deposited---After execution of lease agreement, plaintiff raised construction over the plot---Subsequently authorities demolished the construction and recovered the possession of the plot on the ground that the plot was reserved for public park and was fraudulently allotted to plaintiff as Katchi Abadi---Validity---Plot admittedly allotted to plaintiff was a part of park and park included play ground and gardens and could not be regularized under Sindh Katchi Abadis Act, 1987---Regularization of possession and execution of lease in respect of land, which was part of a park was illegal and did not confer any lawful title in favour of plaintiff---Plaintiff proved that amount was deposited with Authorities and was entitled to refund of the same but he was not entitled to recovery of damages and other charges as he himself was also responsible for the fraud and he having not acted prudently and without proper verification, became a party to the fraud---Plaintiff was also not entitled to claim other charges from authorities which he incurred on execution of lease---As the authorities did not cause any loss to plaintiff, therefore, the authorities were not liable to compensate him---All wrongful acts were committed by an official in the name of authorities and such official was liable to compensate the plaintiff---Court decreed the suit against the Authorities only to the extent of dues deposited by him and decree of damages was passed against the official who committed fraud in allotment of plot in favour of plaintiff---Suit was decreed accordingly.

(b) Evidence---

----Evidence not controverted during cross-examination and going unrebutted amounts to admission.

(c) Damages---

----Fraud---Act in personal capacity---Liability of. department---Scope---Official did not act legally on behalf of his department, therefore, any act of such official, which was fraudulent and unauthorized was not binding upon the department---Department was not liable for the acts / omissions committed by the official.

(d) Damages---

----Special and general damages---Determination---Principles---Failure to claim any special damages-Effect-No hard and fast rule and yardstick existed to calculate the toss sustained by plaintiff due to illegal acts of defendant and to assess or determine the compensation-- Principles laid down in various judgments with regard to award of damages is that compensation is to be awarded keeping in view that the same should not be exemplary or punitive in nature---Usually it is difficult to assess fair compensation and it is the discretion of Judge who may, on the basis of the facts of the case, determine the amount to be awarded to a person who suffered such damages---Another factor is that conscience of court must be satisfied that damages awarded would, if not completely, satisfactorily compensate the aggrieved party.

Muhammad Anwar Tariq for Plaintiff.

Qaiser Jamil for Defendant No.1.

Syed Muhammad Ali called absent for Defendant No.2.

Date of hearing: 29th March, 2006.

2006 M L D 1429

[Karachi]

Before Nadeem Azhar Siddiqi, J

Mst. SARA BAI and 7 others---Plaintiffs

Versus

IQBAL---Defendant

Suit No. 39 of 1996, decided on 15th June, 2006.

(a) Limitation Act (IX of 1908)---

---Art.120---Specific Relief Act (I of 1877), S.42---Declaration of title--Limitation---Suit for which no period of limitation is provided elsewhere in the Schedule can be 'filed under Art.120 of Limitation Act, 1908, within six years when the right to sue accrues---In a suit for declaration, accrual of right to sue depends upon the facts and circum­stances of each case and right to property is a subsisting right and the right to bring a declaratory suit is a continuing right---Suit for declaration not falling within the scope of any other specific Article of the Limitation Act, 1908 falls under Art.120 of the Act, 1908.

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

----S.42---Benami transaction---Proof---Production of original title document---Source of purchase, non-disclosing of---Plaintiff being father of defendant claimed to have purchased the suit properties in the name of defendant---Plaintiff pleaded in his plaint and produced evidence to the effect that the suit properties were acquired by him from his funds and also disclosed his other properties and income---Defendant failed to prove that at the time of purchase of the suit properties, he had sufficient funds to purchase the same---Plea raised by the defendant was that the original lease deeds were in his possession---Validity---Mere production of original lease deeds, in absence of proof of payment had no significance---No dispute existed to the effect that the properties were in possession of defendant but the claim of plaintiff that he had purchased the properties and put defendant in possession to do joint family business had gone unrebutted---Defendant failed to prove his exclusive possession of the suit properties---Plaintiff had also specifically pleaded the motive in his plaint and the same was also confirmed by his witness---Suit properties were purchased by the plaintiff in the name of defendant as Benamidar---Suit was decreed accordingly.

Faiz Muhammad v. Raman Ali 1991 Law Notes Kar. 645 and Muhammad Sajid Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 ref.

Mst. Khairun Nisa v. Muhammad lshaq PLD 1972 SC 25 distinguished.

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

----Arts. 72 & 74---Documentary evidence---Proof---Disputed document was exhibited under objection, as the original of the same was not produced---Party presenting the document did not file any application for recording secondary evidence---Effect---Such document could not be relied upon, particularly when its executant in his deposition had denied the execution of such document.

(d) Damages---

----Recovery of damages---Death of any one of the parties---Principle of personal action dies with the person'---Applicability---Suit for damages stands abated on the death of any one of the parties on the principle thatpersonal action dies with the person'.

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

----O.XXII, R.1---Term "right to sue"---Applicability---Death of a party---Abating of suit---Principle---Right to immovable properties cannot be equated with a right to claim damages---Suit based on right in immovable properties cannot be abated on the death of any one of the parties---Death of plaintiff or defendant does not cause the suit to abate, under O.XXII, R.1, C.P.C., if right to sue survives---Term "right to sue" refers to seek the same relief which the deceased party was asking at the time of his death---Legal representatives merely continue the suit and it is the original party's right that have to be considered and adjudicated.

Mercantile Co-operative Bank Ltd. v. Messrs Habib and Co. and Others PLD 1967 Karachi 755 and A. Majid Sama v. The Asbestos Cement Industries, Ltd. and another 1996 MLD 803 distinguished.

Imran Ahmed for Plaintiffs.

Muhammad Anwar Tariq for Defendant.

Dates of hearing: 28th & 30th March, 2006.

2006 M L D 1462

[Karachi]

Before Nadeem Azhar Siddiqi, J

Miss SADIA SUMBLE BUTT---Plaintiff

Versus

RAFIQ AFGHAN and 3 others---Defendants

Suit No. 1167 of 1999, decided on 2nd June, 2006.

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

----Art.19---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Freedom of press---Principles---Defamatory publication---Onus to prove---Mere words of journalist are not sufficient to establish that allegations are correct and published after investigation, in the interest of public---In spite of freedom of press guaranteed in Art. 19 of the Constitution, press is not free to publish a material without proper verification---While publishing any news item, it is not necessary for press to violate principles of decency and established norms of morality.

Syed Masroor Ehsan v. Cowasji and others PLD 1998 SC 823 rel.

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

----Art.14---Damages---Dignity of man---Defamatory publication in press---Plaintiff was aggrieved of a publication in press, wherein allegations of prostitution and drinking were levelled against her---Validity---News published in newspaper of defendant was not correct, it defamed, had lowered the position, honour and dignity of plaintiff and that false publication had caused mental torture and irreparable loss to her---Plaintiff was an unmarried girl and false allegations of prostitution and drinking liquor dissolved her engagement---Human dignity , honour and respect were more important than physical comforts and necessities---No attempt on the part of any one to detract, defame or disgrace another, thereby diminishing, decreasing or degrading the dignity, respect, reputation and value of life, more particularly on the part of journalist should be allowed to go with impunity---Defendants failed to prove that publication was correct and was published after due care in good faith in the interest of public---On the face of it, the publication was defamatory and it exposed the plaintiff to hatred, contempt, ridicule and tended to injure the plaintiff in her profession or trade---Suit was decreed in circumstances.

American Life Insurance v. M.S. Khawaja PLD 1990 (W.P.) Kar. 568 and Sufi M. Ishaque v. The Metropolitan Corporation Lahore PLD 1996 SC 737 rel.

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

----Arts. 133 & 31---Non-cross examination on material facts amounts to admission.

(d) Damages---

----Special and general damages---Determination---Principles---Plaintiff though not leading evidence of special damages was still entitled to general damages---No yardstick existed to assess actual wrong caused to plaintiff---No hard and fast rule available to grant general damages---Principles laid down in various judgments with regard to award of damages is that amount assessed must not appear to be punitive in nature or exemplary and while awarding damages, the conscience of Court must be satisfied that damages awarded would, if not completely, at least satisfactorily compensate the aggrieved party.

Ashfaq Hussain for Plaintiff.

Kh. Naveed Ahmed for Defendants, Date of hearing: 3rd March, 2006.

2006 M L D 1472

[Karachi]

Before Nadeem Azhar Siddiqui, J

NASEER---Applicant

Versus

THE STATE---Complainant

Criminal Bail Application No.232 of 2006, decided on 30th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 148, 149 & 114---Bail, grant of---Further inquiry---Allegation against accused was that he was armed with gun at the time of commission of offence---Accused though allegedly was armed with gun, but he had not caused any injury to the complainant---Presence of accused at the place of Wardat and his involvement in the commission of offence would be determined at the trial---Case, in circumstances required further inquiry for the purpose of determination of vicarious liability and sharing common object---Material available on record showed that no reasonable grounds existed for believing that accused was guilty of non-bailable offence---Accused was released on bail, in circumstances.

Jai Jai Veshnu Mange Ram for Applicant.

Muhammad Ismail Bhutto State Counsel.

Umed Ali Complainant present in person.

2006 M L D 1482

[Karachi]

Before Mrs. Yasmin Abbasey, J

MUHAMMAD KHALID HUSSAIN---Appellant

Versus

THE STATE---Respondent

M.A. No. 499-F of 2006 in Criminal Appeal No.210 of 2003, decided on 8th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.324 & 337-F(iii)---Application for suspension of sentence---Accused was convicted under S.337-F(iii), P.P.C. without framing of the charge---Accused had already served out sentence awarded to him under S.337-F(iii), P.P.C. and only question left was whether sentence awarded to accused under S.324, P.P.C., was warranted or not---Sentence awarded to accused was suspended and he was released on bail accordingly.

Syed Madad Ali Shah for Appellant.

Anwar Hussain Ansari for State.

2006 M L D 1529

[Karachi]

Before Muhammad Afzal Soomro and Amir Hani Muslim, JJ

THE STATE---Applicant

Versus

RASHID ALI---Respondent

Criminal Revision Application No.135 of 2005.

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

---- S.32---Criminal Procedure Code (V of 1898), Ss. 439 & 516-A---Custody and disposal of vehicle involved in the case pending trial---Petitioner had impugned order of the Trial Court passed on application under S.516-A, Cr.P.C. by which the car in question was restored to respondent---Respondent who was registered owner of the car and was doing the business of rent a car, had rented out said car to absconding accused---Photocopy of rent agreement entered into between respondent and absconding accused was also recovered during search of the car---Challan was submitted by the police in which respondent was not made accused---Respondent was not in the knowledge of any criminal activity of accused and in rent agreement arrived at between respondent and absconding accused that if the party in possession of the car was found in any illegal or criminal activity, respondent would not be responsible and said agreement was not disputed---Charge in the case had already been framed and sufficient material was available which prima facie had established that car in question was owned by respondent who was not in knowledge of fact that narcotic was being transported in it---No legal infirmity was found in the impugned order warranting interference of High Court.

Abdul Salam v. State 2003 SCMR 246 and Shareef Khan v. State 2004 PCr.LJ 2060 ref.

S. Mahmood Alam Rizvi, Standing Counsel for the State.

Muhammad Zafar for Respondent.

2006 M L D 1540

[Karachi]

Before Sabihuddin Ahmed C.J. and Maqbool Baqar, J

MUHAMMAD ASLAM BHATTI and others---Petitioners

Versus

KARACHI ELECTRIC SUPPLY CORPORATION and others---Respondents

C.P. No.D-349 of 2005.

Electricity Act (IX of 1910)---

----S. 24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Disconnection of electric supply due to default in payment of dues---Petitioners were aggrieved of such disconnection---Authority submitted copies of some documents containing list of seven meters in different names against which default in payment of dues had been effected---Petitioners had asserted that most of the petitioners had been paying all dues, disconnection of electric supply to such paying petitioners was unlawful---Validity---Prima facie electric supply could be disconnected only in respect of those meters whose consumers were actually found defaulters in the payment of their respective dues---Authority was directed to restore electric supply to such meters in respect whereof all upto dates dues had been cleared.

Ilyas Khan for Petitioners.

Dilawar Hussain for Respondents.

Asad Hussain Zuberi, Commercial Manager.

2006 M L D 1558

[Karachi]

Before Anwar Zaheer Jamali, J

Syed ARIF RAZA and others---Plaintiffs

Versus

Syed SABIR RAZA and others---Defendants

Suits Nos.704 and 1433 of 2000, decided on 29th August, 2005.

Civil Procedure Code (V of 1908)---

----O. XVIII, R.2---Deciding suit on merits without hearing arguments of counsel---Hearing of arguments was not enjoined on the Court and all that could be said on the language used in R.2 of O.XVIII, C.P.C., was that if parties or their counsel wanted to address arguments Trial Court had to give them an opportunity to do so; but hearing of arguments was not essential before disposing of the case--If the arguments were not heard before the judgment was passed, hearing would, for the purpose of O.XXII, R.6, C.P.C., be deemed to have concluded with the conclusion of evidence of the parties, but if arguments were heard, the stage at which hearing concluded, was the one when arguments concluded.

Allah Rakha v. Muhammad Yousuf PLD 1991 SC 601; Abdullah and another v. Mian Tafazzul Hussain and another PLD 1961 Bagdad-ul-Jadid 58 and Fazal Ahmed v. Abrar Hussain 1992 MLD 458 ref.

S. Ali Kausar Shah for Plaintiffs.

Talat A. Aslam for defendants Nos. 1 to 3.

Chowdhary Rafique, Addl. A.G. Sindh for defendants Nos. 5 and 6.

K.B. Bhutto, Advocate appointed in this case as Amicus Curiae.

2006 M L D 1657

[Karachi]

Before Nadeem Azhar Siddiqi, J

Mst. PERVEEN AKHTER----Plaintiff

Versus

CONSULATE-GENERAL OF U.S.A. AT KARACHI and others----Defendants

Civil Suit No.1154 of 2004.

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

----O. VII, R.11---Rejection of plaint---Principles for---Only contents of the plaint had to be seen and taken to be true; and that plaint could only be rejected on the basis of facts disclosed in the plaint.

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

----S. 1---Limitation Act (IX of 1908), S.19 & Art.22---Civil Procedure Code (V of 1908), O.VII, R.11---Fatal accident---Suit for recovery of damages---Limitation---Rejection of plaint---Article 22 of Limitation Act, 1908 had provided limitation of one year for filing suit for recovery of damages from the date when injury was caused to plaintiff---Injury to plaintiff in the present case was caused on 2-5-2003 and by letter dated 2-9-2003, defendant acknowledged accident by asking plaintiff to provide doctor's certificate and informing her that case was being processed by insurance company---Suit was filed on 14-9-2004, even after expiry of prescribed period of one year from date of acknowledgment---Plaintiff had totally failed to show that after 2-9-2003 there was any acknowledgment in writing---Article 22 of Limitation Act, 1908 providing period of one year being applicable in the case; plaint was rejected allowing application filed under O.XII, R.11, C.P.C.

M.G. Kadir & CO. v. Abdul Latif PLD 1970 Kar. 708; Jainarain v. Governor-General of India AIR (38) 1951 Cal. 462; Muhammad Saman v. Abdul Malik Khan PLD 1991 SC 524; Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153 ref.

Arshad Jamal Siddiqui for Plaintiff.

Mazhar Imtiaz Lari for Defendant No.3.

2006 M L D 1705

[Karachi]

Before Ghulam Rabbani, J

Syed ARSHAD ALI and others---Applicants

Versus

THE STATE---Respondent

Criminal Bail No.678 of 2005, decided on 13th February, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 498-A---Penal Code (XLV of 1860), Ss.339, 341 & 506---Ad interim pre-arrest bail, confirmation of---Section 339, P.P.C. applied in F.I.R. was not a punitive section while S.341, P.P.C. was bailable and S. 506-Part-II being not punishable for more than seven years, did not fall under prohibitory clause of S.497, Cr.P.C.---Good case to confirm interim order of pre-arrest bail granted to accused, having .been made out, interim bail granted to accused, was confirmed.

Raees Wazeer Ahmed v. The State 2004 SCMR 1167 ref.

M. Illyas Khan for Applicants.

Arshad H. Lodhi, A.A.-G.. Sindh.

Khawaja Naveed Ahmed for the Complainant.

Date of hearing: 13th February, 2006.

2006 M L D 1758

[Karachi]

Before Munib Ahmed Khan, J

IQBAL HUSSAIN---Appellant

Versus

QAIMKHANI WELFARE SOCIETY through President ---Respondent

Miscellaneous Civil Appeal No.1 of 2006, decided on 1st June, 2006.

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), S.104, O.VII, R.11 & O.XLIII, R.1(4)-Limitation Act (IX of 1908), S.15 & Art.142---Suit for possession and mesne profits---Limitation---Rejection of plaint---Appeal---Trial Court rejected plaint on ground of limitation, holding that suit, which according to Art.142 of Limitation Act, 1908 was to be filed within 12 years having been filed after more than 14 years, was time­-barred---Appellate Court below, set aside the order and remanded case---Appellate Court had observed that suit was within time as respondent could not file suit within time because in respect of suit property injunction order was operating in suit earlier filed by appellant---Appellant earlier initiated his action against respondent by filing suit in respect of suit property, but lost up to High Court, but during pendency appellant enjoyed injunction order---Respondent all along was contesting said suit, which had shown that respondent was aware of the facts but did not file his suit due to pendency of injunction as well as continuous contest in respect of same property between one and same parties---Though no bar existed in filing of suit as injunction did not bar legal action, but even then deletion of S.28 of Limitation Act, 1908 had shown that right of a person to property could not be extinguished on technical ground---Article 142 of Limitation Act, 1908 was not specifically applicable in the case of respondent as there was no juncture in calculation of time period as neither respondent was dispossessed nor he was ever in possession---Appellate Court below, in circumstances had passed a right order by remanding case for decision on merits in view of previous contest between same parties---Order in respect of grant of extension in time for filing court-fee or condoning delay was within the discretion of Appellate Court below, which had been exercised in favour of respondent---No illegality having been pointed out, in the impugned order, same could not be disturbed.

PLD 1991 SC 957;1985 SCMR 1003; PLD 1998 Pesh. 47 and PLD 1984 SC 289 ref.

Jhamat Jethanand for Appellant.

Hassan Mehmood Baig for Respondent.

Date of hearing: 16th May, 2006.

2006 M L D 1765

[Karachi]

Before Khilji Arif Hussain, J

NAZIR and others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos. 399, 404, 405 & 412 of 2006, decided on aid August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 409/34---Prevention of Corruption Act (II of 1947), S.5---Sindh Enquiries and Anti-Corruption Rules, 1993, R. 11(5)---Bail, grant of--F.I.R. showed that during period from 2003 to 2006 certain properties lying in Malkhana were misappropriated by accused; that it was yet to be decided whether police had rightly investigated the matters, particularly in view of R.11(5) of Sindh Enquiries and Anti-Corruption Rules, 1993; that whether accused in fact had been handed over the charge of Malkhana and that whether out of as many as 20 persons appointed for relevant period from 2003 to 2006, who had misappropriated properties from 'Malkhana---Accused were admitted to bail, in circumstances.

Hussain Haqani v. State 2000 PCr.LJ 161 and Bashir Ahmad v. State 2002 MLD 746 ref.

Aftab Ahmed Gorar for Applicants (in Criminal B.A. No. 399 of 2006).

Muhammad Ayaz Soomro for Applicant (in Criminal B.A. No.404 of 2006).

Safdar Ali Bhutto for Applicant (in Criminal B.A. No.405 of 2006).

Shah Muhammad Sanjrani for Applicant (in Criminal B.A. No.412 of 2006).

Muhammad Ismail Bhutto for the State.

2006 M L D 1798

[Karachi]

Before Muhammad Afzal Soomro, J

Mst. MARIUM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.894 of 2004, decided on 5h October, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Bail, grant of---Counsel for accused had contended that not only there was unexplained delay of about twenty days in lodging F.I.R., but prosecution had also failed to cite witness or eye-witness about alleged incident; that dispute existed between complainant and his alleged abducted wife who filed suit for dissolution of marriage against complainant and had also taken shelter/protection of Darul Amaan and that since accused was in association with the wife of complainant and sent complaints against him to Inspector-General of Police, complainant, in order to take revenge from her, had made a concocted story against accused and other co-accused---State Counsel did not oppose grant of bail to accused in view of position enumerated by counsel for accused---Accused having been able to make out a case for grant of bail she was admitted to bail, accordingly.

Razia Bibi and another v. The State 1987 PCr.LJ 537; Shahnaz Bibi v. The State 1997 MLD 1333; Abdul Rauf alias Rauf v. The State 1999 PCr.LJ 1109; Muhammad Ramzan v. the State 2002 SD 199; Muhammad Azhar Nadeem v. The State (2002) PCr.LJ 12 and Muhammad Asharf v. Munir Ahmed and others 2004 SCMR 893 ref.

Aamir Mansoob Qureshi for Applicant.

Sohail Jabbar for the State.

2006 M L D 1827

[Karachi]

Before S.A. Rabbani, J

KAMRAN AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.491 and M.A. No.925 of 2002, decided on 21st May, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Further inquiry---Prosecution was relying upon statements of two eye-witnesses recorded under S.164, Cr.P.C., but it was not mentioned in the F.I.R. that said witnesses were present at the scene of offence---Versions of said witnesses were yet to be subjected to cross-examination at the trial---Case being of further inquiry, accused was admitted to bail in circumstances.

Aamir Mansoob Qureshi for Applicant.

Fazal-ur-Rahman Awan for the State.

M. R. Syed for the Complainant.

2006 M L D 1835

[Karachi]

Before Muhammad Afzal Soomro, J

ABDUL KHALID---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.90 of 2005, decided on 16th February, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.395/34---Bail, grant of---F.I.R. in the case was lodged after delay of more than one year and five days without any explanation for said delay---Nothing was recovered from the possession of accused---No direct evidence was available in the case and entire case was based upon hearsay evidence---Accused having been able to make out a case for bail, same was granted to him accordingly.

Karim Haider and another v. The State 1986 SCMR 938 and Munir Ahmed v. The State 2003 PCr.LJ 758 ref.

Amir Mansoob Qureshi for Applicant.

Habib-ur-Rasheed for the State.

2006 M L D 1837

[Karachi]

Before Muhammad Moosa K. Leghari, J

MUZAFFAR ALI---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application 131 of 2003, decided on 23rd May, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 439 & 561-A---Penal Code (XLV of 1860), Ss.167, 220, 342, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance, (VI of 1979), S.17(3)---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Anti-Terrorism Act (XXVII of 1997), S.7---Inherent powers of High Court---Scope---Revision application challenging the legality of' order passed by Judicial Magistrate, whereby Magistrate had declined to accept report submitted by the police for disposal of case in B-Class and took cognizance against accused/applicant---Applicant also had prayed for quashing of' proceedings against him---Consequent upon registration of F.I.R. against applicant/ accused, investigation was conducted by the police---Investigating Agency formed the opinion that case against applicant was false and submitted report to Judicial Magistrate for disposal of the case in B-class, but Judicial Magistrate did not agree with police report and took cognizance against the applicant---State Counsel conceded that evidence collected against applicant during investigation was absolutely insufficient to warrant his conviction but raised objection to the maintainably of application, contending that applicant should first avail remedy under S.265-K, Cr.P.C. from the Trial Court---Validity---As a matter of propriety High Court would not ordinarily entertain revision application; when Sessions Court had jurisdiction to entertain the same, but High Court would do so in special cases---Once a revision application was admitted, High Court was neither denuded of the powers nor prevented from deciding same on merits---Objection raised with regard to maintainably of revision application being devoid of efficacy, was not sustainable and was repelled---No material was placed on file to establish prima facie case against applicant and order passed by Magistrate itself had adequately revealed that enough and sufficient evidence was badly lacking in the case to bring home the charges to applicant---Magistrate had acted in somewhat desperate manner while taking cognizance of the matter---Inherent powers of the High Court were unfettered to pass orders to achieve purpose of securing the ends of justice and to prevent the abuse of the process of Court---Present case was one in which inherent powers needed to be exercised---Revision application was allowed accordingly.

Abdullah Khan v. Emperor AIR 1932 Sindh 28; Krishna Chandra's case AIR (30) 1943 Patna 313; Karam Elahi Case 1975 PCr.LJ 902 and Muhammad Samiullah Khan and another v. The State PLD 1963 SC 237 ref.

A.Q. Halepota for Applicant.

Munir A. Khawaja for the State.

Date of hearing: 23rd May, 2006.

2006 M L D 1846

[Karachi]

Before Khilji Arif Hussain, J

ARBAB alias QASIM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 269 of 2006, decided on 26th July, 2006.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/34 & 114---Bail, grant of---Accused had sought hail on ground of hardship---Record showed that though on few occasions matter was adjourned on the request of accused, but at the same time request for adjournments were also made on behalf of complainant---Delay in conclusion of the trial, firstly was due to non-production of accused; secondly it was due to the request made by the complainant party for adjournment; and thirdly due to inaction on the part of the Trial Court in deciding the matter as on few occasions matter was adjourned as Judge was busy in election matters or was on leave---Accused could not be punished due to failure of prosecution in examining prosecution witnesses within reasonable time---Accused was granted bail as right.

Ghulam Abbas v. State PLD 2005 Kar. 255; Abdul Waheed v. State 2005 MLD 802; Muhammad Yousuf v. State 2004 PCr.LJ 505 and Abdul Hameed v. State 2003 MLD 19 ref.

(b) Administration of justice---

----Efficacious trial was the fundamental right of all citizens.

Muhammad Ayaz Soomro for Applicant.

Mushtaque Ahmed Korejo for the State.

2006 M L D 1856

[Karachi]

Before Nadeem Azhar Siddiqui, J

Haji ISMAIL and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-292 of 2006, decided on 11th July, 2006.

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

----S. 497(2)-Penal Code (XLV of 1860), Ss.353, 324, 224, 225-B & 337-A(i)---Bail, grant of---Further inquiry---F.I.R. showed that on the day of incident, accused persons had gone to the Court premises where they had met two persons who had escaped from the police custody; further allegation against accused persons was that they stood in front and grappled with the police party---No details had been provided against accused persons about the manner they had facilitated the said two persons in escaping from the police custody---In absence of any specific allegation with regard to the manner in which accused persons had facilitated the escape, their role in the commission of alleged offence, was to be decided at the trial stage---Accused persons had made out a case of further inquiry into their guilt and it could not be said that any reasonable ground existed to believe that they had committed an offence falling under prohibitory clause of S.497(1), Cr.P.C.---Accused were admitted to bail, in circumstances.

Muhammad Ayaz Soomro for Applicants.

M. Mushtaque Ahmed Kourejo for the State.

2006 M L D 1861

[Karachi]

Before Mrs. Qaisar Iqbal, J

KHAN alias ALI KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-486 of 2006, decided on 23rd August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-A(i), 337-L(ii), 337-F(i), 337-F(vi), 504, 147, 148 & 149---Bail, grant of---Incident had occurred on account of past enmity---Offence with which accused was charged, did not fall within the prohibitory clause contained in S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Khadim Hussain D. Solangi for Applicant.

Rasheed A. Qureshi, A.A.-G. for Respondent.

2006 M L D 1867

[Karachi]

Before Khilji Arif Hussain, J

MUHAMMAD ASLAM and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 268 of 2006, decided on 6th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 337-A(i), 337-F(i), 504, 114, 147, 148 & 149---Bail, grant of---No allegation had been levelled against two accused persons and allegation against the third accused was that he caused pistol blow to injured on his back which was not fatal according to medical report---Case was of counter version and both parties had registered case against each other---Accused persons having not caused any fatal injury to complainant party, they were admitted to bail, in circumstances.

Muhammad Ayaz Soomro for Applicants.

Muhammad Ismail Bhutto for the State.

2006 M L D 1869

[Karachi]

Before Nadeem Azhar Siddiqui, J

GAMOON alias GAMTHA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 181 of 2006, decided on 29th June, 2006.

Criminal Procedure Code (V of 1898)-

----S. 497(2)-Penal Code (XLV of 1860), S.458---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.9---Bail, grant of---Further inquiry--Complainant in F.I.R. had stated that when he woke up, he saw accused with gun, but in said F.I.R. no specific allegation had been made against accused that he had caused any aperture in the wall and had made preparation for causing hurt---Section 458, P.P.C., would only apply to the house breaker who actually had himself made preparation for causing hurt to any person or for assaulting any person or for wrongfully restraining any person and not to his companions who had not made such preparation---F.I.R., was not clear' as to whether accused and other accused persons entered the house of complainant or they entered into the courtyard wherein the buffaloes were tied---Accused was behind the bars since last more than one year, but no recovery had been made---Contention that at the best provision of S.318, P.P.C. would apply and the case did not fall within the prohibitory clause of S.497(1), Cr.P.C. would be considered at the trial---For want of recovery of any incriminating material from the possession of accused, his case fell within the purview of further inquiry---Accused was admitted to bail, in circumstances.

Ghulam Sikander v. Mamaraz Khan PLD 1985 SC 11; Mahmood Ahmed v. The State 1995 SCMR 127 and Dhano alias Dhani Bux v. The State 1984 PCr.LJ 16 ref.

Muhammad Ayaz Soomro for Applicant.

Muhammad Ismail Bhutto for the State.

2006 M L D 1874

[Karachi]

Before Munib Ahmed Khan, J

NAZEER AHMED alias MALANG through Legal Representatives-Appellants

Versus

MAQSOOD AHMED---Respondent

Second Appeal No.11 of 2005, decided on 25th May, 2006.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement---Plaintiff in the suit had stated that he purchased suit-land from defendant for consideration, paid certain amount towards earnest money and balance was to be paid at the time of execution of registered sale-deed on specified date---Defendant had failed to execute registered sale-deed in terms of sale agreement, plaintiff had filed suit---Defendant denied execution of agreement and alleged that sale agreement was forged and false and that he had neither received any amount of sale from plaintiff nor he had taken possession of suit-land---Validity---Slit decreed--Evidence produced by plaintiff in respect of sale agreement as well as possession was confidence reposing---Counsel for defendant had not succeeded in putting the -case within the purview of S.100, C.P.C.---Plaintiff had succeeded to establish that there was sale agreement, payment of earnest money made in pursuance to that agreement and that he was in possession of suit-land---Concurrent judgments and decrees of two Courts below, could not be interfered with in second appeal.

1999 CLC 1358; 2001 SCMR 1641 and 1986 SCMR 1814(b)(c) ref.

Jhamat Jethanand for Appellants.

Aijaz Ali Hakro for Respondent.

Date of hearing: 8th May, 2006.

2006 M L D 1880

[Karachi]

Before Sarmad Jalal Osmany and Zia Perwez, JJ

TASSADUQUE HUSSAIN alias SHAIKH and others---Appellants

Versus

THE STATE---Respondent

Special Anti-Terrorism Appeals Nos. 60 & 62 of 2003, decided on 26th June, 2006.

Penal Code (XLV of 1860)---

----Ss.302, 324 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Criminal Procedure Code (V of 1898), Ss. 342 & 364---Appreciation of evidence---Examination of accused--Failure to put question as to specific role' attributed to accused---Trial Court convicted and sentenced accused/appellants to death for an offence under S.302(b), P.P.C. read with S.7(a) Anti-Terrorism Act, 1997---Accused/appellants contended that in questions put to accused by Trial Court under S.342, Cr.P.C., no individual role had been assigned to each of the accused in commission of crime though the same had come out clearly in evidence recorded by Court; that consequently accused were unable to prepare their defence according to specific charges levelled against them---Validity---Purpose of recording the statement of accused under S.342, Cr.P.C. was to inform him of prosecution case .so that he be enabled to explain any circumstances appearing in evidence against him and prepare himself in his defence accordingly---Such statement was to be in form of questions and answers and was to be recorded per S.364, Cr.P.C., i.e. in English language and if accused did not understand English language then it was to be explained to him in language which he could understand---Statement, thereafter, was to be signed both by Judge and accused and a certificate was to be appended by the Judge that said statement contained full and true account of the same---Statements of accused/appellants under S.342, Cr.P.C. showed that each of the accused had been asked the same question to which they gave the same reply, though as per evidence brought on record the role of each accused played in commission of offence was distinct---Neither the statement nor the certificate was signed by the Judge---Accused had thus been prejudiced and they were not able to explain themselves in facts and circumstances of the case---Case was remanded.

Farid v. The State 1991 PCr.LJ 1415; Azima v. The State PLD 2001 Quetta 1; Allah Rakhio v. The State 2001 PCr.LJ 1959; Liaquat Ali v. The State 2002 PCr.LJ 230; Sajjad Hussain Bhatti v. The State 2001 PCr.LJ 1808 and Muhammad Kalam v. The State 1999 MLD 55 FSC rel.

Sarfaraz Khan Tanoli along with Tanveer-ul-Islam Tanoli for Appellant (in Cr. ATA 60/2003).

M.R. Sayed and Abdul Rasheed Nizamani along with Mr. Mushtaque Ahmed for Appellant (in Cr.ATA No. 62/2003).

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

Dates of hearing:13th, 15th, 19th and 21st June, 2006.

2006 M L D 1890

[Karachi]

Before Sarmad Jalal Osmany, J

Ch. ASAD BILAL and others---Applicants

Versus

MUHAMMAD HANIF and 19 others---Respondents

Civil Revisions Nos.108 to 111 of 2004, decided on 11th August, 2006.

Civil Procedure Code (V of 1908)---

----Ss. 12(2), 24, 151, 152 & 153---Setting aside of ex parte decree---Correction of omission/mistake in judgment and decree---Transfer of proceedings from one Court to another---Scope---Two civil suits were decreed ex parte against Defendants/petitioners---Defendants filed two sets of applications before Trial Court; first for setting aside of ex parte judgments/decrees under S.12(2), C.P.C.; and second for corrections in the said judgments and decrees passed by Trial Court under Ss.151, 152 & 153, C.P.C.---Defendants thereafter filed separate applications before District Court under S.24, C.P.C., for transfer of afore-said applications from Trial Court which had passed judgments and decrees to some other Court in the same District---District Court dismissed transfer applications on ground that only the Court which passed judgments and decrees had the power to set aside and amend/correct the same---Validity---Under S.152, C.P.C., clerical or arithmetical mistake in judgments, decrees or orders or errors occurring therein from accidental slip or omission Were to be corrected at any time by the Court either on its own motion or on application of any of the parties---Under S.24, C.P.C., District Court and High Court had powers to transfer any suit, appeal or other proceedings pending before it for trial or disposal to any other Court subordinate to it and competent to try and dispose of the same---Only the Court, which passed judgment and decree, was to set aside the same under S.12(2), C.P.C. and entertain any application under S.152, C.P.C., for making corrections of any arithmetical or grammatical mistake in such judgment and decree.

Faisalabad Development Authority v. Raja Jehangir Nasir 2004 SCMR 1247 and Abid Kamal v. Muddassar Mustafa 2000 SCMR 900 rel.

Mst. Nigar Bibi and others v. Salahuddin Khan and others PLD 1990 SC 76; Muhammad Azam and another v. Tariq Transport Company Ltd., through Managing Director, Jhelum and 2 others 2001 CLC 702; Messrs Crescent Glass Works v. Messrs Hashwani Sales and Services Ltd. 2003 YLR 35; Shujat Hussain v. Aslam Riaz Hussain 1994 MLD 2079; Jehana v. Mst. Parveen 1995 MLD 991; Mst. Ghulam Fatima v. Mst. Husna 2002 YLR 1651; Muhammad Hussain v. Ms. Razia Bibi 1999 MLD 3030; Noorul Ameen v. Muhammad Hashim 1992 SCMR 1744; Dilawar Shah v. Executing Court of VII Senior Civil and Family Judge, Karachi East PLD 1996 Kai. 174 and Mst. Riaz Fatima v. Ch. Ijaz Ahmed 1999 YLR 2681 ref.

Mst. Nigar Bibi and others v. Salahuddin Khan and others PLD 1990 SC 76, Muhammad Azam and another v. Tariq Transport Company Ltd., through Managing Director, Jhelum and 2 others 2001 CLC 702; Jehana v. Mst. Parveen 1995 MLD 991; Mst. Ghulam Fatima v. Mst. Husna 2002 YLR 1651; Muhammad Hussain v. Mst. Razia Bibi 1999 MLD 3030 and Noorul Ameen v. Muhamad Hashim 1992 SCMR 1744 distinguished.

Muhammad Imran Shamsi for Applicants.

Qalandar Bux Phulpoto for Respondents.

2006 M L D 1901

[Karachi]

Before Rahmat Hussain Jafferi and Muhammad Afzal Soomro, JJ

ATTA UL HAQ SIDDIQUI---Petitioner

Versus

THE STATE---Respondent

C.P. No.D-70 of 2006, decided on 17th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Sales Tax Act (VII of 1990), S.36(1)---Bail, grant of---Further inquiry---Apart from the statements of three witnesses, who had not supported the allegations made in F.I.R., no other evidence was collected by Investigating Officer to prove said allegations---Case against accused required further inquiry within the meaning of S.497(2), Cr.P.C.---Accused, in circumstances, was entitled to the concession of bail---High Court observed that Investigation in the case, involving crores of rupees, having not been conducted properly, concerned department should examine that question and take positive steps to improve the quality of investigation.

Sohail Muzzafar for Petitioner.

Mehmood Alam Rizvi, Standing Counsel for the State.

2006 M L D 1911

[Karachi]

Before Rahmat Hussain Jafferi, J

ABDUL SATTAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.S-73 of 1999, decided on 18th August, 2006.

Prevention of Corruption Act (II of 1947)---

----S.5(2)---Penal Code (XLV of 1860), S. 161--- Appreciation of evidence---Benefit of doubt---Nothing was on record to prove that any amount was paid to accused in presence of any witness, nor tainted money was recovered from his possession---Prosecution had relied upon the statement of complainant which was neither supported nor corroborated by any piece of evidence---Validity---Held, it was unsafe to rely upon such evidence---Evidence of Magistrate and Police Officer who conducted raid, had shown that a raiding party was formed, but raiding party did not secure the tainted money from the possession of accused---Presence of prosecution witness along with the raiding party, had also not been established beyond any reasonable' doubt---In view of said defects in the prosecution case, Assistant Advocate General, had not supported impugned judgment---Prosecution case being highly doubtful against accused, he was entitled to benefit of doubt, which was given to him.

S. Mushtaque Hussain Shah for Appellant.

Muhammad Mahmood S. Khan Yousfi, Assist. A.G. for the State.

Date of hearing: 18th August, 2006.

2006 M L D 1918

[Karachi]

Before Rahmat Hussain Jafferi, J

DILBER ALI---Applicant

Versus

THE STATE and another---Respondents

Criminal Transfer Application No.13 of 2006, decided on 7th August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 526---Penal Code (XLV of 1860), S.302---Transfer of case---Applicant/complainant had sought transfer of case to any other Court on the ground that accused's brother was expressing publicly that accused would be acquitted by the trial Judge---Validity---Ground taken by applicant for transfer of case was vague as neither the Court nor any body could restrict any party from expressing any thing---If such expression would amount to hampering the Court proceedings or casting shadow upon the impartiality of the Judge or disreputing the Judge, then the party had right to move the concerned Court for initiating contempt proceedings against such person; thereafter the points could be properly threshed out to determine whether or not the said person had uttered such words---If the brother of accused had expressed the words as stated by applicant in his application, then they must have been heard by several persons---Applicant could have produced said witnesses to substantiate his allegation, but applicant had not filed any affidavit of any such person in support of his allegation---No cogent ground having been shown for transferring the case, application for transfer of case, was dismissed.

Shafique Ahmed v. State-PLD 2006 Kar. 377 ref.

Ghulam Mustafa, Sahto for Applicant.

Habibur Rehman Shaikh, A.A.-G. for the State.

Nemo for Respondent No.2.

2006 M L D 1922

[Karachi]

Before Rahmat Hussain Jafferi, J

GHULAM NABI and another---Applicants

Versus

CHAIRMAN, SINDH SMALL INDUSTRIES and 3 others---Respondents

Civil Revision Application No.14 of 2003, decided on 3rd February, 2005.

Specific Relief Act (I of 1877)---

----Ss. 39 & 42---Suit for declaration and cancellation of letter---Plaintiffs had paid entire amount of plots allotted to them at the rate of Rs.51 per square foot, but authorities who allotted the plots issued letter to plaintiffs demanding enhanced rate from Rs.51 to Rs.102 per square foot on the ground that Government had enhanced the rates---Suit for declaration and cancellation of said letter, filed by plaintiffs having been concurrently dismissed by Courts below, plaintiffs had challenged said letter---Plea of defendant was that Board of Directors of the Authority in its meeting had enhanced rate, .but minutes of said meeting of the Board of Directors had not been produced by defendants to substantiate plea taken by them---No notification or any other document issued by Government had been produced by defendants to show that at any point of time Government had enhanced the rate from Rs.51 to Rs.102 per square foot---Plaintiffs, in circumstances were entitled to relief claimed by them in their plaint---Both Courts below had misread evidence and did not take evidence available on record in its true perspective and arrived at wrong conclusion---Impugned judgments and decrees of both the Courts which suffered from material illegality and irregularity, were set aside and suit filed by plaintiffs was decreed as prayed for.

Muhammad Khaliq v. Abdullah Khan PLJ 1987, AJK 78; Muhammad Yousuf v. Munawar Hussain 2000 SCMR 204; Fakir Abdullah v. Government of Sindh PLD 2001 SC 131 and Miss Roohi Shaikh v. Board of Secondary Education 1996 MLD 1990 ref.

Muhammad Anwar Channa for Applicants.

Khalid Hussain Shahani for Respondents.

Date of hearing: 3rd February, 2005.

2006 M L D 1930

[Karachi]

Before Muhammad Afzal Soomro, J

IQBAL AHMED and others--Applicants

Versus

THE STATE---Complainant

Criminal Bail Application Nos. S-651 and 832 of 2005, decided on 4th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302(b)---Bail, grant of---Record had revealed that both accused persons though were named in F.I.R. with specific role of firing at the deceased, but injuries attributed to accused were on non-vital part of the body---Post-mortem notes would reveal that two injuries attributed to accused were the result of one shot---Said injuries were simple in nature which would not attract prohibitory clause of S.497, Cr.P.C.---Empty was admitted in the F.I.R.---Accused having not been alleged to have caused fatal injuries to the deceased, they had been able to make out a case for bail---Accused were admitted to bail, in circumstances.

Nisar Ahmed G. Abro for Applicant (in Crl. Bail Application No. 651 of 2005).

Aziz Ullah Solangi for Applicant (in Crl. Bail Application No.832 of 2005).

Ali Nawaz Ghanghro for the Complainant.

Muhammad Ismail Bhutto for the State.

2006 M L D 1939

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

HABIB---Petitioner

Versus

MUZAFFAR KALWAR and others---Respondents

Constitution Petition No.147 of 2006, decided on 16th May, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Allegation of maltreatment of police---Petitioners were arrested and released about one month ago---Matter being too serious and requiring a thorough inquiry, constitutional petitions were disposed of by the High Court in the terms that complete sets of memo of petitioners and annexures along with the report submitted by the D.P.O. including annexures be sent to the Provincial Police Chief with directions to get an inquiry conducted from an officer not below the rank of D.I.G., who should specifically consider the allegations raised by the petitioners in their petitions and should make inquiry as to how Troth accused required in two F.I.R.s alleged to have committed heinous offences were arrested and released.

Faiz Muhammad Larik for Petitioner.

Habib Solangi for Petitioner (in C.P. No. 147/2006 is absent).

Arbi Malak for Petitioners (in C.P. No. 149/2006 is present).

Muhammad Bachal Tunio, Addl: A.-G. along with D.P.O. Kashmore at Kandhkot and T.P.O. Iqbal Ahmed Qureshi.

2006 M L D 1948

[Karachi]

Before Munib Ahmed Khan, J

Messrs FINE COTTON TEXTILES---Plaintiff

Versus

KHALID IBN AL WALEED and others---Defendants

Admiralty Suit No. 9 of 2000, decided on 13th March, 2006.

(a) Admiralty Jurisdiction of High Court Ordinance (XLII of 1980)---

----S. 3(2)(h)---Admiralty suit---Maintainability---Matter in dispute pertained to agreement relating to carriage of goods in a ship---Held, by virtue of provisions of S.3(2)(h) of Admiralty Jurisdiction of High Court Ordinance, 1980, which was very wide clause bringing all matters related to shipment, carriage by sea, within its folds, suit fell within Admiralty Jurisdiction, and was thus maintainable.

(b) Admiralty Jurisdiction of High Court Ordinance (XLII of 1980)---

----Ss. 3(2)(h) & 4(4)---Admiralty suit---Abandomnent of consigned goods---Consignee of goods had backed out from the contract with plaintiff---When consignment landed at the place (Alexandria) where it was shipped, there was no communication from the consignee---Consignment in such circumstances remained unattended and almost abandoned---No liability was on defendants, in circumstances as consignee had backed out of the contract.

(c) Admiralty Jurisdiction of High Court Ordinance (XLII of 1980)---

----Ss. 3(2) & 4(4)---Admiralty suit---Demurrage/storage charges---Claim for---Consignee with whom contract was made by plaintiff, having backed out, consignment remained unattended at place of destiny as consignee did not receive it---Shifting of consignment from its original place of destiny to an other was basically due to fault of plaintiff as its buyer/consignee backed out---Claim of demurrage/storage charges, did not give cause of action to plaintiff---On account of dual stand of defendants regarding their defence that there was no buyer and that the consignment was shifted erroneously, they were not entitled to claim demurrage/storage charges---Plaintiff having not suffered any loss due to the fault of defendants, it was not entitled to any relief.

Mazher Imtaiz Lari for Plaintiff.

Mansoor A. Shaikh for Defendants.

2006 M L D 1958

[Karachi]

Before Mushir Alam, J

DARYA KHAN and others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.762 of 2005, decided on 17th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 337-H(ii), 504; 148 & 149---Pre-arrest bail---Confirmation of---Deceased had died of straight fire by co-accused while ,accused/applicant was alleged to have fired aerial fire---State counsel had conceded that only one empty each was recovered from the two places of occurrence---Pre-arrest bail granted to accused was confirmed.

Ghulam Qadir Jatoi for Applicants.

Munir Khawaja, State Counsel.

2006 M L D 1961

[Karachi]

Before Azizullah M. Memon and S. Sajjad Ali Shah, JJ

IMTIAZ ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.473 of 2006, decided on 12th August, 2006.

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

----S. 497---Bail, grant of---Principles---Wherever an accused was able to show the cogent reason to indicate possibility of his false involvement in the case, it could be considered to be a good case for grant of bail---Police Officers were as good witnesses as anybody else could be at bail stage of the Case.

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

----S.156---Re-investigation---Investigating agency though competent to enter into re-investigation of any incident, but the Court of law was not to act as ipsi dixit of police and that subsequent report would always be subject to record of evidence in the case.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9---Bail, grant of---Contents of F.I.R. and mashirnaina of recovery and arrest, clearly mentioned that 20 K.Gs. of Charas were allegedly recovered from the possession of accused in the shape of "Patties/Plates", but the number of said Patties/Plates, was not mentioned either in the F.I.R. or in the mashirnama---F.I.R. and mashirnama stated that quantity of 250 grams Charas was taken out of entire recovered material for the purpose of chemical analysis, but without making any mention as to whether same was taken out separately from each of the Patties/Plates, or only from one of them; there was no mention whether or not the sample was taken out from the Patties separately; and if taken out separately it was not mentioned that same was ever sealed separately by the recovery officer---Accused was admitted to bail, in circumstances.

PLD 2004 SC 856 ref.

Muhammad Ayaz Smooro for Applicant.

Mushtaq Ahmed Abbasi, A.A.-G.

2006 M L D 1965

[Karachi]

Before Qaiser Iqbal, J

Messrs NATIONAL INSURANCE CORPORATION---Plaintiffs

Versus

TRUSTEES OF THE PORT OF KARACHI---Defendants

Suit No.571 of 1987, decided on 3rd August, 2006.

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

----O. VII, R.1(e)---Cause of action---Cause of action to file a suit was a question of fact, which could be adjudicated or determined on facts of each case.

Haji Adam v. Levant Line and 2 others PLD 1959 Karachi, 369 ref.

(b) Karachi Port Trust Act (VI of 1986)---

----S. 87---Suit for recovery of amount---Limitation---Starting point---Dispute between parties commenced when consignment was short delivered by Port Trust to clearing agent of importer on 23-10-1986---Subsequently after taking the delivery of the consignment vide letter dated 10-11-1986, Deputy, Conservation of the Port Trust informed about five missing packages, whereas Port Trust (defendants) had informed on 9-12-1986 that entire consignment was delivered to the clearing agent under receipt, which amounted to a refusal by the Port Trust---Starting point of limitation, in circumstances, was 9-12-1986, which was the date of refusal by the Trust---Suit was required to be filed within six months from said date i.e. 9-6-1987, but as High Court was closed for summer vacation from 6-6-1987 to 3-8-1987, suit filed on 3-8-1987, was within time.

1987 CLC 961 ref.

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

----O.I. R. 9----Karachi Port Trust Act (VI of 1986), S. 87---Suit for recovery of amount for short delivery---Misjoinder or non-joinder of parties---Effect---Counsel for defendant had contended that suit was not maintainable for non-impleading the necessary parties, including importers and clearing agent---Contention was repelled as O.I, R.9, C.P.C. had provided that no suit would be defeated for reason of misjoinder or non-joinder of the parties and the Court could deal in suit with the matter in controversy, so far as it would guard rights and interest of the parties actually before it and would dispose of suit, provided, it effectually resolved controversy in suit---Non-joinder of the importers and clearing agents, was not fatal as plaintiffs being insurance company stood subrogated by virtue of letter of subrogation---Suit could not be defeated for non-joinder of parties as their absence was not per se fatal to the case.

(d) Limitation Act (IX of 1908)---

----Art. 31---Karachi Port Trust Act (VI of 1986), S. 87---Suit for recovery of amount of short delivery---Limitation---Limitation would commence with an existing cause of action and unless the cause of action for the suit had arisen, limitation for same could not begin to run---Period of limitation prescribed by Art.31 of Limitation Act, 1908 for filing suit under said Article, was one year which would commence, from the date when the goods ought to have been delivered.

National Insurance Corporation v. PNSC 1985 CLC 360 and Abdul Jalil Chowdhury v. The Muhammdi Steamship Co. Ltd. and others PLD 1961 SC 340 ref.

Mazhar Lari for Plaintiffs.

Salman Hamid for Defendants.

Date of hearing: 21st February, 2006.

2006 M L D 1988

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

Mst. NASREEN BEGUM---Petitioner

Versus

A---Respondent

Miscellaneous Application No.58 of 2004, decided on 19th December, 2005.

Succession Act (XXXIX of 1925)---

---Ss. 278 & 286---Application for grant of Letters of Administration in respect of properties of deceased---Deceased who died intestate left some movable and immovable properties and due and diligent search was made to trace out 'will', but no document in that respect was found---Applicant being one of the daughters of the deceased filed application for grant of Letters of Administration in respect of properties left by deceased---Other legal heirs of deceased who were sons and daughters of deceased by filing their affidavits supported application filed by applicant, but next kin in his affidavit had claimed that deceased had left a 'will' duly executed in the presence of two witnesses in respect of his immovable property and; that according to contents of said will, his immovable property was to be distributed among the sons of deceased only; and that daughters of deceased were specifically excluded from inheriting any share in said immovable property of deceased---Alleged will or wasiatnama was never disclosed at any time after death of deceased and it appeared to be manufactured as there were certain interpolations in the original will or wasiatnama and the name of objector was interpolated---Under Islamic Law, bequeath to an heir was not valid without the consent of other heirs and such consent could be inferred from their conduct---Applicant and other legal heirs of deceased, except said next of kin, had filed their affidavits in support of application and they had not stated that any will was made by deceased excluding the shares of two daughters of deceased including applicant---Applicant was not a signatory to alleged will nor other legal heirs of deceased had accepted the same, but instead they had raised serious objections regarding manufacturing of said will---Application was allowed as prayed for, in circumstances.

Muhammad Atta Hussain v. Hussain Ali Khan AIR (13) 1944 Oudh 139; Haji Murad and others v. Abdul Ghafoor 1987 CLC 7; S. Iqbal and others v. Akhtari Begum 1986 MLD 1829; Attaur Rehman v. Aisha Jabeen 1986 MLD 858; A.E. Salayji v. Fatima Bibi AIR 22 PC 391; Liaquat Ali v. Hayat Bibi 2002 CLC 208; Muhammad Aslam Rashid and others v. Muhammad Anwar Saeed and others 1997 CLC 2012 and Chief Administrator Aukaf West Pakistan v. Khan Muhammad Sher Nawab Khan PLD 1967 Lah. 672 ref.

Shahanshah Hussain for Petitioner.

Arif Khan, for next of kins except No.4.

Muhammad Zia Kiyani, for next of kin No.4/objector.

2006 M L D 1

[Lahore]

Before Syed Zahid Hussain and Syed Sakhi Hussain Bukhari, JJ

DISTRICT COORDINATION OFFICER PAKPATTAN and 2 others---Petitioners

Versus

SAFDAR ALI and another---Respondents

R.A. No.75 of 2005 in I.C.A. No.54 of 2004, in W.P. No.4019 of 2003, decided on 14th October, 2005.

Civil Procedure Code (V of 1908)---

----S.114 & O.XLVII, R.1---Law Reforms Ordinance, (XII of 1972), S.3---Review of judgment passed in Intra-Court. Appeal---Maintainability---Requirement of issuance of notice to respondent while dismissing appeal in limine---"Aggrieved person" under S.114 and O.XLVII, R.I C.P.C.---Contention of the, applicant was that although he had not assailed the judgment of the Single Judge of the High Court yet in Intra-Court Appeal, which was filed by someone else, he was one of the respondents and should have been issued notice or heard before dismissing the said appeal---Validity---No known principle of law was there whereunder while dismissing an appeal in limine the respondent was required to be issued notice or heard----Where respondent had not assailed the judgment rendered by the Single Judge under constitutional jurisdiction, he could neither object to the dismissal of Intra-Court Appeal nor could be regarded as an " aggrieved person" as contemplated by S.114 and O.XLVII, R.1, C.P.C. to maintain review petition---By virtue of the judgment of the Single Judge a determination of the controversy and lis was made which, on account of non-filing of appeal by the applicant became conclusive and final---Principle of estoppel by judgment or res judicata---Applicability ---Distinction between judgment in rem and judgment in personam---If a person was a party then the judgment of the competent Court as a plea was a bar or as an evidence conclusive between the same parties upon the same matter directly in question in another Court or in another action between the same parties in the same Court under the principle of estoppel by judgment or res-judicata---Non-appealing party to the litigation was bound by the determination made by the Court---Judgment of the Single Judge in the present case was not assailed by the applicant, the same attained finality and so the applicant was barred to challenge the same or to object the dismissal of Intra-Court appeal filed by someone else---Petition was dismissed in circumstances.

Pir Bakhsh represented by his legal heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145 ref.

Muhammad Yaseen Chughtai for Petitioners.

Ch. Aamer Rehman, Additional Advocate-General, Punjab for Respondents.

2006 M L D 3

[Lahore]

Before Maulvi Anwarul Haq, J

JAVED TARIQ --- Petitioner

Versus

DISTRICT RETURNING OFFICER, DISTRICT VEHARI and 5 others---Respondents

W.P. No.4694 of 2005, heard on 22nd September, 2005.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----S. 152(1)(j)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Qualification of candidates---Bank default---Contention of respondent was that the loan had been taken by his deceased father, and responsibility had devolved upon him and as such it could not be said that default was attributed to his person---Validity--According to law after death of respondent's father the responsibility to pay outstanding dues lay upon respondent as his legal heir therefore in absence of any denial or explanation being offered for non-payment of Bank dues, despite adjudication of Court of competent jurisdiction and direction to respondent to pay the same, respondent, by all means, was not qualified to contest the election in view of the provisions of S. 152(1)(j) of Punjab Local Government Ordinance, 2001 and his nomination papers could not have been accepted---Order passed by District Returning Officer was declared to be without lawful authority and was set aside while that of Returning Officer was restored---Constitutional petition was allowed in circumstances.

Muhammad Khalid Waseem and another v. Mansoor Akbar Kokab, District Judge/Election Tribunal, Narowal/Sialkot and 8 others 2002 YLR 2232 and Syed Riaz Hussain Gillani v. R.O. Halqa No.85, Union Counsel Lar, Tehsil and District Multan and 3 others 2001 YLR 971 ref.

(b) Punjab Local Government Elections Rules, 2000---

----R. 70---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Qualification of candidates---Bank default---Contention of respondent was that Constitutional petition was not competent for the reason that during its pendency election had taken place and he had been declared successful and matter thus should be taken to the competent Election Tribunal ---Validity -- Present Constitutional petition was filed in continuation of the scrutiny proceedings and had not been filed to question the result of election, therefore Rule 70 of Punjab Local Government Elections Rules, 2000 would not be applicable to the case---Constitutional petition held, was maintainable.

Ch. Nazir Ahmad and others v. Chief Election Commissioner and others PLD 2002 SC 184 distinguished.

Mian Arshad Latif and M. Arif Alvi for Petitioner.

M.R. Khalid Malik, A.A.-G. for Respondents Nos.1 and 2.

Abdul Sattar Goraya and Rana Mansoor for Respondents Nos.3 and 4.

Akbar Ali Awan for Respondent No.6.

Dates of hearing: 9th and 22nd September, 2005.

2006 M L D 8

[Lahore]

Before M. Bilal Khan, J

RUKHSANA YASMEEN CHAUDHRY---Petitioner

Versus

GOVERNMENT OF PUNJAB through Addl. Chief Secretary and 2 others---Respondents

Writ Petition 13363 of 2005, decided on 13th October, 2005.

Constitution of Pakistan (1973)-

----Arts. 190 & 199---Constitutional petition---Government accommodation---Vested right---Deduction of house rent from salary---Judgment passed by Supreme Court---Disputed Government accommodation was allotted to husband of petitioner and before retirement of her husband, petitioner sought allotment of the house in her name but authorities allotted the house to some other official and the matter was finalized by Supreme Court---Plea raised by petitioner was that as house rent was also being deducted from her salary, therefore, the accommodation would be allotted to her---Validity---House rent of both the spouses was deducted wherever any one of them was allotted a Government accommodation and mere fact of deduction did not confer any special privilege---Continuation of any injunctive order in favour of petitioner would amount to create hurdles in the way of the order passed by Supreme Court---Order of Supreme Court could be facilitated only if the premises in possession of petitioner were vacated and were handed over to its allottee---All executive and judicial authorities throughout Pakistan, under the provisions of Art. 190 of the Constitution, were to act in aid of Supreme Court---Petitioner was benefited from the extension orders passed in her favour by Chief Minister, therefore, it was too late for her to turn around and start finding faults with the order---Equitable consideration were not in favour of petitioner---Petition was dismissed in limine.

Sh. Shahid Waheed for Petitioner.

Ch. Aamir Rehman, Addl. A.-G. assisted by Tanvir Ahmad Shami with Khalid Mahmood Sindhu, Section Officer and Mian Aftab Ahmad, Record Clerk, Estate Office.

Mian Sarfraz-ul-Hasan for Applicant in (C.M. No.3731 of 2005).

2006 M L D 17

[Lahore]

Before Maulvi Anwarul Haq, J

Rana MUHAMMAD GULZAR and another---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD through Secretary and 5 others---Respondents

W.P. No.5288 of 2005, heard on 8th September, 2005.

Punjab Local Government Elections Rules, 2000---

-----R. 39---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election of Nazim and Naib Nazim---Recounting of votes---Result prepared by Returning Officer showed that petitioners polled 2821 votes and respondents polled 2762 votes---High Court vide its judgment passed in constitutional petition, directed Returning Officer to examine rejected votes in the case---While rejected votes were being examined according to direction of High Court, Returning Officer received a FAX message under signature of section officer of Election Commission of Pakistan directing Returning Officer to recount all votes for seats bf Nazim and Naib Nazim---Said recount order was withdrawn by orders of Chief Election Commissioner vide Notification and aggrieved parties were directed to approach competent Election Tribunal---Said FAX message did not disclose any reason or ground as to why a recount had been ordered---Opposing party also could not explain as to why recount was ordered---Said recounting orders were passed without even notice to petitioners much less hearing them---Returning Officer proceeded to reject as invalid 133 votes cast in favour of petitioners---Respondents if aggrieved, could file Election Petition before a competent Election Tribunal constituted by Chief Election Commissioner.

Pakistan International Airlines Corporation through Chairman v. Inayat Rasul 2003 SCMR 1128; Messrs Ahmad Clinic v. Government of Sindh 2003 CLC 1196; Mir Ghulam Abid Khan v. Pakistan through Secretary and another 2000 CLC 443 and Mushtaq Ahmad v. Atta Muhammad and others 2002 CLC 409 ref.

Rana M. Asif Saeed Khan for Petitioners.

M.R. Khalid Malik, A.A.-G.

Javed Iqbal Hashmi for Respondents Nos.4 and 5.

Date of hearing: 8th September, 2005.

2006 M L D 25

[Lahore]

Before Ijaz Ahmad Chaudhry and Fazal-e-Miran Chauhan, JJ

MARIA SAEED---Appellant

Versus

VICE-CHANCELLOR, UNIVERSITY OF HEALTH SCIENCE, LAHORE (CAMP AT SHAIKH ZAYED HOSPITAL, LAHORE) and 3 others---Respondents

I.C.A. No.87 of 2005 in W.P. No.840 of 2005, decided on 19th July, 2005.

(a) Educational institution---

----First Professional (Part-I) M.B.B.S. Examination---Regulation of University provided three chances to clear examination---Petitioner availed one regular chance in May, 2004 and her second chance was due in November, 2004 and third chance in May, 2005, but she was asked to appear in special supplementary examination to be held in September 2004, which she failed to clear---Petitioner then availed her regular second chance in November, 2004, which was considered by University her third regular chance---Petitioner claimed her third regular chance to take examination in March, 2005 but same was not allowed to her on the ground of her having already availed three chances---Petitioner's plea was that she was not eligible to appear in special supplementary examination held in September, 2004 under directions of High Court for students, who had earlier filed constitutional petitions, to which she was not party---Validity---Petitioner had not applied to University to avail such special examination---Undertaking of petitioner to count such special chance towards total regular chances permissible under the rules of University was not of her free will---Syndicate of University, on its own, after framing policy to provide third chance to students of all professions as a general policy, had asked all students to appear in examination to be held in September, 2004 irrespective of the fact whether they fell in same category of students, who were given one additional chance as third chance as per order of High Court---Petitioner was not obliged to appear in examination held in September, 2004 as she did not fall within category of those students for whom such special examination was going to be held---Decision of Syndicate to hold such special examination was in violation of its regulation providing that there should be only two professional examinations in a year---Petitioner was obliged to appear in two examinations in a year, but she had been made to appear in three examinations in a year in violation of the rules and regulations of University---Petitioner, as per doctrine of expectation, being supposed to appear in November, 2004 was given to understand that six months' period would be available to her between two examinations, but she was forced to take examination in September, 2005, by making a general policy---Petitioner in view of principle of locus poenitentiae could not be deprived of her right to avail chance available to her in May, 2005---Held: Petitioner was, entitled to appear in her -final chance in May, 2005 or final examination to be held by University.

(b) Interpretation of statutes---

----Two interpretations of any Ordinance, Rules or Regulation possible---Effect---Interpretation going in favour of the subject would be applied and not the one in favour of the authority.

Dr. Danishwar Malik for Appellant.

Asif Ismail for Respondents.

2006 M L D 30

[Lahore]

Before Muhammad Akhtar Shabbir, J

Mrs. FREEHA BAQIR---Petitioner

Versus

DIRECTOR-GENVRAL, LAHORE DEVELOPMENT AUTHORITY, LAHORE and 3 others---Respondents

W.P. No.8380 of 2003, decided on 14th July, 2004.

Lahore Development Authority Act (XXX of 1975)-

----Ss.33, 34 & 38---Lahore Development Authority Building Regulations, 1984---Use of residential premises for non-residential purpose---Scope---Valid permission accorded by Lahore Development Authority for such use would be necessary.

M.S. Baqir for Petitioner.

M. Zafar Iqbal for other Respondents.

Muzaffar Iqbal Chaudhry for Respondent No.3.

2006 M L D 40

[Lahore]

Before Ijaz Ahmad Chaudhry, J

REHMAT BIBI and 2 others---Petitioners

Versus

DISTRICT JUDGE, LODHRAN and 2 others---Respondents

W.P. No. 1138 of 2005, heard on 20th June, 2005.

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

----Ss. 5, Sched. & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for maintenance---Petitioners were minor sons of respondent who were about 14/15 years of school going age---Respondent being father of petitioners was duty bound to maintain them till they attained the age of majority wherever they were residing---Wife of respondent and their marriage still existed and she was liable to be maintained by husband unless it was proved that she was residing without any just cause and reason---Evidence on record did not show that wife was residing separately from husband of her own and husband had no contribution thereto---Finding of Appellate Court for not awarding maintenance to wife, could not be maintained---Minors in their plaint had claimed that monthly income of father was about 10/11 thousand while father in his written statement did not mention a single word about his exact income and brought on record his salary certificate showing gross pay of Rs.4130 per month, but no official was produced to testify the same---Said certificate did not show that his pay was inclusive of all allowances or not---Amount of Rs.500 per month was not sufficient to cope with needs of minors keeping in view income of father, minors were held entitled to receive future maintenance allowance at rate of Rs.1000 each per month---Impugned judgments and decrees passed by Courts below were modified accordingly.

Mahr Khizar Hayat Sanpal for Petitioners.

Sahibzada Mehboob Ali Khan for Respondent No.3.

Date of hearing: 20th June, 2005.

2006 M L D 43

[Lahore]

Before Muhammad Akhtar Shabbir, J

Raja NAJABAT ALI---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Election Commissioner, Islamabad and 4 others---Respondents

Writ Petition No.2432 of 2005, decided on 7th September, 2005.

Punjab Local Government Elections Rules, 2005---

----Rr.35, 36 & 38---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recounting of votes---Rigging and tampering with ballot papers---Disputed question of fact---Grievance of petitioners was that after announcement of final result, on the direction of District Returning Officer, votes were recounted, and respondents were declared as returned candidates---Plea raised by petitioners was that after consolidation of result, ballot papers were tampered with and Returning Officer was not empowered to recount votes as he had become functus officio---Validity---Controversy with regard to rigging in Polling Stations or tampering with ballot-papers was a question of fact, which required detailed scrutiny and recording of evidence, which could not be gone into by High Court in exercise of Constitutional jurisdiction---Returning Officer/District Returning Officer, after declaration of final result, would not be the competent authority having become functus officio, therefore, they could not reopen the matter and make any inquiry in such regard---Such controversy could be resolved only by Election Tribunal constituted by Chief Election Commissioner---Constitutional petition was dismissed in circumstances.

Dr. Liaquat Ali Khan and another v. District Returning Officer, District Sargodha and 3 others 2002 SCMR 1632 ref.

Raja Ikram Ameen Minhas for Petitioner.

2006 M L D 101

[Lahore]

Before Syed Shabbar Raza Rizvi, J

Mirza MUHAMMAMD TUFAIL---Petitioner

Versus

DISTRICT RETURNING OFFICER, DISTRICT SHEIKHUPURA and 3 others---Respondents

W. P. No. 14233 of 2005, decided on 5th August, 2005.

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

----S.152---Punjab Agricultural Produce Markets Ordinance (XXIII of 1978), Ss. 17 & 28-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Qualification for candidates---Nomination papers in Union Council election as Nazim were rejected on the ground that candidate (petitioner) was holding the office of Administrator Market Committee---Administrator, Market Committee was a Government Servant, District Returning Officer therefore, was justified in rejecting the nomination papers of the petitioner---Survey of relevant provisions of Punjab Agriculture Produce Markets Act, 1978 conducted.

Ch. Naseer Ahmad Bhutta for Petitioner.

2006 M L D 119

[Lahore]

Before Muhammad Jehangir Arshad, J

QADEER SHAHBAZ and others---Petitioners

Versus

DISTRICT RETURNING OFFICER and others---Respondents

W.P. No.2811 of 2005, decided on 11th August, 2005.

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

----Ss.152(1)(c) & 157---Electoral Rolls Rules, 1974, Rr. 9, 18 & 20---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Election of Nazim and Naib Nazirn---Inclusion of petitioner's vote in Revised Electoral Rolls by Assistant, Election Commissioner after expiry of revising period, but before announcement of election schedule---Nomination papers rejected by Returning Officer were restored by District Returning Officer---Validity---Petitioner had filed application on 18-6-2005, when nobody even had slightest idea of publication of election schedule on 30-6-2005---Order on such application was passed on 25-6-2005, but such vote was not entered in Electoral Roll till 30-6-2005---According to Assistant Election Commissioner, non-inclusion of such vote in voters list in time was due to rush of work and want of copying facility---Mere fact that petitioner's vote was entered at bottom of Electoral Roll, would not be sufficient to doubt its genuineness/validity, specially when same had been entered on a separate Form only meant for newly added votes---Such entry could not be doubted in present situation---Disputed question of fact involved in such case could only be determined after recording elaborate evidence, which exercise could not be made in constitutional proceedings for being summary in nature---High Court dismissed constitutional petition leaving such question for decision by Election Tribunal, if any election petition was filed.

Muhammad Akram Nizami v. Government of the Punjab and others 1997 MLD 2489; PLD 2003 SC 808 and Saleem Zia v. Lt. Col. (Retd.) Mojib, Director Technical, Defence Housing Authority and 2 others 1988 CLC 533 ref.

2003 SCMR 1848 rel.

Sardar Muhammad Hussain Khan for Petitioners.

Mumtaz Mustafa for Respondents Nos.2 and 3.

Muhammad Saad Shibli for Respondents Nos.4 and 5.

Abdul Khalid Sadozai, A.A.-G. with Ijaz Ahmad, Assistant Election Commissioner, Rahim Yar Khan.

Date of hearing: 11th August, 2005.

2006 M L D 136

[Lahore]

Before Syed Hamid Ali Shah, J

Mst. SHAGUFTA, YASMEEN --- Petitioner

Versus

BABER ALI and another---Respondents

Criminal Miscellaneous No. 189-H of 2005, decided on 14th September, 2005.

(a)Criminal Procedure Code (V of 1.898)---

----S. 491---Guardians and Wards Act (VIII of 1890), S.7---Habeas corpus petition---Custody of minor---Scope of S.491, Cr.P.C.---Person could have a right to move Guardian Court for the custody of a minor, but he could in appropriate cases approach High Court for the restoration of custody of minor if minor had been illegally removed from his custody---Provisions of Guardians and Wards Act, 1890 did not completely oust the jurisdiction under S.491, Cr.P.C.---Such jurisdiction, however, being extra-ordinary in nature, should be sparingly used as the jurisdiction in such matters rested in the Court under Guardians and Wards Act, 1890.

Hina Jilani, Director of AGHS Legal Aid Cell v. Sohail Butt PLD 1995 Lah. 151; Rubia Ayaz Khan v. The State PLD 2001 Kar. 197; Muhammad Javed Omarao v. Miss Uzma Vahid 1988 SCMR 1891; Abdur Rehman Khakwani and another v. Abdul Majeed Khan Khakwani and 2 others 1997 SCMR 1480; Mst. Ayesha v. Nazir and 2 others 1981 SCMR 301 and Naziha Ghazali v. The State 2001 SCMR 1782 ref.

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

----S. 491---Guardians and Wards Act (VIII of 1890), S.7---Habeas corpus petition---Custody of person---Jurisdiction of High Court---High Court had jurisdiction in appropriate cases to issue direction in the nature of habeas corpus under S.491, Cr.P.C. and restore custody to the person, from whom the child was forcibly snatched---Petitioner in the present case was not claiming the custody of minor on the basis of her preferential right or on the ground relating to the welfare of minor, but on the score that minor was forcibly snatched and was being kept by respondent illegally---Minor was permanently settled in U.K. where he was living with his mother and due to his forcible snatching by respondent, minor was being deprived of proper education and better schooling---People aspire to get their children admitted in institutions in the countries like U.K., but in the present case, minor was being kept away from that facility---Minor was epileptic. needed constant care and proper treatment which, in present circumstances, was available to minor only in the custody of his mother---Respondent had not so far instituted proceedings under Guardians and Wards Act, 1890---Question of custody of minor, keeping in view welfare of minor could be determined by Guardian Judge---Petition for habeas corpus had been filed on the ground that minor had been snatched forcibly and same was decided on that ground alone---Respondent could claim the custody of minor and Guardian Judge, if approached, could determine the question of custody of minor keeping in view Principles of Islamic Law and welfare of the minor---High Court allowing habeas corpus petition directed that custody of minor be restored to his mother.

Muhammad Khalil-ur-Rehan v. Shabana Rehana and another PLD 1995 SC 633; Muhammad Javed Omarao v. Miss Uzma Vahid 1988 SCMR 1891; Nisar Muhammad v. Sultan Zarin PLD 1997 SC 852; Mst. Ghulam Fatima v. The State 1988 SCMR 289 and Mst. Shaista Naz v. Muhammad Naeem Ahmad 2004 SCMR 990 ref.

Malik Fayyaz Ahmad for Petitioner.

Najeeb Faisal Chaudhry Additional Advocate-General.

Waqar Ahmad for respondent No. 1.

2006 M L D 145

[Lahore]

Before Muhammad Akhtar Shabbir, J

ABDUL WAHEED---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.39 of 2005, decided on 14th September, 2005.

Penal Code (XLV of 1860)---

----Ss. 397 & 459---Criminal Procedure Code (V of 1898), S. 439---Appreciation of evidence---Accused was challaned under Ss.397 & 459, P.P.C., but Trial Court had convicted accused under S.459, P.P.C. with the observation that offence under S.397, P.P.C. was not proved against the accused---Case was of two versions and in a case of such-like nature, salutary principle of law was that both versions, one put by prosecution and other introduced by defence, were to be placed in juxtaposition and then to find out which version was correct---If defence version was proved or accepted, then prosecution case would stand shattered and discredited---Prosecution evidence, in the present case, when considered in juxtaposition with defence version, it seemed that prosecution had failed to bring home guilt to accused beyond any shadow of doubt---Prosecution evidence when tested on touchstone laid. down by Supreme Court, edifice, erected by prosecution crumbled and fell to ground---Prosecution had failed to prove guilt of accused under S.459, P.P.C. and since accused was not charge-sheeted under said offence, conviction and sentence awarded to accused by Trial Court, could not be maintained---Accused was acquitted of charge and was released.

Pir Imtiaz v. The State 2005 PCr.LJ 721 ref.

Muhammad Amin K. Jan for Petitioner.

Tanvir Iqbal A.A.-G. for the State.

2006 M L D 150

[Lahore]

Before Ali Nawaz Chowhan and Syed Shabbar Raza Rizvi, JJ

MUHAMMAD JAVED---Appellant

versus

THE STATE---Respondent

Murder Reference No.309 of 2000 and Criminal Appeal No.764 of 2000, heard on 19th July, 2005.

Penal Code (XLV of 1860)---

----S.302(b)---Sentence, reduction in---Accused even if 21 years old was still in his early youth---People even at such an age did not always attain the required maturity and sense due to lack of proper educational .facilities and grooming such factor under proper circumstances might be taken into consideration while determining the quantum of sentence---Accused had fired a single shot and its locale was the chest of the deceased---Whether the accused just took the gun and fired aimlessly which hit the deceased at his chest or he like an aims-man made the chest of the deceased a target, was not cogently self-evident---Possibility of the occurrence having taken place more for reason of human frailty rather than any wickedness did exist---Death sentence of accused was reduced to imprisonment for life in circumstances.

Muhammad Sharif and 3 others v. The State 2004 PCr.LJ 1547 ref.

Irfan Ahmad for Appellant.

Tahseen Irfan and Ashfaq Ahmed Ch. for the State.

Dates of hearing: 18th and 19th July, 2005.

2006 M L D 156

[Lahore]

Before Sardar Muhammad Aslam and Umar Ata Bandial, JJ

NASIR ABBAS---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 1282 of 2000, Criminal Revision No. 875 of 2000 and Murder Reference No.523 of 2000, heard on 7th September, 2005.

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

---Ss. 302(b), 34 & 109---Appreciation of evidence---Two persons lost their lives in occurrence, one on complainant's side and one on accused's side---Eye-witness of occurrence had conceded that a relative of accused was murdered on same day at same time in same occurrence which resulted in death of deceased on complainant's side---Distance between two dead bodies was 15/16 Karams, despite that two separate F.I.Rs.were registered and investigated---Complainant had concealed factum of death of person from accused's side from Investigating Officer---Investigation as to how person from accused's side was done to death, was not ascertainable as neither copy of F.I.R. nor post-mortem report of said deceased was taken into possession by Investigating Officer nor same was produced by accused in his defence---Both parties had failed to bring such important piece of evidence on record---Investigating Officer was guilty of conducting investigation in a relaxed manner without realizing gravity of offence---Presence of person deceased from accused's side and deceased from complainant's side along with complainant and prosecution witnesses was admitted by parties---Who initiated fight and how occurrence took place, was a pivotal question requiring its ascertainment from the record---For substantial justice remand of case would meet the ends of justice, in circumstances---Conviction recorded by Trial Court, was set aside and case was remitted back to Trial Court to requisition record of rival case registered at different Police Station relating to deceased on part of accused and examine witnesses mentioned in said calendar as Court witness and decide case afresh within specified period during which accused would be treated as under trial prisoner.

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

----S. 439---Penal Code (XLV of 1860), Ss.302 & 324---Revision---Appreciation of evidence---Complainant in revision had alleged that, Trial Court though had convicted two respondents/co-accused under S.324, P.P.C. and sentenced accordingly, but acquitted them from charge of murder of deceased for reasons not sustainable in law---Respondents did not challenge their conviction and might have undergone their substantive sentence---Respondents were alleged to have caused ineffective firing---Sufficient incriminating material as to guilt of respondents/co-accused of sharing common intention, was not available on the record---High Court declined to issue notice to respondents and dismissed the revision.

Hafiz Khalil Ahmad for Appellant.

Pervaiz Inayat Malik for the Complainant.

Ashfaq Ahmad Ch. for the State.

Dates of hearing: 6 and 7th September, 2005.

2006 M L D 176

[Lahore]

Before Mian Saqib Nisar, J

Sheikh ZARRAR AHMAD and another---Petitioners

versus

DISTRICT POLICE OFFICER, DISTRICT LAYYAH

and 9 others---Respondents

W.P. No.5771 of 2005, decided on 22nd September, 2005.

Punjab Local Government Ordinance (XII1 of 2001)---

----S. 168---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election for Tehsil Nazim---Pre-poll rigging---Grievance of petitioners was that Government officials had started a campaign in favour of opponent candidate/respondent and were intimidating and pressurizing petitioners to withdraw from the contest of election---Complaint in that respect to the Chief Election Commissioner was given no response---Effect---Present case was more in nature of abstract, lacking any concrete material to support petitioner's version---Allegation that all the respondents had hatched a conspiracy against petitioners and started intimidating them to withdraw from elections was not convincing---So far as criminal case registered against petitioner was concerned, the matter was pending before Court and it could not be presumed that it was a part of conspiracy aforesaid---To hold free, fair and impartial election was the duty of Chief Election Commissioner, petitioner therefore, had approached the right forum and should wait for the response---High Court, however, cautioned the Government officials that they should not be partisan in election to show support to the opposite candidate otherwise they might be held for the misconduct.

Maulvi Muhammad. Soltan Alam Ansari for Petitioner.

2006 M L D 180

[Lahore]

Before Mian Saqib Nisar, J

I. D. B. P. ---.Appellant

versus

Mst. HASSAN BIBI and others---Respondents

F.A.O. No. 221 of 2004, decided on 14th October, 2005.

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

----O.XXI, R.89---Limitation Act (IX of 1908), S.4---Setting aside of sale-subject to deposit of 5% purchase money before specified date---Deposit of money on a date following specified date due to holiday---Validity---Such deposit could validly be made on next working day.

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

----O.XXI, R.89---Setting aside of sale on application of judgment

debtor---Expenses/fee paid to Court-Auctioneer by auction-purchaser---Held: judgment-debtor would be bound to incur such expenses, and in case of his failure to pay same within specified period he would pay Rs.1,000 per day as liquidated damages to auction purchaser.

M/s. M.A. Zafar and Shoaib Zafar for the Appellant.

Abdul Wahid Chaudhry for Respondent No. 1.

Sardar Muhammad Anwar Khan for Respondent No.2.

2006 M L D 187

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAMDY NAZIR and others---Appellants

versus

MUHAMMAD ARIF and others---Respondents

R.S.A. No.44 of 1998, decided on 27th October, 2005.

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

----Ss.11 & 96(3)---Property and cause of action was same in both fresh and previous suit---Previous suit was compromised.---Institution of fresh suit after 13 years of decision of previous suit on basis of compromise---Res judicata, principle of---Applicability---Consent decree based on compromise between parties was not appealable under law, thus, its effect could not be nullified or eroded by filing fresh suit---Fresh suit was barred by time and could not be filed not only due to applicability of principle of res judicata, but plaintiff would be estopped and precluded to institute same---Fresh suit was dismissed in circumstances.

The Commissioner of Income Tax N.C.A. Circle, Karachi and another v. Haij Ashfaq Ahmad Khan and 10 others PLD 1973 SC 406; Malik Najibullah Khan and others v. Malik Muhanunad Bahadur and others 1980 CLC 1216; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Abdul Ghafoor v. Chief Settlement Commissioner and another 1985 SCMR 464; Mst. Ghulam Sughran (deceased) through legal heirs and others v. Sahibzada Ijaz, Hussain and others PLD 1986 Lah. 194; Shankar Sitaram Santakke and another v. Balkrishna Sitaram Sontakke and others AIR 1954 SC 352; Newton Hickle and another v. Official Trustee of West Bengal AIR 1954 Calcutta 506; Sailendra Narayan Bhanja Deo v. The State of Orissa AIR 1956 SC 346; Commissioner of Income-Tax, East Pakistan, Dacca v. Wahiduzzaman PLD 1965 SC 171; Gulabehand Chhotalal Parikhw. State of Gujrat AIR 1965 SC 1153, Muhammad Tufail v. Ata Shabir and 5 others PLD 1977 SC 220, Wasi Ahmed Rizvi v. Federation of Pakistan PLD 1982 SC 20, Mst. Khursheed Jehan v. Syed Aziz Ahmed Naqvi and 2 others 1990 CLC 1132, Dr. Akhtar Hussain v. S.M. Hanif and 2 others 1990 MLD 1652; Barkat v. Muhammad Sadiq and others 1990 CLC 1532; Muhammad Bakhsh v. Abid Hussain Shah and 6 others 1991 MLD 571; Ghulam Dastagir and others v. Mst. Mariam others 1991 CLC 1526; Pardool and 3 others v. Gulzada and others PLD 1995 SC 410; Muhammad Yousuf Memon v. Karachi Stock Exchange (Guarantee) Ltd. 1995 CLC 183; Amanul Mulk v. Mian Ghafoor-ur-Rehman and others 1997 SCMR 1796; Nooruddin and 11 others v. Abdul Waheed and another 1999 MLD 2844; Mst. Rehmat Bibi and 9 others v. Noor Muhammad 2003 YLR 3280; Mst. Zainab through Attorney v. Mst. Muni. and others 2004 SCMR 1786 and Pir Bakhsh represented by his legal heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145 ref.

The Commissioner of Income Tax N.C.A. Circle, Karachi and another v. Haji Ashfaq Ahmad Khan and 10 others PLD 1973 SC 406; Mst. Ghulam Sughran (deceased) through legal heirs and others v. Sahibzada Ijaz Hussain and others PLD 1986 Lah. 194 (DB); Abdul Ghafoor v. Chief Settlement Commissioner and another 1985 SCMR 464; Malik Najibullah Khan and others v. Malik Muhammad Bahadarand others 1980 CLC 1216 and Abdul Majid and others v. Abdul Ghafoor Khan and others PLD 1982 SC 146 distinguished.

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

----S.96(3), O.XXIII, Rr.1(1) & 3---Withdrawal of suit and a suit resulting in consent decree would have different implication and consequences.

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

-----O.XV, R.3---Decision of suit on basis of issues going to the root of the matter---Validity---Where matter could be disposed of on decision of such issues, then by treating same as preliminary issues could be decided in isolation of other issues.

Abdul Aziz and 18 others v. Muhammad Hassan and others PLD 1984 Quetta 101 and Ms. Benazir Bhutto v. News Publications (Pvt.) Ltd. And 4 others 2000 CLC 904 ref.

Mian Nusratullah for Appellants.

Syed Muhammad Kaleem Ahmed Khurshid for Respondents.

Date of hearing: 27th October, 2005.

2006 M L D 193

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. NAZIRAN BIBI and 6 others---Petitioners

versus

GHULAM RASUL and 6 others---Respondents

C.R. No.1402-D of 1994, heard on 8th March, 2005.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Trial Court dismissed the suit but Appellate Court decreed the same---Matter in issue was that disputed Khasra was in possession of defendants and same never formed part of joint Khata and there was no question of its partition---Register Haqdaran Zamin for year 1986-87 showed that the land was to be exclusively owned by plaintiffs and defendants did not find any mention at all in ownership column---Question of any private partition did not arise for the simple- reason that condition precedent for a partition whether through a Court or privately was the existence of joint land---Defendants having no share in the land, there was no question of its partition---Judgments and decrees passed by Appellate Court were modified and suit was decreed to the extent of entire suit-land mentioned in the plaint except land comprising the disputed Khasra---Suit was dismissed accordingly.

Mazhar Kaleem Khan for Petitioners.

Respondents: ex parte.

Date of hearing: 8th March, 2005.

2006 M L D 195

[Lahore]

Before Muhammad Muzammal Khan, J

SHELL PAKISTAN LIMITED through Attorney and Legal Affairs Officer---Appellant

Versus

DAEWOO CORPORATION through Chief Executive/President and 2 others---Respondents

F.A.O. No.240 of 2005, decided on 3rd October, 2005.

Specific Relief Act (I of 1877)---

----S.54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Prima facie case---Plaintiff company sought injunction restraining defendants from taking over control of fuel filling stations---Disputed fuel filling stations were located at Motorway Service Area and were constructed by defendant company according to specifications, layout and with technical assistance provided by plaintiff company--Defendant company also provided skilled, unskilled supervisory and/or other employees and staff, proper electricity, gas, water and sanitary facilities etc.---Agreement between the parties revealed that, defendant company incurred all expenses and plaintiff company was only responsible for supply of fuel, lubricants and other ancillary products for a period of eight years---After expiry of initial period of eight years, agreement between the parties was not renewed and defendant company took over the possession of fuel filling stations---Trial Court declined to grant interim injunction in favour of plaintiff company-Validity---Case of plaintiff company was demolished by terms of agreement itself and no prima facie/arguable case existed in its favour--On account of already taken over possession of filling stations by defendant company, no irreparable loss/injury was to be sustained by plaintiff company as compared to defendant company---Plaintiff company was not to suffer any inconvenience, thus injunction prayed was rightly refused by Trial Court---Appeal was dismissed in limine.

Muhammad Saleem Shehnazi for Appellant.

Tallat Farooq Sheikh for Respondent No.2.

Sh. Anwar-ul-Haq and Sh. Naveed Anwar for Respondents No.3.

2006 M L D 199

[Lahore]

Before Muhammad Akhtar Shabbir, J

Mian IJAZ HUSSAIN BHATTI and another---Petitioners

Versus

MUHAMMAD YOUSAF, DISTRICT JUDGE and 7 others---Respondents

W.Ps. Nos.14338 to 14340 of 2005, decided on 8th August, 2005.

(a) Punjab Local Government Elections Rules, 2000---

----Rr.12 & 16---Election of Nazim and Naib Nazim---Filing of two nomination papers (one as Nazim and other as Naib Nazim) with two different panels---Application for withdrawal of such nomination papers on date of scrutiny and its acceptance on last date of withdrawal---Requirement of law had been performed with prescribed procedure.

Muhammad Jamil Akhtar v. District Judge, Rawalpindi and 4 others 2003 SCMR 400 fol.

Writ Petition No.14053 of 2005 dated 2-8-2005 ref.

Sahibzada Farooq Anwar Abbasi and another v. Appellate Authority/District and Sessions Judge, Bahawalpur and 9 others 2003 CLC 64 distinguished.

(b) Punjab Local Government Elections Rules, 2000---

----R.16---Expression "validly nominated candidate"---Meaning---Such candidate would mean a candidate, whose nomination paper has been accepted under Punjab Local Government Elections Rules, 2000.

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

---R. 16---Expression "withdrawal day"-Meaning---Such day would mean a day on or before which candidature would be withdrawn---Application for withdrawal signed by both candidates of Nazim and Naib Nazim could be filed on or before such day.

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

---Rs.12 & 16---Election for seat of Nazim with two different panels of Naib Nazim---Validity---Candidate for seat of Nazim could not contest election with two different panels of Naib Nazim---If candidate for seat of Nazim did not withdraw all his nomination papers except one, then all his nomination papers, after date of withdrawal would become mutually destructive ousting him from election process---Symbols to candidates, whether joint candidates or singly, would be allocated on expiry of withdrawal date after publication of final list of contesting candidates by Returning Officer.

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

Shehram Sarwar Chaudhry and Shaukat Rafique Bajwa for Respondent No.5.

2006 M L D 210

[Lahore]

Before Maulvi Anwarul Haq and Fazal-e-Miran Chauhan, JJ

KALEY KHAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 3 others---Respondents

W.Ps. Nos.981 of 2004, decided on 21st July 2005.

Civil Procedure Code (V of 1908)---

----O.VII, R.11 & Ss. 96, 115---Constitution of Pakistan (1973), Art.199---Constitutional petition---Rejection of plaint by revisional Court---Appeal against order of rejection of plaint---Competency---On filing a civil suit by petitioner, respondents moved an application under O.VII & R.11, C.P.C. before Trial Court with a prayer to reject the plaint---Trial Court dismissed said application, but on filing revision against order of rejection, said application was allowed and plaint was rejected by the Court of revision, while exercising powers under O.VII, R.11, C.P.C.---Said order of the Court was assailed by petitioner through constitutional petition, which was directed by High Court to be treated as regular first appeal---Validity---Regular first appeal under S.96, C.P.C. would not be available against orders passed by revisional Court rejecting plaint of petitioner.

2001 MLD 414; 1989 MLD 4873; 1995 CLC 1453; 1989 CLC 15; NLR 1985 Civil 325; Muhammad Shafi and 5 others v. Amanat Ali and 5 others 2005 MLD 559; Syed Qadir Bakhsh Shah and others v. Additional District Judge, Dera Ghazi Khan and others 2004 SCMR 1638 and Buland Khan v. Chiragh Din and 3 others 1981 CLC 249 ref.

Asmat Ullah Khan Niazi and Mian M. Arshad Latif for Petitioners.

2006 M L D 215

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ABDUL GHAFFAR KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8164-B of 2005, decided on 23rd November, 2005.

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

----S.498---Penal Code (XLV of 1860), Ss.324/506---Pre-arrest bail, grant of---Complainant seemed to have exaggerated the story in order to make out a case falling under S.324, P.P.C., which prima facie was not made out---Offence under S.506, Cr.P.C. falling within its first part was apparently made out from the facts of the case, which was bailable---Different stands having been taken by both the parties, matter required thorough probe regarding the motive---Accused and his wife, present in Court, were ready to take oath on the Holy Quran and also by putting their hands on the heads of their children, about the falsity of the case got lodged by the complainant who used to tease the wife of the accused---Possibility of false implication of the accused, in such circumstances, could not be ruled out---Complainant had improved his story subsequently which was not mentioned in the statements of the alleged eye-witnesses recorded on the same day under S.161, Cr.P.C.--Even otherwise, the Advocates whose chambers were adjacent to the Chamber of the complainant Advocate, had not witnessed the occurrence or attracted to the spot and they had not been cited as witnesses---Accused was not previously involved in any such-like case who was working abroad and had come to Pakistan for some period---Even the time of occurrence had not been mentioned in the F.I.R.---No fire-arm injury having been caused to the complainant, accused could not be sent to jail merely for the recovery of the pistol from him---Case against accused seemed to be doubtful which was lodged under some suspicious circumstances---Interim pre-arrest bail granted to accused was confirmed in circumstances.

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

----S.498---Pre-arrest bail---Scope---Bail before arrest is meant to protect the innocent citizen found to have been involved malafidely with ulterior motive---Liberty of a citizen cannot be curtailed on the vague allegations and minor disputes to wreak vengeance of the other party.

Hafiz Khalil Ahmad for Petitioner.

Sh. Naveed Shahryar for the Complainant.

Syed Dawar Sherazi for the State along with Mumtaz Ahmad . A.S.-I. with record.

2006 M L D 219

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD YOUNUS REHMAN---Appellant

Versus

GHULAM MUSTAFA---Respondent

R.F.A. No.310 of 2002, heard on 20th July, 2005.

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

--O. XXXVII, Rr.2 & 3---Suit for recovery of amount on basis of pro note--Execution of pro note and receipt on basis of which suit was filed, had fully been proved by attesting witnesses of the documents---Both said witnesses had stated that pro note and receipt, were executed by defendant in their presence---Alleged discrepancy regarding fixation of revenue stamps pointed out by defendant, was not serious---Trial Court, in circumstances had rightly decreed suit and in absence of any misreading or non-reading of evidence by Trial Court, findings of Trial Court, were confirmed by Appellate Court in first regular appeal.

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

----O. XXI, Rr. 84, ,85 & 86---Execution proceedings---Failure of auction-purchaser of immovable property to deposit sale price within specified period---Effect---Failure of auction-purchaser to deposit full amount of purchase money within time prescribed by R.85 of Order XXI, C.P.C., was that the property was to be re-sold in terms of R.86 of Order XXI, C.P.C.---No sale having taken place, in circumstances, in the eye of law in favour of the auction-purchaser and under said provision of law, he had acquired no right whatsoever in the property.

Malik M. Latif Khokhar for Appellant.

Sardar Manzoor Ahmad Khan for Respondent.

Hameed Azhar Malik for Auction-Purchaser/Applicant in C.M. No.466-C of 2003.

Date of hearing: 20th July, 2005.

2006 M L D 231

[Lahore]

Before Abdul Shakoor Paracha, J

MUSARRAT WARIS----Petitioner

Versus

MUHAMMAD AFSAR KHAN and 4 others----Respondents

Writ Petition No.1571 of 2005, decided 27th October, 2005.

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

----Art. 199---Criminal Procedure Code (V of 1898), S.491---Constitutional petition---Competency---Custody of minor---Mother filed habeas corpus petition for recovery of her minor children who were in custody of their father---Petition was dismissed and mother challenged that order before the High Court in constitutional jurisdiction---Preliminary objection as to maintainability of constitutional petition was raised contending that father was the natural guardian of minors and his custody could not be termed as illegal or unlawful, therefore, High Court had no jurisdiction under S.491, Cr.P.C. to hand over the custody of minors to the mother---Validity---Held, in matters pertaining to custody of minors of tender age, High Court was empowered to issue directions in the nature of habeas corpus under section 491, Cr.P.C., if custody of minors was improperly disturbed---Mother, under Islamic law was entitled to have the custody of her son who was below the age of seven years and daughters who had not attained puberty---Statements of children (minors) in favour of their father was of no value for their custody with father---Custody of the minors with father, if not illegal, was at least improper in circumstances---Custody of minors was, therefore, given to the mother with observation that parties would be at liberty to approach the Guardian Judge for redressal of grievance without being influenced by the order of the High Court.

Abdul Rehman Khakwani and another v. Abdul Majid Khakwani and 2 others 1997 SCMR 1480; Shrimati Pari Bai v. Amrat Lal and others 1997 PCr.LJ 105; Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891 and Mst. Khalida Parveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1 ref.

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

----Art. 199---Criminal Procedure Code (V of 1898), S.491---Guardians and Wards Act (VIII of 1890), S.25---Constitutional petition---Maintainability---Custody of minors---Alternate remedy---Although alternate remedy of filing a petition under section 25 of the Guardians and Wards Act, 1890 for the custody of minor was available but section 491, Cr.P.C. provided a more efficacious, speedy and appropriate remedy in case of illegal or improper custody of the minor and High Court could pass order regarding the temporary custody of minor without prejudice to the right of parties to have the matter finally adjudicated by the Guardian Judge---Constitutional petition, held, was maintainable.

Nisar Muhammad and another v. Sultan Zari PLD 1997 SC 852 and Mst. Shaista Naz v. Muhammad Naeem Ahmed and another 2004 SCMR 990 ref.

Ms. Nahida Mehboob Elahi for Appellant.

Ch. Musawar Iqbal Javed Anwar for Respondent.

Dates of hearing: 19th and 27th October, 2005.

2006 M L D 242

[Lahore]

Before Maulvi Anwarul Haq, J

HABIBULLAH MINOR through his next friend---Appellant

Versus

Mst. IRSHAD BEGUM and others-Respondents

R.S.A. No.137 of 1987, heard on 6th September, 2005.

Punjab Pre-emption Act (I of 1913)---

----S.13---Right of pre-emption---Benami nature of suit---Proof---Principles---Pre-emptor being minor exercised his right of pre-emption through his next friend---Trial Court having found superior right of pre-emption, decreed the suit in favour of pre-emptor but Appellate Court reversed the finding of Trial Court and dismissed the suit---Contention of vendees was that the suit had been filed in collusion with vendors and father of pre-emptor, who was present at the time of sale and had promised not to pre-empt the suit-land---Validity---Father of pre-emptor obtained copies of revenue records and also deposited 1/5th of sale price---In order to non-suit a pre-emptor on account of filing Benami suit, evidence must be convincing that pre-emptor was Benamidar and had made available his services for the benefit of others---Merely because the pre-emptor was poor or had disposed of his own property or was a minor or because the litigation was being financed by somebody else, did not by itself, mean that the pre-emptor was acting in the interest of another---Evidence with regard to Benami nature of suit was misread in disregard of settled legal position---Findings recorded by Appellate Court on the issues of Benami suit were reversed and those of Trial Court were restored-Judgment and decreed passed by Appellate Court was set aside and the suit was decreed in favour of pre-emptor in - circumstances.

Imam and 7 others v. Saifur Rehman PLD 1984 SC 415; Lal Din v. Allah Ditta and others PLD 1967 Lah. 703 and Noor Muhammad and 3 others v. Jahangir Ali and 8 others PLD 1987 Lah. 473 ref.

Sh. Zia-ud-Din Ahmad Qamar for Appellant.

Mirza Manzoor Ahmad for Respondents.

Ch. Abdul Razzaq for the Cross-Objector.

Date of hearing: 6th September, 2005..

2006 M L D 255

[Lahore]

Before Fazal-e-Miran Chauhan, J

ABDUL MAJEED BUTT---Petitioner

Versus

ZAKIA BUTT and 6 others---Respondents

Writ Petition No.6177 of 2004, decided on 11th October, 2005.

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

----S. 13---Transfer of Property Act (IV of 1882), S.54-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment application on the ground of default in payment of rent---Tenant filed suit for specific performance of contract against landlord on strength of some alleged agreement to sell---Application for stay of proceedings in ejectment application was dismissed---Jurisdiction of Rent Controller---Scope---Mere by pendency of suit for specific performance, jurisdiction of Rent Controller, was not ousted to proceed with ejectment proceedings---Institution of such suit by tenant against landlord subsequent to ejectment application did not in any manner obstruct the ejectment proceedings, especially when the suit was with regard to some other property which was not subject-matter of the ejectment application.

Barkat Ali v. Muhammad Ehsan 2000 SCMR 556; Mian Muhammad Abdullah v. District Judge, Sahiwal and 6 others PLD 1985 Lah. 467 and Allah Yar and others v. Additional District Judge and others 1984 SCMR 741 ref.

Ch. Muhammad Iqbal Abid for Petitioner.

Ch. Anwar-ul-Haq for Respondents.

2006 M L D 261

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ASLAM GONDAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.610 and 649 of 2004, decided on 28th November, 2005.

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

----Ss.409/34, 420/34, 468/34, 471/34 & 218/34---Prevention of Corruption Act (II of 1947), S.5(2)---Appreciation of evidence---Accused persons being the Food Grain Inspector and the Food Grain Supervisor, their liability was equal and they were responsible to take suitable measures to keep the stock of wheat safe, to avoid its theft and when required to supply the wheat from the godowns to the relevant quarters---Record did not show that the wheat 'was made short, from the bags somewhere on the way---Accused being posted at the relevant time at the Centre concerned, none-else could be held responsible for the shortage of wheat in the gunny bags---Prosecution witnesses being Official witnesses had deposed according to the record maintained in this regard and they had no personal grudge, ill-will or enmity with the accused---Prosecution evidence had no contradiction or discrepancy to draw an adverse inference---During the process of transportation of, wheat both the accused one after the other on one pretext or the other, had slipped away, which was an abortive attempt on their part to exonerate themselves from the criminal liability, but they were responsible for the misappropriation and losses occurred during transportation of the wheat and the gunny bags entrusted to them---Contumacious conduct of accused was reflective of mews rea on their part, as they were the custodians of the stocks and noble task of entrustment and transportation had been assigned to them---Reliable and convincing oral and documentary evidence based on the official record of the Department mostly maintained by the accused themselves, had proved the liability of the accused---Accused had failed to substantiate the plea taken by them in defence, which rather had gone against them---Material questions regarding entrustment and misappropriation of wheat and empty gunny bags had been put to the accused in their statements under S.342, Cr.P.C. and non-putting the exact quantity thereof was immaterial---Conviction and sentences of accused were upheld in circumstances.

Ashraf Mehmood v. The State 1988 PCr.LJ 1621; Fida Hussain v. State 2000 PCr.LJ 1022; Azhar Hussain v. The State PLD 2003 Lah. 219; Mst. Dur Naz and another v. Yousuf and another 2005 SCMR 1906; Abdul Wahid v. The State 2003 SCMR 668; AIR 1960 Rajastan 80; AIR 1956 SC 536; AIR 1956 SC 241; 21 DLR 377; PLD 1955 Dacca 68 and AIR 1961 Calcutta 240 ref.

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

----Art.121---Burden of proof---Principle---Initial burden to prove the guilt against the accused lies upon the prosecution, but when a specific plea has been taken by the accused in his defence, then both are to Be considered in juxtaposition and the one which is nearer to the truth is to be given weight.

Mst. Dur Naz and another v. Yousuf and another 2005 SCMR 1906 and Abdul Wahid v. The State 2003 SCMR 668 ref.

Rana Muhammad Anwar for Appellant (in Crl. A. No.610 of 2004).

Ms. Asghar Ali, Abid Saqi anti Ch. Nazir Ahmad Kamboh for Appellants (in Crl. Nos. 610 and 649 of 2004).

S.D. Qureshi for the State.

Dates of hearing: 11th, 14th, 16th and 17th November, 2005.

2006 M L D 279

[Lahore]

Before Maulvi Anwarul Haq, J

ELLAHI BAKHSH and others-Petitioners

Versus

AHMAD BAKHSH and 12 others---Respondents

Civil Revisions Nos.736 to 742 and 744 to 746 of 1998, heard on 15th November, 2005.

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

----S. 53---Qanun-e-Shahadat (10 of 1984), Arts.1 18 & 120--Specific Relief Act (I of 1877), S.42---Suit for declaration relating to mutations---Sale of land---Entry in the Revenue Record---Burden of proof---Recorded vendee in all the mutations was the relative of the Patwari who got disputed mutations entered and suit-land ultimately came to be held by the said Patwari---When transaction effected by means of mutations was challenged, burden of proof was upon the beneficiary of such mutations to establish the existence and validity of such transactions---Defendants failed to prove the sale consideration---Neither original mutations nor Roznamchas were produced, even vendee who was well and alive had not been produced in the witness box---In absence of any ingredient of a valid sale, lower Appellate Court wrongly concluded that land in question was validly alienated through the said mutations.

Muhammad and others v. Sardul PLD 1965 Lah. 472 and Mst. Bibi Mukhtiar v. Mst. Amrezan and another PLD 1968 Pesh. 169 ref.

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

----S. 53---Qanun-e-Shahadat (10 of 1984), Art.129(e)---Specific Relief Act (I of 1877), S.42---Suit for declaration relating to mutations---Mutation effected in Revenue Record---Presumption of correctness---Mutations although had been acted upon in Revenue Record, but such act, by its own force, was not sufficient to prove the genuineness of the transaction to which same purported unless the genuineness of the transaction was proved.

Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 ref.

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

----S. 53---Specific Relief Act (I of 1877), S.42---Suit for declaration relating to mutations---Limitation---Mutations entered in the Revenue Record were proved to be illegal---Plaintiffs had been in possession of suit-land through their tenants long after filing of the suit for declaration relating to mutations---Mere fact that illegal entries existed in Revenue Records would not render the suit barred by time---Once entry in Revenue Records was proved to be illegal the previous entries would continue to hold the field---Principles---Conferment of authority on the attorney to file suit was not challenged in the written statement---Appellate judgment being based on premises not warranted by law, was dismissed and that of trial Court restored by High Court.

Misri through Legal Heirs and others v. Muhammad Sharif and others 1997 SCMR 338 ref.

Malik Iqbal Rasool and M. Tufail Alvi for Petitioners.

Hakeem-ud-Din Qureshi for Respondents.

Date of hearing: 15th November, 2005.

2006 M L D 286

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD MURAD and 12 others---Petitioners

Versus

ALLAH BAKHSH and 34 others---Respondents

Civil Revision No.88-D of 2004, decided on 12th October, 2005.

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

----S. 4---Specific Relief Act (I of 1877), Ss.42, 52 & 53---Applicability of section 4 of Muslim Family Laws Ordinance, 1961---Scope---Succession---Last full owner died in 1951 and immediately on his death, succession opened and according to Islamic Law, children of his predeceased sons were not entitled to inherit the estate of deceased---Muslim Family Laws Ordinance, 1961 came into force in the year 1961 and since the provisions of S.4 of the Ordinance had no retrospective effect, same could not be applied to the present case---Courts below acted within framework of law by non-suiting the petitioners/plaintiffs and excluding them from inheritance of deceased, the original owner.

Muhammad Yaqub and others v. Muhammad Ibrahim and others 2002 CLC 819 ref.

Muhammad Naved Hashmi for Petitioners.

2006 M L D 294

[Lahore]

Before Muhammad Nawaz Bhatti, J

RASHEED AHMED-Petitioner

Versus

DISTRICT POLICE OFFICER, LODHRAN and 3 others---Respondents

Writ Petition No.5533-Q of 2005, decided on 27th October, 2005.

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

----S.11---Penal Code (XLV of 1860), S.380---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of FIR.-Investigation in the case had not been completed, because accused had not joined the same despite the fact that case was registered more than three months back---Such was too early a stage for quashing of F.I.R.---Practice of approaching High Court for quashing of F.I.R. at initial stage had been disapproved by the Supreme Court---High Court could not assume the role of investigator---Petition for quashing F.I.R., was dismissed, in circumstances.

PLD 1981 SC 107; 1971 SCMR 698 and Brig (Recd.) Imitaz Ahmad v. Government of Pakistan and others 1994 SCMR 2142 ref.

Rana Shaukat Hayat Noon for the Petitioner.

Mubashir Lateef Gill A.A.-G.

Sohbat Hussain S.-I.

2006 M L D 298

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. ZOHRA BIBI---Petitioner

Versus

SUPERINTENDENT DARUL AMAAN and another---Respondents

Writ Petition No.4940 of 2005, decided on 11th October, 2005.

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

---S.5 & Sched.---Constitution of Pakistan (1973), Arts. 10, 35 & 199---Constitutional petition---Right to marriage---Family Court, jurisdiction of---Determination of valid marriage---Petitioner who claimed that her life was in danger for marrying without approval of her parents, was kept in the Darul Amaan under the direction of the constitutional Court---Petitioner filed a Constitutional petition praying that she be released from Darul Amaan by setting her at liberty---Allegation against the petitioner was that she had contracted a marriage with a person in the presence of an earlier marriage---Release of the petitioner was being withheld till the completion of inquiry about the whole matter---Validity---Petitioner being a sui-generis, had inalienable right to contract marriage with the person of her choice---Question of validity of marriage was to be raised before the Family Court constituted under West Pakistan Family Courts Act, 1964 and the findings of the Family Court were to be conclusive and binding up to the Supreme Court---Petitioner being sui generis could not be ordered to be kept in Darul Amaan for an indefinite period, which was otherwise violative of Art.10 of the Constitution---High Court under Constitutional jurisdiction being the custodian of the Constitution could not become a party by ordering the confinement of the petitioner in Darul Amaan for indefinite period against her wishes--Right of marriage was a constitutionally protected right in terms or Art.35 of the Constitution and it was the right and desire or sui juris Muslim girl to marry with a person of her choice and no person, including the Court, could dictate a sui juris girl to disconnect her marital tie with her husband, just at the wishes or pleasure of her parents or to strike balance in the society---Constitutional petition was allowed, in circumstances, and the petitioner was set at liberty and her alleged husband was directed to get a verdict about the genuineness of his Nikah with the petitioner from the Family Court which was the competent Court having jurisdiction in the matter.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 and Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another PLD 2004 SC 219 ref.

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

----Arts. 35 & 199---Right to marry---Right to marry was a constitutionally protected right in terms of Art.35 of the Constitution.

Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another PLD 2004 SC 219 ref.

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

----S.5---Family Court, jurisdiction of---Question of determination of valid marriage---Question of validity of marriage should to be raised before the Family Court constituted under West Pakistan Family Courts

Act, 1964 and the findings of the Family Court are conclusive and binding up to the Supreme Court.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 ref.

Miss Humera Khand for Petitioner.

Malik Muhammad Tariq Nonari for Respondent No.2

Malik Muhammad Qasim Khan Assistant Advocate-General.

Nasrullah, Inspector/S.H.O.

2006 M L D 303

[Lahore]

Before M. Bilal Khan, J

ASHFAQ AHMED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3158-B of 2005, decided on 28th October, 2005.

Criminal Procedure Code (V of 1898)---

----S.497---Offence of Zina (Enforcement of Hudood), Ordinance (VII of 1979), S.11---Bail, refusal of---Abductee and the victim of sexual assault had fully supported the version as contained in the F.I.R. in her statement under S.161, Cr.P.C. giving precise details about has abduction and subsequent conduct of the accused---Mere opinion of one of the Investigating Officers regarding the accused being innocent was of no benefit to him when the victim girl had stood firm on her allegations---Accused had made another attempt to abduct the prosecutrix for which a separate F.I.R. had been registered against him by her mother---Ample material was available on record to prima facie, connect the accused with the commission of the offence, which was hit by the prohibition contained in S.497(1), Cr.P.C.---Bail was refused to accused in circumstances.

Sardar Nazar Hussain Dogar for Petitioner.

Ch. Mushtaq Ahmad for the Complainant.

Syed Akmal Hussain for the State with Muhammad Sarwar, S.-I.

2006 M L D 308

[Lahore]

Before Maulvi Anwarul Haq and Ijaz Ahmad Chaudhry, JJ

Syed NAFS-E-NABI and others---Appellants

Versus

PROVINCE OF PUNJAB through District Collector, Multan and 10 others---Respondents

R.F.As. Nos. 181 and 179 of 2001, heard on 21st September, 2005.

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

----Ss.4(1) & (2), 18, 28-C & 34---Civil Procedure Code (V of 1908), S.96---Acquisition of land---Payment of compound interest from the date of first notification---Legality---On reference to the trial Court, the appellants were held entitled to compound interest upon the amount of compensation, from 1997 till date of fixed payment---Further claim of the appellants that they were entitled to be paid compound interest from 1981 when the first notification was issued in terms of Ss.28-C and 34 of the Land Acquisition Act, 1894, was rejected by the trial Court---Contention of the appellants was that they were entitled to the compound interest from 1981 because the possession of land was taken from them when the first notification regarding the acquisition of land was issued in that year---Rebuttal of the respondents was that the appellants were not entitled to any compound interest as after the issuance of first notification no further proceedings regarding acquisition of land were initiated and it was only after the issuance of the last notification in 1997 that the land was acquired, appellant thus had no claim to compound interest as they had been paid compensation of their lands as per rates prevailing in the year 1997 and not at rates which prevailed in 1981---Validity---First notification was, no doubt, issued under S.4(1) of the Act in 1981, but there was nothing on record to show that the possession of land was taken after the issuance of said notification in 1981---Section 4(2) of the Act provided a specific procedure consisting of certain formalities for taking the possession of the land after the issuance of notification---Appellant, in the present case, failed to show that the said formalities under S.4(2) of the Act were ever conducted before the last notification was issued on 1997--Appellants could not on one hand, claim compound interest from the year 1981, and at the same time expect the compensation to be awarded to them at the rates prevailing in the year 1997 when the last notification was issued---Price of the proposed acquired land was never assessed after the issuance of notification in 1981, therefore, there was no question of taking the possession of he land by the Collector without adopting the procedure---Nothing was available on the record to show that the appellants had ever complained to any higher authority that wrong was being done with them and their land had been acquired without payment of compensation---Such silence of the appellants was a sufficient proof of the fact that the possession of the land was only taken after the issuance of last notification in 1997---Claim of the appellants for awarding compound interest from 1981 was rightly rejected by the trial Court---Appeals were dismissed id circumstances.

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

----S.34---Scheme of payment of compound interest---Object---Scheme of compound interest had been introduced so that unnecessary delay should not occur in the payment of compensation to the landowners after taking possession of land from them.

Rana Javed Akhtar for Appellant.

Azmat Ali Khanzada for Respondents Nos.1 and 2.

Ahmad Usman Khan Miana for Respondents Nos.3 to 9.

Date of hearing: 21st September, 2005.

2006 M L D 313

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahnad Chaudhry, JJ

NAZIR AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.1701 and 1855 of 2000 and Murder Reference No.650 of 2003, heard on 14th November, 2005.

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

---S.302(b)---Appreciation of evidence---Principles---Close relationship of the witnesses with the deceased alone is not sufficient to declare them as interested witnesses and non-existence of any previous enmity of' the witnesses with the accused cannot be considered sufficient to term their evidence as a gospel truth.

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

----S.302(b)---Appreciation of evidence---Ocular evidence---Classifications---Ocular testimony may be classified into three categories has firstly, wholly reliable evidence where conviction may safely be sustained on uncorroborated testimony; secondly, wholly unreliable evidence where even strongest corroborative evidence may not rehabilitate the same; and thirdly, party reliable and partly unreliable evidence, where conviction cannot be recorded unless such evidence is corroborated by oral or circumstantial evidence coming from distinct source.

Ata Muhammad and another v. The State 1995 SCMR 599 ref.

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

----S.302(b)---Appreciation of evidence---Eye-witnesses had failed to establish their presence at the crime. spot at the time of occurrence and had made improvements at the trial---Ocular testimony was contradictory---Conduct of the prosecution witnesses at the time of occurrence was unnatural, as despite their close relationship with the deceased they did not make any effort to bring him out of the canal for saving his life, where he was thrown after sustaining the injury and his dead body was recovered on the third day of the occurrence---F.I.R. had been recorded after preliminary investigation and due deliberation---Crime empties secured from the spot were not shown to have matched with the fire-arm recovered from the accused---Recovery of bicycle also did not provide any independent corroboration as the same was not proved to be that of the deceased---Said recovery had been effected in violation of S.103, Cr.P.C.---Accused were extended benefit of doubt and acquitted in circumstances.

Ata Muhammad and another v. The State 1995 SCMR 599 ref.

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

----S.302(b)---Appreciation of evidence---Corroboration---Principles---Witness cannot corroborate himself by repeating the version before different persons on different occasions---Evidence at the trial cannot be corroborated or reinforced by proving that the witness had made a similar statement to a third party on a previous occasion---Mere repetition of a story will not give it any force or prove its truth.

Ata Muhammad and another v. The State 1995 SCMR 599 ref.

Ch. Naseer Ahmad Sindhu for Appellant (in Crl. Appeal No.1701 of 2000).

Sultan Mehmood for Appellant (in Crl. Appeal No.1855 of 2000).

Saleem Shad for the State (in M.R. No.680 of 2003).

Mian Abdul 'ayyum Anjum for the State (in Crl. Appeal No.1701 of 2000).

A.H. Masood for the State (in Crl. A. No.1855 of 2000).

Date of hearing: 14th November, 2005.

2006 M L D 323

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUHAMMAD AZMAT---Petitioner

Versus

MEMBER, BOARD OF REVENUE, MEMBER JUDICIAL-III and 3 others---Respondents

Writ Petition No.5492 of 2003, heard on 3rd October, 2005.

West Pakistan Land Revenue Rules, 1965---

----R.19(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Lambardar, appointment of---Rules of primogeniture whether un-Islamic in nature---Decision of Shariat Bench of 'Supreme Court regarding rule of primogeniture---Applicability---On the death of the father of the petitioner, who was a permanent lambardar, applications were invited for filling the vacancy of lambardar---Petitioner was eventually appointed lambardar by the order of the Collector---Appeal filed by an aggrieved respondent against the order of the Collector was dismissed by the Commissioner---Revision petition was subsequently filed by the said respondent which was allowed by the Member Board of Revenue by setting aside the orders of Collector and Commissioner and appointing the respondent as the lambardar instead---Constitutional petition was filed by the petitioner challenging the impugned order of the Member Board of Revenue---Contention of the petitioner was that the impugned order was against the law and facts because it was wrongly held that his property was insufficient to stand security for Zar-e-Bharat and moreover the rule of primogeniture was applicable in the case of the petitioner as it had not been declared as un-Islamic at the relevant time and the performance of the petitioner as temporary lambardar was unsatisfactory---Validity---Record showed that the land of the petitioner was sufficient to meet the requirements of Zar-e-Bharat and there was no rule in the field as to how much land a lambardar was to own and it was only to meet the requirements of Zar-e-Bharat---On the other hand, the respondent was a stranger and had the same educational qualifications as that of the petitioner---When the cause of action accrued to the petitioner, at that time the rule of primogeniture was not un-Islamic as the decision of the Shariat Bench of Supreme Court under which rule of primogeniture was declared as un-Islamic was not in the field, moreover, such a decision could not have the effect on the past cause of action---Petitioner was appointed as lambardar keeping in view the hereditary claim under R.19(2) of the West Pakistan Land Revenue Rules, 1968---Since under the rule of primogeniture, no disqualification was imputed to the petitioner, his constitutional petition was allowed.

Maqbool Ahmad Qureshi v. Islamic Republic of Pakistan and others PLD 1999 SC 484 and Pakistan International Air Lines Corporation v. Messrs Pak Saaf Dry Cleaners PLD 1981 SC 553 ref.

Saghir Ahmad Bhatti for Petitioner.

Ch. Abdul Ghani for Respondent No.4.

Date of hearing: 3rd October, 2005.

2006 M L D 330

[Lahore]

Before M. Bilal Khan, J

GHULAM AHMED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6240-B of 2005, decided on 26th October, 2005.

Criminal Procedure Code (V of 1898)---

---S.497---Emigration Ordinance (XVIII of 1979), Ss.17 & 22---Prevention and Control of Human Trafficking Ordinance (LIX of 2002), S.3---Penal Code (XLV of 1860), 5.489-F---Bail, refusal of---Serious allegations had been levelled against the accused---Accused had not denied having issued cheques in favour of complainant which had been dishonoured---Filing of a Civil suit by the accused seeking cancellation of certain documents, alleged to have been forcibly obtained from him, prima facie, appeared to be a device to make his case. one of further inquiry---Mere old-age of 60 years of accused was not sufficient to release him on bail when he was involved in an offence falling within the prohibitory clause of S.497(1), Cr.P.C.---Several other enquires of similar nature were also being conducted against the accused---Challan had already been submitted in the trial Court---Bail was declined to accused in circumstances.

Aftab Ahmed Bajwa for Petitioner.

Ch. Sadaqat Ali for the Complainant.

M. Jahangir Wahlah, Standing Counsel for Federal Government.

Amjad Sadiq, S.-I. Passport Cell F.I.A Gujranwala with record.

2006 M L D 333

[Lahore]

Before Muhammad Jehangir Arshad, J

Syed MUHAMMAD NAWAZ SHAH---Petitioner

Versus

DISTRICT RETURNING OFFICER, D.G. KHAN and 10 others---Respondents

Writ Petitions Nos.5114, 5101 and 5115 of 2005, heard on 21st October, 2005.

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

----S. 152(1)(e)-Constitution of Pakistan (1973), Art. 199 - Constitutional petition---Disqualification of the candidate on the ground of not possessing prescribed qualification---Sanad i.e. Shahadat-ul-Sanvia---Equivalence of Matriculation or Secondary School Certificate---Conditions---Any Sanad i.e. Shahadat-ul-Sanvia issued by any recognized institution could only be considered as equivalent to Matriculation certificate if the holder of such Sanad had passed subjects I of English, Urdu and Pakistan Studies at Secondary School level from any Board of Intermediate and Secondary Education in Pakistan and the Inter-Board Committee had granted equivalence Certificate in that regard---Candidates holding Sanad issued by institutions not recognized by the Government, without having passed said three additional subjects and without obtaining the equivalence Certificate from Inter-Board Committee, were not qualified to contest election of Nazim/Naib Nazin.

Muhammad Younas Iqbal and another v. District Returning Officer, Gujranwala and 9 others PLD 2005 Lah. 695; Sanaullah Khan and another v. District Returning Officer, Mianwali, and others PLD 2005 SC 858; Muhammad Nadirn's case C.P. No.1673-L of 2005 and Abdul Khaliq and another v. Maulvi Noor Mohammad and others PLD 2005 SC 962 ref.

(b) Punjab Local Government Ordinance (XIII of 2001)---

----Ss. 152(1)(e) & 161---Punjab Local Government Elections Rules 2005, R.67---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Disqualification of contesting candidates was not only patent and glaring but was also floating on surface, requiring no factual inquiry by Election Tribunal, therefore, invocation of constitutional jurisdiction was justified---Orders passed by District Returning Officer whereby he accepted nomination papers held, were, without lawful authority and of no legal effect---Matters, in circumstances, were referred to the Chief Election Commissioner of Pakistan.

Ch. Nazir Ahmed and others v. Chief Election Commissioner and 4 others PLD 2002 SC 184; Muhammad Shavez Khan v. District Returning Officer, Attock and another 2002 CLC 342; Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149 and Government of Punjab through Collector, Faisalabad and another v. Hudabia Textiles Mills, Faisalabad through Chairman and 4 others 2001 SCMR 209 ref.

Mirza Manzoor Ahmed for Petitioner.

Ch. Abdl Sattar Goraya for Respondent No.3.

Date of hearing: 21st October, 2005.

2006 M L D 341

[Lahore]

Before Muhammad Jehangir Arshad, J

Mian MUHAMMAD ALTAF and another---Petitioners

Versus

CHIEF ELECTION COMMISSION OF PAKISTAN, ISLAMABAD and 10 others---Respondents

Writ Petition No.5045 of 2005, decided on 12th October, 2005.

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

----S. 152(1)(e)--Punjab Local Government Elections Rules, 2005, R.65---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maxim "He who seeks equity must come with clean hands"---Applicability---When both sets of candidates i.e. petitioners as well as respondents were holding certificates of qualification less than matriculation which was the requisite educational qualification to contest the election for seat of Nazim/Naib Nazim, petitioners had no right to challenge the qualification of respondents because they were also sailing in the same boat---Constitutional jurisdiction being discretionary and equitable, could not be exercised in favour of a person who had himself not come to the Court with clean hands---Constitutional petition was, therefore, dismissed by High Court.

Raunaq Ali's case PLD 1973 SC 236 ref.

Tahir Mehmood for Petitioners.

Muhammad Ramzan Khalid for Respondents Nos.4 and 5.

2006 M L D 345

[Lahore]

Before M. Bilal Khan, J

DILDAR HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7618-B of 2005, decided on 7th November, 2005.

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

----S.497---Penal Code (XLV of 1860), S.324/334/34---Bail, refusal of---Accused had been attributed a specific role of causing fire-shot injury to the witness at his right leg making fracture at two places which led to the amputation of his right leg---Contention that the aforesaid injuries had been caused by the co-accused with a .12 bore repeater would lead to undertaking a deeper appreciation of the material on the record, which could not be done at bail stage---Injured witness and the witnesses mentioned in the F.I.R. including the complainant had stood firm on the position taken by' them from the first day---Contention that the amputation of the leg of the prosecution witness had to be carried out because of the negligence of the Doctor was misconceived---Co-accused, wife of the accused, had been allowed bail on the grounds of being a female and the injury attributed to her was not supported by the Medico-legal report and her case was not at par with that of the accused---Accused was refused bail in circumstances.

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

----S.497---Penal Code (XLV of 1860), S.324/334/34---Bail---Assessment of material on record---Principles---Court while seized of a bail application has to confine itself to tentative assessment of the material available on record.

Syed Nisar Safdar for Petitioner.

Jameela Barlas for the State.

Ahmed Yar A.S.-I., Police Station Saddar Samundri, District Faisalabad with police file.

2006 M L D 352

[Lahore]

Before Maulvi Anwarul Haq, J

Malik NASIR ABBAS GHALU---Petitioner

Versus

CHIEF ELECTION COMMISSIONER OF PAKISTAN, ISLAMABD and 5 others---Respondents

Writ Petition No.5363 of 2005, heard on 5th October, 2005.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----S. 152(1)(e)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election for the seat of Nazim/Naib Nazim---Non-appending of copy of matriculation certificate with nomination papers---Effect---Minimum required qualification to contest election for seat of Nazim/Naib Nazim was matric---Candidate, who was a graduate filed his nomination papers with copy of B.A. Degree---Filing of such degree was sufficient to fulfil the criteria laid down in section 152(1)(e) of Punjab Local Government Ordinance 2001---Matriculation Certificate in circumstances, was neither required to be produced nor in fact same was relied upon for the purpose---Qualification of candidate being not disputed, Returning Officer rightly accepted his nomination papers.

(b) Punjab Local Government Ordinance (XIII of 2001)---

----S. 152(1)(b)---Punjab Local Government Election Rules, 2005, R.65---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election for the seat of Nazim/Naib Nazim---Disqualification of candidate being under-age---Candidate, for purpose of his age had relied upon copy of his birth entry wherein his date of birth was recorded as 27-3-1980 while the birth entry of one of his sisters was recorded as 15-4-1980---Such a short interval between the births of the two was impossible and a matter of factual inquiry fell within the exclusive domain of Election Tribunal---Existence of an adequate and efficacious alternate remedy in shape of election petition before Election Tribunal was sufficient circumstance to dismiss constitutional petition---Petition was dismissed accordingly.

Mian Ahmed Mahmud for Petitioners.

Zafar Ullah Khan Khakwani, A.A.-G. for Respondent Nos.1 to 3.

Muhammad Irfan Wyne for Respondent No.4.

Sardar M. Akram Khan Pitafi for Respondent No.5.

Haji Muhammad Aslam Malik with Tariq Mahmud, Asstt: for Respondent No.6.

Ibrar Ahmad, Naib Tehsildar/ARO, Alipur.

Nazir Ahmad, Secretary, UC Ghalwan Alipur.

Date of hearing: 5th October, 2005.

2006 M L D 357

[Lahore]

Before Muhammad Jehangir Arshad, J

SHAFIQUE-UR-REHMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1132-B of 2005/BWP, decided on 16th November, 2005.

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

----S. 156-B---Offence of Zina Enforcement of Hudood Ordinance (VII of 1979), Ss.16 & 10---Investigation against a woman accused of offence of Zina---Applicability of provision of S.156-B, Cr.P.C.---Provisions of S.156-B, Cr.P.C. were applicable to all accused whether male or female, if its context was properly read---Prevailing concept that provisions of S.156-B, Cr.P.C. were applicable to woman accused only, was neither correct nor based on proper reading of S. 156-B, Cr.P.C.

(b) Interpretation of statutes---

----Interpretation of a provision of law---Headnote of a provisions as against its text---Interpretative value---Text of relevant law and not the headnote, which was to be followed.

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

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Bail, grant of---Further inquiry---Allegation, though against accused was that he prompted abduction of alleged abductee at the hands of his brother/co-accused, knowingly that alleged abductee was a married woman, but there was no allegation against accused for commission of Zina or even attempt to commit Zina---Was yet to be determined, whether per allegation in. F.I.R., marriage of alleged abductee with complainant after allegedly contracting her marriage with co-accused/brother of accused and her alleged return to complainant with undertaking by said co-accused to divorce her, was still intact and; whether accused played any role in that affair, had made case of accused, as one of further inquiry---Offence against accused under S.16 of Offence of Zina (Enforcement of Hudood), Ordinance, 1979, even if presumed to be attracted, same was punishable with seven years and thus did not fall within prohibitory clause of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Muhammad Tariq and others v. The State PLD 1995 SC 34 ref.

Kausar Bhatti and Ejaz Ahmad Chaudhry for Petitioner.

Ijaz Ahmad Abbasi for the Complainant with Hafiz Muhammad Asghar Lang for the State and Nasir Ali, A.S.-I.

2006 M L D 367

[Lahore]

Before Ch. Ijaz Ahmad and Muhammad Khalid Alvi, JJ

Messrs AL-MUMTAZ AGENCIES through Proprietor---Appellant

Versus

MILLAT TRACTORS LIMITED through Managing Director and another---Respondents

Regular First Appeal No.246 of 2000, heard on 8th September, 2005.

(a) Approbate and reprobate---

----Party once having accepted statement of his opponent as true, could not wriggle out from such accepted position on the basis of well known principle of approbate and reprobate---Principles.

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

----Ss.205 & 206---Specific Relief Act (I of 1877), S.56(f)---Agency, contract of---Premature, improper or unlawful termination of such contract---Remedy of agent---Agent for such breach could claim only damages---Principles.

If a principal makes a premature revocation, the agent can only claim damages. The contract of Agency is dependant upon the confidence and trust which the principal has in his agent, and the principal can revoke the Agency at his will, once this confidence is shaken, despite the fact the Agency is for a certain period. But the principal may have to pay damages to the agent, if there is no sufficient cause for the dismissal.

PIDC v. Aziz Qureshi PLD 1965 (W.P.) Karachi 202; HBL and another v. Syed Zia ul Hassan Kazmi 1998 SCMR 60; W.P.I.D.C. v. Aziz Qureshi PLD 1973 SC 222; Huma Enterprises and 3 others v. S. Pir Ali Shah and others 1985 CLC 1.522; M.A. Naser v. Chairman, Pakistan Eastern Railways and others PLD 1965 SC 83 and Marghub Siddiqui v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 ref.

Vishnucharya v. Ramachandra 1881 Vol. 5 Bombay 253-256; Frith v. Frith 1906 AC 254; Lamb & Sons v. Goring Brick Coy, Ltd. (1932) 1 KB 710; Southern Chemical Works v. Muhammad Hussain Fakhar-ud-Din Maniar AIR 1970 Bombay 128; Huma Enterprises and 3 others v. S. Pir Ali Shah and others 1985 CLC 1522; Aziz Qureshi's case PLD 1973 SC 222; Shaw Wallac's case AIR 1930 Cal. 676; Sohrabji's case AIR 1946 PC 6; PIDC's case PLD 1965 Kar. 202; Saeed Ahmad Khan's case PLD 1974 SC 157 and Muhammad Aref Effendi's case 1980 SCMR 588 rel.

(c) Word and phrases---

-------Meaning.

Feroz Sons Urdu English Dictionary (Revised Edition) ref.

Ijaz Feroze for Appellant.

Saleem Sehgal for Respondents.

Date of hearing: 8th September, 2005.

2006 M L D 378

[Lahore]

Before Khawaja Muhammad Sharif and M.A. Shahid Siddiqui, JJ

Master MUHAMMAD YOUNIS and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1995 of 2004, Criminal Appeal No.1831 of 2001 and Murder Reference No.674 of 2001, heard on 16th November, 2005.

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

----S.374---Confirmation of death sentence by High Court---Despite the accused having decamped from Trial Court and thus having forfeited his right of audience, High Court is competent to consider the case of confirmation of his death sentence and to confirm the same on merits.

Khanan Khan and others v. The State PLD 1966 (W.P.) Pesh. 232 and Hayat Bakhsh and others v. The State 1981 SCMR 1 ref.

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

----S.302(b)/34---Appreciation of evidence---Defence version given by the accused before the trial Court appeared to be correct and nearer to truth--Injuries sustained by the accused as well as by the absconding accused who had decamped from the Trial Court at the time of announcement of judgment, had been suppressed by the prosecution---Complainant had not approached the Court with clean hands---High Court was fully competent to consider the case of the absconding accused also on merits whose case had been sent by the Trial Court for confirmation of his death sentence---Benefit of doubt had been extended to the accused including the absconding one in circumstances and they were acquitted according.

Khanan Khan and others v. The State PLD 1966 (W.P.) Pesh. 232 and Hayat Bakhsh and others v. The State 1981 SCMR 1 ref.

Sardar Mashkoor Ahmed and Ashgar Ali for Appellants.

Aamir Feroze Sheikh for the State (in Criminal Appeal No.1995 of 2004).

Maqbool Ahmad Qureshi for the State (in Criminal Appeal No.1831 of 2001).

Muhammad Azam for the State (in Murder Reference No.674 of 2001).

Date of hearing: 16th November, 2005.

2006 M L D 385

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD NISAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6333-B of 2005, decided on 24th October, 2005.

Criminal Procedure Code (V of 1898)---

----S.497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/18---Bail refused of---Record did not show that the complainant was motivated or had any malice to implicate the accused falsely in the case---Was difficult to imagine that the complainant would, do so without any good reason at the cost of tarnishing the chastity and modesty of his wife---Delay of five days in lodging the F.I.R. in the given facts and circumstances was not very crucial keeping in view the fact that the honour and dignity of the complainant's wife was at stake---Ample incriminating material, prima facie, was available against the accused---Offence with which the accused was charged fell within the prohibitory clause of S.497(1), Cr.P.C.---Bail was refused to accused in circumstances.

Syed Imdad Hussain Hamdani for Petitioner.

Arshad Ali Saif Qureshi for the State.

Ameer Afzal A.S.-I. with record.

2006 M L D 391

[Lahore]

Before Sh. Javaid Sarfraz, J

Rana SHEHRAM SHOKAUT and 8 others---Petitioners

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY through Vice-Chancellor and 2 others---Respondents

Writ Petition No.6709 of 2005, decided on 29th November, 2005.

University College of Engineering and Technology, Baha-ud-Din Zakariya University, Multan, Regulations---

---Regln. 18---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Final year examination of Civil and Electrical, Engineering---Non-issuance of roil-number slips---Contention of petitioners was that during the previous years University had waived the condition of clearance of all papers in the first year but it was an illegality and mala fides on the part of the University to impose said restrictions on the petitioners---Validity---Regulation 18 of the University College of Engineering and Technology, Baha-ud-Din Zakariya University, Multan which had clearly expressed that a candidate who had not cleared in all the papers of first year and eight papers in the second year and third year would not be eligible to appear in the final year examination, had been suspended for the academic Sessions 1993-1994 but subsequently same was made applicable from the academic Session 2001-2002 onward vide notification duly approved by the Syndicate---Notification in circumstances, was rightly applied to petitioners who were `students of Session 2001-02 to Session 2004-05 and who did not fulfil the required conditions---Examination fees deposited by petitioners however, were ordered to be refunded by the High Court.

Syed Muzaffar Abbas Kazmi for Petitioner.

Malik Muhammad Tariq Rajwana with Waqar Ahmad, Controller of Examinations.

Dur Muhammad Khan, Deputy Controller of Examinations.

Kamran Qureshi, Head of Department (Civil).

Zahoor Ahmad, Junior Clerk and Muhammad Hussain Assistant, Legal Cell, Bahauddin Zakariya University Multan.

2006 M L D 394

[Lahore]

Before M. Bilal Khan, J

MAZHAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6142-B of 2005, decided on 7th November, 2005.

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

----S.497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Bail, grant of---Eye-witnesses in their statements under S.161, Cr.P.C. had not explained their presence at the crime spot at the relevant time---F.I.R. had been lodged after the delay of 26 hours---Complainant had not mentioned in the F.I.R. the close relationship inter se the parties and possibility of the matrimonial disputes being the cause of motivated F.I.R. could not be ruled out---Case against accused, thus, needed further probe as envisaged by S.497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Syed M. Nisar Safdar for Petitioner.

Muhammad Jamil Hassan Pasha for the Complainant.

Abdul Majeed Chishti for the State.

Mukhtar Ahmed S.-I., Police Station Sadar Sheikhupura with police file.

2006 M L D 396

[Lahore]

Before Khawaja Muhammad Sharif, J

ZAFAR IQBAL---Petitioner

Versus

MUHAMMAD MUDASSAR---Respondent

Criminal Revision No.728 of 2005, decided on 28th September, 2005.

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

----S. 7---Age of accused, determination of---School Leaving Certificate and Birth Certificate showed the age of accused about sixteen years at the time of occurrence, but according to the report of Medical Board his age was 21/22 years---Medical Board, which had examined accused, had further opined that definite age of accused could not be given---Accused, who was involved in 4/5 other criminal cases of heinous nature, had not taken the plea of minority---If opinion of Medical Board given by five Doctors was taken into consideration in its entirety, difference of six months to one year could be taken note of on either side and if that difference was considered, even then age of accused at the time of occurrence would still remain more than eighteen years as date of occurrence was 29-9-2003 and Medical Board gave its opinion on 9-3-2005, declaring accused as 21/22 years of age---If intervening period from the date of occurrence and date of Medical examination which was about one and a half year, plus a further possible difference of one year was calculated, then accused was still more than eighteen years of age and he was major to all intents and purposes---Impugned order by Trial Court was set aside and accused was declared to be major under Juvenile Justice System Ordinance, 2000 and his case was to be tried along with other co-accused by the ordinary Court.

2003 PCr.LJ 1889; 2002 SCMR 440; 2003 YLR 321; 2002 PCr.LJ 2034; 2004 SCMR 758; Naseer Ahmad v. The State PLD 2000 SC 813 and Mst. Shabana Kausar v. Farhan Ahmad 2003 PCr.LJ 1507 ref.

M. Asghar Rokhri for Petitioner.

Chaudhry Muhammad Hanif Khatana Addl.A-G Punjab with Muhammad Tayyub Naz, Ehlmd with record.

Muhammad Ayyub for Respondent.

2006 M L D 403

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD IDREES---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5657-B of 2005, decided on 17th, October 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal Code (XLV of 1860); S.324---Bail, refusal of---Petition for bail before arrest was dismissed earlier on the ground that accused did not appear before Trial Court on the date of its confirmation---Accused for a long period of two years and three months after dismissal of bail before arrest petition, did not surrender his person to the process of law and ultimately was arrested---Accused was involved in many criminal cases of heinous nature like murder, hurt, hadood, abduction and under Arms Ordinance, 1965---Present case against accused was not an ordinary case of hurt, but allegation against him was that he while armed with fire-arms, along with his co-accused assaulted complainant's sister, at first she was tried to be abducted and then accused caused pistol butt blows to her followed by blows with their respective weapons of offence---Victim girl not only received injuries on different parts of her body, but also her wearing clothes were torn and she was made naked to the public view---Golden wearing/ ornaments of victim girl were forcibly taken away by accused---Offence against accused though did not fall within prohibitory clause of S.497(1), Cr.P.C., but bail could not be claimed as of right---Bail was refused.

Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442 ref.

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

--S. 497(1)---Exceptions when bail could be refused in a case which did not fall within the prohibitory clause of S.497, Cr.P.C.---Such four exceptions were (a) where there was likelihood of abscondence of accused (b) where there was apprehension of accused tampering with prosecution evidence (c) where there was danger of the ,offence being repeated if accused was released on bail and (d) where accused was a previous convict.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

Raja Ghulam Hassan Khan and Zahid Iqbal Sheikh for Petitioner.

Wajeehuddin Pervez for the State with Maqbool A.S.-I. with record.

2006 M L D 405

[Lahore]

Before Sh. Abdur Rashid, J

SHAKEEL AHMED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7877-B of 2005, decided on 28th November, 2005.

Criminal Procedure Code (V of 1898)-

----S. 497(2)---penal Code (XLV of 1860), Ss.380 & 411---Bail, grant of---Further inquiry---No identification mark was put on the cash amount allegedly recovered from accused to link it with stolen property---Even otherwise offence under S.411, P.P.C. also did not fall within the prohibitory clause of S.497, Cr.P.C.---Case against accused being a matter of further inquiry, he was admitted to bail, in circumstances.

Munir Ahmad Khan Zai for Petitioner.

Raja Sher Muhammad for the State with Muhammad Ishaque A.S.-I., with record.

2006 M L D 406

[Lahore]

Before Abdul Shakoor Paracha, J

GHULAM QADIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.942/B of 2004, decided on 17th September, 2004.

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

---S. 497---Penal Code (XLV of 1860), Ss.302, 324 & 34---Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b), 10(7) & 12---Bail, grant of---Accused had sought bail on ground that he was a child within meaning of S.2(b) of Juvenile Justice System Ordinance, 2000---Apart from the fact that accused was a child on the basis of school leaving certificate, he had been declared so by Medical Superintendent, vide his report which had not been disputed by prosecution---Clauses (a) & (b) of subsection (7) of S.10 of Juvenile Justice System Ordinance, 2000, were applicable to the case of accused and under S.12 of said Ordinance, punishment of death to a child had expressly been barred/excluded---Juvenile Justice System Ordinance, 2000 was aimed at extending protection to the children involved in criminal litigation and their rehabilitation to the society and said Ordinance had safeguarded human rights of a section of society who deserved reasonable concession because of their tender age---Juvenile Justice System Ordinance, 2000 was to be construed liberally in order to achieve the object---Proviso to S.10(7) of Juvenile Justice System did not bar the Court to grant bail to accused---Accused was allowed bail, in circumstances.

Asghar Ali v. The State 2002 MLD 1566; Afsar Zamin v. The State PLD 2002 Karachi 18; Sultan Ahmad v. Additional Sessions Judge-I, Mianwali and 2 others PLD 2004 SC 758 and Mansoor Ahmed and others v. The State 2002 PCr.LJ 657 ref.

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

---Preamble---Object of the Ordinance stated.

Raja Ikram Ameen Minhas for Petitioner.

Sardar Muhammad Ishaque Khan-I, Tanveer Iqbal A.A.-G. along with Sajid Mehmood, A.S.-I. for the Complainant.

Date of hearing: 17th September, 2004.

2006 M L D 410

[Lahore]

Before M.A. Shahid Siddiqui, J

ROOHI BANO---Petitioner

Versus

S.H.O. and 2 others---Respondents

Writ Petition No.11730 of 2005, decided on 20th July, 2005.

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

----S.11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Petitioner had argued that she being sui juris having contracted marriage of her own volition with co-accused, she had not committed any offence---Complainant had submitted that petitioner being under influence of co-accused, could be lodged in Dar­ul-Amaan for few days, but she declined to go to Dar-ul-Amaan---Petitioner had alleged that her father/complainant had divorced her mother about 10 years ago and that she had also been subjected to cruelty by her father/complainant---Petitioner claimed to have attained puberty and had contracted marriage with co-accused---Report of Standing Medical Board of Hospital, revealed that petitioner was about 15/16 years of age---Manner in which petitioner had refuted prosecution story, had shown that she had no love for her father who had divorced her mother long ago---Nikahnama showed that petitioner had contracted marriage with co-accused of her own will and volition and she had not committed any offence---F.I.R. was quashed, in circumstances.

Aftab Ahmad Bajwa for Petitioner.

Mailk Zafar Iqbal Awan, Addl. Advocate/General.

Complainant in person.

Date of hearing: 20th July, 2005.

2006 M L D 415

[Lahore]

Before Asif Saeed Khan Khosa and M.A. Shahid Siddiqui, JJ

NASEER AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.203 of 2003, decided on 24th March, 2005.

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

----S. 9(c)---Appreciation of evidence---Reduction in sentence---Accused, at the very outset, opted not to challenge his conviction, but simply prayed for reduction in sentence on the ground that nothing was on record to show previous conviction of accused in any case of similar nature---Accused had been in custody since 19-6-2000---Offence entailed punishment up to 14 years---In view of quantity allegedly recovered from possession of accused, Proviso to S.9(c) of Control of Narcotic Substances Act, 1997 was not attracted---Taking lenient view, High Court reduced sentence from 14 years' rigorous imprisonment to five years' rigorous imprisonment, accordingly.

Zafar Iqbal Chohan for Appellant.

Mian Abdul Qayyam Anjum for Respondent.

Date of hearing: 24th March, 2005.

2006 M L D 418

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD SHAFI---Appellant

Versus

MUHAMMAD ASHIQ and others---Respondents

Regular Second Appeal No.9 of 1988, decided on 3rd June, 2005.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Suit for declaration and possession---Suit-land originally was owned by a Church and case set up by respondent was that he had purchased suit-land through a sale-deed executed in his favour and that vendor in turn had based his title on sale-deed purportedly executed in his favour by an attorney of said Church---Defence set up by appellant was that he was in possession of suit-land since long and his title had matured on basis of adverse possession---Respondent could not produce on record alleged power-of-attorney on basis of which a purported attorney of Church had sold land---Such was a serious flaw which had gone to the root of title asserted by respondent---In view of admitted position that Church was owner of land originally and considering the defence set up by appellant, it was incumbent upon respondent to have proved every document in the chain of transactions leading from the Church up to his alleged title, but he failed to do so---Even if attorney had been constituted by Church it was necessary to see the power-of ­attorney itself for the purposes of ascertaining if attorney possessed any power to sell Church's property---Courts below had not given any consideration to said aspects of the case which was a fatal deficiency in the case of respondent---Appellant admittedly was in possession of suit-land when respondent purported to acquire title in the same---Such circumstances also detracted from the veracity of case set up by respondent---Both Courts below having committed an error of law, impugned concurrent decrees were set aside in second appeal.

Muhammad Nawaz Kasuri for Appellant.

Riaz Hussain Khan for Respondent No. 1.

Respondent No.3 in person.

Kh. Muhammad Saeed on behalf A.A.-G.

Date of hearing: 3rd June, 2005.

2006 M L D 420

[Lahore]

Before Muhammad Muzammal Khan, J

NUSRAT ALI---Petitioner

Versus

JUDGE FAMILY COURT, TEHSIL CHINIOT, DISTRICT JHANG and another---Respondents

Writ Petition No.4113 of 2005, decided on 14th September, 2005.

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

----Ss. 5, Sched & 8, 9 & 11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles---Striking off defence---Defendant, who was served through citation in newspaper, having failed to appear before the Court, was proceeded against ex parte---Defendant appeared on same day before Family Court and moved application for setting aside ex parte order, which order was set aside subject to payment of costs and case was adjourned for filing of written statement---Defendant, on the adjourned date of hearing failed to appear before Family Court due to his sickness, but his counsel attempted to file written statement without paying amount of costs---Request of counsel of defendant for payment of costs made on next date was declined and his defence was struck---Validity---No doubt, order of setting aside of ex parte proceedings against defendant was conditional on payment of costs, but Family Court had acted in haste in striking off defence of defendant despite the fact that his counsel was ready with the written statement to file---Request of counsel for defendant for payment of costs on next date of hearing was improperly turned down by Family Court, though defendant was reported to be sick and in his absence, his counsel was not in a position to pay awarded costs and he had assured that the same could be paid on next date of hearing---Statement of counsel of defendant should have been believed and by entertaining written statement on behalf of defendant for which purpose suit was fixed, payment of costs needed to have been deferred---Said treatment needed to have been meted out in order to dispense justice between the parties---Counsel for plaintiff could not point out any prejudice to have been caused to the rights of his client, had the case been adjourned or adjudicated upon---Disputes among parties should be attempted to be determined/decided on merits instead of knocking out any of them on technicalities---Defence of defendant having been struck off on date which was the first date fixed for filing written statement, he was not given fair opportunity to comply with order of payment of costs---Impugned order which suffered from serious illegalities and was contrary to settled principles, was declared to be void, illegal and of no legal consequences, by High Court in constitutional jurisdiction.

Naveed Ahmed Khawaja for Petitioner.

Nasim Ullah Khan Niazi for Respondent No.2.

Date of hearing: 14th September, 2005.

2006 M L D 423

[Lahore]

Before Khawaja Muhammad Sharif, J

ZAFAR and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.1160 and 1036 of 2002, decided on 14th March, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Matter was reported to police after about 6 hours of the occurrence while distance between place of occurrence and Police Station was 7-1/2 miles---Nobody was named in the F.I.R., no source of light was mentioned therein F.I.R. and no identification parade was held in the case---All three accused were mentioned in F.I.R. having muffled their faces, but in the supplementary statement, four accused with their names had been mentioned---Complainant, while being cross-examined, made dishonest improvement and he was confronted with his earlier statement-Complainant had admitted in cross-examination that he remained at the spot along with other prosecution witnesses for 4/5 hours after occurrence, but despite that he did not tell the names of accused persons in his complaint---Case, in circumstances was of mistaken identity---Incident was an unwitnessed occurrence and presence of alleged eye-witnesses at the spot at time of occurrence was highly doubtful---If prosecution had got ocular account in the shape of four eye-witnesses, then there was no need of extra-judicial confession or that of tracker---Apprehension, in circumstances, existed to the effect that ocular account was not of the type which could bring conviction to accused---Even alleged extra-judicial confession was a joint one which was not admissible in evidence---Duration between injury and death and between death and post-mortem as given by Doctor who conducted post-mortem of deceased, was against the time of occurrence---Prosecution case revealed that two crime empties were taken into possession from the spot but there were two recovery memos. of each crime empty---Two co-accused had finally been acquitted by Trial Court---Prosecution had failed to prove its case against accused beyond any shadow of doubt---So many doubts being available in the case, benefit of such doubts would go in favour of accused not as a matter of grace, but as a matter of right---While granting benefit of doubt, conviction and sentence awarded to accused. by Trial Court were set aside by High Court and they were acquitted and released.

Zafar Iqbal Chowhan (in Criminal Appeal No.1160 of'2002) for Appellant.

Mian Shahid Rasool (in Criminal Appeal No.1036 of 2003) for Appellant.

Syed Ijaz Qutab for the Complainant. Mian Abdul Qayyum Anjum for the State.

Date of hearing': 14th March, 2005.

2006 M L D 428

[Lahore]

Before Mian Hamid Farooq, J

Mrs. NAJMA QAZI---Petitioner

Versus

Qazi ABDUL HAKEEM---Respondent

Civil Revision No.322 of 2000, decided on 26th April, 2005.

Specific Relief Act (I of 1877)---

----Ss. 8 & 54---Civil Procedure Code (V of 1908), Ss.115, 12(1), 151, O.II, R.2 & O.VII, R.11---Suit for possession, permanent injunction and partition---Rejection of plaint---Trial Court rejected plaint finding that plaintiff had no cause of action and that suit was barred under provisions of 0.II, R.2 and S.12(1), C.P.C.---Appeal filed by plaintiff against judgment of Trial Court was dismissed by Appellate Court on grounds different from those on which Trial Court had granted permission to plaintiff to file suit for possession---Revision had been filed against impugned judgment of Appellate Court on the ground that appeal. filed by plaintiff was barred by time and that Appellate Court while granting permission to plaintiff to file suit for possession had acted in exercise of his jurisdiction illegally and with material irregularity---Validity---Appellate Court in complete oblivion of pleadings of parties, had found that case being of simple possession would be maintainable---Appellate Court had set up a different case for plaintiff which was never pleaded by him---Additionally, Appellate Court had allowed plaintiff to file a suit for possession as and when required, giving plaintiff unlimited period to avail his remedy of possession, which was not permissible under law---Impugned order being violative of law and in conflict with settled law, was set aside in revision by High Court.

Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCMR 1696 ref.

Waqar Anjum for Petitioner.

Nemo for Respondent.

Date of hearing: 26th April, 2005.

2006 M L D 435

[Lahore]

Before Muhammad Khalid Alvi, J

MUHAMMAD BASHIR---Petitioner

Versus

MUHAMMAD NAZIR and others---Respondents

Civil Revision No.107 of 2005, decided on 9th May, 2005.

Partition Act (IV of 1893)---

----S.2---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for partition of joint Khasra---Interim injunction---Plaintiff had claimed that he was co-owner of property in dispute and that without partition, its nature could not be changed so as to prejudice his rights---Defendants had contended that they had disputed the title of plaintiff and they being absolute owners were entitled to raise constructions over the portion of their choice of the property in dispute---Jamabandi for relevant year, prima facie had indicated that plaintiff was co-sharer in disputed Khasra numbers---Any change brought in the property in dispute, in circumstances, could cause damage to rights of plaintiff with respect to its partition---If defendants would feel necessity of raising any construction over property in dispute in their possessions, they could do so at their own risk and cost---Any construction raised by defendants after institution of suit, would not prejudice rights of plaintiff in any manner at the time of final partition.

Liaqat Ali Butt for Petitioner.

Ch. Muhammad Rafique Warraich for Respondents Nos.1 to 7, 9 and 10.

Date of hearing: 9th May, 2005.

2006 M L D 437

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD ISMAIL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4490-B of 2005, decided on 11th July, 2005.

Criminal Procedure Code (V of 1898)---

----Ss.498 & 345---Penal Code (XLV of 1860), Ss.420, 466, 468. & 471---Pre-arrest bail, grant of---Offences with which accused was charged, though were not compoundable, but since a compromise had been effected, it would be in the interest of both the parties that concession of pre-arrest bail be allowed as same would go a long way in mending cordial relationship between the parties which had existed before commencement of litigation---Interim pre-arrest bail granted to accused, was confirmed, in circumstances.

Mazhar Iqbal v. The State 2004 PCr.LJ 923 and Muhammad Hussain v. The State 1995 PCr.LJ 1853 ref.

Akhtar Hussain Bhatti for Petitioner.

Ch. Maajid Hussain for the Complainant.

2006 M L D 439

[Lahore]

Before Jawwad S. Khawaja, J

GHULAM MUHAMMAD and others---Petitioners

Versus

MUHAMMAD YOUSAF and others---Respondents

Civil Revision No.560 of 2001, decided on 5th May, 2005.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession---Plaintiff had filed suit seeking possession of land on the basis of their alleged ownership and claimed that they had - given suit property temporarily to defendants for residential use---Defence set up by defendants was that they had become owners of property under Settlement Scheme No.7 and in the alternate they had asserted that their title on suit property had matured on basis of adverse possession---Trial Court decreed suit, but Appellate Court dismissed the same---Version of plaintiff that they had temporarily given suit property to defendants, was not believable---One of the plaintiffs as witness was not able to state as to when property in dispute was given to defendants---Plaintiffs did not take any steps to prevent defendants from raising their pacca construction and houses on said property which allegedly was given temporarily to them---In view- of express averments in the written statement of defendants that they had become owners under Settlement Scheme No.7, it was incumbent upon plaintiffs to produce relevant documentary evidence to show; firstly that disputed property was owned by them since prior to 1947 and was not evacuee property but that was not done by plaintiffs and secondly, plaintiffs should have produced the order passed by competent functionary whereby name of their predecessor was introduced into Revenue Record which also had not been done---Plaintiffs having failed to prove their case their suit was rightly dismissed.

Muhammad Zafar Chaudhry for Petitioners.

M. Din Chaudhry for Respondents.

Date of hearing: 5th May, 2005.

2006 M L D 442

[Lahore]

Before Syed Jamshed Ali, J

ABDUR REHMAN---Petitioner

Versus

MUHAMMAD SIDDIQUE through L. Rs . ---Respondent

Civil Revision No.1269 of 1998, decided on 15th July, 2005.

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

----S. 135---Civil Procedure Code (V of 1908), S.115---Possession of co-sharer in joint Khata---Partition of Joint Khata---Co-sharer in possession could, while alienating his share, transfer possession of his holding to another person which would be subject to partition---Co-sharer would be entitled to retain possession of land in joint Khata till it was partitioned by metes and bounds.

Jan Muhammad and another v. Abdur Rashid and 5 others 1993 SCMR 1463; Abdullah and others v. Muhammad Nawaz and others 1994 SCMR 83; Muhammad Sharif and 3 others v. Ghulam Hussain and another 1995 SCMR 514; Abdul Basir Khan and 3 others v. Sanaur Rehman and 2 others PLD 1994 Pesh. 197; Muhammad Ashiq v. Abdul Jalil Usman and others 1994 CLC 2409; Afsar Khan and others v. Mst. Khanum Jan and others 1983 SCMR 273; Atta Muhammad v. Sahibzada Manzoor Ahmad through Legal Heirs and others 1991 SCMR 1648 and Ali Guitar Khan v. Sher Ayaz and others 1989 SCMR 130 ref.

Allah Wasaya Malik for Petitioner.

Taqi Ahmad Khan for Respondent.

Date of hearing: 15th July, 2005.

2006 M L D 446

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUZAFFAR IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3891-B of 2005, decided on 11th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-F(v), 337-L(ii), 148, 149 & 109---Bail, grant of---Accused had already spent three and half months in jail and trial had -not commenced---Maximum punishment provided in offences against accused, was five years and accused had spent more than three months in jail---Cross-version of occurrence was also on record---Accused was admitted to bail, in circumstances.

2000 PCr.LJ 291 ref.

Allah Bakhsh Gondal for Petitioner.

Taswar Naveed Gondal for the Complainant.

Tehseen Irfan with Aziz, S.I. for the State.

2006 M L D 448

[Lahore]

Before Mian Saqib Nisar, J

ABDUL RASHEED---Appellant

Versus

MUHAMMAD BASHIR---Respondent

Regular Second Appeal No.156 of 2004, decided on 7th July, 2005.

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

----Ss. 6 & 13---Suit for pre-emption---Partial pre-emption---Plaintiff had pre-empted the whole of land, however, on account of lack of proof, his right regarding total land was not established and Trial Court had granted him a decree of lesser area---Rule of partial pre-emption, in circumstances would not be applicable.

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

---S. 100---Second appeal---Court of facts could appraise and appreciate evidence and when no misreading and non-reading or perversity of reasoning had been shown, such finding could not be interfered with in second appeal.

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

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Contention was that plaintiff in notice of Talb-i-Ishhad had not mentioned of his being Shafi Khalit' andShafi Jar'---Requirement of law was not that such a fact must be mentioned in the notice; it was only the right of pre-emption, which should be asserted and propounded by a pre-emptor and not the basis thereof---Pre-emptor should state nature of his right in the plaint and to prove same through evidence, in order to get a decree--Plaintiff in one of its paras. in the plaint, had clearly mentioned that he was asserting his pre-emption cause on the basis of all three counts---Contention, in circumstances, had no force---Appeal was dismissed, in circumstances.

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

----Ss. 6 & 13--Suit for pre-emption---Mesne profit---Entitlement---Defendant had made offer at appellate stage that without prejudice to his right to challenge impugned judgment further, he had no' objection if suit of plaintiff be decreed for total land for its price, plus expenses incurred by him for completion/registration of sale-deed---Said offer having been accepted by plaintiff, judgment and decree of two Courts below, were modified and. a decree was passed accordingly---Plaintiff, however was not entitled to any mesne profits, in view of offer made by defendant for giving whole land which had been accepted by plaintiff.

Mian Muhammad Abbas for Appellant.

Syed Najam-ul-Hassan Kazmi for Respondent.

Date of hearing: 7th July, 2005.

2006 M L D 457

[Lahore]

Before Sheikh Azmat Saeed, J

LAL DIN and another---Petitioners

Versus

MUHAMMAD RAFIQUE---Respondent

Civil Revision 'No.2924 of 2004, decided on 14th April, 2005.

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

----Ss. 6 & 13---Suit for pre-emption---Superior right of pre-emption--Making of Talbs---Trial Court decreed suit of plaintiffs, holding that Talbs had been performed by plaintiffs in accordance with law, who had a superior right of pre-emption, but Appellate Court below, set aside judgment and decree of Trial Court and dismissed suit---Validity---Witnesses of plaintiffs in their statements had stated exact number of years, months and days as to when sale in question took place, the knowledge thereof became available to plaintiffs and Talbs performed---Appellate Court had examined matter in mathematical terms, which was not justified as statement was made more than three years after the event---Alleged discrepancies must necessarily be examined in the context of entire evidence, rather than in isolation---Evidence of witnesses of plaintiffs had not been examined in its totality and in its proper context---Appellate Court had based its decision on the fact that name of person who disclosed the factum of sale had not been mentioned in the plaint and that name of person in whose presence Talb-e-Muwathibat was performed was also not mentioned in plaint---Validity---Plaint, as a general rule, was not required to contain gist of evidence---Said omission could not be sufficient to non-suit plaintiffs and entire evidence must necessarily be taken into account, but that had not been done in the case---Judgment and decree of Appellate Court below were set aside and case was remanded for decision afresh on merits.

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

----O. VII, R.I---Plaint---Contents of plaint---Held, as a general rule plaint was not required to contain gist of evidence.

Aamir Majeed Rana for Petitioners.

Malik Sakhawat Ali for Respondent.

Date of hearing: 14th April, 2005.

2006 M L D 459

[Lahore]

Before Ijaz Ahmad Chaudhry and Mian Muhammad Jehangier, JJ

FAIZ AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.1077 of 1999 and 26-J of 2000 decided on 27th November, 2002.

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

----S. 9(c)---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Entire prosecution case though Tested on testimony of police employees and there were some discrepancies in their statements, but all such discrepancies were minor in nature---Some delay in dispatching of parcels, had no adverse impact on prosecution case, because statements of said witnesses were quite consistent on all material points and their statements found full corroboration---Defence version introduced by accused in their statements and witness produced were contradictory in nature---Trial Court, in circumstances had correctly observed that prosecution had proved its case---Both accused persons being first offenders, was a mitigating circumstance for taking a lenient view against them---Conviction of accused was maintained, but his death sentence was reduced to imprisonment for life and fine was also reduced accordingly.

Sardar Muhammad Latif Khan Khosa assisted by Muhammad Ameer Khan Niazi for Appellant.

Miss Naushin Taskeen for the State (in Crl. A. No.26-J of 2000) .

Ashfaq Ahmed Chaudhry for Respondent.

Date of hearing: 27th November, 2002.

2006 M L D 465

[Lahore]

Before Mian Saqib Nisar, J

NAWAZ KHAN and 2 others---Petitioners

Versus

MUHAMMAD ASLAM and another---Respondents

Civil Revision No.1081 of 2001, decided on 15th July, 2005.

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

----S. 53---Specific Relief Act (I of 1877), S.42---Will---Declaratory suit---Execution of Will--Respondents claimed that deceased original owner of suit-land had made a Will to bequeath suit-land to them and on basis of same they got a mutation attested in their favour---Petitioners who claimed to be collateral of deceased challenged said mutations and succeeded in getting mutations cancelled vide order of the 'Collector---Respondents filed suit claiming that they were exclusively entitled to suit-land and denied that petitioners were related to original owner---Trial Court dismissed said suit, but Appellate Court decreed the same---Document allegedly showing Will of deceased, was not on a stamp paper and same was also unregistered---One of marginal witnesses of said document had not been examined and other witness had only stated that Will was scribed by him, but had not stated that deceased original owner had executed same in his presence---Such statement had no value to prove execution of Will by the alleged testator---Trial Court had rightly come to the conclusion about relation of petitioners with testator of alleged Will, but for erroneous and flimsy reasons, such evidence had been ignored and misconstrued by Appellate Court--Impugned judgment and decree of Appellate Court being not maintainable, were set aside and those of Trial Court were restored.

Mian Muhammad Saeed for Petitioners.

Mudasar Abbas Magiana for Respondents.

Date of hearing 15th July, 2005.

2006 M L D 474

[Lahore]

Before Nasim Sikandar, J

Mrs. KHALIDA MALIK and others---Petitioners

Versus

TAHIRA JABEEN and others---Respondents

Civil Revision No.2220 of 2003, decided on 8th September, 2005.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Suit for declaration and possession---Plaintiff in her suit had alleged that defendant forged a general power-of-attorney on her behalf, got it registered and on basis thereof he transferred disputed piece of land in favour of defendant-company---Plaintiff further alleged that she was minor at the time of execution and attestation of alleged general power-of-attorney in favour of defendant, and that she neither appeared before Sub-Registrar nor had executed said power-of ­attorney---Suit was contested by defendants contending that plaintiff was not only a major at time of execution and attestation of registered power­of-attorney, but was also estopped from her conduct to bring suit as alleged attorney was her real grand-father, who acted on behalf of plaintiff in sale-deed in respect of suit property---Both Trial Court and Appellate Court below had decreed the suit---Validity---Alleged attorney, admittedly was real grand-father of plaintiff---Plaintiff without any sufficient reason had failed to appear before the Court to support allegations made in the plaint and also to stand the test of , cross­examination---Defendant/vendee company admittedly had no knowledge of infirmity in authority of attorney of plaintiff to act on her behalf to sell property in question---Both Courts below confined themselves to alleged minority of plaintiff---Defence that plaintiff actually appeared before Sub-Registrar for execution of power-of-attorney in favour of alleged attorney, was not ruled out and claim of contesting defendants that plaintiff held herself out as a major at the time of execution of impugned power-of-attorney was not effectively rebutted by plaintiff---Both, Trial Court as well as Court of first appeal did not determine exact date of attaining age of majority by plaintiff nor as to how suit was well within limitation provided by law---Once limitation started, plaintiff owed an explanation as .to why she did not file suit and waited till the time the winding up proceedings of defendant/vendee company were initiated---Both Courts below also had failed to take notice of admission made by her real uncle and son of attorney of plaintiff that his other two brothers had accepted transfer of property in favour of defendant company to be valid---Both Courts below had completely ignored background of suit---Appellate Court below had failed to exercise its jurisdiction vested in it under law---Concurrent judgment and decrees of Courts below, were set aside, in circumstances.

Muhammad Zaheer for Petitioners.

Rana Zulfiqar Ali Khan for Respondent No. 1.

Muhammad Nawaz for Respondents Nos.3 and 4.

Date of hearing: 20th June, 2005.

2006 M L D 480

[Lahore]

Before Jawwad S. Khawaja, J

GUL BEGUM---Petitioner

Versus

MUHAMMAD RIAZ and another---Respondents

Civil Revision No.1454 of 1998, decided on 16th June, 2005.

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

----Ss.122 & 123---Contract Act (IX of 1872), S.16-- Specific Relief Act (I of 1877), S. 42---Suit for declaration---Gift---Proof of execution---Suit-land was allotted to husband of plaintiff as head of family by way of guzara allowance'---Defendant had claimed that husband of plaintiff had gifted away suit property to him through hibanama, but plaintiff denied claim of defendant alleging ,that defendant who being dispenser used to administer medical treatment to her husband who was an aged person, brought her aged husband to placeG' for purpose of executing, "Patta Nama"/Rent deed in respect of suit-land, but fraudulently had obtained hibanama---Plaintiff had also alleged that her husband had become of unsound mind when suit was filed by her---Alleged hibanama was on stamp paper which was purchased from Treasury Office at `G' and on the back of stamp paper, endorsement of said Treasury office had shown that said stamp paper was purchased for 'Patta Mina', but appellate court had brushed aside said material piece of evidence---Plaintiff and her husband/alleged donor, were aged couple who were issueless and suit property was the only means of their livelihood---Fact that they would transfer their only means of livelihood by way of gift did not appeal to reasons---Such gift being contrary to ordinary course of human conduct, had provided circumstantial evidence to corroborate case set up by. the plaintiff---Alleged hibanama was not got executed and registered where suit-land was situated and parties were residing, but was executed and registered at another place and no explanation was on record for doing that---Alleged hibanama, was subject to stringent requirements of S.16 of Contract Act; 1872, which requirements had not been fulfilled in the present case and Courts had not attended to same---Courts below in dismissing suit of plaintiff had misread record and had not given consideration to material aspects of case---Both Courts having acted with material irregularity in exercise of their. jurisdiction , impugned judgments and decrees of Courts below were set aside and suit of plaintiff was decreed as prayed for.

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

----Art. 129, illus. (g)---Evidence---Appreciation of evidence---Non­ production of best evidence---Effect---Where best evidence was not produced by a party, the Court should draw adverse inference that if said evidence had been produced, it would have gone against the defaulting party.

Sardar Muhammad Arif Khan for Petitioner.

Manzoor Hussain Chaudhry for Respondent.

Date of hearing: 16th June, 2005.

2006 M L D 488

[Lahore]

Before Muhammad Khalid Alvi, J

RIAZ AHMED, S.D.O. TELEPHONE AND TELEGRAPH---Petitioner

Versus

Malik NAAZAR HUSSAIN, ADVOCATE---Respondent

Civil Revision No.2919 of 2000, decided on 28th April, 2005.

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

----O.XXIX, R.1---Suit for damages against S.D.O. (Telephones) in his personal capacity---Disconnection of telephone---Plaintiff alleged disconnection to be on account of wrong billing by defendant (an employee of Telecommunication Corporation)---Proof---Nothing was brought on record to show as to what action or inaction on the part of defendant in his personal capacity had caused any damage to plaintiff---Meter reading was not taken by defendant, which was function of Meter Reader---Defendant was not supposed to take process of bill, which was the domain of Revenue Department of Corporation---Defendant alone could not be held responsible in his personal capacity for wrong billing committed by other members of Corporation---Had plaintiff impleaded necessary parties including Corporation, then collective responsibility of defendant along with other employees of Corporation connected with preparation and delivery of wrong bills could be fixed---Defendant for merely being an overall incharge of Corporation could not be held responsible for damages, if any, caused by joint action of Corporation---Suit was dismissed in circumstances.

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

----S.11 & O.XXIII, R.1---Previous suit for damages and permanent injunction---Issuance of excessive bill by Telephone Department---Withdrawal of previous suit by plaintiff after making statement that he would feel satisfied, if his telephone bill was corrected---Fresh suit for damages---Maintainability---Plaintiff had withdrawn previous suit without obtaining permission of Court for filing a fresh suit---Plaintiff by making such statement had foregone his right of damages, thus, fresh suit would be barred by principle of res judicata.

Sh. Naveed Anwaar for Petitioner.

Ch. Muhammad Tufail for Respondent.

Date of hearing: 28th April, 2005.

2006 M L D 491

[Lahore]

Before M. Bilal Khan, J

Haji MUHAMMAD ASHIQ---Petitioner

Versus

THE STATE and another---Respondents

Writ Petition No.19342 of 2005, decided on 19th January, 2006.

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

----Ss.420/468/471---Constitution of Pakistan (1973), Art.199---Constitutional petition---Stay of criminal proceedings till the pending of civil suit---No law could mandate a Criminal Court to stay criminal , proceedings till decision of the civil suit relating to the same subject-matter---Civil suit and the criminal case both had to be decided on their own merits and evidence recorded in one case could not be used in the other---Both the proceedings were governed by different laws---Judgment in the civil case would not be binding in the criminal case---No invariable rule existed that the proceedings in a criminal case should be stayed pending civil litigation, as it was a matter of pure discretion---No irregularity much less any illegality was pointed out in the impugned orders passed by the Courts below warranting interference by High Court in its constitutional jurisdiction---Petition was dismissed in linine accordingly.

Muhammad Akbar v. The State and others PLD 1968 SC 281 rel.

Pir. S.A. Rashid for Petitioner.

2006 M L D 493

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. NAZIRAN BIBI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MIANWALI and 2 others---Respondents

Writ Petition No.19402 of 2005, decided on 24th January, 2006.

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

----S.25---Custody of minor daughter---Contest between father and mother---Entitlement to custody---Second marriage by both father and mother of minor---Father in service of Army as soldier performing full time duty and not permanently stationed at one place but constantly remaining under transfer from one place to another---Paternal grand-mother looking after affairs of minor was elderly age and not keeping good health---Mother's second husband was real brother of her step-mother,. thus was closely related to minor besides being from same brotherhood---Lap of real mother was the best school for a growing child and no one could look after welfare of minor as compared to woman, who had given birth to child---Minor being of four years was living since birth with mother, thus, must have developed deep association/ attachment with her---Snatching custody of minor from mother in such a tender age and entrusting to a step-mother though in supervision of paternal grand-mother, could not be justified on touchstone of any administration of justice---Mother on account of second marriage might have lost right of "Hizanat", but before to depriving her from supervision of her own blood, welfare of minor would be looked into, which certainly would lie in keeping minor in custody of mother---Welfare of minor would be best served if she lived with mother as compared to father Custody of minor was handed over to mother in circumstances.

Mst. Firdous Iqbal v. Shifaat Ali and others 2000 SCMR 838; Syed Tahseen Razi v. Dr. Farhana Shaheen and another 2003 YLR 1067; Muhammad Aslam v. Additional District Judge and others 2004 CLC 160; Muhammad Nafeez Abbas v. The Guardian Judge Lahore and others NLR 1994 Civil 4 and Mst. Shaheen v. Jafar Khan and another 2000 CLC 1627 ref.

Zafar Iqbal Malik for Petitioner.

Rana Muzaffar Hussain for Respondents.

2006 M L D 501

[Lahore]

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

IMRAN SHAUKAT---Appellant

Versus

INCHARGE (INVESTIGATION), POLICE STATION, NAWANKOT, LAHORE and 2 others---Respondents

I.C.A. No.92 of 2005 in W.P. No.12215 of 2004, heard on 16th January, 2006.

(a) Police Order (22 of 2002)---

----Art.18(6)---Meaning and scope of Art.18(6), Police Order, 2002---Re-investigation---Spirit of Article 18(6) of the Police Order, 2002, is to discourage re-investigations and the same have been made difficult by providing a clear procedure---Said objective cannot be bypassed or stultified by using device i.e., verification of investigation, etc.

Aziz Ahmad v. Provincial Police Office (IGP Lahore) PLD 2005 Lah. 185 ref.

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

----S.156---Police Order (22 of 2002), Art.18(6)---Verification of investigation---Extent and scope---Where an investigation made by an Investigating Officer is to be verified by some other Officer, then such verification must be confined to verification of the record of investigation and such exercise cannot be allowed to give it a colour of fresh investigation with fresh collusion---Verifying Officer has to confine himself to the record of investigation already conducted and he cannot substitute his own conclusion for that of the Investigating Officer---However, if the 'Verifying Officer finds any serious fault with the already conducted investigation, he can bring it to the notice of Superintendent of Police (Investigation) of the concerned District, who can then initiate the process as contemplated by Article 18(6) of the Police Order, 2002 for change of investigation.

Khizar Hayat v. IGP PLD 2005 Lah. 470 ref.

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

---S. 324/337-H(ii)/148/149/109---Police Order (22 of 2002), Art.18(6)---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Re-investigation---Single Bench of Lahore High Court vide impugned order had directed S.P. (Investigation) to verify already conducted investigation and then to form an independent opinion to the extent of two accused persons---Full Bench of Lahore High Court in its judgment reported as "Khizar Hayat v. IGP " (PLD 2005 Lahore 470) while discussing on the point of "verification of investigation" had categorically held that Verifying Officer could not form his own opinion or substitute his opinion for that of the Investigating Officer and that on having found a fault with the opinion of the Investigating Officer, he could refer the matter to the S.P. (Investigation) concerned, who could then initiate the process as contemplated by the provisions of Article 18(6) of the Police Order, 2002 for change of investigation---Impugned order, thus, was inconsistent with the decision of the Full Bench referred to above---Even the Superior Courts of Pakistan having constitutional, legal supervisory and inherent judicial jurisdiction had consistently and consciously refrained from directly interfering with the investigation of a criminal case by the police---DSP (Investigation) had been entrusted investigation on the recommendation of the Board as provided under Article 18(6) of the Police Order, 2002, who had given his findings and all subsequent investigations or proceedings were consequently declared illegal and without any legal effect, being not conducted as contemplated in Article 18(6) of the Police Order, 2002---Concerned Authorities were directed to submit challan according to the findings of the said DSP before the Competent Court---Appeal was allowed accordingly.

Aziz Ahmad v. Provincial Police Office (IGP Lahore) PLD 2005 Lah. 185 and Khizar Hayat v. IGP PLD 2005 Lah. 470 ref.

Aamir Iqbal Basharat for Appellant.

Hashim Sabir Raja, A.A.-G. with Imran Mehmud, S.P. for Respondent.

Date of hearing: 16th January, 2006.

2006 M L D 505

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD ASHIQ alias BHAP---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9258-B of 2005, decided on 16th January, 2006.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Bail, grant of---Complainant had not convincingly explained the delay of fourteen days in lodging the F.I.R.---Vaginal swabs and the clothes of the victim were not found to be stained with semen by the Chemical Examiner---No sign of any injury was disclosed by the Medico-legal report on the person of the victim---Criminal case against the brother of a prosecution witness had already been registered under S.322, P.P.C. for having caused the death of the mother of the accused, and possibility of the accused having been falsely implicated in the case with a view to settle down some previous scores could not out rightly be brushed aside---Case of accused needed further probe within the contemplation of S.497(2), Cr.P.C. in circumstances---Accused was admitted to bail accordingly.

Syed Farhad Ali Shah for Petitioner.

M. Saleem Shad for the State with Muhammad Jaffar, A.St.-I.

2006 M L D 511

[Lahore]

Before Sh. Javaid Sarfraz, J

MUHAMMAD TARIQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2 of 2005 in Criminal Appeal No.6 of 1999, decided on 21st December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.302(b) & 308---Application for suspension of sentence---Applicant/accused, who had been. awarded life imprisonment under S.302(b), P.P.C. had filed application seeking suspension of his sentence---Applicant had submitted that at the time of occurrence, he being 15 years of age, he should have been convicted under S.308, P.P.C., instead of S.302(b), P.P.C. which was punishable with imprisonment of 14 years; and that he had already undergone his sentence of 17/18 years---Contentions raised by applicant regarding contradictions in ocular account and others, would be seen at the time of disposal of main appeal---Report of fail authorities, showed that applicant/accused had already served a substantial portion of his sentence and his unexpired portion of sentence of 25 years was only 6 years and appeal was not likely to be fixed in the near future---Such aspect had entitled applicant for suspension of his sentence---Accepting application, sentence of accused was suspended and he was allowed bail accordingly.

Abdul Razzaq v. The State 1999 PCr.R 1012 (Lahore); Khan Muhammad Mahar v. The State 2003 SCMR 22; Muhammad Azam and others v. The State 2003 MLD 1731 and Muhammad Hanif and another v. The State through Chairman National Accountability Bureau, Karachi 2003 PCr.LJ 161 ref.

Masood Sabir for Petitioner.

Rao Atif Nawaz for the State.

2006 M L D 518

[Lahore]

Before Muhammad Khalid Alvi, J

WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA) through Chairman and others---Petitioners

Versus

Mst. SHAMIM AKHTAR and others---Respondents

Civil Revision No.2889 of 2004, heard on 28th March, 2005.

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

----S.2(9)---Qanun-e-Shahadat (10 of 1984), Art.2(6)---Judgment---Minor discrepancies in evidence---Effect---Such discrepancies, if not of much importance, could not render judgment to be a nullity.

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

----S.1---Suit for damages by legal heirs of deceased, whose death was caused by electric current in rainwater dewing from a WAPDA Pole---Proof---Death of deceased, according to Doctor, had taken place on account of electrocution---Record showed that such electrocution had taken place on a roadside in rainwater, wherein current was flowing from a pole erected by WAPDA---Deceased was feeding a family consisting of ten (10) members, for which Rs.3,000 per month would not be excessive---Deceased was assumed to have survived for 15 years and earned Rs.3,000 per month---Decree for Rs.5,40,000 as damage was awarded to plaintiffs.

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

----S.1---Suit for damages by legal heirs of deceased---Assessment of damages---Such cases could be decided only on presumption and not on evidence---Principles.

Calculation of damages made by Court on basis of presumption would be correct. In such-like cases there cannot be any positive evidence that a man would earn a certain amount over a period, it can only be presumed in the given circumstances that he could earn so much. Such cases therefore, could only be decided on presumption and not on evidence. However, presumption is to be gathered from the attending circumstances of the case.

Choudhary Fiaz Ahmed Sangheera for Petitioners.

Arshad Ali Chohan for Respondents.

Date of hearing: 28th March, 2005.

2006 M L D 528

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

ABDUL QADIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6888-B of 2005, decided on 7th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 337-F(v), 148 & 149---Pre ­arrest bail, grant of---Further inquiry---Matter was reported to the Police after delay of eleven days despite the fact that the police had come to know about commission of cognizable offence---Such fact had brought the case of accused within the fold of further inquiry---Nephew of accused had also received injuries and was taken to the hospital for medical examination by the police, but F.I.R. as well as police record was silent in that regard, which would mean that something else had happened and prosecution had not come to the Court with clean hands---Case, in circumstances was of two versions and the question as to which of the parties had aggressed, was yet to be resolved by the Trial Court---No specific injury had been attributed to accused and allegation against him was of general in nature---All said facts accumulatively were sufficient to bring case of accused within the fold of further inquiry entitling him to the concession of bail---Ad interim pre-arrest bail already granted to accused, was confirmed.

A.D. Naseem for Petitioner.

Mst. Nafeesa Bhatti for the State.

Muhammad Saleem A.S.-I.

2006 M L D 544

[Lahore]

Before M. Bilal Khan, J

SHEHBAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5550/B of 2005, decided on 19th January, 2006.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.324/34---Bail, grant of---Accused had been declared to be innocent in the first three investigations, whereas in the fourth one the Investigating Officer had rendered an opinion of guilt against him---Accused was only alleged to have flaunted his pistol and had not actually used it, and it was yet to be seen as to what had stopped him from using the same and why he restricted himself only to swinging it in the air--No recovery had been effected from the accused---Intention of the accused to commit the murder and the applicability of S.324, P.P.C. to his case required further probe as envisaged by S.497(2), Cr.P.C.---Accused was in custody for the last ten months and the trial had not yet commenced---Bail was allowed to accused in circumstances.

Amar Shahbaz Mir for Petitioner.

Abdul Majeed Chishti for the State.

Abdul Hameed A.S.-I., P.S. Aroop, District Gujranwala with police file.

2006 M L D 546

[Lahore]

Before Khawaja Muhammad Sharif, J

IJAZ AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7334-B of 2005, decided on 10th November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 311 & 34---Bail, refusal of---Accused was complainant in F.I.R. registered on the murder of his sister---During course of investigation an anonymous letter was received by S.P. (Investigation) to the effect that murder of deceased sister of accused was committed by accused, his sons and others due to her illicit liaison with a` person, who according to F.I.R. was murdered---Facts narrated by accused/complainant with regard to murder of his deceased sister, were not probable and were against the thoughts of a man of normal prudence because it was repellent to common sense that accused would let off the male members of the family and would kill a lady without any resistance offered by accused persons including the accused in the case---Contention of accused persons that facts narrated by Investigating Officer were not borne out from the record, was not tenable---Facts narrated in F.I.R. by accused/complainant were found to be false---Contumacious conduct of accused persons including accused/complainant coupled with the facts brought on record during the course of investigation, had disentitled them to discretionary relief of bail---Factum of alleged compromise, by itself, spoke about contumacious conduct of accused because they who had been found the actual culprits of their real sister, were making every effort to save their skin from the case---Accused had failed to realize that compromise could only be entertained/accepted with the leave of the Court and it was not a fit case for its acceptance---Even otherwise offence against accused fell within the prohibitory clause of S.497(1), Cr.P.C.---Accused in circumstances were not entitled to concession of bail.

2001 MLD 1757; 2001 PCr.LJ 1636; 1993 PCr.LJ 166; 2002 PCr.LJ 1256; 2001 PCr.LJ 130; 2003 PCr.LJ 998; 2002 PCr.LJ 220; 2002 MLD 1502 and Muhammad Saleem and others v. The State PLJ 2005 SC 957 ref.

Imtiaz Ahmad Loona for Petitioners.

Malik Muhammad Afzal Awan for the State with Subtain Inspector, Nazir Hussain S.-I./I.O. and Muhammad Akran S.-I. with record.

Malik Sarood Ahmad for the Complainant.

2006 M L D 559

[Lahore]

Before M. Bilal Khan, J

Prof. MUHAMMAD LAEEQ---Petitioner

Versus

THE STATE---Respondent

Criminal M. No. 7619-B of 2005, heard 10th November, 2005.

Criminal Procedure Code (V of 1898)---

---S. 498---Penal Code (XLV of 1860), Ss.420, 468 & 471---Interim anticipatory bail, confirmation of---Accused had been regularly joining investigation ever since grant of pre-arrest bail to him--No recovery was to be effected from accused as all original documents including disputed election result, were available with District Returning Officer on whose order departmental proceedings had commenced against accused--Accused held a very responsible position of Principal of Government Degree College wherein hundreds of students were studying---Sending accused behind the bars at the stage when he was no longer required for further investigation and no recovery had to be effected from him, in circumstances would serve no useful purpose---It would in fact reflect badly on Institution, which accused was heading and indirectly the students of the college would also suffer embarrassment---Culpability of accused would be determined by the Trial Court during course of Trial--Interim anticipatory bail already granted to accused, was confirmed, in circumstances.

Muhammad Masood Chishti for Petitioner.

Ch. Aamir Rehman, Addl. A-.G. assisted by Ch. Muhammad Bashir for the State.

Rana Abdul Ghaffar, Advocate losing Candidate for Seat of Nazim in Union Council No.34 Jandanwala."

Date of hearing: 10th November, 2005.

2006 M L D 566

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ASIF and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.501 of 2004, heard on 17th January, 2006.

Penal Code (XLV of 1860)---

--S.302(b)/34---Appreciation of evidence---Eye-witnesses had failed to establish their presence at the crime spot during odd hours of the night through any cogent reason---Ocular account of occurrence was contradicted by medical evidence---Incriminating recoveries from the accused were effected in violation of the provisions of S.103, Cr.P.C.---None of the neighbourers or respectables of the locality had been joined in the recovery proceedings by the Investigating Officer---Weapons allegedly recovered from the accused could not be held to be stained with human blood in the absence of the report of the Serologist and the same could not be served as a corroborative piece of evidence---Prosecution had failed to prove the motive against the accused, which even otherwise was not sufficient for the murder of real sister along with her husband in a desperate and brutal manner---Accused were acquitted on benefit of doubt in circumstances.

Ch. Sadaqat Ali for Appellants.

Masood Sadiq Mirza for the State.

Date of hearing: 17th January, 2006.

2006 M L D 578

[Lahore]

Before Sh. Azmat Saeed, J

MUHAMMAD FAROOQ---Petitioner

Versus

DISTRICT RETURNING OFFICER, JHANG/APPELLATE TRIBUNAL, DISTRICT JHANG and others---Respondents

Writ Petition No.14321 of 2005, decided on 8th August, 2005.

Punjab Local Government Elections Rules, 2000---

----Rr. 16 & 18---Constitution of Pakistan (1973), Art.199--Constitutional petition---Nomination papers, rejection of---Nomination papers submitted by candidate of Nazim were accepted, but on filing appeal by rival candidate against acceptance of said nomination papers, same were rejected by District Returning Officer on a report of D.P.O. to the effect that candidate was member of banned organization---Validity---Candidate though was alleged as an activist of defunct organization, but no criminal record was brought on file against him---Candidate could not be deprived of contesting elections on basis of the report of D.P.O. which was not supported by any material on record---Home Department had not brought anything on record to the effect that candidate was involved in any activity regarding banned organization---Impugned order, in circumstances, could not be maintained, which was set aside and nomination papers of candidate would be deemed to have been accepted to contest elections.

Mian Ghulam Shabbir Taheen for Petitioner.

Malik Zafar Iqbal Awan, Addl. A.-G.

Date of hearing: 8th August, 2005.

2006 M L D 580

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

Col. (R.) IFTIKHAR AHMAD AWAN---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeals No.1082 992, 1076 and 2123 of 2002, decided on 20th May, 2005.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9, 10, 18(g) & 24(b)---Criminal Procedure Code (V of 1898). Ss. 265-C & 537---Sentence, reduction in---Case of misuse of authority by accused who were Directors of Statutory Corporation and not that of embezzlement---Even though prosecution had not tried to prove any specific amount which had been embezzled by accused, but sufficient evidence had been produced to indicate that huge amount as per prosecution version was lost on account of misuse of authority by accused as Directors---Though it had been alleged that main culprits in the case were three out of whom one had died, but alleged role of other accused/Directors was also evident--No prejudice was caused to defence even if some lacuna was found in framing of charge as copies of reference had been provided to all accused under S.265-C, Cr.P.C. so that all accused facing trial should have clear picture of allegations against them---Lacuna/defect in the charge, had not occasioned a failure of justice as such error or omission in the charge about time and date of commission of offence was merely an error/omission curable under S.537, Cr.P.C.---Said objection regarding any error/defect in the charge could and should have been raised at an earlier stage of trial and there was no justification for raising said objection in appeal for the first time---Accused persons, in circumstances were rightly convicted, but sentence of 14 years' R.I. awarded to two accused was reduced to 5 years' R.I.---Third accused who was awarded 7 years' R.I. and fine of Rs.20,00,000 his sentence of fine was set aside and sentence of 7 years' R.I. imposed upon him was reduced to that already undergone by him, in view of the fact that said accused except that he was a Director, had not played any other role in the affairs of the Corporation---With said modifications in impugned judgment, appeals filed by said accused, were dismissed.

PLD 2002 Lahore 233 ref.

Sharjeel Adnan Sh., Allandad Kashif and M. Asif Bhatti for Appellant.

Waqar Hassan Mir for Respondent No.2.

Date of hearing: 20th May, 2005.

2006 M L D 599

[Lahore]

Before Umar Ata Bandial, J

MUHAMMAD ASLAM---Appellant

Versus

MUHAMMAD ASLAM---Respondent

Regular First Appeal No.117 of 2005, decided on 26th July, 2005.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.2 & 3---Suit for recovery of amount on basis of promissory note---Promissory note in question along with corresponding receipt of amount had been duly proved by plaintiff through two marginal witnesses on promissory note which bore thumb-impression and signatures of executants at several places on face of promissory note as well as on its reverse side---Said document having been proved on record, it was for the defendant to have brought evidence to establish plea of alleged forgery of signatures and thumb-impression on the document---Nothing in that respect was done by defendant either to get document examined and opined by an Expert or to place material on record for comparison and assessment of such question by Trial Court itself---Extensive cross-examination on behalf of defendant of threewitnesses of plaintiff did not contain any question for disproving defendant's subscription at promissory note---Pro note as well as payment of loan amount on basis thereof stood proved on record---In absence of any evidence of alleged fraud, Trial Court had rightly rejected allegation made by defendant in his evidence---Judgment of Trial Court not suffering from any infirmity or illegality, appeal against said judgment was dismissed.

G. Abbas Zaidi for Appellant.

Malik Ghulam Rasool Naseem for Respondent.

Date of hearing: 26th July, 2005.

2006 M L D 601

[Lahore]

Before Khawaja Muhammad Sharif, J

SARFRAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1622 of 2003, decided on 23rd June, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Case was of two versions, one put forth by prosecution and other one set forth by defence---Case was not of grave and sudden provocation as it was not case of accused that he had seen his unmarried sister in an objectionable condition i.e. in compromising position with deceased---Under provisions of Art.121 of Qanun-e-Shahadat, 1984 when an accused wanted to bring his case in any one of the exceptions under S.300, P.P.C. or S.302(c), P.P.C., then onus heavily lay on him to prove same---Accused had failed to discharge said onus---Opinion of police officer was not binding on the Court as far as answer of Investigating Officer that accused had committed murder of deceased due to 'Ghairit'---Both deceased and sister of accused were sui juris and they had contracted marriage in accordance with the rites of Islam---Accused had caused not only one, but four incised wounds on the person of deceased---Prosecution had proved its case against accused beyond a shadow of doubt to sustain conviction against accused because eye-witnesses of occurrence had no enmity with accused---One of prosecution witnesses though was closely related to deceased i.e. his real brother, but he had no enmity or strong motive to falsely implicate accused in case---Another prosecution witness was an independent witness of case, while another one though was another brother of deceased, but he had also no enmity or reason to depose against accused---Even otherwise, accused had himself admitted occurrence--Well-reasoned judgment to convict. accused delivered by Trial Court did not call for interference by High Court in appellate jurisdiction---Trial Court having already taken lenient view, there was no question for taking a further lenient view qua the quantum of sentence---Conviction and sentence recorded against accused by Trial Court, were maintained in toto, in circumstances.

1996 PCr.LJ 194, 2000 MLD 20 and 2000 PCr.LJ 175 ref.

Shah Ahmad Khan Baloch for Appellant.

Azkar Abbas Kazmi for the State.

Nemo for Respondent.

Date of hearing: 23rd June, 2005.

2006 M L D 610

[Lahore]

Before Sh. Abdur Rashid and M. Bilal Khan, JJ

BASHIR AHMAD alias BASHIRI---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No.2000 of 2004, decided on 27th January, 2005.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), Ss.173 & 265-K---Appreciation of evidence---In subsequent report submitted under 5.173, Cr.P.C., it had been positively alleged that narcotic substance had been planted by police officer upon accused and case was recommended to be cancelled against him---Since charge had already been framed against accused, case against him could not be cancelled, which constrained accused to file application under S.265-K, Cr.P.C. seeking his acquittal on the ground that he had been falsely challaned, but Trial Court dismissed said application and accused had to file the appeal---Prosecution by submitting subsequent report under S.173, Cr.P'.C. against police officer, did not support case against accused---Accused's trial would be an exercise in futility and wastage of time of the Court as well as the prosecution---High Court accepting appeal of accused, set aside impugned order and allowed application of accused under S.265-K, Cr.P.C. acquitting him of the charge.

Aftab Ahmad Bajwa assisted by Shabbir Bokhari for Appellant.

Malik Muhammad Arif Bara for the State.

Ch. Masood Ahmad Zafar for Khalil Ahmad, A.S.-I.

Date of hearing: 27th January, 2005.

2006 M L D 612

[Lahore]

Before Jawwad S. Khawaja, J

Subedar SHER MUHAMMAD---Petitioner

Versus

MUHAMMAD KHAN---Respondent

Civil Revision No. 208 of 2002, decided on 9th September, 2005.

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

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Trial Court had found that plaintiff had failed to prove requirements of statutory `Talbs' and had also failed to establish his superior right of pre­emption---Findings of Trial Court on both said issues were reversed by appellate Court---Case set up by plaintiff in his plaint was that he received information of sale in question on 25-6-1996 and that he made Talb-e-Muwathibat on same date---Witness to Talb-e-Ishhad and plaintiff as his own witness had stated that notice of Talb-e-Ishhad was made and signed on date of filing suit which was 14-7-1996---Notice of Talb-e-Ishhad, in circumstances was beyond the period of 14 days as prescribed by Punjab Pre-emption Act, 1991---Appellate court had observed that statements of witnesses produced by plaintiff were ambiguous---Despite recording said observation, appellate Court had proceeded to surmise that witnesses apparently got confused---No basis was available for such conjecture because statements of witnesses were also in conflict with earlier part of testimony of one of witnesses and plaintiff---Considering testimony of witnesses, there was no occasion to disregard such testimony and to rely on testimony of postal staff--Provisions of S.13 of Punjab Pre-emption Act, 1991 which required witnesses of notice of Talb-e-Ishhad to be truthful, had also not been met by witnesses produced by plaintiff---Plaintiff having failed to fulfil requirements of law relating to Talb-e-Ishhad, appellate decree, legally was not sustainable---Same was set aside and decree of Trial Court stood restored.

Shamim Abbas Bokhari for Petitioner.

Malik Khizar Hayat Khan for Respondent.

Date of hearing: 9th September, 2005.

2006 M L D 614

[Lahore]

Before Syed Shabbar Raza Rizvi, J

UMAR H.AYAT and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2544/B of 2005, decided on 27th April, 2005.

(a) Criminal trial---

----While administering criminal justice, if any doubt was created at trial stage or bail stage, benefit of same was to be given to accused and not to the prosecution.

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

---S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 11---Bail, grant of---Recommendation for cancellation of F.I.R., had created a very serious doubt in veracity of contents of F.I.R.---Objection that cancellation had neither been approved or cancelled by Magistrate concerned, was not relevant, at least at bail stage---Complainant could agitate or contest on that point before the concerned Magistrate or could also move to concerned Police Authority for re-investigation---For the purpose of bail, doubt created by report of Investigating Officer, whereby he recommended for cancellation of case, benefit would go to accused---Statement of alleged abductee was also on record whereby she had categorically stated that she had married with her consent with one of the accused persons and that no one had abducted her---Accused was admitted to bail, in circumstances.

Mian Muhammad Waseem for Petitioners.

Inayat Ullah Khan Niazi for the Complainant.

Ch. Muhammad Bashir for the State.

Date of hearing: 27th April, 2005.

2006 M L D 619

[Lahore]

Before Syed Hamid Ali Shah, J

FAAZAL HUSSAIN and others---Petitioners

Versus

NAIK MUHAMMAD and others---Respondents

Civil Revision No.1989 of 2003, decided on 7th March, 2005.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.VII, R.II---Suit for declaration---Rejection of plaint---Trial Court rejected plaint holding that suit filed by plaintiffs was hopelessly barred by limitation---Appellate Court below accepting appeal against judgment of Trial Court, remanded case to Trial Court for decision on question of limitation after recording evidence of both parties---Appellate Court below had found that question of limitation being mixed question of law and fact, its determination without recording evidence, was not warranted under law---Plaint filed by plaintiffs had revealed that plaintiffs knew that suit-land had been allotted to predecessors of plaintiffs and defendants on 6-2-1965, but they challenged said allotment through the present suit instituted on 28-8-1997---Law required each day's delay to be explained, but in the present suit delay of decades was unexplained---Mixed question of fact and law required recording of evidence for its determination, evidence, however, was not required to be recorded in cases where a fact stood proved on the basis of assertions/admissions, made in the pleadings---Fact that plaintiffs had knowledge of orders passed in 1965 and 1967 was admitted by plaintiffs in the plaint filed on 28-8-1997, after more than three decades---Facts admitted did not require any proof---Allowing parties to lead evidence on admitted question of fact, would, in circumstances, be an exercise in futility---Suit having not been filed within limitation, plaint was rightly rejected by Trial Court---Impugned order passed by appellate court on 24-7-2003, whereby ease was remanded to Trial Court for decision on question of limitation, was set aside and judgment and decree passed by Trial Court, were upheld.

Muhammad Hussain and others v. Settlement and Rehabilitaton Commissioner and others 1975 .SCMR 304 and Muhammad Sharif and others v. Inayat Ullah and others 1996 SCMR 145 ref.

Hafiz Khalil Ahmad for Petitioners.

Arif Chaudhry for Respondents.

Date of hearing: 7th March, 2005.

2006 M L D 622

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Rana IFTIKHAR and 3 others---Petitioners

Versus

STATION HOUSE OFFICER and 5 others---Respondents

Writ Petition No.19166 of 2005, decided on 7th February of 2006.

Criminal Procedure Code (V of 1898)---

----Ss.107/150---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bail bonds for keeping peace, demand of---Making of repeated applications to police by parties against each other feeling apprehension of danger due to strained relations between them--Pendency of litigation between parties---Initiation of proceedings by police under Ss.107/150, Cr.P.C.---Validity---Such proceedings could not be declared void without recording evidence, which was not permissible in writ jurisdiction---Petitioner had alternate remedy by approaching the concerned Judicial Magistrate, who, after hearing parties, could drop such proceedings, if allegations contained in Qalandara were not found sufficient to ask both parties to execute their bonds---High Court dismissed constitutional petition being not maintainable.

Ch. Nawab Ali Mayo for Petitioners.

Sardar Naeem Tahir Sindhu for Respondents.

Naeein Masood, Asstt: A.-G. for the State.

Sultan Mehmood, Inspector/S.H.O. and Muhammad Ashraf, S.-I./Investigating Officer with record.

2006 M L D 624

[Lahore]

Before Maulvi Anwarul Haq, J

Haji MUHAMMAD ASLAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3922-L of 2004, decided on 10th January, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Bail, grant of---Further inquiry---Delay of three days in lodging F.I.R., had not been explained and victim was examined three days after the alleged occurrence---Accused was behind the bars for the last more than five months without a trial---Case against accused was of further inquiry---Besides, in the circumstances narrated in F.I.R., it would also have to be seen as to whether a case under S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was made out---Accused was granted bail, in circumstances.

Peer Masood-ul-Hassan Chishti for Petitioner.

Muhammad Waseem Khan for the State.

Date of hearing: 10th January, 2005.

2006 M L D 625

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ARIF KHAN---Petitioner

Versus

MUHAMMAD ANWAR and another---Respondents

Civil Revision No.2547 of 2005, decided on 24th January, 2006.

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

----Ss.8, 9 and 20---Pre-emption suit---Pre-emptor and two vendees having equal right of pre-emption---Equal distribution of suit-land amongst such parties---Validity---Word "vendee" as used in S.20 of Punjab Pre-emption Act, 1991 would not mean one set of parties in spite of the fact that each of them had equal right to that of pre-emptor---Each vendee had independent right of sharing suit-land as per S.20 of Punjab Pre-emption Act, 1991---Both vendees could not be equated with pre-emptor as one group by giving them half of suit-land---All vendees with equal superior pre-emptive right qua pre-emptor would independently share suit-land---Suit-land was, to be divided into three parts for vendees being two and pre-emptor being alone.

Feroze Khan and 3 others v. Ahmad Yar 1992 MLD 1570 and Amir Hassan v. Rahim Bakhsh 19 All. 466 rel.

Sh. Abdul Sattar Zahid for Petitioner.

2006 M L D 628

[Lahore]

Before Muhammad Akram Baitu, J

MUHAMMAD AKHTAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.555-B of 2004, decided on 8th March, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.337-A(i), 337-A(iii) & 34---Bail, grant of---Further inquiry---Accused though was named in F.I.R. with specific part of violence alleging that he inflicted a hard blow to injured, but the fact remained that Medical Officer at the time of examination of injured, had advised for X-ray; he had also given an opinion regarding fracture without referring to the Radiologist---Injured had not been admitted in the hospital---Accused was stated to be behind the bars for the last about two months being no more required by the police for further investigation and the trial against him had not yet commenced---Sufficient reasons were available to believe that case of accused needed further inquiry into his guilt and fell under subsection (2) of S.497, Cr.P.C.---Accused, in circumstances was entitled for concession of bail.

Habibullah Shakir for Petitioner.

Rao Atif Nawaz for the State.

Date of hearing: 8th March, 2004.

2006 M L D 633

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD AMIN---Petitioner

Versus

ELECTION TRIBUNAL and 11 others---Respondents

Writ Petition No.6114 of 2005, decided on 31st October, 2005.

Punjab Local Government Elections Rules, 2000---

----Rr. 39, 40 & 70---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election for the seat of peasant councillor---Re­counting of votes---Jurisdiction of Election Tribunal---While deciding question of re-counting of votes, Election Tribunal had no jurisdiction to direct such re-counting without recording evidence and findings on the subject necessitating re-counting of votes---Petitioner had given his consent for re-counting of votes with free-will in presence of his counsel and his counsel raised no objection about said re-counting---Effect---Where a party to the proceedings before a Court or Tribunal, entered into an agreement of its own free-will for disposal of the matter, it could , not turn round and plead that Tribunal could not act on the consent given by petitioner and should not be allowed to do so---Petitioner in circumstances was barred from challenging consent given by him with free-will before Election Tribunal for re-counting of votes---Even otherwise impugned order being an interlocutory order, whereby entire dispute had not been decided by Election Tribunal, High Court should have refrained from exercising constitutional jurisdiction.

Zulfiqar Ali v. Election Tribunal/Civil Judge 1st Class, Khanpur and 5 others 2000 MLD 746; Muhammad Saeed Qazi and another v. Election Tribunal/Additional District and Sessions Judge, Lahore and 16 others 2004 CLC 631; Malik Muhammad Munawar Khan v. Election Tribunal/District Judge, Lahore and 8 others 1991 CLC 180; Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another PLD 1986 SC 542 and A.P. Ferguson & Co. v. The Sindh Labour Court and another PLD 1985 SC 429 ref.

Pir Muhammad Asif Rafi for Petitioner.

Mirza Aziz Akbar Baig for Respondent No.2.

Malik Arshad Hussain Bhatti for Respondent No.5.

Date of hearing: 31st October, 2005.

2006 M L D 636

[Lahore]

Before Syed Zahid Hussain, J

Messrs NAROWAL FLOUR MILLS through Managing Director-Petitioner

Versus

WAPDA through Chairman and 3 others ---Respondents

Civil Revision No.2346 of 2000,'heard on 13th January, 2006.

Electricity Act (IX of 1910)---

----S. 26---Specific Relief Act (I of 1877), Ss.42 & 54---Detection bill issued to the consumer on the basis that electric meter of the consumer was slow---Suit for declaration and injunction by consumer---Maintainability---Held, controversies and disputes concerning the slowness of meter or other faults with the equipments fell within the exclusive jurisdiction of the Electric Inspector under S.26, Electricity Act, 1910--Matter therefore, fell within the exclusive domain of Electric Inspector and suit for declaration and injunction before the Civil Court was not maintainable.

Water and Power Development Authority and another v. Mian Muhammad Riaz and another PLD 1995 Lah. 56 fol.

Faisal Ghafoor for Petitioner.

Umer Sharif for Respondents.

Date of hearing: 13th January, 2006.

2006 M L D 637

[Lahore]

Before Jawwad S. Khawaja, J

NAZIR AHMAD---Appellant

Versus

MUHAMMAD NAWAZ and 3 others---Respondents

Regular Second Appeal No.90 of 2000, decided on 18th May, 2005.

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

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Plaintiff/pre­emptor had himself admitted that he was informed of sale in question, but he did not make any pronouncement on date of information that he would pre-empt sale---Plaintiff, instead deposed that he gathered his witnesses and went away to city---Courts below, in circumstances were fully justified in holding that requirements of Talb-i-Muwathibat had not been fulfilled by plaintiff---Plaintiff who himself was a Patwari and was fully aware of requirements of S.13 of Punjab Pre-emption Act, 1991, had to make an overt expression immediately upon being informed of sale, but he failed to do so-:--Impugned concurrent decrees of Courts below being unexceptionable, appeal against said decrees was dismissed.

Shaikh Naved Shaharyar for Appellant.

Ch. Manzoor Hussain Basra for Respondents.

Date of hearing: 18th May, 2005.

2006 M L D 646

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD NASIR alias Nasir Hussain and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5749-B of 2005, decided on 16th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Bail, refusal of---Roles attributed to each one of accused persons, were duly incorporated in F.I.R.---Medico-legal report had made quite a frightful reading---Locale and nature of injuries on persons of deceased and injured, prima facie had shown the intention of attackers---Weapons allegedly used by accused, had been recovered from them---Contention of the accused persons were that it was yet to be determined as to which party had committed aggression; that since general firing had been attributed to two accused persons, and it was yet to be determined as to which accused had caused which injury to the deceased and injured, and that such had made the case one of further inquiry---Validity---Contentions were repelled because non-attribution of any specific injury to deceased or injured, would not make out case against accused one of further inquiry as it was immaterial as to whose shot proved fatal---Ample incriminating material being available on record to prima facie connect accused with crime imputed to them and offences charged having attracted prohibitory clause of S.497(1), Cr.P.C., bail petition was dismissed.

Hazurdad v. Sajid Khan and others 1998 PCr.LJ 633; Khamiso and another v. The State 1999 PCr.LJ 9; Haji Ghulam Khan v. Gul Daraz Khan and another 1995 SCMR 1765; Sher Bahadar v. Haji Ghaffar Ali Khan and another 1999 PCr.LJ 403 and Muhammad Aslam and another v. The State through A.G., Punjab and another 1997 SCMR 251 ref.

Muzammal Akhtar Shabbir for Petitioners.

Shahnaz Maqbool for the State with Ghulam Akbar, S.-I.

2006 M L D 649

[Lahore]

Before Mian Saqib Nisar, J

NOOR MUHAMMAD alias KALA and 6 others---Appellants

Versus

BARKAT ALI and 2 others---Respondents

Regular Second Appeal No.6 of 2001, decided on 12th May, 2005.

Specific Relief Act (1 of 1877)-----

--S. 12---Qanun-e-Shahadat (10 of 1984), Arts.17(2)(a) & 79---Suit for specific performance of agreement of sale---Claim of respondents was that predecessor-in-interest of appellants had agreed to sell suit-land to them vide agreement of sale for total consideration of Rs.50,000, out of which Rs.40,000 had been paid to him and remaining Rs.10,000 were to be paid on finalization of sale, but he failed to do so constraining respondents to bring suit---Appellants denied claim of respondents alleging that alleged sale agreement was forged and they, or their predecessor-in-interest had never received consideration amount from respondents and that alleged transaction was fraudulent---Trial Court dismissed suit, but Appellate Court set aside judgment and decree of Trial Court holding that agreement to sell was proved to have been validly executed---Validity---Sale-deed writer, though was an Advocate, but he was not professional deed-writer---Said deed writer had not maintained any record of the sale-deed and he had also not stated as to what was sale price and that if it was paid in his presence by respondents to predecessor-in-interest of plaintiffs---Said sale-deed was not attested by two witnesses as required by provisions of Arts. 17(2) and 79 of Qanun-e-Shahadat, 1984---Sale-deed which was attested only by one witness, was absolutely unenforceable and had been erroneously enforced by Appellate Court---Impugned judgment and decree of Appellate Court, were set aside and those of Trial Court were upheld and suit filed by respondents was dismissed.

Suleman Ali v. Maqbool Hussain through Legal Heirs and 2 others 2000 YLR 1983; Abdul Khaliq v. Muhammad Asghar Khan and.2 others PLD 1996 Lah. 367 and Altaf Hussain Shah v. Nazar Hussain Shah 2001 YLR 1967 ref.

Riaz Ahmad Kasuri for Appellants.

Muzaffar Ali Khan for Respondents.

Date of hearing: 12th May, 2005.

2006 M L D 653

[Lahore]

Before Ijaz Ahmad Chaudhry, J

FARZANA BIBI and 2 others-Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.1657 of 2004, heard on 7th February, 2006.

Penal Code (XLV of 1860)---

----Ss.302(b)/34, 311/34 & 308/34---Appreciation of evidence---Complainant in his private complaint had failed to produce any cogent evidence to connect the accused in any manner with the commission of the crime---Evidence of the two real brothers of the deceased, even if taken as true, could not form any basis to maintain conviction of the accused---Evidence of last seen and the motive alone was not sufficient to bring home guilt to the accused---Two co-accused had been acquitted by the trial Court on the same evidence and the case of accused was not distinguishable from that of these co-accused---Accused having not been convicted and sentenced on any evidence, they were acquitted accordingly.

Abid Saqi for Appellants.

Maqbool Ahmad Qureshi for the State.

Date of hearing: 7th February, 2006.

2006 M L D 659

[Lahore]

Before Mian Saqib Nisar, J

SULTAN---Petitioner

Versus

MUHAMMAD HUSSAIN---Respondent

Civil Revision No.405 of 2004, decided on 7th July, 2005.

Specific Relief Act (I of 1877)---

----S. 42---Transfer of Property Act (IV of 1882), Ss.122 & 123---Suit for declaration---Execution of gift---Plaintiffs who were father, son and daughter in their suit for declaration had challenged gift mutation allegedly got executed by them in favour of defendants/donee---Plaintiffs had claimed that gift in question was the result of fraud and misrepresentation, besides that son and daughter of donor at relevant time were minors and that donor (father) had no lawful authority on their behalf to make the gift and that gift to their extent was void---Suit was dismissed by Trial Court on ground of delay as mutation of gift in dispute was challenged after about 26 years of its execution---Son and daughter of plaintiff/donor by producing identity cards and other documentary and oral evidence, had fully proved that at relevant time when alleged gift mutation was executed and attested they both were minors---Validity---Transaction/alienation of an immovable property on behalf of minors, was void, even if it was made by their legal and natural guardian, except where disposition of such property was for the need of minors---Such wa§ not the position in the present case, rather property of minors which they had inherited from their mother and was duly mutated in their favour, was gifted by their father---Mutation of gift in question, in circumstances was absolutely void and ineffective against the rights of minors/plaintiffs---Mutation of gift in dispute though had not been challenged by minors within three years on attaining age of majority, but suit to their extent could not be dismissed, because defendants had been paying plaintiffs/minors share of produce of suit-land and cause of action had accrued a week before the institution of the suit when defendants had denied the title of plaintiffs to suit property---Even otherwise, on account of declaration that gift mutation was void, plaintiffs would become sharers along with defendants in same Khata---Remedy of minors to seek declaration was not hit by any provisions of Limitation Act, 1908---Fraud in respect of mutation as alleged by father of minors, had not been established against him and such mutation having been effected about 26 years ago, could not be declared to be voidable and case of father (plaintiff) would be hit by Limitation Act, 1908---Judgment and decrees of two Courts below were set aside, suit of minors to the extent of their shares in the gifted land was decreed, whereas to the extent of share of father was dismissed and impugned mutation was maintained.

Riaz Ahmad and 2 others v. Additional District Judge and 2 others 1999 SCMR 1328 ref.

Rana Muhammad Anwar for Petitioner.

Ch. Ihsan-ul-Haq Bhalli for Respondent.

Date of hearing: 7th July, 2005.

2006 M L D 668

[Lahore]

Before Asif Saeed Khan Khosa, J

Dr. MUHAMMAD ANWAR TANVIR and others---Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION CITY PAKPATTAN SHARIF, and others---Respondents

Writ Petition No.7586 of 1998, decided on 10th May, 2005.

Drugs Act (XXXI of 1976)---

----Ss.11(5)(b), 19(6), 22(3)(c), 23(1)(a), 27(1)(a)(b) and 30(2)(a)---Punjab Drugs Rules, 1988, R.4---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Allegation levelled in the F.I.R. was that some spurious drugs were recovered from petitioner's medical store---Petitioners referring to provisions of Ss.11(5)(b), 19(6) & 22(3)(c) of Drugs Act, 1976, besides alluding to R.4 of Punjab Drugs Rules, 1988, had contended that in absence of complying with requisite requirements and formalities provided by law, in said sections and rule, a criminal case could not be registered against them on the basis of allegations levelled in impugned F.I.R.---Validity---Drugs Act, 1976 as well as Punjab Drugs Rules, 1988. had constituted a special law which had to be given effect to as such---Legal requirements and formalities in the relevant sections of Drugs Act, 1976 and Rule 4 of Punjab Drugs Rules, 1988, having not been complied with in the case before registration of impugned F.I.R., same was quashed.

Shuja Ullah v. The State and others 1994 PCr.LJ 1065; Ghulam Hussain Unnar v. The State 1996 PCr.LJ 414 and Sheikh Anwar-ul-Haq v: Deputy Inspector-General of Police, Lahore Range, Lahore and 2 others 2000 PCr.LJ 1644 ref.

Sheikh Zia Ullah for Petitioners.

Muhammad Owais on behalf of Akhtar Ali Kureshi, Assistant Advocate-General with Aqeel Ahmad, Drug Inspector with record for Respondents.

Date of hearing: 10th May, 2005.

2006 M L D 674

[Lahore]

Before Muhammad Farrukh Mahmud and Sh. Hakim Ali, JJ

ABDUL AZIZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.83 of 2002, decided on 22nd February, 2005.

Penal Code (XLV of 1860)---

----Ss. 302, 384 & 411---Appreciation of evidence---Prosecution case revealed that thieves/accused were on their way along with stolen animals when they were chased by "wahar party" including deceased and two prosecution witnesses---On seeing wahar party' approaching, accused left stolen animals and started running away and it was only the deceased who stepped ahead ofWahar party' and tried to apprehend one of accused persons, who fired at him---No, occasion existed in circumstances for accused to look back and could be identified by `Wahar party'---No description of accused/thieves or the one who had allegedly fired at deceased had been given in F.I.R.---Even general description like height, age, complexion or physique of accused had not been given in F.I.R.---Accused were identified during identification parade, sixteen days after their arrest---Even application for appointment of an officer in that regard was moved after nine days of arrest and no explanation was available for said delay---In order to safeguard rights of accused, it was requirement of law that after arrest the identification parade should be held at the earliest, in order to avoid possibility of accused being seen by prosecution witnesses prior to identification parade---Prosecution, witness who had conducted identification parade appeared to be unaware of instructions issued-by High Court---Said witness who conducted the parade did not record statement of any of prosecution witness or of accused prior to holding of identification parade or after it was held; he mixed three accused with eighteen inmates of the house in violation of rule of mixing nine or ten strangers with one accused---Trial Court had also not relied upon evidence of prosecution witnesses qua acquitted accused---Evidence of said prosecution witnesses did not inspire confidence---Other incriminating evidence, like recovery of 12 bore pistol, report of Forensic Science Laboratory and recovery of empty, were also not worthy of any credence for certain reasons---Medical evidence had supported prosecution to the extent that deceased lost his life due to fire-arm injury, but such evidence did not lead to assailant-r-Prosecution had failed to prove case against accused beyond any doubt---Where evidence had created doubts about truthfulness of prosecution, its benefit had to be given to accused without any reservation---Impugned judgment passed by Trial Court was set aside and accused was acquitted of charge and was released.

Lal Pasand v. The State PLD 1981 SC 142; State/Government of Sindh through Advocate-General, Sindh, Karachi v. Sobharo 1993 SCMR 585; Shah Sawar and others v. The State PLJ 1975 Cr.0 (DB) 333; Bashir Ahrnad v. The State PLD 1987 Lah. 55; Muhammad Yaqub alias Loomi v. The State 1988 PCr.LJ 1878 and Daniel Boyd and another v. The State 1992 SCMR 196 ref.

Mumtaz Hussain Bazmi and Kamran Ahmad Soomra for Appellant.

Malik Sajid Feroze and Mian Faiz-ul-Hassan for the Complainant.'

M.A. Farazi for the State.

Dates of hearing: 21st and 22nd February, 2005.

2006 M L D 682

[Lahore]

Before Jawwad S. Khawaja, J

Mian SHAUKAT ALI---Petitioner

Versus

NOOR AHMED---Respondent

Civil Revision No.1377 of 2001, decided on 25th May, 2005.

Specific Relief Act (1 of 1877)---

----S. 8---Suit for possession---Plaintiff had averred that he was owner of suit property and before him his ancestors were its owners---Claim of plaintiff was that defendant was an acquaintance and since defendant was poor, plaintiff had given him suit property for residence 8/9 years prior to filing of ,suit---Suit was resisted by defendant claiming that for previous many generations, he and his ancestors had been in possession of the property and that they were owners in record of Excise and Taxation Department---Defendant had further claimed that electricity and gas connections were also in his name---Plaintiff had acknowledged that name of defendant was appearing as owner of suit property in official record, but subsequently ownership had been mutated in his name on his application---Testimony of one of witnesses produced by defendant, was to the effect that plaintiff had forged signature of defendant on the summons issued by Excise and Taxation Department with the object of obtaining an order in his favour without the knowledge of defendant---Plaintiff while appearing in Court as his own witness had given testimony which was in total conflict with averments made by him in his plaint---Effect---Plaintiff being not a credible witness, his testimony could not be relied upon---Even witness produced by plaintiff, had belied contents of plaint of plaintiff and had clearly stated in his cross examination that defendant was in occupation of suit property since very long and not for relatively short period of 8/9 years mentioned by plaintiff in his plaint---Plaintiff was obliged to prove his case, but he had not been able to discharge such onus---Even otherwise property in dispute being part of Abadi Deh, plaintiff alone was not entitled to exclusive possession of the same---Suit was rightly dismissed concurrently by Courts below with special costs; in circumstances.

Allah Wasaya Malik for Petitioner.

Nadeem-ud-Din Malik for Respondent.

Date of hearing: 25th May, 2005.

2006 M L D 686

[Lahore]

Before Ali Nawaz Chowhan, J

Syed YASIR HAYAT SHAH and 8 others---Petitioners

Versus

COMSATS INSTITUTE OF INFORMATION TECHNOLOGY, ISLAMABAD through Rector and another---Respondents

Writ Petition No.801 of 2005, decided on 6th February, 2006.

(a) Educational Institution---

----Performance of students---Responsibilities of Institutions and their teachers towards students stated.

There is never one-way traffic with respect to the responsibilities, and the Institutions cannot shun their own responsibilities by only pointing out at the weaknesses of the students, who do not make good grades after their induction in the institutions. The teachers owe an explanation requiring the performance of the students and thus, they are supposed to point out the weaknesses throughout a teaching tenure and not at the end or after the examination.

In prestigious Universities, the students are also allowed to evaluate the performance of a teacher, which provides information to the governing body of an institution regarding the teachers.

Thus, teachers are not given arbitrary powers any more. Their performance is kept under a watchful eye for ensuring perseverance. In case of those students, who are chronic failure cases, this perseverance may fail. But they should explain this while keeping in view recommendations allowing admissions.

(b) COMSATS Institute of Information Technology Ordinance (XXXVIII of 2000)---

----S.18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Failure of several students in 5th semester, but teachers of Institution allowed others except petitioner to continue in 4th semester---High Court referred case to Chairman, COMSATS for report after holding an inquiry into working of its teachers, examination system, standard and quality of its curriculum and need for having tutorials for students, who need extra care, and give hearing to petitioner and see all of his previous papers reflecting his performance.

Sardar Muhammad Ghazi for Petitioners.

Muazzam Qureshi for Respondents.

2006 M L D 689

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD SHAHZAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1832-B of 2005, decided on 29th March, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324, 336, 392, 394 & 109---Bail, grant of---Further inquiry---Occurrence had taken place during night and according to F.I.R., accused was not one of those who entered complainant's house and had committed alleged offences---Only allegation of abetment had been levelled against accused in the F.I.R. but no evidence pertaining to said allegation had been mentioned therein---Alleged victim had stated that culprits had their faces muffled during alleged occurrence, but during progress of occurrence face of one accused was unveiled and she had recognized said culprit to be the accused---F.I.R. revealed that none of culprits had his face muffled---Record had shown that alleged victim had married the accused some time back---Prima facie it was not readily believable that accused had not been identified at the spot at the initial stage either by victim or by anybody else belonging to complainant party---Prosecution had two versions, first version, contained in F.I.R. regarding abetment having allegedly been provided by accused to his co-accused and second version pertaining to the accused's physical pressure and participation in the alleged occurrence at the spot---Such by itself had rendered case against accused one of further probe---Investigation of case qua accused had already been finalized and his physical custody was no more required for purpose of investigation---Case against accused calling for further inquiry into his guilt, he was admitted to bail, in circumstances.

Zafar Iqbal Chohan for Petitioner.

Shahid Mir for the Complainant.

Javed Iqbal with Tufail Meeran S.-I. with, record for the State.

Date of hearing: 29th March, 2005.

2006 M L D 694

[Lahore]

Before Jawwad S. Khawaja, J

SAEED SULTAN---Petitioner

Versus

PAKISTAN TELECOMMUNICATION CORPORATION through Chairman, Islamabad and others---Respondents

Civil Revision No.257 of 1999, decided on 11th April, 2005.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Disconnection of telephone line in year 1990---Non-restoration of telephone line despite deposit of restoration charges by the plaintiff---Issuance of bill for Rs.31,051 in January 1993 in absence of restoration of telephone connection---Denial of plaintiff to be liable to pay such amount for not having used telephone due to its non-restoration since its disconnection in year 1990---Failure of department to produce record showing restoration of telephone connection, its use by plaintiff and billing between 1990 to 1993---Statement of assistant Engineer Telephone as Court witness that if a bill was not paid by a customer, his telephone line was disconnected---Validity---If plaintiff's telephone line had in fact been restored in 1990 and monthly bill had not been paid, then his line would have been disconnected as no amount was paid by him after 1990 and occasion for issuing a bill for such huge amount could not have arisen---Plaintiff's suit was decreed in circumstances.

Syed Kaleem Ahmad Khurshid for Petitioner.

Yousaf Hussain Dilawari for Respondents.

Date of hearing; 11th April, 2005.

2006 M L D 702

[Lahore]

Before Syed Zahid Hussain, J

FARZAND ALI and others---Petitioners

Versus

ADDITIONAL SESSIONS JUDGE, GUJRANWALA and 2 others---Respondents

Writ Petition No.19067 of 2004, decided on 25th May, 2005.

Criminal Procedure Code (V of 1898)---

----S. 145---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dispute concerning immovable property---Civil Judge, in the present case, had passed a specific order protecting possession of petitioner, who claimed to be in possession of two rooms in the property by passing an injunctive order against respondents-Said order was in operation, when respondent, not a party to suit, without joining proceedings before Civil Court, invoked summary jurisdiction of Magistrate and succeeded in obtaining an order of attachment of property in violation of settled law whereby once a Civil Court was seized of a dispute with regard to possession of immovable property and had passed an interim order regarding possession with respect to such property, no criminal Court would exercise jurisdiction under S.145, Cr.P.C. or S.146, Cr.P.C.---Civil Court, being Court of ultimate jurisdiction was always vested with powers to decide all disputes of civil nature between parties and preventive proceeding before a Magistrate were always subject to decision of a Civil Court---Magistrate, prima facie, should have acted with care and circumspection on his part after coming to know that dispute was already sub judice before a Court of competent jurisdiction and should have refrained from passing a contradictory and conflicting order as he lacked jurisdiction in the given circumstances---Alternatively, best course for Magistrate was to refer dispute to Civil Court, instead of assuming jurisdiction and adding to agony of parties.

Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470 ref.

Abdul Ghaffar Khan for Petitioners.

Syed Muhammad Anis Sadiq and Ch. Aamir Rehman, Addl. A.-G. for Respondents.

Date of hearing: 25th May, 2005.

2006 M L D 704

[Lahore]

Before Fazal-e-Miran Chauhan and Sh. Javaid Sarfraz, JJ

Mian MUHAMMAD IDREES---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3206-B of 2005, decided on 22nd February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51---Bail, refusal of---Accused had sought bail on ground of ailment, contending that he being a cardiac patient, his life was in danger and he could not be given proper treatment in jail---Medical report, which had been given by the Professor of cardiology, had shown that accused could be treated with coronary angioplasty and report did not say that staying in jail would be hazardous to the life of accused, which aspect was important for granting bail to accused on ground of ailment---Ailment of accused referred to by counsel for accused could by treated by angioplasty, which was neither very complicated nor a lengthy procedure as compared to coronary bypass surgery---Even in the health report given by Medical Officer of jail, it was stated that he had advised exemption of accused from the Court on one date only and not on subsequent dates---Heinous offence was alleged to have been committed by accused and his co-accused and accused could be awarded death sentence for the offence charged---Accused was not entitled to bail under S.51 of Control of Narcotic Substances Act, 1997---Ends of justice would meet if a direction was made for conducting coronary angioplasty of the accused---No ground for grant of bail, in circumstances having been made out, bail application of accused was dismissed.

Ijaz-ud-Din v. The State 2005 YLR 16; Dr. Munawar Hussain v. Dr. Muhammad Khan, District Health Officer, Sargodha and 2 others 2004 SCMR 1462; The State through Deputy Director Anti-Narcotic Force, Karachi v. Syed Abdul Qayyum 2001 SCMR 14; Firdous Paul v. The State 2004 SCMR 15; Zakhim Khan Masood v. The State 1998 SCMR 1065; Haji Mir Aftab v. The State 1979 SCMR 320; Mian Manzoor Ahmad Watto v. The State 2000 SCMR 107; State through Advocate-General (Sind) v. Mir Allah Bux and others 1979 SCMR 323 and Haji Naik Muhammad v. The State 2001 PCr.LJ 1160 ref.

Sardar Muhammad Latif Khan Khosa and Sardar Balakh Sher Khosa for Petitioner.

Muhammad Mumtaz Malik, Advocate/Special Prosecutor, ANF, Multan with Bashir Asad, A.S.-I., P.S. ANF Multan.

2006 M L D 711

[Lahore]

Before Mian Saqib Nisar, J

NAWAZ KHAN and others---Petitioners

Versus

SHABRATI---Respondent

Civil Revision No.1080 of 2001, decided on 15th July, 2005.

Specific Relief Act (I of 1877)---

• -S. 42--Suit for declaration---Original owner of land in dispute having died, Mutation of his inheritance was attested in favour of petitioners and !respondent being three sons and one daughter of deceased---Respondent, one son of deceased, in his suit challenged mutation of inheritance as illegal and erroneous alleging that only he and one other son were only sons of deceased and that petitioners who claimed to be son and daughter of deceased, were not children of the deceased and were not entitled to get property of deceased---Trial Court dismissed suit, but Appellate Court on filing appeal against judgment of Trial Court, set aside judgment. and decree of Trial Court and decreed the suit---Respondent had not brought on record any documentary evidence to establish that petitioners were the children of some other person---No convincing evidence was produced on record on behalf of respondent to disprove the fact that petitioners were not son and daughter of the deceased original owner of suit property, whereas petitioners had positively' discharged that onus, not only through oral evidence, but also on account of Rapt Roznamcha, which even respondent had admitted in his cross-examination to have been registered on his own statement and he failed to prove that his statement was, incorrectly recorded by Patwari---Said documentary evidence had not only been overlooked by Appellate Court, but had also been misinterpreted--Judgment and decree of Appellate Court, being not maintainable, were set aside and those of Trial Court, were upheld---Suit filed by respondent stood dismissed.

Mian M. Saeed for Petitioners.

Ch. Mushtaq Ahmed for Respondent.

Date of hearing: 15th July, 2005.

2006 M L D 738

[Lahore]

Before Nasim Sikandar and Muhammad Muzammal Khan, JJ

ZULFIQAR ALI and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos.446, 535 of 2003 and 23 of 2004, decided on 24th February, 2005.

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

----Ss. 9(c), 14, 15 & 25---Appreciation of evidence---All seven prosecution witnesses had supported recovery of 67 kilograms of Charas and 2 kilograms of opium from vehicle driven by accused---Incriminating statements of prosecution witnesses on oath were enough to connect accused with transportation of a huge quantity of contraband material---Defence could not prove as to why police would involve accused falsely, especially when none of raiding party had any enmity against them---In spite of confession of ownership by one of co-accused, other accused persons were proved to have knowledge and participation in transportation of recovered narcotics---Motor car from which narcotics were recovered which was driven by accused was owned by his real brother---Recovery of chit from possession of accused which 'carried address of co-accused where concealed contraband material was to be delivered, was proved which also connected said co-accused with intentional act of transportation of narcotic---Guilt of said co-accused under Ss.14 & 15 of Control of Narcotic Substances Act, 1997, in circumstances was proved beyond any shadow of doubt---Taking of small quantity out of each packet for chemical examination, was enough to prove that entire recovered material was contraband---Contention that entire recovered narcotic should have been sent to Chemical Examiner, was repelled---Contradictions pointed out by accused were so minor that on basis of those it could not be held that trial of case stood vitiated---Admitted recovery of huge quantity of Charas and opium, could not be doubted on basis thereof---Such minor discrepancies, if any, were bound to occur by lapse of time---Well-reasoned judgment of Trial Court which otherwise was in consonance with evidence on file, could not be set aside on said contradictions---Application of S.103, Cr.P.C. had been excluded by S.25 of Control of Narcotic Substance Act, 1997, which had overriding effect---Prosecution was under no legal obligation to cite any private individuals in investigation and to join any such witness in support of its case, especially when in such-like cases private individuals normally avoid becoming witness because persons involved in such activities belong to gangs who have their own terror---Trial Court in circumstances had rightly convicted accused persons---Charge of one of accused persons being under Ss.14 & 15 of Control of Narcotic Substances Act, 1997, his sentence was excessive---Sentences of said co-accused was reduced to sentence already undergone---Accused had already been dealt with leniently as he was not sentenced to death by Trial Court in view of Proviso (b) to S.9(c) of Control of Narcotic Substances Act, 1997---Conviction and sentence of accused were maintained.

Ali Muhammad and another v. The State 2003 SCMR 54; Gul Said v. State 2002 PCr.LJ 1680; Mst. Anwar Bibi v. The State 2004 PCr.LJ 692; Feroze Shah v. The State 2002 PCr.LJ 1470 and Mirza Shah v. The State 1992 SCMR 1475 ref.

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

----Ss.9(c), 14 & 15---Criminal Procedure Code (V of 1898), S. 439--Petitioner who had claimed ownership of confiscated motorcar allegedly used in occurrence, his case was that respondent rented out said vehicle which was used by accused in the case---Petitioner had never claimed ownership of said vehicle during trial of the case, but abruptly after judgment by Trial Court came up with improbable story of renting said vehicle to his real brother/accused in case---Relation between accused persons and petitioner, placing/concealment of huge contraband material in the cavity of vehicle and contradictory stand taken by all persons involved, disentitled petitioner to relief claimed---Since vehicle in question was used for transportation of narcotics with knowledge of petitioner, same was rightly confiscated under provisions of Control of Narcotic Substances Act, 1997---Criminal revision dismissed.

Syed Raza Abbas Naqvi for Appellant (in Cr1. A. No.446 of 2003).

Aftab Ahmad Gujjar for Appellant (in Crl. A. No.535 of 2003).

Mirza Waqas Rauf for Respondents.

Asim Riaz Awan for the State.

Date of hearing: 24th May, 2005.

2006 M L D 751

[Lahore]

Before Ch. Ijaz Ahmad, J

RAZIA BEGUM---Petitioner

Versus

L.D.A. and another---Respondents

Writ Petition No.9661 of 2005, decided on 2nd June, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction---Scope---High Court had no jurisdiction to resolve disputed question of fact while exercising power under Art.199 of the Constitution and substitute its own findings for findings of the Tribunals---Constitutional petition in circumstances, was not maintainable in presence of alternative remedy.

Board of I & S.E. Lahore v. M. Musaddaq Naseem PLD 1973 Lah. 600; Syed Azmat Ali Shah v. Chief Settlement and others PLD 1964 SC 260 and Ch. Muhammad Ismail v. Fazalzada, Civil Judge and others PLD 1996 SC 246 ref.

Tahir Naeem for Petitioner.

Mian Muzaffar Hussain for Respondents.

Date of hearing: 2nd June, 2005.

2006 M L D 761

[Lahore]

Before Mian Saqib Nisar, J

SALEEM ULLAH KHAN and others---Appellants

Versus

AMIR ALAM KHAN and another---Respondents

Regular Second Appeal No.64 of 2003, decided on 1st June, 2005.

Specific Relief Act (I of 1877)---

---S. 8---Suit for possession---Appellants had claimed that land measuring 16 Kanals and 14. Marlas in relevant Khasra number which was owned by evacuee owner, was transferred in favour of their predecessor-in-interest, who exchanged said land with another person and that appellants had purchased said land from said other person through registered sale-deed---Evidence on record had established that out of relevant Khasra number only land measuring 14 Kanals and 14 Marlas, was allotted to predecessor-in-interest of appellants whereas Central Government, out of said Khasra was shown to 'be owner of remaining 2 Kanals---Appellants could not show from any order of allotment passed by Rehabilitation and Settlement Department in their favour that entire land (16 Kanals & 14 Marlas) of relevant Khasra number was allotted to their predecessor-in-interest---Disputed 2 Kanals from relevant Khasra number had been in ownership of Central Government throughout--Appellants could not claim ownership of any other part of said Khasra, which had never been transferred to their predecessor-in-interest, as they had not proved so through best evidence---Suit which otherwise was beyond limitation, was rightly dismissed by Appellate Court below reversing judgment and decree passed by Trial Court---In absence of any legal or factual error in impugned judgment and decree of Appellate Court, calling for interference in second appeal, same was dismissed, in circumstances.

Malik Noor Muhammad Awan for Appellants.

Zia Ullah Khan Niazi for Respondents.

Date of hearing: 1st June, 2005.

2006 M L D 773

[Lahore]

Before Nazir Ahmad Siddiqui, J

Mian IJAZ HUSSAIN and another---Petitioners

Versus

DISTRICT RETURNING OFFICER and 2 others---Respondents

Writ Petition No.4901 of 2005, decided on 11th August, 2005.

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

--------S. 152(e)-Punjab Local Government Elections Rules, 2005, R.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Rejection of nomination papers---Nomination papers of respondents for Nazim and Naib Nazim were accepted by Returning Officer despite the objection taken by petitioners to the effect that Secondary School Certificate relied upon 'by one respondent was fabricated---Evidence on record had fully proved that Secondary School Certificate produced and relied upon by said respondent was forged document which could not be used for any purpose, what to speak of using same for candidature in election---Constitutional petition was allowed by the High Court by declaring impugned order by Returning Officer as well as District Returning Officer to be without lawful authority and of no legal effect; resulting in rejection of nomination papers filed by respondents---Proposed penalty of fine on respondent, however was dispensed with.

Altaf Ibrahim Qureshi and Ch. Zafar Iqbal Chadhar for Petitioners.

Muhammad Ramzan Khalid Malik, A.A.-G. for Respondent No.1.

Malik Muhammad Rafique Rajwana, M. Tariq Rajwana, Syed Izharul Haq Gillani and Ch. M. Ashraf Dhallon for Respondents Nos.2 and 3.

Date of hearing: 11th August, 2005.

2006 M L D 775

[Lahore]

Before Maulvi Anwarul Haq and Ijaz Ahmad Chaudhry, JJ

Mst. NASREEN BEGUM and 2 others---Appellants

Versus

PROVINCE OF PUNJAB through District Collector, Vehari and others---Respondents

R.F.A. No.111 of 1998, heard on 24th Mach, 2005.

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Rejection of plaint---Trial Court had simply relied upon its imagination while proceeding to reject plaint raising substantial questions involving title and possession of valuable immovable property and no ground was made out for rejection of plaint filed by plaintiffs---Issues of law as well as facts involved in the case were to be tried in the suit after giving reasonable opportunity to both parties to lead their respective evidence---High Court allowed appeal and impugned order and decree passed by the Trial Court were set aside with the result that suit would be deemed to be pending before Senior Civil Judge, before whom parties would appear and case would be decided in accordance with law.

Mirza Aziz Akbar Baig and Muhammad Ramzan Khalid Joyia for Appellants.

Malik Zahoor Hussain Thahim for Respondent No.3.

Nemo for others.

Mian Arshad Latif for Respondent No.5.

Date of hearing: 24th March, 2005.

2006 M L D 779

[Lahore]

Before Sardar Muhammad Aslam, J

ZAKIR HUSSAIN and 6 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.646 of 2002, decided on 16th March, 2006.

Penal Code (XLV of 1860)---

----Ss.302(b) & 337-F(vi)---Appreciation of evidence---Motive was not proved against the accused---Sotas recovered at the instance of accused were neither blood-stained, nor had any identification marks on them and same were commonly available---Such recovery had no evidentiary value for corroboration---Constable to whom parcels of crime empties were allegedly delivered did not appear in the Court, prosecution had not advanced any reason for not citing him as a witness---Who had deposited the crime empties in Forensic Science Laboratories was also not established---Sending empties along with weapon of offence after recovery, had made the recovery doubtful and unreliable---Medical evidence did not support the ocular testimony---Deep-rooted enmity between the parties was admitted---Occurrence had taken place in dark night---Erection of an ordinary pole at the site and supply of electricity through a wire without any regular Meter, was only a manoeuvre to advance the prosecution case---Identification of accused at the time of incident was, thus, doubtful---Deceased had a large number of enemies and the possibility of his having been murdered by some other person could not be ruled out---Ocular account of hostile witnesses was not corroborated by any other independent evidence--Accused were acquitted in circumstances.

Syed Zahid Hussain for Appellants.

Rana Muhammad Arshad Khan for the Complainant.

Mian Abdul Qayyum Anjum for the State.

Date of hearing: 13th March, 2006.

2006 M L D 785

[Lahore]

Before Muhammad Jehangir Arshad, J

GHAZANFAR IQBAL JAVAID---Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN, through Vice-Chancellor and 2 others---Respondents

Writ Petition No.5025 of 2005, decided on 23rd August, 2005.

Educational Institution---

----Examination of B.Sc. Civil Engineering---Examination of B.Sc. Civil Engineering 3rd Year Professional, 2nd Annual 2001 and paper of Mathematics in which petitioner had to appear only was scheduled for next day and according to grievance of candidate he was informed about his alleged disqualification by the University on the previous day---In order to dispel likely hardship to the candidate, he was allowed to appear in the said examination provisionally and his result would only be declared after and in the light of decision of Syndicate---Candidate could approach Syndicate of University with appropriate application stating and explaining the grievance and if such application was made, same would be considered and decided by Syndicate.

Malik Waqar Haider Awan for Petitioner.

Malik Muhammad Tariq Rajwana for Respondent.

2006 M L D 796

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD YOUSAF---Petitioner

Versus

MUHAMMAD SHARIF and 9 others---Respondents

Civil Revision No.918 of 2002, heard on 3rd December, 2004.

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

----Ss.39 & 42---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79--Suit for declaration of title---Registered sale-deed, cancellation of---Transaction---Onus to prove---Plaintiff sought cancellation of sale-deed on the ground that his predecessor-in-interest was an 'illiterate, Pardahnashin lady haying no independent advice and the disputed sale-deed was the result of fraud---Trial Court decreed the suit in favour of plaintiff but Appellate Court allowed the appeal and dismissed the suit---Validity---At least two witnesses were required to prove a transaction under Arts.17 and 79 of Qanun-e-Shahadat, 1984---Defendants produced only one marginal witness who was not aware of the details and had conceded that the predecessor-in-interest of plaintiff was not accompanied by any person at the time when the sale-deed was being authored by petition writer---Predecessor-in-interest of plaintiff was an illiterate Pardahnashin lady/village woman and no person of her confidence accompanied her---Heavy onus lay on defendants to prove the transaction which they failed to discharge---Presumption of truth attached to registered sale-deed was only to the extent of its registration and not execution---Photo copies of agreement to sell and receipt were annexed with written statement but the defendants did not produce those documents in evidence---Non-production of those documents went a long way to show the hollowness of the stand of defendants in pleadings and evidence---Judgment and decree passed by Appellate Court was set aside and that of the trial Court was restored.

Ch. Muhammad Anwar for Petitioner.

Kanwar Hassan Ahmad Khan for Respondents.

Date of hearing: 3rd December, 2004.

2006 M L D 798

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

MUHAMMAD ASIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1657 of 2000 and Murder Reference No.672 of 2000, decided on 22nd September, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Case was of two versions, one put forward by accused and other put forward by prosecution---Both parties were telling a lie---When parties were telling a lie, then Court could get his own inference to reach the truth---Case was not of grave and sudden provocation because it was not a case of accused that he saw both deceased in compromising position---Female deceased, who was going to be married on same day and was found missing was real niece of accused---Deceased girl had left her house and if on the day of her marriage she was not available in her house, then accused and his other family members, were to be dishonoured--Treating it a case of family honour, death sentence awarded to accused was not called for ---Conviction of accused was maintained, but his death sentence was converted into imprisonment for life with benefit of S.382-B, Cr.P.C.

Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502 ref.

Amar Shahbaz Mir for Appellant.

Ashfaq Ahmad Chaudhry and Ch. Imtiaz Ahmad for the State.

Date of hearing: 22nd September, 2005.

2006 M L D 810

[Lahore]

Before Syed Jamshed Ali, J

FEROZE KHAN---Petitioner

Versus

MUNICIPAL CORPORATION, SIALKOT through Administrator---Respondent

Civil Revision No.345-D of 1997, heard on 22nd December, 2004.

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

----S.42---Civil Procedure Code (V of 1908), S.11 & O.VII, R.11---Punjab Local Government Ordinance (VI of 1979), S.78---Suit for declaration---Res judicata---Notice by Municipal Corporation to demolish house constructed without approval of building plan---Rejection of building plan submitted by plaintiff's predecessor and dismissal of his suit filed against such rejection by High Court and Supreme Court---Plaintiff as transferee challenged validity of such notice---Defence plea was that plaintiff was bound by such earlier decisions to which his predecessor was party---Validity---Illegal construction could not be sanctioned or protected as grant of declaration was a discretionary relief---Plaintiff had referred in plaint to such decision of High Court, but had suppressed dismissal of his petition by Supreme Court---Judicial notice could be taken of judgments of Supreme Court---Defence plea in such circumstances could be looked into along with averments in plaint---Plaintiff was bound by such earlier decisions to which his predecessor was party---Plaint in suit was rejected in circumstances.

Muhammad Iqbal and 3 others v. Mst. Rehmat Bibi through Legal Hiers 1998 CLC 11; Naya Data Motor (Pvt.) Limited v. Pakistan Banking Council through Chairman, Habib Bank Plaza, Karachi and 7 others PLD 1997 Kar. 208 and Haji Mir Alam Shah through Legal Heirs v. Adam Khan and 16 others 2004 CLC 1100 distinguished.

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

----S.115---Revisional jurisdiction is discretionary in nature.

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

---O.VII, R.11---Rejection of plaint---Scope---Provisions of O.VII, R.11, C.P.C., not exhaustive---Plaint can be rejected at initial stage, where initiation of litigation would amount to abuse of process of Court.

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

---Art.112(1)(d)---Judgments of Supreme Court---Judicial notice could be taken thereof.

Taki Ahmed Khan for Petitioner.

Salim Khan Chechi for Respondent.

Date of hearing: 22nd December, 2004.

2006 M L D 813

[Lahore]

Before Jawwad S. Khawaja, J

ABDUL AZIZ through Legal Heirs---Petitioners

Versus

FATIMA BIBI and others---Respondents

Civil Revision No.1509 of 1998, heard on 12th October, 2005.

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

----S.42---Gift---Oral gift---Poof---Suit for declaration based on oral gift---Suit was decreed but decree was reversed in appeal on ground that mutation had not been sanctioned therefore gift could not be proved---Validity---Oral gift takes effect when made regardless of the date on which a mutation may subsequently be sanctioned---Validity of an oral gift is not effected even where a mutations is not sanctioned at all---Very fact that gift was recorded coupled with material fact that donees took possession of their separate portions as reflected in jumabandies and the fact that they were still in cultivating possession of their respective shares was sufficient to demonstrate that three essential ingredients of a valid gift stood proved---No evidence was available on record that doner renounced the gift made by him or had sought to repossess the land delivered to donees under his gift---Even if there had been a subsequent change of mind by donor, the same could not have resulted in withdrawal of gift because title irrevocably stood vested in donees---Not necessary for a donee to be minor and oral gift could also have been proved through testimony of witnesses alone---Recording of mutation even though unsanctioned very strongly had corroborated the case set up by plaintiff---Appellate Court wrongly observed that want of sanction rendered the mutation useless and gift could only have been proved if mutation had been sanctioned.

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

----Art.61---Specific Relief Act (I of 1877), S.42---Suit for declaration---Defendants challenged mutation executed by former Patwari in favour of plaintiff on ground of same being forged---Trial Court decreed the suit---Appellate Court set aside the decree and dismissed the suit---Validity---Witness produced by plaintiff, who was a retired Patwari deposed that mutation in question was in the handwriting of former Patwari and that he could identify his handwriting because they had been working together in the same Tehsil---Appellate Court therefore, was wrong in discarding the testimony of witness---Handwriting could also have been proved under Art.61 of Qanun-e-Shahadat, 1984.

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

----S.11 & O.XXIII, R.1---Specific Relief Act (I of 1877), S.42---Suit for declaration---Withdrawal of suit with permission to file fresh one, on the same cause of action---Plaintiff had withdrawn his previous suit on account of formal defects with permission to file a fresh one---Defendants gave his no objection to grant of permission subject to payment of costs---Plaintiff would have a right to file a fresh suit subject to payment of costs---Appellate Court wrongly observed that fresh suit was hit by principle of res judicata especially when there was no such objection raised by the defendant---Appellate judgment and decree was dismissed and that of trial Court was restored by High Court.

Haji Muhammad Boota and others v. Member (Revenue) Board of Revenue, Punjab and others PLD 2003 SC 979 ref.

Syed Zaheer Sagir for Petitioners.

Taki Ahmed Khan for Respondents.

Date of hearing: 12th October, 2005.

2006 M L D 820

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD YOUSAF and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8354/B of 2005, decided on 16th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.467 & 471---Bail, refusal of---Complainant executed general power-of-attorney in favour of petitioner accused to deal with and look after his land only for agricultural purpose and not to deal with other properties of complainant, erected or constructed on said land---Petitioner got registered properties other than agricultural land including Rice Sheller, building, godown, cattle shed, shops, etc., in the name of co-accused who was son of the petitioner---Said properties did not form part of land for which general power-of-attorney was executed by complainant in favour of petitioner---Said facts had clearly shown that prima facie criminal acts were done by petitioners---Registration of F.I.R. could not be disputed and it was not correct that matter only related to jurisdiction of a civil court---Bail application was dismissed.

Muhammad Akram Qureshi for Petitioner.

Irshad Ahmad Cheema for the Complainant.

Tahir Abbas Rizvi for the State.

Date of hearing: 16th January, 2006.

2006 M L D 823

[Lahore]

Before Syed Jamshed Ali, J

SHAH MUHAMMAD through L.Rs. and 4 others---Petitioners

Versus

NAWAB DIN---Respondent

Civil Revision No.2443 of 1995, heard on 22nd December, 2004.

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

----Arts.17(2)(a), 31 & 79---Loan agreement---Examination of one attesting witness without explaining non-examination of other witness of agreement---Admission of borrower to have thumb-marked agreement---Validity---Mere thumb-marking or signing a document would not be its due execution, unless its executant signed or thumb-marked same after understanding its contents---Article 17 of Qanun-e-Shahadat, 1984, provided that document pertaining to financial or future obligation, if reduced into writing, would be attested by two men or one man and two women and evidence would be led accordingly---Provisions of Art.79 were mandatory and non-compliance thereof would render such agreement inadmissible in evidence---Such agreement was excluded from consideration in circumstances.

Mian Iqbal Mahmood Banday v. Muhammad Sadiq PLD 1995 SC 351 and Abdul Khaliq v. Muhammad Asghar Khan and 2 others PLD 1996 Lah. 367ref.

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

----Art. 79---Provisions of Art. 79 of Qanun-e-Shahadat, 1984---Nature of---Such provisions were mandatory, thus, non-compliance thereof would render document inadmissible in evidence.

(c) Document---

----Execution of---Proof---Mere thumb-marking or signing a document would not be its due execution, unless its executant signed or thumb-marked same after understanding its contents.

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

----Art.117---Word against word---Effect---Party on whom onus of proof lies must fail.

Ch. Muhammad Munawar Virk for Petitioners.

Nemo for Respondent.

Date of hearing: 22nd December, 2004.

2006 M L D 825

[Lahore]

Before Jawwad S. Khawaja, J

MOHY-UD-DIN through L.Rs. and others---Appellants

Versus

PROVINCE OF PUNJAB through Collector, Now District Officer (Revenue), Jhang and another---Respondents

Regular Second Appeal No.129 of 2004, heard on 24th November, 2005.

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

----Ss.9 & 42---Temporary Cultivation Scheme (1978)---Allotment of land under Temporary Cultivation Scheme---Delivery of possession---Conferment of proprietary rights on lessees of Government land vide notification---Plaintiffs' application for conferment of proprietary rights was declined and allotment made in their favour was cancelled by Board of Revenue---Plaintiffs filed suit for declaration and possession which was decreed but decree was set aside in first appeal---Question was as to whether appellate Court had committed illegality in exercise of its jurisdiction---Validity---Land in question was included in the Schedule of auction with proper approval of competent authority and the Province/defendant had produced no evidence to show that there was any illegality in the said Schedule---Appellate Court, therefore, proceeded on wrong premise that auction in favour of plaintiffs was made without publicity and Schedule of auction was not approved by competent authority---Evidence on record, plaintiffs' address, throughout the litigation before the revenue forums and the Courts below, had showed plaintiffs to be the resident of Chak in question; in absence of any rebuttal evidence produced by the Province, plaintiffs could not have been non-suited by appellate Court simply because Assistant Commissioner in his report had found that plaintiffs were not residents of Chak in question---Appellate decree being result of illegality in exercise of Court's jurisdiction was not sustainable, therefore, same was set aside and decree passed by trial Court was affirmed by High Court.

Malik Noor Muhammad Awan for Appellants.

Miss Aliya Neelam for Respondent No.1.

Sameer Ijaz for Respondent No.2.

Date of hearing: 24th November, 2005.

2006 M L D 829

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

DABEER ABBAS alias PAPPU SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Misc. No.8148/B of 2005, decided on 29th November, 2005.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Bail, grant of---Accused though was named in F.I.R., but no specific role of causing injuries to deceased had been attributed to him and only a general allegation was made against accused that he along with his co-accused had given beating to deceased---Post-mortem report, on the other hand, had revealed that only one sharp-edged weapon injury was found on the person of deceased---Delay in post-mortem examination could not be explained---Nothing was recovered from accused during investigation and investigation to the extent of accused was complete and he was no more required for that purpose---Incarceration of accused would not serve any purpose---Accused was admitted to bail, in circumstances.

Jamshad Sadiq Alvi for Petitioner.

Rana Muhammad Tayyab for the State.

Date of hearing: 29th November, 2005.

2006 M L D 830

[Lahore]

Before Jawwad S. Khawaja, J

KHAN KHALID TASLEEM KHAN and others---Petitioners

Versus

AKHTAR ALI and others---Respondents

Civil Revisions Nos.1063-D and 1262-D of 1986, heard on 26th September, 2005.

Specific Relief Act (I of 1877)---

----S.42---Co-owners in joint Khata---Suit for declaration---Suit was dismissed by trial Court but decreed by appellate Court---Predecessor-in­ interest of plaintiffs was owner of the land comprised in four Khatas---After death of the owner of land his property devolved upon his three sons but partition was not effected---One of his sons sold away specific Khasra numbers from one Khata in favour of defendants---Contention of plaintiffs/legal heirs of other two sons of deceased, was that vendor had sold land in excess of his entitlement in the Khata, because he was entitled to 1/3rd share in the joint Khata---Question was as to whether sale of Khatas could affect the right of co-owners in total land---Khatas were only meant for some revenue purposes and did not affect rights of parties in total land comprised in four Khatas, which were part of estate inherited by three brothers---Total land of deceased was in a compact block and entitlement of vendor had to be determined with reference to the four Khatas and not with reference to one Khata alone---Entire property was owned by deceased in four Khatas which had to be taken in account, therefore, disputed sale made by vendor was not in excess of his entitlement---Appellate Court had not correctly applied the law while exercising its jurisdiction by proceeding on basis of land comprised in one Khata alone and had not taken note of other Khatas---Appellate judgment and decree being erroneous was set aside and that of trial Court was restored by High Court.

Taki Ahmed Khan for Petitioners.

Rana Nasrallah Khan for Respondent No.17.

Ex parte for Respondents.

Date of-hearing: 26th September, 2005.

2006 M L D 853

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD SIDDIQ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, ARIFWALA and 3 others---Respondents

Writ Petition No.415 of 2005, heard on 18th April, 2005.

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

----Ss. 5, Sched., & 14---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for recovery of maintenance allowance and return of articles of dowry---Case was remitted to Appellate Court below for decision afresh as it lacked discussion of evidence of parties---Once again Appellate Court below had discarded statements of witnesses of defendant in one line "evidence of witnesses of defendant was not believable as they had denied total claim of plaintiff in evasive manner"---Such was only discussion as far as witnesses of defendant were concerned---Approach of Appellate Court was perfunctory as it disobeyed direction of High Court recorded in remand order---Judgment of Appellate Court, in circumstances was nullity in eye of law---Appellate Court, in family matters was the last Court in the realm of facts and controversy resolved by it which was not amenable to further appeal, review or revision---Responsibility, in circumstances, was more than double on Appellate Court to consider and discuss all material available on record, whatever be its worth---No piece of evidence was to be left out from consideration---Judgment of Appellate Court which was not maintainable in law, was set aside---Appeal would be deemed to be pending before Addl. District Judge, who would issue notice to parties and then decide same after hearing them.

M/s Saqib Brothers, Jhang, and another v. M/s. Ciba Giegy (Pakistan) Ltd. 1991 CLC 710 ref.

Faisal Zaman Khan for Petitioner.

Nemo for Respondents.

Date of hearing: 18th April, 2005.

2006 M L D 855

[Lahore]

Before Maulvi Anwarul Haq, J

MASOOD AHMAD JAVED---Petitioner

Versus

THE STATE and 5 others---Respondents

Writ Petitions Nos.6824 and 6600 of 2005, heard on 21st February, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 21-A & 21-B---Police Order, 2002, Arts.155 & 156---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of criminal case---Application for---Petitioner being a Police Officer, conducted proceedings in a case entrusted to him and he, after concluding same, declared one of the accused in that case to be innocent---On application filed by complainant in that case against petitioner, an inquiry was conducted, in which it was found that petitioner ante-dated his report and that witnesses, who had never supported accused party; were stated to have done so---Upon report of said inquiry report, Inspector-General of Police, had placed petitioner under suspension---One of said witnesses filed an application under Ss.21-A & 21-B, Cr.P.C. for registration of a case against petitioner under Arts.155 156 of Police Order, 2002---Said application was allowed by Additional Sessions Judge who directed S.H.O. to register a case against petitioner under Arts.155/156 of Police Order, 2002---Said order had been impugned in constitutional petitions---Since prosecution had yet to commence in a competent Court and the direction being only to register a case, case had rightly been ordered to be registered by Justice of Peace---Offence in question being punishable with three years imprisonment and fine, same was cognizable within the meaning of Second Schedule to Cr.P.C.---No bar was spelt out in Police Order, 2002 against an investigation to be conducted in the matter---Matter was at investigation stage and proper stage for consideration of implication of Art.155(2) of Police Order, 2002 would be when the matter was reported to the Court for commencement of prosecution---Constitutional petitions were dismissed accordingly.

Agha Nadim and another v. The Station House Officer, Police Station, Lohari Gate, Lahore and another 1998 PCr.LJ 181; Khadim Hussain v. The State 1993 MLD 560; A.H. Masood v. Province of the Punjab through Chief Secretary and 3 others 1994 PCr.LJ 825; Muhammad Hafeez and others v. State 1999 MLD 1174; Haji Muhammad Hussain v. S.H.O. Police Station, Chunian and 6 others 1999 PCr.LJ 1314; Naseem Akhtar Khan v. District. and Sessions Judge PLD 2005 Kar. 285; Ali Ahmad, (Sub-Inspector) v. Additional Director, Anti-Corruption Establishment, Multan Region, Multan 2005 MLD 1647; Muhammad Yousuf v. Director, Anti-Corruption Establishment, Punjab, Lahore and 5 others PLD 2004 Lah. 284; Nazar Hussain v. The State 2002 PCr.LJ 440; Mian Muhammad Iqbal and others v. Government of Punjab PLD 1999 Lah. 109; Collector of Customs, Lahore and others 'v. Universal Gateway Trading Corporation and another 2005 SCMR 37 and Haji Muhammad Sadiq v. Illaqa Magistrate Police Station Factory Area, Faisalabad and others 2001 PCr.LJ 1571 ref.

Ch. Abdul Sattar Goraya for Petitioner.

Zafar Ullah Khan Khakwani, A.A.-G. for Respondent.

Altaf Ibrahim Qureshi for the Complainant.

Moeen Hafeez, DSP (Investigation), City Circle, Sahiwal and Amanat Ullah, Inspector (Legal), Multan.

Date of hearing: 21st February, 2006.

2006 M L D 860

[Lahore]

Before Jawwad S. Khawaja, J

Malik FARZAND ALI---Petitioner

Versus

Mst. REHMAT BIBI---Respondent

Civil Revision No.469 of 2000, heard on 31st January, 2005.

Tort---

-Malicious ---Malicious prosecution---Suit for recovery of damages for malicious prosecution---In order to prove malicious prosecution, it was necessary for plaintiff to prove malice. but plaintiff had failed to prove malice through any evidence brought on record---Appellate Court had misdirected itself by holding that plaintiff had suffered a loss of reputation and undergone mental and physical agony while resisting ejectment proceedings against her and that plaintiff was entitled to recover damages---Plaintiff could have claimed costs in ejectment proceedings, but did not do so---Plaintiff, in circumstances could not have filed a separate suit for recovery of damages---Appellate Court having exercised jurisdiction with material irregularity while decreeing suit of plaintiff, appellate decree was set aside and decree of Trial Court dismissing suit of plaintiff stood restored.

Irfan-ul-Haq for Petitioner.

Nemo for Respondent.

Date of haring: 31st January, 2005.

2006 M L D 862

[Lahore]

Before Tanvir Bashir Ansari, J

ABDUL RASHEED---Petitioner

Versus

AHMAD DIN through L.Rs. and others---Respondents

Civil Revision No.2304 of 1995, heard on 31st January, 2005.

Islamic law---

----Gift---Proof---Plaintiffs assailed gift deed, executed in favour of defendant, being forged and a result of fraud---Plaintiffs also contended that ingredients of valid gift were not fulfilled---Trial Court dismissed the suit but Appellate Court accepted the appeal and decreed the suit in favour of plaintiffs---Validity---Gift deed bore thumb-impression of donor, which was endorsed by marginal witness, who appeared in Trial Court as witness and identified his signatures thereon---Offer of gift was accepted on behalf of defendant---Gift deed did not suffer from any legal infirmity as far as offer and acceptance was concerned---Copy of Register Haqdaran-e-Zamin showed that the suit-land which was originally in the name of donor stood transferred in favour of defendant through mutation of gift entered on the basis of registered gift deed---Copies of Khasra Girdawari for the suit-land showed that cultivating possession of defendant was shown after the execution of gift deed---Enough material was on record in shape of oral and documentary evidence to show that ingredient of possession of a valid gift was also established---Findings recorded by Appellate Court were not liable to be sustained---Judgment and decree passed by Appellate Court was set aside and that of Trial Court was restored in circumstances.

Attaullah Chaudhry and Nazir Ahmed Javed for Petitioner.

M. Yasin Chughtai for Respondents Nos. 1 and 2.

Ch. Muhammad Maqsood Ahmad for Respondents Nos.3, 4 and 5(i) to (vi).

Date of hearing: 31st January, 2005.

2006 M L D 886

[Lahore]

Before Jawwad S. Khawaja, J

NAZIR AHMED BUTT---Appellant

Versus

MUHAMMAD HAYAT KHAN and another---Respondents

Regular Second Appeal No.129 of 2005, heard. on 24th January, 2006.

Specific Relief Act (I of 1877)---

----S.12---Qanun-e-Shahadat (10 of 1984), Art.179---Suit for specific performance of agreement to sell---Suit was decreed but decree was set aside in appeal---Execution of agreement---Proof---Plaintiff asserted that bargain was struck with defendants in presence of two marginal witnesses while said witnesses categorically denied said fact by saying that neither they were present at the time of bargain nor were the terms of transaction settled in their presence---Statements of witnesses regarding the date of purchase of stamp paper and date of which agreement was executed had material discrepancy---Plaintiff's failure to produce the Bank record or any functionary of the Bank to prove his assertion that a draft for huge amount was delivered to defendants when the agreement was executed, constituted a material omission on his part and justified the inference that assertion was false---Finding of appellate Court were thus not open to exception under S.100 of Civil Procedure Code, 1908.

Muhammad Yasin Chughtai for Appellant.

Ahmad Waheed Khan for Respondent.

Date of hearing: 27th January, 2006.

2006 M L D 889

[Lahore]

Before Khawaja Muhammad Sharif, J

FAZAL MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.468-J and Criminal Revision No.1231 of 2003, decided on 20th October, 2005.

Penal Code (XLV of 1860)---

-- -S. 302(b)---Appreciation of evidence---Accused was named in F.I.R. with a specific role of having caused successive hatchet blows on the person of deceased---No previous background of enmity existed between accused and eye-witnesses to falsely implicate him in the case---Court had to see the quality of evidence and not the quantity and while doing so the Court had to overlook the technicalities, if prosecution evidence was coming through an unimpeachable source as had been produced in the present case---Was a rare phenomenon that a father would let off real killer of his son and would falsely involve innocent person---Ocular account in the present case was corroborated by medical evidence---Prosecution had proved its case against accused beyond a shadow of doubt to sustain his conviction---Trial Court had delivered a well-reasoned judgment to convict accused which did not call for interference by High Court in appellate jurisdiction---Trial Court had already taken a lenient view by way of not awarding maximum sentence to accused---Conviction and sentence awarded to accused by the Trial Court, were maintained, in circumstances.

Kh. Faheem Ijaz for Appellant.

Miss Tasneem Ameen for the State.

Zahid Hussain Khan for the Complainant.

Date of hearing: 20th October, 2005.

2006 M L D 892

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD RAFIQ and others---Petitioners

Versus

MUHAMMAD SIDDIQUE and others---Respondents

Civil Revision No.1544 of 2005, heard on 7th February, 2006.

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

----S.8---Limitation Act (IX of 1908), S.28, Arts.142 & 144---Suit for possession---Limitation---Repugnancy to injunctions of Islam---Contention of defendants was that they were in possession of suit-land for last 23 years, therefore, plaintiffs' suit for possession was time-barred as they had failed to approach the Court within a period of twelve years prescribed under Art. 142 of Limitation Act, 1908---Suit was decreed by Courts below holding that since S.28 and Art.144 of Limitation Act, 1908 had been declared by Supreme Court as repugnant to injunctions of Islam, question of Limitation thus did not arise at all---Validity---Within the meaning of Art.142 of Limitation Act, 1908 the very concept of being dispossessed or discontinuing possession implied physical possession and not any notional or constructive possession---Nothing was on record to prove that plaintiffs were in possession of property in dispute at any time---Only as a result of consolidation proceedings, which were undertaken in 1973, title of disputed property fell to the share of plaintiffs to the exclusion of others including defendants who were co-sharers in a joint Khata along with plaintiffs prior to the consolidation---Since plaintiffs were never proved in physical possession of suit property, Art.142 had no application---Claim of defendants that they were owners in possession of suit-land was not supported by any evidence and Revenue Record had made it clear that defendants were in possession of disputed land since consolidation proceedings just due to ignorance regarding ownership of suit-land---Such possession did not vest any right in defendants nor did it grant to them any special status to defeat the undisputed title of plaintiffs---Only defence raised by defendants was on the basis of adverse possession which was no more available to them after decision of Appellate Bench of the Supreme Court wherein S.28 and Art.144 of the Schedule to Limitation Act, 1908 were declared to be against the injunction of Islam.

(b) Limitation Act (IX of 1908)---

----Art.142---"Possession"---Meaning and concept---Word "possession" as used in Art.142 of Limitation Act, 1908 could only be construed to mean physical possession and not any notional or constructive possession---Very concept of being dispossessed or discontinuing possession implied physical possession.

Sheikh Naveed Sheheryar for Petitioners.

Jariullah Khan for Respondents.

Date of hearing: 7th February, 2006.

2006 M L D 907

[Lahore]

Before Mian Hamid Farooq and Syed Hamid Ali Shah, JJ

NAZIR AHMAD and another---Appellants

Versus

Haji NAZIR ALI and 3 others---Respondents

Regular First Appeal No.515 of 2000, decided on 8th February, 2005.

(a) Damages---

----Quantum of damages---Determination---Principles---Suit for damages can only be decreed when averred in plaint on each score separately and proved by evidence on each point---General, vague and scanty evidence on such points cannot be relied upon---Damages suffered and quantity of amount claimed under each head has to be proved by cogent evidence---Mere assertion of inflated amounts without corroborative evidence would be of no avail to plaintiff.

Sufi M. Ishaque v. Metropolitan Corporation PLD 1996 SC 737; Raja Fakhar Abba and others v. Karachi Metropolitan Corporation 1998 CLC 1547 and M. Younas & Co. v. Hajiani Mariam Bai and others PLD 1963 (WP) Kar. 791 rel.

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

----Ss.2 & 14---Registration Act (XVI of 1908), S.49---Damages---Award by arbitrator---None-registration of---Effect---Plaintiffs claimed damages for the loss caused to their shops by negligent act of defendants---Trial Court decreed the suit mainly on the basis of decision given by Panchayat---Validity---Award by arbitrator could not be made basis of decree as it was not produced in evidence and only its photocopy was placed on record----Value of award was more than Rs.100 and as such it was subject to compulsory registration---Unless such award was registered under S.49 of Registration Act, 1908,, it could not create any right---Award being not in accordance with the provisions of law was invalid and invalid award did not bind even the consenting parties---Loss stated to be suffered under each head in plaint found no mention even in the statement of plaintiff appearing as witness---Plaintiffs failed to prove with absolute certainty the negligence of defendants as well as the claim of damages---Plaintiffs could neither prove that the fire broke out due to the negligence of defendants nor their claim that the damages were sustained by them---Findings of the Trial Court were reversed by High Court in exercise of appellate jurisdiction---Appeal was allowed in circumstances.

AIR 1926 Mad 1021; 1936 I.C. (Vol-3) 2000; Province of Punjab v. Col. Abdul Majeed 1997 SCMR 1692; Iqbal Umar v. Muhammad Azizullah Qureshi and 2 others PLD 1976 Kar. 560; Richard Benjamin Wheeler Haines v. Ismail and others PLD 1970 Kar. 628 and Ghulam Muhammad and others v. Muhammad Ashraf and others PLD 1981 SC (AJ&K) 118 ref.

S.M. Masood for Appellants.

Ch. Muhammad Ali for Respondents.

Date of hearing: 23rd December, 2004.

2006 M L D 913

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD IMRAN SIDDIQUE---Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Vice-Chancellor and 2 others---Respondents

Writ Petitions Nos.6617 and 6618 of 2004, heard on 21st July, 2005.

Educational institution---

----Examination---Petitioners were admitted in BBA class Sessions 2000-2002 and that being a morning programme, was to be completed in two years comprising four semesters---Both petitioners during said semesters failed in one subject, but under University Regulations were promoted to MBA class---Grievance of petitioners was that they were not being allowed to take MBA-4th semester examination---According to amended Statute appended by authorities to their written statement, a candidate failing in one course, could be granted provisional admission to MBA and said admission was possible only upon completion of original four semesters---Admission was granted to petitioners in MBA class upon completion of four semesters of BBA---One year period comprising two semesters, had to commence from that point of time---One petitioner had already removed said deficiency within time span provided in said amended statute and in the matter of other petitioner, second available chance coincided with the date of examination of MBA class as well and because of that special circumstance, he had to avail final available chance in the forthcoming BBA examination in said subject---Petition filed by first petitioner was allowed declaring that he had removed deficiency and he was entitled to complete his BBA programme in accordance with University Regulations---Constitutional petition filed by second petitioner was disposed of with observation that if the petitioner would pass said examination and remove deficiency in the last and final chance given to him by appearing in forthcoming BBA examination, his Constitutional petition would stand accepted and in case he failed in said examination, his constitutional petition would stand dismissed.

Muhammad Amir Bhatti and M. Khalid Farooq for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

Date of hearing: 21st July, 2005.

2006 M L D 916

[Lahore]

Before Syed Shabbar Raza Rizvi, J

SHAHBAZ HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9017/B of 2005, decided on 16th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(2), 337-F(i) & 34---Pre-arrest bail, refusal of---Name of accused with a role was mentioned in F.I.R.---Accused having been found guilty by two D.S.P's. mala fide could not be attached---Extraordinary concession of bail, could not be granted to accused, in circumstances.

Rana Shaukat Ali Khan for Petitioner.

Ms. Shahnaz Maqbool for the State.

Date of hearing: 16th January, 2006.

2006 M L D 918

[Lahore]

Before Jawwad S. Khawaja, J

SULTAN through Legal Heirs and others---Petitioners

Versus

FATEH MUHAMMAD---Respondent

Civil Revision No.858 of 1978, heard on 19th October, 2005.

West Pakistan Land Reforms Regulation, 1959 [MLR 64]---

----Para.25---Land Reforms Regulation 1972 [MLR No.115], para.24---Sales of agricultural land---Mutation---Cancellation of mutation , in violation of MLR No.64---Evidence available on record had proved that earlier sale made by original allottee/lady vendor in favour of petitioner through impugned mutation did not reduce her holding to an area less than a subsistence holding---Mutation thus was fully effective and could not have been held to be void under MLR No.64---Subsequent two sales in favour of petitioner, being an owner in the estate, were also valid---Appellate judgment and decree being erroneous were not legally sustainable, therefore, same were set aside while findings of trial Court were affirmed by High Court.

Bashir Hussain Khalid for Petitioners.

Shahzad Shaukat for Respondent.

Date of hearing: 19th October, 2005.

2006 M L D 920

[Lahore]

Before Syed Jamshed Ali, J

Mst. KHATOON---Petitioner

Versus

Mst. FATIMA and others---Respondents

Civil Revision No.3562 of 1994, decided on 5th October, 2004.

West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

---S.5---Specific Relief Act (I of 1877), S.42---Inheritance---

Termination of limited estate---Daughter of predeceased son---Entitlement---Grievance of plaintiff was that after termination of limited estate in favour of two widows of the original owner, she was deprived of her legal share as she was daughter of pre-deceased son of the original owner---Trial Court and Appellate Court dismissed the suit and appeal respectively---Contention of the defendants was that the suit was barred by limitation---Validity---By providing for devolution of property under S.5 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, on termination of life estate, daughter of pre-deceased son of last full owner would inherit the share which her father would have got if he were alive at the time of opening of succession---Petitioner being a co-sharer, the law of limitation was not applicable, to assert such claim---Judgments and decree passed by both the Courts below were set aside and the suit was decreed in favour of plaintiff.

Sardar v. Mst. Nehmat Bi and 8 others 1992 SCMR 82 and Nazir Ahmad and others v. Abdullah and others 1997 SCMR 281 fol.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Mst. Zainab v. Kama! Khan alias Kamla PLD 1990 SC 1051 rel.

Inayatullah Chaudhry for Petitioner.

Syed Faisal Raza Bokhari for Respondent.

Dates of hearing: 30th September and 5th October, 2004.

2006 M L D 924

[Lahore]

Before Syed Hamid Ali Shah, J

MUHAMMAD IBRAHIM---Petitioner

Versus

IRSHAD BEGUM and 7 others---Respondents

Civil Revision No.16-D of 1999, decided on 13th December, 2004.

Malicious prosecution----

----Recovery of damages---Death of plaintiff-Effect---Concurrent findings of fact by the Courts below---Suit was filed by plaintiff for damages with regard to mental torture, and injury to fame and character---Plaintiff died during pendency of suit and his legal heirs were brought on record---Both the Courts below concurrently decreed the suit in favour of legal heirs of plaintiff---Plea raised by defendant was that right to sue did not survive on the death of plaintiff---Validity---Right to sue did not survive in a suit for damages where plaintiff died during the pendency of suit---Judgments and decrees passed by both the Courts below were set aside and the suit was dismissed.

Barkat Ali v. Muhammad Nawaz PLD 2004 SC 489 ref.

Ali Muhammad Mirza and others v. Mst. Sardaran and others PLD 2004 SC 185 fol.

Walayat Umar for Petitioner.

Ras Tariq Chaudhry for Respondents.

Date of hearing: 8th December, 2004.

2006 M L D 934

[Lahore]

Before Jawwad S. Khawaja, J

FATEH DIN SHAH---Petitioner

Versus

AHMAD KHAN---Respondent

Civil Revision No.932 of 2001, heard on 16th February, 2005.

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

----Ss. 6 & 13---Suit for pre-emption---Question of Zarar and Zaroorat---Date of sale of suit-land in the present case was 21-7-1993 and date of institution of suit was 5-9-1993---Both said dates fell prior to cut off date 31-12-1993 fixed by Supreme Court, but decree was passed subsequently on 14-4-1998 when provisions of S.6(2) of Punjab Pre-emption Act, 1991 which dealt with 'Zaroorat' or avoidance of 'Zarar' were no longer in force---Plaintiff could only have succeeded by proving the right of pre-emption as it existed on three dates, date of sale, date of filing of suit and date of decree---Plaintiff had not led any evidence on question of Zarar and Zaroorat, and had failed to establish his right of pre-emption as on date of sale and date of institution of suit when proof of Zaroorat and avoidance of Zarar was essential---Appellate decree was set aside and decree of Trial Court stood restored.

Shabbir's case PLD 1994 SC 1; Ch. Abdul Majeed v. Ch. Inayat Ali and 4 others PLD 2001 Lah. 194; Muhammad Abbas and 7 others v. Liaquat Ali and 9 others 2003 MLD 405 and Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 ref.

Malik Noor Muhammad Awan for Petitioner.

Sheikh Irfan Akram for Respondent.

Date of hearing: 16th February, 2005.

2006 M L D 936

[Lahore]

Before Ijaz Ahmad Chaudhry, J

NOMAN TAHIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7186-B of 2005, decided on 26th October, 2005.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), S.489-B---Bail, grant of---Further inquiry---Prosecution during investigation had failed to collect any evidence that false currency note was prepared by the accused---Regarding possession of said currency, accused had explained that they received said currency note from some customer---In absence of any other evidence that accused themselves were responsible for preparation of said forged currency note, mere presentation of said counterfeit currency note, at the petrol pump, was not sufficient to prima facie make out offence under S.489-B, P.P.C.---Case of accused was of further inquiry and was covered by subsection (2) of S.497, Cr.P.C.---Accused were not previously involved in such-like cases---Accused were behind the bars and nothing was to be recovered from them---Bail could not be withheld as a punishment---Accused were released on bail.

Tahir Naeem for Petitioner.

Muhammad Sarwar Awan with Maqsood Ahmad, S.-I. with record for the State.

2006 M L D 938

[Lahore]

Before Jawwad S. Khawaja, J

ATTAULLAH KHAN and others---Petitioners

Versus

Haji ABDUL WAHID and others---Respondents

Civil Revision No.490 of 2001, heard on 21st September, 2005.

Specific Relief Act (I of 1877)---

----S. 42---Societies Registration Act (XXI of 1860), S.17---Suit for declaration relating to the management of a mosque and Madrissa in dispute---Suit was dismissed by Trial Court but decreed in appeal---Case of plaintiffs was that they were a registered Anjuman and since the death of the Imam of the mosque they had been running the affairs of mosque therefore they were entitled to management of the same---Contention of defendant was that after death of the Imam, affairs of mosque were being managed by residents of the locality instead of the plaintiffs---Validity---Plaintiffs' statement that they were unaware as to who was Imam of the mosque unambiguously showed that they were not involved in managing the affairs of the mosque---Registration of the Anjuman under section 17 of Societies Registration Act, 1860 obtained by plaintiffs after death of Imam of the mosque was of no importance---Appellate Court wrongly decreed the suit of plaintiffs on the ground that electricity bills and Form PT-1 issued by Property Tax Department were in the name of one of the plaintiffs, in fact said bill and form were only in continuation of the admitted position that deceased Imam who had constructed the mosque in question was father of said person (one of plaintiffs) but such fact did not give any right to plaintiffs to manage the suit mosque---Impugned appellate decree was, therefore, set aside and that of Trial Court was restored by High Court.

Shahid Zaheer Syed for Petitioners.

Irshad Ahmad Qureshi for Respondents.

Date of hearing: 21st September, 2005.

2006 M L D 941

[Lahore]

Before Muhammad Khalid Alvi, J

ABDUL AZIZ---Petitioner

Versus

QAISRA ASLAM and 3 others---Respondents

Civil Revision No.277 of 2001, heard on 14th March, 2005.

Specific Relief Act (I of 1877)---

----S. 8---Limitation Act (IX of 1908), Arts. 83, 116, 142 & 144---Suit for possession---Limitation---Trial Court decreed suit, but Appellate Court dismissed the same on sole ground that suit was barred by time---Plaintiff had sought possession of some portion of property sold to him by predecessor of defendants---Article 83 of Limitation Act, 1908 providing three years limitation, was not applicable in the case of plaintiff as he was not indemnified though such a clause was contained in the sale-deed---Article 116 of Limitation Act, 1908, providing six years limitation was also not applicable to the case of plaintiff because he did not claim any compensation for breach of any contract---Article 142 of Limitation Act, 1908 was also not applicable to the case of plaintiff as according to plaintiff himself he was never in possession of the portion claimed by him---Plaintiff having only sought possession of some of portion of property sold to him, Art. 144 of Limitation Act, 1908 providing 12 years limitation, was applicable to his case---Suit having been filed by plaintiff within 12 years, same was not barred by time---Judgment and decree passed by Appellate Court below, were set aside and that of trial Court, were restored.

PLD 1956 Lah. 675 and 1995 SCMR 522 ref.

Mrs. Tabinda Islam for Petitioner.

Muhammad Zafar Chaudhry for Respondents.

Date of hearing: 14th March, 2005.

2006 M L D 944

[Lahore]

Before Jawwad S. Khawaja, J

MUNIR-UL-HAQ and others---Petitioners

Versus

MUHAMMAD ALI and others---Respondents

Civil Revision No.1539 of 2004, heard on 3rd March, 2005.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Trial Court had dismissed suit, but Appellate Court set aside judgment of Trial Court and decreed the suit---Well-reasoned judgment of Trial Court had, been reversed by Appellate Court without adverting to evidence duly brought on record which had been discussed in judgment of Trial Court---Serious misreading of record and a failure by Appellate Court had been found---Appellate Court having exercised its jurisdiction with material irregularity, its judgment and decree, were not maintainable and as such same were set aside and those of Trial Court stood restored.

Muhammad Iqbal Mohal for Petitioners.

Respondent-proceeded against: ex parte.

Date of hearing: 3rd March, 2005.

2006 M L D 946

[Lahore]

Before Muhammad Khalid Alvi, J

GHULAM BARI and another---Appellants

Versus

BASHIR AHMAD and another---Respondents

Regular Second Appeal No.87 of 2004, heard on 15th March 2005.

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

----Ss. 6 & 13---Suit for pre-emption---Land consisting of five different Khasra Nos., purchased by appellants, was sought to be pre-empted by two respondents by filing pre-emption suit which suit was concurrently decreed by Trial Court and Appellate Court---Such concurrent judgments and decrees had been assailed through second appeal---Appellants had conceded that superior right of one respondent extended to three Khasra Nos., but had disputed right of respondents with respect to remaining two Khasra Nos. and that statement of appellants was not controverted by respondents and conceded that their right did not extend to the extent of remaining two Khasra numbers---One respondent had never appeared in the Court to assert his superior right and performance of Talbs---Said respondent having failed to establish on record that he had performed Talb-e-Muwathibat, his right of pre-emption, it any, stood extinguished on account of non-performing of Talb-e-Muwathibat- Suit to the extent of said respondent was dismissed in toto, while suit in respect of the other respondent was dismissed to the extent of remaining two Khasras; but suit with regard to first three Khasras, would remain decreed only in favour of the other respondent subject to payment of proportionate price.

2003 YLR 974 ref.

Nadim Kausar for Appellants.

Mian Muhammad Ashraf for Respondents.

Date of hearing: 15th March, 2005.

2006 M L D 961

[Lahore]

Before Khawaja Muhammad Sharif, J

QASIM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3169-B of 2005, decided on 9th May, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Bail, before arrest and after arrest---Interim bail before arrest was allowed to accused whereby he was directed to appear before High Court on each and every date of hearing, and also to join investigation---Petitioners' counsel was also directed to place on record copy of application submitted to S.H.O. concerned---Accused was named in F.I.R. and recovery was yet to be effected from him---Even otherwise, ingredients of bail before arrest were absent in the case---Considerations for the grant of bail before arrest and bail after arrest being altogether different, petition for was dismissed---Accused was directed to join investigation and his counsel was directed to place on record copy of application submitted to S.H.O. concerned.

Nemo for Petitioner.

Mujahid Awan A.S.-I. in Person.

2006 M L D 962

[Lahore]

Before Maulvi Anwarul Haq, J

TARIQ MAHMOOD---Petitioner

Versus

VICE-CHANCELLOR BAHAUDDIN ZAKARIYA UNIVERSITY MULTAN and 2 others-Respondents

Writ Petition No.6761 of 2004, decided on 20th December, 2004.

Educational institution---

----Providing 'Amanuensis' to a blind candidate in examination---Application for---Grievance of petitioner was that he being blind had filed application requesting the University Authorities to provide him 'Amanuensis' in terms of University Regulations, but no order had been passed on his application while examinations were to commence soon and no Roll number had been issued to him---High Court relying on affidavit and Medical Certificate produced by petitioner, directed the University to pass an appropriate order strictly in accordance with the terms of Regulations and appoint an Amanuensis for petitioner and while doing so should give sympathetic consideration to contention of petitioner that one of the persons nominated by him be so appointed provided it was permissible in accordance with Regulations of the University---Roll Number be also issued accordingly without further delay---Constitution of Pakistan (1973), Art. 199.

Malik Tahir Abbas Awan Advocate.

2006 M L D 963

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD YOUNIS and 4 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, JHELUM and 2 others---Respondents

Writ Petitions Nos.2755 of 1997, 2138 of 1998 and 3530 of 2001, heard on 5th April, 2005.

Civil Procedure Code (V of 1908)---

----O. V, R.20, O. IX, R.13 & S.151---Constitution of Pakistan (1973), Art. 199-Constitutional-petition-Ex parte decree---Setting aside of---Substituted service---Contesting defendants having absented themselves were proceeded ex parte and after recording ex parte evidence suit filed by plaintiffs was decreed ex parte---Application filed by defendants under O. IX, R. 13, C.P.C. for setting aside ex parte decree was allowed by Trial Court, but Appellate Court on revision against order of Trial Court, set aside order of Trial Court---Validity---Plaintiffs had failed to comply with order of Trial Court on various dates whereby they were asked to file correct addresses of defendants---In absence of correct addresses of defendants issuance of summonses/notices on correct addresses, was not possible---Trial Court on its own, directed substitution of service by way of proclamation in the newspapers and on receipt of publication of said proclamations ex parte proceedings were taken---In absence of issuance of summons at correct address, order of substituted service was not lawful ,because such service in disregard to provisions of O. V, R.20, C.P.C. had been considered to be nullity in the eyes of law.

Syed Muhammad Anwar, Advocate v. Sheikh Abdul Haq 1985 SCMR 1228; Muhammad Zaman v. Muhammad Jameel and 4 others 1992 CLC 873 and Mst. Hussain Jan and 8 others v. Muhammad Suleman through legal heirs and 16 others PLD 1994 Pesh. 95 ref.

Malik Qamar Afzal for Petitioner.

Muhammad Munir Paracha for Respondents Nos.2 to 3.

Date of hearing: 5th April, 2005.

2006 M L D 967

[Lahore]

Before Ijaz Ahmad Chaudhry, J

HAMMAD ARSHAD---Petitioner

Versus

NFC INSTITUTE OF ENGINEERING AND TECHNOLOGICAL TRAINING KHANEWAL ROAD, MULTAN, through Director and 4 others---Respondents

Writ Petition No.201 of 2004, decided on 26th July, 2004.

Educational Institution---

----Admission under Self-Finance Scheme---Refund of admission fee---Petitioner, who was offered seat under Self-Finance Scheme, had accepted same and deposited amount in order to get admission under said Scheme---Petitioner, however did not join class and wrote letter for withdrawal of amount deposited by him on the ground that due to some family problem he could not proceed with his education there and he got admission in another University at a different place---Stand taken by petitioner for refund of amount deposited by him was not consistent as he left the Institution and started his studies at different University at different place---Grounds taken by petitioner for refund of amount had been found false---Even otherwise if petitioner had changed his mind after deposit of amount on account of admission under Self-Finance Scheme and did not join classes for his personal reasons, authorities could not be held at fault and penalized to refund the dues as after acceptance of admission on Self-Finance Scheme matter had become a past and closed chapter---Prospectus of the Institution mentioned that amount in question would not be refunded and petitioner was bound by terms and conditions of said Prospectus---Petitioner, in circumstances, could not be benefited of his own misdeeds as he himself was responsible for not joining classes and authorities were not at fault---Amount in question could not be refunded on the ground that University/Institute was not recognized by Pakistan Engineering Council which on the one hand was a factual controversy and on the other hand it was not the claim of petitioner that due to that reason he could not continue his class---Constitution of Pakistan (1973), Art.199.

Mian Ashfaq Ahmad for Petitioner.

M. Sohail Iqbal Bhatti for Respondents.

2006 M L D 970

[Lahore]

Before Sh. Javaid Sarfraz, J

MUHAMMAD JAVED IQBAL---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 3 others-Respondents

Writ Petition No.68 of 2005, decided on 17th May, 2005.

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

---Ss. 5 & Sched., 9(6) & 14---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for maintenance---Appeal before District Judge---Delay, condonation of---Suit for maintenance having been dismissed by Family Court, respondents filed appeal against judgments of Family Court before District Judge---Petitioner who was duly served, entered appearance in Appellate Court through his counsel---Appeal was adjourned on two dates and on third date petitioner or his counsel did not appear and petitioner was proceeded against ex parte and Appellate Court after hearing ex parte arguments accepted the appeal---Application for setting aside ex parte judgment and decree was filed by petitioner after 7 months of judgment of Appellate Court, which was dismissed. being time-barred for which petitioner alone was to be blamed and suffer for consequences---Petitioner was required to explain delay of each day but he failed to do that---No ground for condonation of delay in filing application for condonation of delay under S.9(6) of West Pakistan Family Courts Act, 1964 having been given, said application was rightly dismissed by Appellate Court.

Ijaz Baig and 16 others v. Irshad Baig and 2 others 2003 CLC 1805 ref.

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

----S. 5, Sched. & S.14---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for maintenance---Appeal against judgment of Family Court---Trial Court dismissed suit, but Appellate Court set aside judgment and decree of Trial Court and decreed suit ex parte fixing amount of maintenance---Appellate Court fixed amount of maintenance after fully examining evidence produced on record by plaintiffs---In absence of any illegality or irregularity in the impugned judgment of Appellate Court, no ground existed to interfere in judgment of Appellate Court---Constitutional petition, was dismissed.

Ch. Imran Khalid for Petitioner.

Mumtaz Fazal Mirza for Respondents Nos.3 and 4.

2006 M L D 974

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

RIAZ HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.674 of 2000, Criminal Appeal No.9 of 2001 and Murder Reference No.96 of 2001, heard on 17th January, 2001.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Appreciation of evidence---One of the three accused persons was attributed only one injury, while second one had himself received five injuries on his person---Motive was shrouded in mystery---Death sentence, awarded to one accused in circumstances was not called for which was converted into life imprisonment with benefit of S.382-B, Cr.P.C.---Co-accused who had received five injuries, had remained behind the bars for a period of about 2-1/2 years---Sentence which he had already served out, would meet the ends of justice, in circumstances---Name of third co-accused was not mentioned in F.I.R. and he was arrested after two years of occurrence---Case of said co-accused was totally different from other two accused---Said third co-accused was acquitted giving him benefit of doubt.

1985 SCMR 1573 and PLD 1962 SC 502 ref.

Khalid Ibne Aziz for Appellant.

Masood Sabir for the State.

Date of hearing: 17th January, 2006.

2006 M L D 978

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Messrs FRONTIER CONSTRUCTION CO. PRIVATE LIMITED through Managing Director---Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN VICE-CHANCELLOR and another---Respondents

Writ Petition No.1871 of 2004, decided on 23rd April, 2004.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Petitioner had challenged impugned action of the University highlighted in newspapers about blacklisting petitioner's firm and contemplating action against it---Petitioner had not received any order through which University had blacklisted it and present petition had been filed only on the basis of news item published in two newspapers according to which Syndicate of the University had decided to blacklist petitioner firm and also to take action against responsible officials if any for malpractice in the construction of Convocation Hall---Validity---Writ could not be issued on the basis of news item as the petitioner, who had obtained contract of construction from the University would definitely be informed about it---Even otherwise arbitration clause existed in the contract in case of any dispute---Petitioner, in circumstances had also an alternate remedy in case any action was taken, against petitioner by University---Writ could not be issued merely on basis of news items unless any specific order passed by competent Authority was before it reflecting exact position---Constitutional petition having been filed at premature stage, could not be entertained.

Sardar Muhammad Latif Khan Khosa for Petitioner.

2006 M L D 983

[Lahore]

Before Farrukh Latif, J

NADIA, IRAM---Petitioner

Versus

PRINCIPAL NISHTAR MEDICAL COLLEGE, MULTAN and 3 others---Respondents

Writ Petition No.3477 of 2002, decided on 27th September, 2002.

Educational Institution---

----Expulsion of candidate from college---Petitioner, who could not pass First Professional M.B.B.S. examination in four chances (availed or unavailed), was expelled from college in compliance of rules of University and rules given in college prospectus---Said rules had provided that candidates who failed to clear First Professional M.B.B.S. examination in four chances would cease to be eligible for further medical education and would be expelled from college---Validity---Four chances were more than enough to clear First Professional M.B.B.S. examination and if a candidate failed to do so, reasonable conclusion would be that he had no aptitude for medical education---No further chance could be given to petitioner after she had failed to clear said examination in four chances---Petitioner was rightly expelled from college in accordance with rules and regulation and order of expulsion could not be deemed as illegal---Constitution of Pakistan (1973), Art.199.

University of the Punjab and another v. Mst. Samea Zafar Cheema and 4 others 2001 SCMR 1506 ref.

Sardar Latif Khan Khosa for Petitioner.

Sheikh Sajjad Ahmad for Respondents No.1.

Date of hearing: 19th September, 2002.

2006 M L D 986

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Miss SAIMA BUKHARI and another---Petitioners

Versus

DISTRICT COORDINATION OFFICER, RAJANPUR and 3 others---Respondents

Writ Petition No.1192 of 2004, decided on 29th July, 2004.

Pakistan Citizenship Act (II of 1951)---

----Ss. 17 & 30---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Issuance of Domicile Certificate---Petitioners in their constitutional petition had challenged order passed by District Coordination Officer whereby he had rejected application of petitioners for issuance of domicile certificates---Petitioners earlier were residing in D.G. Khan District where they were issued domicile certificates, but thereafter petitioners along with their parents shifted to Rajanpur and started their studies there---Domicile certificates issued to petitioners were cancelled by District Co-ordination Officer D.G. Khan on application of petitioners and they filed application for issuance of domicile certificates at Rajanpur where they shifted along with their parents---Documentary evidence produced by petitioners had fully proved that they had been studying at Rajanpur where their parents had shifted their place of abode---According to voters list place of posting and Identity cards of parents of petitioners, they were living at Rajanpur---Documents on record had fully proved that petitioners had been residing at District Rajanpur for more than one year as their father remained posted there and they were residing there---District Coordination Officer in circumstances was not justified to refuse issuance of domicile certificate of District Rajanpur to petitioners because under S.17 of Pakistan Citizenship Act, 1951 they had become eligible for issuance of domicile certificates in their favour---Impugned order was declared to be illegal and unlawful as District Coordination Officer had failed to exercise his authority---High Court accepted constitutional petition with direction to District Coordination Officer to issue required domicile certificates to petitioners within specified period.

Sardar M. Latif Khan Khosa for Petitioners.

M.R. Khalid Malik, Addl. A.-G. for Respondents

Abdul Rashid Qureshi, Domicile Clerk, DCO Office, Rajanpur, present.

2006 M L D 989

[Lahore]

Before Maulvi Anwarul Haq, J

RAZIA BIBI---Petitioner

Versus

CONTROLLER (EXAMINATION) BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN and another---Respondents

Writ Petition No.1815 of 2005, decided on 6th April, 2005.

Educational institution---

----Examination---Grievance, rather apprehension of petitioner was that for no fault on her part she would lose her last chance to clear her English Paper B.Ed.---Petitioner had filed her forms and requisite charges in time, but letter containing Roll number and date-sheet sent by the University Authorities to her was delivered by Postal Authorities to petitioner after 11 days from putting it in postal process---University Authority itself had lodged a protest with Postal Department on its said negligence---Apprehension of petitioner, appeared to be misplaced, because neither petitioner nor University Authorities were to be blamed---Petitioner, for said misdeeds of postal Authorities, by no stretch of imagination, could be said to have lost her chance to clear said English Paper of B.Ed.---Petitioner, subject to deposit of charges and reserving her right to proceed against concerned responsible person, could appear in the said paper.

Nadeem Ahmad Tarrar for Petitioner.

2006 M L D 991

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Sh. JAVED AHMAD---Petitioner

Versus

TEHSIL NAZIM, TEHSIL MUNICIPAL ADMINISTRATION KOT ADDU, DISTRICT MUZZAFARGHAR and another---Respondents

Writ Petition No.9578 of 2001, decided onl5th June, 2006.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Concealing of material facts---Petitioner was a lessee of Municipal Committee for collection of octroi rights---Petitioner claimed to have entitlement to recovery of certain octroi duty, which matter was disposed of by High Court in an earlier constitutional petition by referring the matter to Deputy Commissioner of the District---On the basis of conceding statement of the petitioner, Deputy Commissioner declined refund of amount of octroi as claimed by the petitioner---Plea raised by the petitioner was that the Municipal Committee did not make any decision in that regard---Validity---Claims of the petitioner for refund of the amount was already declined by the then Deputy Commissioner, while making decision on the reference sent by the Administrator of Municipal Committee, hence it could not be said that no decision was earlier made by the Municipal Committee---Decision on the reference was not passed at the back of the petitioner and he was in knowledge of the same, as he was duly represented through counsel during the proceedings of the same---Such decision could be assailed by the petitioner before the competent forum under the law and he could file objections to it---Later on the petitioner could not take the benefit of his own misdeeds that the award was not made the rule of the Court---Even in the body of the present Constitutional petition, the petitioner had concealed the facutm of the decision of the Deputy Commissioner on the reference---Such act showed that the petitioner had not come to the Court with clean hands and had concealed the material facts---Petitioner was not entitled to any extraordinary relief by invoking constitutional jurisdiction of High Court---Petition was dismissed in circumstances.

PLD 1964 SC 520; 1999 SCMR 467; 1998 CLC 1890 (Lah.); 1998 SCMR 2268; PLD 1984 Kar. 269; PLD 1997 SC 823; PLD 1971 SC 516 and PLD 1974 SC 61 distinguished.

2004 CLC 1399; 2003 CLC 382; 1974 SCMR 51; 2002 SCMR 1061; 2000 SCMR 998; 2000 SCMR 718; 1999 CLC 1489 and 1997 SCMR 1089 ref.

Ch. Zafar Iqbal for Petitioner.

Ch. Muhammad Ata-ul-Haq for Respondent No.1.

Muhammad Tariq Rajwana for Respondent No.2.

2006 M L D 996

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD SHAREEF and another---Petitioners

Versus

MEMBER BOARD OF REVENUE PUNJAB, LAHORE and 4 others---Respondents

Writ Petition No.4215 of 2005, decided on 28th July, 2005.

(a) Constitution of Pakistan (1973)--

----Art.4---General Clauses Act (X of 1897), S.24-A---Duty and obligation of public functionaries to decide cases of citizens after judicious application of mind---Section 24-A of General Clauses Act, 1897 being procedural in nature, had retrospective effect.

Ghulam Mohy-ud-Din's case PLD 1964 SC 829; Zainyar Khan v. Chief Engineer 1998 SCMR 2419 and M/s. Airport Support Service v The Airport Manager, Karachi 1998 SCMR 2268 ref.

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

----Arts.189 & 190---Judgment of Supreme Court was binding on each and every organ of the State by virtue of Arts.189 & 190 of the Constitution.

Ustad Muhammad Iqbal for Petitioner.

Muhammad Hanif Khatana Addl. A.-G. for Respondents Nos.1 and 2.

Dr. Ehsan-ul-Haq for Respondents Nos.3 and 4.

Mansoor Ali Bokhari for Respondents No.5.

2006 M L D 1001

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD AYUB and others---Petitioners

Versus

HAZRAT MANSHA and others---Respondents

Civil Revisions Nos.1215 and 1805 of 2002, heard on 18th February, 2005.

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

----S.6---Superior right of pre-emption---Object and scope---Principle of contiguity---Applicability---Pre-emptor claimed his right of pre-emption for his being Shafi Khalit and Shafi Jar---Contention of pre-emptor was that one corner of suit-land touched the one corner of the land owned by him---Validity---Entire concept of contiguity in matters of pre-emption was based upon the premise that the owner of land sharing a common boundary with land, which was subject-matter of pre-emption suit, should have a right superior to that of a purchaser who did not own land having a common boundary with the suit-land---Suit-land had no common boundary with the land owned by the pre-emptor---Mere fact that land owned by pre-emptor had .one corner touching the corner of suit-land, did not result in any shared boundaries between the two and, as such could not be treated as being contiguous---Ownership of pre-emptor did not vest in him a superior right of pre-emption in respect of the suit-land---Pre-emptor did not have superior right of pre-emption in circumstances.

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

----Ss.6 & 13---Superior right of pre-emption---Determination---Principle of contiguity---Falling of land in two different villages---Effect---Pre­emptor claimed his right of pre-emption for his being Shafi Khalit and Shafi Jar on the ground that one corner of suit-land touched one corner of the' land owned by him---Vendees in defence also claimed their superior right of pre-emption on the ground that although land owned by them was in different village, yet it was adjacent to the suit-land---Judgment and decree passed by Trial Court in favour of pre-emptor was maintained by Appellate Court---Validity---Situation of land of vendees in different Mauza was wholly irrelevant because what needed to be seen was whether the land of vendees was contiguous to the suit-land---Vendees owned land which though situated in the adjacent Mauza was contiguous to the suit-land, as such could not be defeated by pre-emptor on the ground that he also owned land which was contiguous to the suit­land---Non-reading and misreading of evidence had been found which resulted in legal error vitiating the judgments and decrees of the Courts below---High Court in exercise of revisional jurisdiction set aside the judgments and decrees passed by both the Courts below and the pre-emption suit was dismissed---Revision was allowed in the circumstances.

Abdul Qayyum v. Muhammad Aslam PLD 1979 SC 867 ref.

A.K. Dogar for Petitioner.

Ch. Riasat Ali for Respondent No.1.

Date of hearing: 18th February, 2005.

2006 M L D 1005

[Lahore]

Before Mian Saqib Nisar, J

ZULFIQAR ALI and another---Appellants

Versus

MUHAMMAD SHARIF and another---Respondents

Regular Second Appeal No.45 of 1997, heard on 27th January, 2005.

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

---Ss. 122 & 123---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Gift, validity of---Original owner of suit property had died issueless and mutation of inheritance qua property of deceased was sanctioned in favour of his widow and one of the brothers of deceased---Plaintiffs, who were sons of one of predeceased brother of deceased owner of suit-land, filed suit claiming that deceased owner of suit-land during his life time, had orally gifted suit-land in favour of plaintiffs, which gift he acknowledged by virtue of memorandum of gift---Plaintiffs, had challenged inheritance mutation alleging that suit-land was not part of estate left by deceased owner---Widow of deceased did not contest the matter, rather, she filed conceding written statement, whereas brother of deceased joined issues and contested suit---Trial Court decreed suit holding that plaintiffs had proved valid oral gift in their favour but Appellate Court reversed the finding of Trial Court and dismissed suit---Validity---Alleged gift deed was on unstamped paper and though it was allegedly thumb-marked by deceased owner of suit property, but opinion of an expert had not been sought by plaintiffs---No witness had been examined to prove signature of alleged marginal witness---Statement of professional deed-writer and marginal witness, were contradictory---Finding of Court of appeal that plaintiffs had failed to prove a valid gift in their favour, were upheld in appeal by High Court---Widow of deceased owner having conceded the claim, suit was decreed only to the extent of share of widow in suit property and for the rest it remained dismissed.

(b) Appeal (civil)---

----Forum of appeal---Under the law, it was the decree, which had to be challenged in appeal and forum of appeal should be as per value mentioned therein.

Khan Khizar Abbas Khan for Appellant.

M. Ikram-ud-Din for Respondent.

Date of hearing: 27th January, 2005.

2006 M L D 1008

[Lahore]

Before Syed Jamshed Ali, J

Syed AGHA HUSSAIN SHAH---Petitioner

Versus

MUHAMMAD SADIQ and others---Respondents

Civil Revision No.1008-D of 1997, heard on 4th February, 2005.

Co-sharer---

----Transfer by co-owner a specific piece of land bearing specific field number out of joint khata---Validity---Co-owner/vendor could only pass that title to vendee, which he himself had in joint khata---Mutation of such transfer would operate only to the extent of share of co-­owner/vendee in joint khata---Vendee would not be entitled to specific piece of land in his possession---Principles.

Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9 ref.

Shamim Iqbal Butt for Petitioner.

Taqi Ahmad Khan for Respondents.

Date of hearing: 4th February, 2005.

2006 M L D 1014

[Lahore]

Before Jawwad S. Khawaja, J

GHULAM MUSTAFA and others---Petitioners

Versus

MAQSOOD AHMED and others---Respondents

Civil Revision No.1737 of 2005, heard on 8th March, 2005.

Specific Relief Act (I of 877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Suit for specific performance of agreement---Numbers of witnesses---Suit was concurrently dismissed by two Courts below on the ground that agreement sought to be performed was required to be proved through testimony of two attesting witnesses, whereas plaintiffs had produced only one witness---Validity---Requirement of two witnesses became law only through Qanun-e-Shahadat, 1984, more than six months after the agreement was executed---Provisions of Arts. 17 & 79 of Qanun-e-Shahadat, 1984 whereby two witnesses were required, were not attracted in circumstances---Suit otherwise being within prescribed period of limitation, could not have been dismissed---Judgments and decrees concurrently passed by Courts below dismissing suit of plaintiffs, were set aside and suit was decreed as prayed for subject to deposit of balance amount.

Syed Muhammad Sultan v. Kabir-ud-Din and others 1997 CLC 1580 and Abdul Wali Khan through Legal Heirs and others v. Muhammad Saleh 1998 SCMR 760 ref.

Mehdi Khan for Petitioners.

Nemo for Respondents proceeded against ex parte.

Date of hearing: 8th March, 2005.

2006 M L D 1016

[Lahore]

Before Muhammad Muzammal Khan, J

Syed ZAHID HUSSAIN through Special Attorney---Petitioner

Versus

Syed MUHAMMAD HUSSAIN and others---Respondents

Civil Revision No.2502 of 2002, heard on 25th February, 2004.

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

----Art.79---Specific Relief Act (I of 1877), S.42---Suit for declaration for ownership and possession of the suit property with allegations that gift-deed was forged, fictitious, illegal and void and inoperative qua his rights---Suit was dismissed by the Trial Court, but decreed by Appellate Court---Validity---Gift-deed was registered document and donor had lived 10 years after the execution of gift-deed and had not challenged the same---Donor was issueless---Widow and brother of plaintiff were his legal heirs---Widow had supported the gift-deed---Scribe and one marginal witness was produced to prove execution and witnesses to prove offer and acceptance were produced---Possession was proved by oral as well as by documentary evidence---No need was to produce two attesting witnesses as document was registered and executant had not denied the same---Evidence produced by the plaintiff was not sufficient---Defendant had established three ingredients of valid gift---Appellate Court did not opt to meet the points evolved in well-reasoned judgment of Trial Court---Judgment and decree of the Appellate Court were set aside and those of Trial Court stood revived in circumstances.

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

---Art. 132(2)-Cross-examination---Objection that part of statement of a witness about fictitious and fraudulent nature of gift was not subjected to cross-examination was accepted as correct---Validity---Witness was cross-examined about possession of property and there was a suggestion that he had deposed falsely and his suit was false---Such suggestion was sufficient to challenge entire examination-in-chief of the witnesses.

Mian Muzaffar Hussain for Petitioner.

A.G. Adil Chaudhry for Respondent.

Sohail Abbas Gilani for Respondents Nos.2-A to 4-B.

Date of hearing: 25th February, 2004.

2006 M L D 1022

[Lahore]

Before Syed Hamid Ali Shah, J

NOOR HUSSAIN---Petitioner

Versus

AZIZAN BIBI and 2 others---Respondents

Writ Petition No.746 of 2005, decided on 30th September, 2005.

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

----S.5, Sched. & S.14(2)(c)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintenance, suit for---Increase in rate of maintenance---Appeal---Order of Appellate Court whereby rate of maintenance was increased from Rs.500 to Rs.1000 per month, had been challenged in the constitutional petition---Appeal against Rs.1000 or less being not maintainable, Appellate Court had passed impugned order in excess of its jurisdiction--Order of Appellate Court, in circumstances, was nullity as same had been passed without any authority---Impugned order was set aside, in circumstances.

Arshad Ali v. Additional District Judge, Vehari and others 2002 CLC 1450 ref.

Muhammad Amir Khan Niazi for Petitioner.

Zahid Hussain for Respondent No.1.

Date of hearing: 30th September, 2005.

2006 M L D 1034

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. HAMEEDAN BEGUM and 11 others---Petitioners

Versus

MUHAMMAD JAFAR---Respondent

Civil Revision No.2044 of 2003, decided on 25th February, 2004.

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

----Ss.13 & 15---Suit for pre-emption---Making of Talbs---Talb-i-Muwathibat--Waiver---Talb-i-Ishhad---Knowledge---Document required by law to be attested---Proof of execution---Plaintiff filed suit for possession through pre-emption of land on basis of being "Shafi Sharik" and pleaded knowledge on 12-6-1994 in presence of witnesses---Defendants pleaded waiver of the plaintiff due to his participation in bargain and consequent sale on 20-2-1994 when the vendor appeared before the Patwari and got recorded her statement about sale and delivery of possession to the defendants on 20-2-1994---Trial Court dismissed the suit on ground of waiver and extinguishment of right of pre-emption---Appellate Court reversed the findings of the Trial Court and decreed the suit---Validity---Appellate Court had not considered the statement of informer alongwith the "Rapat Roznamcha", informer conveyed the information on gaining knowledge of sale when vendor delivered possession---Vendor got recorded her statement on 20-2-1994 about receipt of sale price and delivery of possession---Plaintiff got knowledge of sale at that juncture of time but he incorrectly pleaded that he gained knowledge on 12-6-1994---Talb-i-Muwathibat was neither performed on 20-2-1994 nor Talb-i-Ishhad was performed within 14 days---Postal receipts of dispatch were not sufficient---Defendants had refused to receive the envelopes containing notices---Such envelopes were not tendered in evidence---Said envelopes were not opened in the Court to prove that those contained the notices---Postman was not produced to prove refusal---Mere participation in sale transaction did not amount to waiver but such findings were relevant for considering knowledge regarding sale, Talb-i-Muwathibat and Talb-i-Ishhad and limitation---Trial Court had rightly non-suited the plaintiff---Judgment and decree of the Appellate Court were set aside in the circumstances.

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

---S.115---Revision---Raising of objections before the revisional Court---Raising of objections before the revisional Court for the first time---Points emerging out of the files and contest between the parties could be raised at any stage of proceedings.

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

----S.13---Making of Talbs---Knowledge---Plaintiff and two out of twelve defendants were real brothers and had joint abode---Statements of witnesses regarding offer of sale to the plaintiff and his joining sale proceedings and statement of one witness about the presence of the plaintiff at the time of report in the Rapat Roznamch, were found to be correct---Appellate Court had wrongly ignored the findings of Trial Court on that point, the plaintiff had knowledge of sale earlier than the date he pleaded in his suit.

Shahid Qayyum Chaudhry for Petitioners.

Syed Ijaz Qutab for Respondent.

2006 M L D 1040

[Lahore]

Before Khawaja Muhammad Sharif, J

FALAK SHER---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.912-B of 2006, decided on 9th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, refusal of---Accused was found guilty in the case and. was placed in Column No.3 of the challan---Accused had caused injury on the abdomen of deceased---F.I.R. and statement made by injured prosecution witness under S.161, Cr.P.C., showed that accused was implicated in the case---Offence against accused fell within the prohibitory clause of S.497(1), Cr.P.C.---No ground having been made out for hail, bail petition of accused, was dismissed.

Naseer ud Din Khan Nayyar for Petitioner.

Muhammad Naveed Goraya for the State along with Mahmood Ahmad S.-I.

Muhammad Shahid Buttar for the Complainant.

2006 M L D 1041

[Lahore]

Before M. Bilal Khan, J

AHMAD KHAN and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8974-B of 2005, decided on 21st December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.452, 337-A(i), 337-A (ii), 337-L(2), 147 & 149---Pre-arrest bail---No mala fide had been alleged against complainant party or the police---Application moved before Addl. Sessions Judge, for grant of pre-arrest bail, also did not contain any such allegation---Petitioners/accused as per allegation had acted in a very cruel manner and caused various injuries to complainant party---Offences charged with, though did not attract prohibitory clause of S.497(1), Cr.P.C., but that fact alone, would not entitle accused to grant of pre-arrest bail, which was an extraordinary concession---One of accused persons appeared to be a frail and fragile man of seventy years and only role attributed to him, was that of raising Lalkara; his complicity in the case called for further probe---Petition to the extent of said accused was accepted and interim pre-arrest bail granted to him, was confirmed---Petition to the extent of other two accused persons was dismissed and order allowing pre-arrest bail to them, was withdrawn.

Muhammad Sher Cheema for Petitioner.

Shaukat Hussain Khan Baloch for the Complainant.

Tanvir Ahmad Shami assisted by Pir Syed Asad Ali Gillani for the State.

2006 M L D 1043

[Lahore]

Before Syed Zahid Hussain, J

Mst. NAJAM-UN-NISA and 5 others---Petitioners

Versus

MUHAMMAD SARWAR and another---Respondents

Civil Revision No.2612 of 2002, heard on 3rd March, 2004.

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

----Ss.6 & 13---Suit for pre-emption on the basis of superior right---Making of Talbs---Plaintiff had died during pendency of the suit and his legal representatives were brought on the file---Suit was decreed by the Trial Court but Appellate Court dismissed the same for non-proof of Talbs and superior right---Validity---Plaintiffs to prove Talbs had produced Postman, Postal clerk, scribe, marginal witness and had produced postal receipt, copy of Register Haqdaran Zameen; Copy of sale-deed; Copy of extracts of register Wasiqa Navees and Aks Shajra with other documents---Informer and plaintiff had died---No material contradiction existed in statements of witnesses---Evidence of over-whelming nature existed to prove superior right along with admission of witnesses about the contiguity---Appellate Court had erroneously and illegally reversed the findings of the Trial Court---Judgment of Appellate Court suffered from misreading and non-reading of the evidence on the record---Judgment of the Appellate Court was set aside and that of the Trial Court was restored in circumstances.

Rana Muhammad Sarwar for Petitioner.

Nemo for proceeded Ex-parte.

Date of hearing: 3rd March, 2004.

2006 M L D 1048

[Lahore]

Before M. Javed Buttar and Muhammad Muzammal Khan, JJ

MUHAMMAD IQBAL---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No.7078-B of 2003, decided on 12th January, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9---Bail, grant of--Further inquiry---Investigation in case had not been completed because Investigating Officer who had gone on training, had taken away case file with him---Investigation. of case, in circumstances, had not been finalized due to negligence of Police Officials---Even the report from the office of Chemical Examiner, had not been received and no legal explanation had been furnished for the delay in finalizing investigation and in submitting challan before the Trial Court---Case being of further inquiry, accused was entitled to grant of bail.

Malik Rab Nawaz for Petitioner.

Imran Mahmood Awan for the State with Muhammad Arshad A.S.-I.

2006 M L D 1049

[Lahore]

Before Ali Nawaz Chowhan and Syed Shabbar Raza Rizvi, JJ

MAZHAR HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.838 and Criminal Revision No.539 of 2000, decided on 28th September, 2005.

Penal Code (XLV of 1860)----

----S. 302-Appreciation of evidence---Sentence, reduction in-Both

sides were involved in several criminal cases---Admittedly there was enmity inter se the parties that was the reason that Trial Court had not believed the motive---Prosecution having been able to establish case beyond reasonable doubt against accused, order of conviction passed by the Trial Court was upheld, but because of the mitigating circumstances available in case, sentence of death of accused was reduced to life imprisonment---Rest of order of the Trial Court remained intact.

Gul Khan and another v. This State 2000 SCMR 400; Muhammad Nawaz Khan v. Mubarik Ali and others 2000 SCMR 1582; Feroz Khan v. The State 2002 SCMR 99; Jahanzeb and another v. The State and others 2003 SCMR 98; Mirza Zaheer Ahmad v. The State 2003 SCMR 1164; Nazeer Ahmad v. The State 1999 SCMR 396; Abid Khan v. The State 2003 PCr.LJ 442; Mukhtar Hussain and another v. The State 1985 SCMR 479; Muhammad Arshad and 2 others v. The State PLD 1996 SC 122; Saiful Malook and others v. The State and others v. 1992 SCMR 1597; Khawand Bakhsh and others v. The State and others PLD 2000 SC 1 and Qamar Ehsan v. The State 2004 PCr.LJ 47 ref.

Sardar Latif Khan Khosa for Appellant.

Syed Saqlain Rizvi assisted by Gulfam Nazir for the Complainant.

Siddique Altaf for the State.

Date of hearing: 28th September, 2005.

2006 M L D 1054

[Lahore]

Before Mian Hamid Farooq, J

ZULFIQAR and others---Petitioners

Versus

GULZAR AHMAD alias Lala---Respondent

Civil Revision No.1530 of 1990, heard on 11th March, 2004.

(a) Islamic Law---

----Gift---Suit for declaration for possession on basis of oral gift made by plaintiff paternal Aunt (Phuphi)---Oral gift---Acknowledgment of oral gift---Possession---Aunt had acknowledged the gift in the shape of agreement---Trial Court dismissed the suit, Appellate Court decreed the same---Validity---Case set up in the plaint was that gift was made orally and acknowledged through the agreement---Plaintiff had failed to prove the oral gift and alleged acknowledgment was simply a document to get another document it was not worded to be an acknowledgment of past transaction---Possession of whole property was not with the plaintiff---Ingredients of oral gift under Islamic Law were not present---Gift-deed required registration and unregistered deed did not create any right, title or interest---Appellate Court had fallen into error on basing the judgment on agreement---Judgment and decree of the Appellate Court were set aside and that of Trial Court were restored in circumstances.

(b) Limitation Act (IX of 1908)---

----S.12---Exclusion of time---Copies prepared---Copies delivered---Suit of plaintiff was dismissed by the Trial Court---Plaintiff applied for copies on the next day---Copies were received two days after those were prepared---Appeal was alleged to be barred by one day--Copying agency had not issued notice regarding readiness of certified copies---Appeal was rightly held to be within time.

Malik Muhammad Akram Khan Awan for Petitioners.

Hasnat Ahmad Khan for Respondent.

Date of hearing: 11th March, 2004.

2006 M L D 1062

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD BASHIR alias SECRETARY---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.183-B of 2006, decided on 16th March, 2006.

Criminal Procedure Code (V of 1898)---

---S. 497(2)-Emigration Ordinance (XVIII of 1979), Ss.18 & 22---Bail, grant of---Further inquiry---Delay of more than two years was in lodging F.I.R---Names of witnesses had not been mentioned in Case of prosecution was that amount was paid to accused at two occasions, but passport of accused appended along with bail petition had shown that at said two occasions, accused was out of the country---No reasonable grounds were available to believe that accused had committed offence under Ss.18 & 22 of Emigration Ordinance, 1979, but grounds were for further inquiry into the guilt of the accused---Even otherwise, offences under Ss.18/22 of Emigration Ordinance, 1971 having provided alternate punishment of fine, said offences did not fall in prohibitory clause of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Azfar Amin for Petitioner.

Raja Iftikhar Javed, Standing Counsel along with M. Asghar, S.-I. (FIA).

2006 M L D 1064

[Lahore]

Before Mian Hamid Farooq, J

ABDUR RAHEEM---Applicant

Versus

MUBARAK ALI---Respondent

C.M. No.207-C of 2004 in R.S.A. No.13 of 1998, decided on 15th March, 2004.

Civil Procedure Code (V of 1908)---

----O.XLI, R.17(1)---Limitation Act (IX of 1908), S.5 & Arts.168 & 181---Re-admission of appeal---Petitioner sought re-admission of appeal dismissed in default for non-prosecution after 2 years and 11 months---No affidavit was attached with the application---Order was not challenged as being illegal and void-Simple ground urged was that the list was not provided to the counsel---Article 168 of the Limitation Act, 1908 provided period of 30 days from the date of dismissal and not from the date of knowledge---Section 5 of the Limitation Act, 1908 had been made applicable but no such application or prayer was made---No application under O.XLI, R.19(2) C.P.C. was filed---Application having no merit, and being barred by time was dismissed in circumstances.

Sindh Industrial Trading Estate v. West Pakistan Water and Power Development Authority PLD 1991 SC 250; Haji Ghulam Sarwar v. Daya Ram 1975 SCMR 179 and Zulfiqar Ali v. Lal Din and another 1974 SCMR 162 quoted.

Mian Jameel for Applicant.

2006 M L D 1067

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

DILAWAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.511 of 2001 and Murder Reference No.508 of 2001, heard on 24th January, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Ocular account of occurrence was fully corroborated by medical evidence---No background of enmity existed between the eye-witnesses and the accused--Substitution of the accused for the actual culprits was out of question---Accused alone was responsible for the murder of the deceased--Accused had caused a single hatchet injury to the deceased on suspicion that the deceased had illicit relation with his mother---Two mitigating circumstances, thus, were available in favour of accused---Conviction of accused, therefore, was maintained, but his sentence of death was converted to imprisonment for life in circumstances.

Muhammad Wasim Khan Babar for Appellant.

Muhammad Qasim Khan, A.A.-G. on Court's call for the State.

Date of hearing: 24th January, 2006.

2006 M L D 1071

[Lahore]

Before Muhammad Muzammal Khan, J

MANSHA---Petitioner

Versus

Mst. RASHIDAN and 2 others---Respondents

Civil Revision No.1922 of 1987, heard on 29th March, 2004.

Specific Relief Act (I of 1877)---

----S.42---Qanun-e-Shahadat (10 of 1984), Arts.72, 73 & 76---Suit for declaration---Oral sale---Entry of Rapat---Denial of sale---Comparison of finger print---Plaintiff lady challenged entry of Rapat alleging that she never sold her share in favour of her brother and had not thumb-marked the "Rapat"---Suit was dismissed by the Trial Court---Appellate Court decreed the same---Validity---Mother had deposed against the plaintiff---Original report of Finger Print Bureau was missing---In deposition of expert witness copy of the report was placed on file---Appellate Court had relied upon such inadmissible evidence---Document was to be proved by primary evidence or by secondary evidence if permissible by law---Course adopted was not permissible under law---Case was remitted to the Appellate Court to have fresh samples and fresh report of finger Print Expert---Judgment and decree of the Appellate Court were set aside in circumstances.

Ch. Arshad Mahmood for Petitioner.

Ch. Muhammad Lugmasn for Respondents.

Date of hearing: 29th March, 2004.

2006 M L D 1078

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ARSHAD MASIH---appellant

Versus

THE STATE---Respondent

Criminal Appeal No.407 of 1996, heard on 2nd February, 2005.

Penal Code (XLV of 1860)---

----Ss. 302 & 364---Appreciation of evidence---F.I.R. was lodged after about seven days in which only suspicion was shown against, accused by prosecution witness/complainant who was father of the deceased---Accused was arrested on the same day and during police custody, had confessed his guilt---Both eye-witnesses during their cross-examination had admitted that confessional statement was made by accused when he was in the custody of police---Said confessional statement having got no evidentiary value, could not be given any importance---Complainant/prosecution witness, who was father of deceased, had stated during cross-examination that other prosecution witness was not related to him, but in F.I.R. it was narrated that said other prosecution witness was his relative---Said witness while appearing as prosecution witness, had also admitted that he was relative of deceased and complainant/ prosecution. witness----Complainant/prosecution witness having made a false statement to show the said prosecution witness as an independent witness, could not be relied upon as truthful witness---Even otherwise no independent witness from the locality was joined in the recovery proceedings, which being in violation of S.103, Cr.P.C., could not be considered as an independent corroborative piece of evidence---Doctor, who had conducted post-mortem examination of deceased, had not given opinion about the cause of death of deceased and referred the matter to Chemical Examiner for its opinion---Report of Chemical Examiner showed that no poison was detected---Confessional statement allegedly made by accused, did not find support from medical evidence---Doctor who did not give any opinion about the cause of death of deceased, had admitted during cross-examination that cause of death was subsequently given by him on the basis of police papers, which was based on alleged confessional statement made by accused during custody with the police---Mere recovery of dead body on the pointation of accused was not sufficient to connect him with the commission of the crime---Prosecution having failed to produce any convincing evidence to connect accused with the commission of crime entailing capital punishment beyond any shadow of doubt, impugned judgment of conviction and sentence was set aside and accused was acquitted of charge by extending him benefit of doubt and was released.?

Khalid Bin Aziz for Appellant.

Rao Atif Nawaz for the State.

Date of hearing: 2nd February, 2005.

2006 M L D 1083

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

AMANAT alias MANI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal Nos.74, 113, 156 and Murder Reference No. 158 of 2000, heard on 16th January, 2006.

Penal Code (XLV of 1860)---

----Ss.302/149---Appreciation of evidence---Occurrence had taken place in daylight in the house of the complainant---Matter had been reported to the police at the police station on the same day---Two persons had been killed and three persons including the complainant and his mother, were injured in the incident---Eye-witnesses being inmates of the house of occurrence were natural witnesses and they had fully supported the prosecution case---Both the accused had criminally trespassed into the house of the complainant armed with deadly weapons and committed the murders of two persons and caused injuries to eye­witnesses---Question of false implication of accused in the case could not arise---Conviction of accused was maintained in circumstances along with sentence of death of one accused---Other accused being admittedly a minor at the time of occurrence, his sentence of death was reduced to imprisonment, for life---Appeals were disposed of accordingly.

Tariq Zulfiqar Chaudhry and S.M. Rasheed for Appellant.

Masood Sabir for the State.

Mian Rasheed Ahmad for the Complainant.

Date of hearing: 16th January, 2006.

2006 M L D 1089

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD NAWAZ---Appellant

Versus

MUHAMMAD YOUSAF SHAH---Respondent

Regular First Appeal No.422 of 2003, heard on 27th February, 2004.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.2 & 3---Suit for recovery of money---Pro note Proof of execution---Suit for recovery of money on basis of pro note---Leave to defend was granted by the Trial Court---Defendant had alleged that a dispute had arisen between the parties over their joint business---Matter was referred to arbitrators---Both the parties had executed the pro note intended to be used after the decision of arbitrators---Different arbitrators were appointed and final award was also rescinded in appeal---Plaintiff had filed a false suit---Suit was dismissed by the Trial Court---Validity---Plea taken by the defendant was spelt out from the evidence of the plaintiff that the document was signed for arbitration purpose as a security and no consideration was paid---Findings returned by the trial Court were absolutely in consonance with the evidence on file---Appeal was dismissed in circumstances.

Muhammad Zaman Mangat and Tariq Mehmood Chughtai for Appellant.

Malik Ghulam Siddiq Awan for Respondent.

Date of hearing: 27th February, 2004.

2006 M L D 1104

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

AKBAR alias AKKO and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.109 and Murder Reference No.156 of 2000, heard on 16th January, 2006.

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

----Ss.302(b) & 324---Appreciation of evidence---F.I.R. was lodged without any loss of time---Case was of two versions---Defence version was neither believable nor convincing---Accused had even failed to prove his version, onus of which, under the law was on him, nor he had taken such plea at the time of his arrest before the Investigating Officer--Injured eye-witness had fully supported the prosecution version against the accused---Investigating Officer being dishonest had given concession to the defence and made his statement like an eye-witness---No previous background of enmity existed between the parties, therefore, false implication of accused in the case was out of question---Failure of prosecution to prove the alleged motive was insignificant in the presence of unimpeachable ocular testimony and it would not constitute a ground to award lesser sentence---Accused had fired two shots one after the other---Conviction and sentence of death of accused were affirmed in circumstances.

2002 SCMR 1986; 1987 SCMR 722; Syed Hamid Mukhtar Shah v. Muhammad Azam and others 2005 SCMR 427 and Waris Khan v. State 2001 SCMR 387 ref.

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

----S.302(b)---Appreciation of evidence---Accused was the first cousin of the main co-accused---Accused though armed with a hatchet, did not cause any injury either to the deceased or any prosecution witness and had only allegedly raised a "Lalkara" at the spot---Benefit of doubt was extended to the accused in circumstances and he was acquitted accordingly.

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

----Ss.302(b) & 324---Appreciation of evidence---Motive, absence of---Sentence---Where ocular evidence is of unimpeachable character having intrinsic value, absence of motive or if alleged but not proved, loses its significance and is no ground to award lesser sentence.

Syed Hamid Mukhtar Shah v. Muhammad Azam and others 2005 SCMR 427 and Waris Khan v. State 2001 SCMR 387 ref.

Pervaiz Aftab for Appellants.

Mehr Muhammad Salem for the State.

Ch. Muhammad Akram for the Complainant.

?Date of hearing: 16th January, 2006.

2006 M L D 1111

[Lahore]

Before Mian Hamid Farooq, J

QURBAN ALI---Appellant

Versus

IRSHAD AHMAD ---Respondent

R.F.A. No.419 of 2003, decided on 19th March, 2004.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.2 & 3-Negotiable Instruments Act (XXVI of 1881), S.118---Suit for recovery on, the basis of pro note and receipt---Pro note and receipt---Denial of execution---Presumption regarding negotiable instrument---Leave to defend was granted by the Trial Court---Defendant denied the signatures and thumb-impression on the documents and alleged litigation and strained relations and suit as counterblast---Trial Court had dismissed the suit---Validity---Execution was denied---Plaintiff had failed to produce evidence to prove execution---Presumption of consideration was rebutted by the defendant---Judgment and decree passed by the District Judge was legal and not open to any exception---Appeal was dismissed in circumstances.

Rana Muzaffar Hussain for Appellant.

2006 M L D 1115

[Lahore]

Before Muhammad Farrukh Mahmud and Sh. Javaid Sarfraz, JJ

ABDULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.79 and Murder Reference No.128 of 2002, heard on 1st February, 2006.

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

----S.302(b)---Appreciation of evidence---Statement of an eye-witness not named in the F.I.R. but introduced subsequently had rightly been excluded from consideration by the trial Court---Complainant, other eye-witness, had made many dishonest improvement in his statement at the trial---Explanation offered by the complainant regarding delay in lodging the F.I.R. was not only not supported by any evidence, but was also belied by the available facts---None appeared to be present at the scene of occurrence and the deceased girl kept on bleeding for considerable time before any medical aid was given to her---Medical evidence did not support the version given in the F.I.R.---Recovery of the blood-stained Chhurri from the Dera of the accused after more than nine months of the occurrence was the result of padding done by the Investigating Officer, as neither the accused could be believed to keep the incriminating weapon of offence intact so as to produce it before the police, nor the blood on the same could be believed to have not disintegrated during such a long period---Accused had no motive to kill the deceased---Accused having not been declared a proclaimed offender after due process of law, he could not be dubbed as an absconder---Accused was acquitted on benefit of doubt in circumstances.

Muhammad Ilyas and 5 others v. The State PLD 1967 SC 443 ref.

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

----S.302(b)---Appreciation of evidence---Conviction on the testimony of a solitary witness---Principles---Conviction can be recorded on the basis of confidence-inspiring testimony of a single witness---Quality of the evidence is relevant and not its quantity, but it must come from an unimpeachable source.

Sahibzada Farooq Ali for Appellant.

?Rao Atif Nawas for the State.

Date of hearing: 1st February, 2006.

2006 M L D 1128

[Lahore]

Before Abdul Shakoor Paracha, J

KH. MUHAMMAD AHMAD QASIM---Petitioner

Versus

Mst. KANEEZ FATIMA and another---Respondents

Writ Petitions Nos.1738 and 1539 of 2004, decided, on 22nd March, 2004.

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

----S.9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dower and dowry---Petitioner (defendant in the suit) appeared before the Family Court after two years when he was proceeded against ex parse---Family Court set aside the ex parte proceedings and petitioner was allowed to join the proceedings---Petitioner did not file his written statement---Family Court gave him two dates and then proceeded to close his defence---Validity---Conduct of petitioner was contemptuous---Order passed by the Family Court was within its authority---Petitioner, however, was allowed by the High Court to join the proceedings and cross-examine the witnesses.

Raja Muhammad Amjad Pervaiz for Petitioner.

Rana Maqbool Ahmad Khan for Respondent.

2006 M L D 1131

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mehmud, JJ

AHMAD DIN and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.329, 336 and Murder Reference No.431 of 2000, heard on 16th January, 2006.

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

----S.302(b)/34---Appreciation of evidence---Accused was attributed a single Chhurri blow on the person of the deceased which proved fatal, but he himself had also received four injuries during the occurrence, which were proved by the Doctor at the trial---Although medical examination of the accused was conducted after thirteen days of the incident, yet the fact remained that the prosecution had suppressed his injuries---Accused after having given a Chhurri blow to the deceased had not repeated the same and he was not assigned any motive against the deceased---Occurrence had taken place outside the house of the complainant party immediate cause whereof was not coming forth---Conviction of accused was upheld, but sentence of death awarded to him was altered to imprisonment for life in circumstances.

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

----Ss.302(b) & 302(c)---Appreciation of evidence---Sentence, reduction in---Accused had given a sota blow on the back of the deceased and did not repeat the same---Said injury received by the deceased was simple in nature and was not fatal---Accused was behind the bars for the last about eight years---Conviction of accused was altered 'from S.302(b), P.P.C. to S.302(c), P.P.C. and his sentence was reduced to imprisonment already undergone by him in circumstances.

Syed Murtaza Ali Zaidi for Appellants.

Zafar Ahmad Anjum for the State.

Nemo for the Complainant.

Date of hearing: 16th January, 2006.

2006 M L D 1138

[Lahore]

Before Abdul Shakoor Paracha, J

RASHIDA BIBI and 2 others---Petitioners

Versus

MAQBOOL BAGUM and 17 others---Respondents

Civil Revision No.2754 of 2000, heard on 16th February, 2004.

Muslim Family Laws Ordinance (VII of 1961)---

----S.4---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973), Art.203(d)(2)---Inheritance---Sons and daughters of pre-deceased son and daughter and their entitlement---Repugnancy to the Injunctions of Islam---Plaintiffs' suit for share in inheritance being daughters of pre-deceased daughter of the propositus was decreed by the Trial Court---Appellate Court dismissed th0e suit---Validity---Decision of Federal Shariat Court declaring section 4 of the Muslim Family Laws Ordinance, 1961 as repugnant to the Injunctions of Islam was under challenge before the Supreme Court---Decision of Federal Shariat Court could not take effect under Proviso to Article 203(d)(2) of the Constitution till disposal of the appeal by the Supreme Court---Judgment and decree of the Appellate Court were set aside and that of Trial Court restored in circumstances.

Allah Rakha and others v. Federation of Pakistan and others PLD 2000 FSC 1 ref.

Ghulam Fariq Sanotra for Petitioners.

Malik Sarfraz Hussain for Respondents.

Date of hearing: 16th February, 2004.

2006 M L D 1140

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

ALLAH DITTA---Appellant

Versus

HE STATE---Respondent

Criminal Appeals Nos.639 of 2000, 642 of 2001 and Murder Reference No.71 of 2001, heard onl7th January, 2006.

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

----S.302(b)/34---Appreciation of evidence---Eye-witnesses though closely related to the deceased, could not be termed as interested witnesses as they were not established to have any strong motive or enmity for false involvement of the accused---Accused was not armed with any weapon when he came to the place of occurrence and he while picking up a water hand-pump handle caused a simple injury with the same on the arm of the deceased, which was not fatal---Accused did not even repeat the blow, meaning thereby that he had no intention to commit the murder of the deceased---Accused was behind the bars and had faced the agony of a protracted trial and appeal for a period of more than ten years---Sentence of accused was reduced to the imprisonment already undergone by him in circumstances.

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

------- S.302(b)/34---Appreciation of evidence---Accused had given a single

hatchet blow to the deceased which proved fatal and despite the fact that nothing could stop him from causing further injuries to the deceased, .he did not repeat the same---No motive was attributed to accused for committing the offence---Defence plea of having acted in self-defence at the time of occurrence was not substantiated by the accused and he had not received even a scratch at the hands of the deceased---Conviction of accused was maintained, but his sentence of death was converted into imprisonment for life in circumstances.

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

----S.302(b)/34---Appreciation of evidence---Related witnesses---Testimony of related eye-witnesses cannot be discarded until and unless they are established to have a strong motive or enmity against the accused for false implication.

Altaf Ibrahim Qureshi for Appellant.

Altaf Hussain Bokhari for the State.

Nemo for the Complainant.

Date of hearing: 17th January, 2006.

2006 M L D 1149

[Lahore]

Before Muhammad Sayeed Akhtar, J

Mst. HANIFAN BIBI and 6 others---Petitioners

Versus

MUHAMMAD SHARIF and 2 others---Respondents

Civil Revision No.1414 of 1997, heard on 15th March, 2004.

Partition Act (IV of 1893)---

----S.2---Partition---Suit for partition of land whereupon defendants had built residential houses under agreement whereby the defendants had agreed to live in slavery like conditions---Suit was dismissed by the Trial Court--Appellate Court had passed preliminary decree---Validity---High Court found that the defendants were forced to accept humiliating conditions in the agreement as one of the owners had gifted his share to them---Judgment and decree of the Appellate Court were set aside and that of Trial Court were restored in circumstances.

Ch. Muhammad Luqman for Petitioners.

Ch. Muhammad Arif Bhinder for Respondents.

Date of hearing: 15th March, 2004.

2006 M L D 1163

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

ALI SHER---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.184, 324 and 304 of 2001 and Murder Reference No.221 of 2000, heard on 18th January, 2006.

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

----Ss.302(b) & 308---Appreciation of evidence---Eye-witnesses having no animus against the accused had fully implicated them in the commission of the offence---Occurrence had taken place in the house of female accused and she had failed to bring on record any cogent reason for her false implication---Role of the said female accused of having put a cloth in the mouth of the deceased was duly corroborated by medical evidence which had multiple abrasions---Cause of death of the deceased given by the Doctor as asphyxia and shock was corroborated by medical evidence---Guilt of both the accused having been established beyond any doubt, weakness or absence of motive would not constitute a mitigating circumstances for withholding the award of death sentence---Conviction and sentence of death of main accused were affirmed in circumstances---Case of female accused being one of Tazir, she could not be convicted under S.308, P.P.C. and consequently she was convicted under S.302(b), P.P.C. and sentenced to undergo imprisonment for life---Appeals were disposed of accordingly.

Waris Khan v. The State 2001 SCMR 387; 1999 SCMR 2203 and 1999 SCMR 2652 ref.

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

----S.302(b)---Appreciation of evidence---Motive---Sentence---Principles---Where eye-witness account is worthy of credence, unimpeachable and confidence-inspiring and accusation is established beyond shadow of doubt, weakness of motive or its absence or where it is alleged but is not proved, would hardly make any difference in awarding the death sentence and would not constitute a mitigating circumstances.

Waris Khan v. The State 2001 SCMR 387 ref.

Muhammad Ramzan Khalid Joya for Appellant (in Crl. Appeal No.184 of 2001).

Ch. Muhammad Falak Sher for Appellant (in Crl. Appeal No.324 of 2001).

Masood Babar for the State.

Iftikhar-ul-Haq Khawar for the Complainant (in Crl. Appeal No.304 of 2001).

Date of hearing: 18th January, 2006.

2006 M L D 1170

[Lahore]

Before Mian Saqib Nisar, J

NOOR MUHAMMAD and another---Petitioners

Versus

FAZAL ELAHI and others---Respondents

Civil Revision No.1620 of 2003, decided on 11th March 2004.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Specific Relief Act (I of 1877), S.42---Suit for declaration on the basis of oral sale mutation and possession---Oral sale---`Rapat Roznamcha'---Mutation---Proof of possession---Suit was dismissed by the Trial Court and appeal had also failed---Validity---Plaintiffs had relied upon Rapat made on basis of oral sale and consequent mutation---Only one witness was produced who deposed about the sale---Witnesses about the sale bargain were not produced---Three persons were named to be present at that time---Plaintiffs had withheld the best evidence---Rapat and sale were to be proved---Date, time and specific month and year of bargain were missing---No witness of identification was produced---Revenue Officer or Official was not produced---Oral sale was not proved---Both the Courts below had rightly dismissed the suit in circumstances.

Sh. Naveed Shahryar for Petitioners.

Ghulam Sabir for Respondent No.7.

Nemo for Respondents Nos.1 to 6 (exparte).

2006 M L D 1173

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

ABDUL HAMID alias HAMIDI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.233 of 2001 and Murder Reference No.168 of 2001, heard on 24th January, 2006.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---F.I.R. was promptly lodged in the case---Ocular account of occurrence and medical evidence were not in conflict with each. other---Blood-stained "Dhoti" of the deceased, blood-stained earth collected from two different spots and the blood-stained "Kassi" were found to have been stained with human blood---Eye-witnesses though related to the deceased, had no animus against the accused and they were natural witnesses of the incident---Real brother could not be expected to leave the actual murderer of his brother and instead falsely involve the accused---Accused had caused six injuries simultaneously on the person of the deceased and no mitigating circumstance was available on record in his favour for commuting his death sentence to life imprisonment---Conviction and sentence of accused were maintained in circumstances.

Ahmad Nadeem Khan Chandia for Appellant.

Zafar Mehmood Anjum for the State.

Nemo for the Complainant.

Date of hearing: 24th January, 2006.

2006 M L D 1177

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD YOUSUF---Petitioner

Versus

MUHAMMAD BIBI and 3 others---Respondents

Civil Revision No.1784 of 2001, decided on 8th July, 2003.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiff lady had challenged sale mutation allegedly made by her in favour of her brother---Suit was decreed by Trial Court and Appellate Court had affirmed the findings---Validity---Plaintiff being an old village illiterate lady, onus of proving any such transaction was upon the defendant---Statement of defendant was fraught with inconsistencies---Payment of consideration/transaction of sale was not proved---Mutation itself was not a document of title---Appreciation of evidence made by Courts below, neither suffered from any illegality or irregularity, concurrent judgments rendered were not interfered with in circumstances.

Naja and 2 others v. Shamand and 4 others PLD 1985 Lah. 607 ref.

Muhammad Sadiq v. Mst. Bashiran and 9 others PLD 2000 SC 820 ref.

Nemo for Petitioner.

Ch. Riasat Ali for Respondent.

2006 M L D 1182

[Lahore]

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

SHAHID and 4 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.858 of 2004, decided on 23rd June, 2004.

Criminal Procedure Code (V of 1898)---

---Ss. 426(2-A) & 496---Penal Code (XLV of 1860), S.337-A(i)---Suspension of sentence---Trial Court had itself concluded that petitioners/accused did not share common object with their co-convict regarding murder in issue---Petitioners were attributed simple injuries to some witnesses and they had been convicted by the Trial Court for an offence under S.337-A(i), P.P.C. which offence was bailable---In cases of conviction for bailable offences, suspension of sentence was to be granted as of right---Even otherwise the sentences of imprisonment passed against petitioners by the Trial Court were quite short and there was no prospect of an early hearing of main appeal---Sentences of petitioners passed by Trial Court, were suspended and petitioners were admitted to bail.

Hata and others v. The State PLD 1967 Lah. 1302; Shah Hussain v. State 1995 PCr.LJ 209; Mian Mahmud Ali Qasuri and others v. The State PLD 1963 SC 478; Shamshad Ali v. The State 1988 PCr.LJ 2078 and Ghulam Sarwar v. The State 2003 PCr.LJ 1714 ref.

Malik Rab Nawaz for Appellants.

Tariq Ismail Mayo for the State.

2006 M L D 1184

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD ASIF---Petitioner

Versus

MUHAMMAD JAVED AKHTAR---Respondent

Civil Revision No.687 of 2005/BWP, decided on 7th December, 2005.

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

---S.522-A---Words "Court may", occurring in S.522-A, Cr.P.C.---Connotation---Words "Court may" as used in S.522-A, Cr.P.C. have granted discretion to the Court to order or not to restore the property in dispute with which an offence as mentioned in that section had been committed.

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

---O.XXXVII, Rr.1 & 2 & O.IX, R.13---Penal Code (XLV of 1860), S.489-F---Criminal Procedure Code (V of 1898), S.522-A---Availing of civil and criminal remedies simultaneously---Validity---Defendant applied for cancellation of ex parte decree passed against him in suit for recovery on basis of cheque, which was bounced on the score that since plaintiff had availed criminal remedy under S.489-F, P.P.C., suit under O.XXXVII, Rr.1 & 2, C.P.C. filed against him was not maintainable---Said contention was repelled by High Court holding that civil suit and criminal proceedings were two different remedies provided by law having different consequences as in commission of an offence, punishment was provided while through civil suit, recovery proceedings were commenced and the amount which was established to have been paid, was recovered, therefore, both these remedies being not overlapping could be simultaneously availed of by the person who had been conferred such remedies by law---Subsection (3) of section 522-A, Cr.P.C. provided that a civil suit was not barred even in the presence of said section---Exercise of right of filing of suit could not create any hindrance in way of lodging F.I.R. under S.489-F, P.P.C. and vice versa---If different rights to commence proceedings of civil or criminal nature had sprung up with different results, those could be availed of differently and maxim that "a man should not be vexed twice", would not be applicable in such a case---Application having filed about one year from passing of the ex parte decree was clearly time-barred---Impugned order passed by appellate Court could not be interfere with, as it had been passed within jurisdiction.

Rana Sardar Ahmad for Petitioner.

2006 M L D 1189

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD ARSHAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2670-B of 2006, decided on 2nd May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Emigration Ordinance (XVIII of 1979), Ss.17 & 22---Prevention and Control of Human Trafficking Ordinance (LIX of 2002), Ss.3 & 4---Bail, grant of---Accused made offer that he was willing to deposit amount in question with the Trial Court and said amount would be payable to complainant only subject to the decision of the case--Police Officer concerned had confirmed that amount in question had been deposited , by accused in the Trial Court---State counsel also confirmed the said situation---Accused was admitted to bail, accordingly.

Fayyaz Ahmad Mahr for Petitioner.

Ch. Muhammad Jahangir Wahlah, Standing Counsel for Government of Pakistan.

Ahmar Naeem Sandhu, S.-I., P.S./F.I.A./PC. Gujranwala with record.

2006 M L D 1191

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD RAMZAN and another---Petitioners

Versus

Mst. SALLAN MAI and 22 others---Respondents

Civil Revision No.832-D of 2001, decided on 6th April, 2006.

Lands Reforms Regulation, 1972 [M.L.R. 115]----

----Para. 24---West Pakistan Land Revenue Act (XVII of 1967), S.39---Specific Relief Act (I of 1877), S.12---Agricultural land, agreement of sale---Suit for specific performance was decreed as agreement stood established on record---In execution of decree, sale-deed was executed and registered in favour of plaintiff by Court---According to entries in Register Haqdaran Zamin defendant, after sale of suit-land, was left with only one Kanal of land which was less than subsistence holding hence mutations being violative of Land Reforms Regulations, 1972 were rejected by Revenue Officer---Validity---Provision of Land Reforms Regulations, 1972 were held not meant to be utilized for undue benefit of such unscrupulous persons as defendant---Jurisdiction to declare any transaction as offending the provision of Land Reforms Regulations, 1972 expressly vested in Land Commissioner or his subordinate officer---No other authority including Civil Courts and their hierarchy could go into this aspect of matter---Impugned orders passed by Revenue Officers cancelling the mutations were without jurisdiction---No material irregularity in concurrent findings of Courts below having been found, same did not call for any interference under revisional jurisdiction by the High Court.

Mst. Aisha Bibi v. Nazir Ahmad and 10 others 1994 SCMR 1935 ref.

Muhammad Zafar Khan Sial for Respondent.

2006 M L D 1198

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

NASRULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.862 of 2001 and Murder Reference No.829 of 2001, heard on 26th January, 2006.

Penal Code (XLV of 1860)---

-- S. 302(b)---Appreciation of evidence---Accused had admitted his guilt---No previous background of enmity exited between the parties and occurrence had' taken place at the spur of the moment---Accused did not repeat the injury---Case being one of single blow, conviction of accused under S.302(b), P.P.C., was maintained but sentence of death, was converted to imprisonment for life---Benefit of S.382-B, Cr.P.C. was also granted to accused---Death sentence awarded to accused by the Trial Court was not confirmed and murder reference was answered in the negative.

Ch. Pervaiz Aftab for Appellant.

Masood Sabir for the State.

Nemo for the Complainant.

Date of hearing: 26th January, 2006.

2006 M L D 1201

[Lahore]

Before Jawwad S. Khawaja, J

KHIZAR HAYAT---Petitioner

Versus

GHULAM SHABBIR---Respondent

Civil Revision No.1160 of 2000, decided on 7th November, 2005.

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

----Ss. 6 & 13---Suit for pre-emption---Making of Talabs, proof of---Testimony of witnesses regarding making of Talabs was discrepant and not credible---Plaintiff having failed to prove requisite Talabs, was liable to fail in his suit---Trial Court rightly dismissed suit, but Appellate Court in setting aside judgment and decree of Trial Court had seriously misread testimony of witnesses produced by plaintiff---Appellate decree was set aside and as a consequence decree passed by the Trial Court was affirmed by High Court in revision.

Ch. Nisar Ahmad Kausar for Petitioner.

2006 M L D 1202

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD AKRAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.94 of 2001 and Murder Reference No.397 of 2001, heard on 19th January, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Matter was reported to the police promptly---Incident was a daylight occurrence---Only single accused had been named---Accused made confession before Sessions Judge at the time of framing charge and had admitted commission of murder of deceased---Reason of murder given by accused was that a day prior to occurrence, sodomy was committed by deceased on him---Accused in his statement recorded under S.342, Cr.P.C. had given his age as fifty years while age of deceased was thirty five years according to post-mortem report was not believable that a day earlier to the occurrence, accused was subjected to commission of sodomy by the deceased---No case was got registered by accused against deceased in that regard---Prosecution had proved its case against accused beyond any doubt---Ocular account was fully supported by medical evidence, corroborated by evidence of recovery of motor cycle, pistol/crime weapon, four crime empties from the spot and positive report of Fire Arms Expert that the four empties matched with the pistol---No mitigating circumstance was in favour of accused---Accused had rightly been convicted and sentenced by the Trial Court, in circumstances---Appeal of accused was dismissed, death sentence was confirmed and Murder Reference was answered in the affirmative.

Raja Sultan Khurram Zaman for Appellant.

Wajid Ali Bhatti for the State.

Date of hearing: 19th January, 2006.

2006 M L D 1210

[Lahore]

Before Muhammad Farrukh Mahmud and Sardar Muhammad Aslam, JJ

MUHAMMAD IDREES---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.223 of 2001 and Murder Reference No.693 of 2001, heard on 6th April, 2006.

Penal Code (XLV of 1860)-

----Ss. 302(b) & 34---Appreciation of evidence---Sentence, reduction in---Complainant/eye-witness who was father of deceased gave a very confidence inspiring and truthful tale of occurrence and stood acid test of extremely lengthy cross-examination as far as role of accused was concerned---Statement of complainant could not be brushed aside merely because he involved father and uncle of accused in the case---Both said co-accused did not cause any injury to deceased and were found to be innocent during investigation and the Trial Court acquitted them by extending benefit of doubt---Such acquittal would not benefit accused in any manner as it was settled principle of law that it was the duty of the Court to sift the grain from the chaff---Complainant could not be said to be a chance witness---No father would substitute the real killer of his young son with an innocent person---Other prosecution witness who was cousin of complainant did not tell a lie---Certain minor discrepancies in the statements of prosecution witnesses, pointed out by defence were insignificant and did not contradict essential features of prosecution case---Contradictions were natural variations which were bound to happen due to examination of witnesses after about eight years of the incident---Witnesses were subjected to lengthy cross-examination which consisted of many irrelevant and misleading questions---Contradictions, in circumstances would lose their significance---Statements of prosecution witnesses were fully supported by medical evidence and recovery of pistol at the instance of accused---Place of occurrence and time of occurrence, had not been challenged---Believing ocular account, which was fully supported by medical evidence and other circumstances of the case, it was found that prosecution had proved the case against accused beyond doubt---Deceased and accused were age-mates as deceased was about 16 years on the date of occurrence and accused was 16-1/2 years old at that time---Case of accused, in circumstances qualified under provisions of Juvenile Justice System Ordinance, 2000---Appeal being continuation of trial accused could not be deprived of said valid and lawful benefit---While maintaining conviction of accused, his death sentence was altered to sentence of life imprisonment and benefit of S.382-B, Cr.P.C., was also extended to him accordingly.

Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 1976 SC 452 ref.

Mian Muzaffar Ahmad, assisted by Chaudhry Nazir Ahmad, Defence Counsel on Court's call.

A.H. Masood for the State.

Date of hearing: 6th April, 2006.

2006 M L D 1217

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

TASAWAR HUSSAIN alias TASSOO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.782 of 2001 and Murder Reference No.745 of 2001, heard on 24th January, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Case was based upon dying declaration made by deceased before his death before prosecution witness who was a Doctor---Witness of dying declaration was thus most natural witness and had no animus against accused---No reason existed for the said witness to concoct that dying declaration---Lengthy cross-examination was conducted on Doctor/witness before whom dying declaration was recorded by deceased, but his statement which was natural and genuine, could not be disbelieved---Crime empties recovered from the spot on the day of occurrence by Investigating Officer matched with pistol recovered from accused---Report of Forensic Science Laboratory in that regard was positive in nature---Court had to see the quality of evidence and not its quantity---No other evidence was available except the dying declaration made by deceased before Doctor---Applying rule of safer administration of criminal justice, conviction of accused was maintained, but his sentence of death was converted to imprisonment for life with benefit of S.382-B, Cr.P.C. for the reason that in dying declaration no motive was mentioned, eye-witnesses account had been disbelieved by the Trial Court and accused while producing his defence evidence had submitted copies of four F.I.Rs. lodged against deceased during his life time---Death sentence of accused was not confirmed and murder reference was replied in negative.

1994 SCMR 1852; PLD 2005 Pesh. 172 and 2001 YLR 1470 ref.

Ch. Pervez Aftab and Nadeem Ahmad Tarrar for Appellant.

Mehr Muhammad Saleem for the State.

Nemo for the Complainant.

Date of hearing: 24th January, 2006.

2006 M L D 1228

[Lahore]

Before Muhammad Sair Ali, J

MUHAMMAD TUFAIL---Appellant

Versus

Mst. MURADI through Legal Heirs and others---Respondents

Regular Second Appeal No.116 of 2000, heard on 20th March, 2006.

Civil Procedure Code (V of 1908)---

----O. XLI, R.17---Non-appearance of appellant and his counsel when appeal was fixed for hearing---Effect---Counsel for appellant, who had appeared on only one date, took several adjournments from the Court even the appeal was also admitted for regular hearing in his absence and same was specifically fixed for the adjourned date of hearing---Appeal was listed in the regular cause list but counsel for appellant did not seek .any adjournment through prior arrangement by obtaining either general adjournment or by making an application thereto---On the day of hearing of appeal both appellants and his advocate who was statedly before the Supreme Court, did not appear in the Court---Neither any cause list from Supreme Court was produced before the Court nor the case and Bench were cited by associate lawyers for appellant---Incumbent upon appellant and his counsel to be present or otherwise to make appropriate arrangements for the submission of arguments---Counsel appearing on behalf of the counsel of appellant refused to assist the Court---Appeal, therefore, was dismissed.

Yasin Zahid and Muhammad Akbar on behalf of Ch. Muhammad Ramzan for Appellant.

Nemo for Respondents.

Date of hearing: 20th March, 2006.

2006 M L D 1231

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD SALEEM---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.264 and 302 of 2001 and Murder Reference No.309 of 2001, heard on 19th January, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---No previous background of enmity between the parties, especially with one who was witness of last seen and pointation of dead body by co-accused---After extra judicial confession was made by one of the accused persons, wherein he had implicated other two accused, it was natural that witnesses took said co-accused, to the Police Station and lodged F.I.R.---Delay in lodging F.I.R., in circumstances, was fully explained--All chains were inter linked with each other---Prosecution, in circumstances had proved its case against all accused persons beyond any doubt---Death sentence awarded to main accused, who was father-in-law of deceased, was confirmed and murder reference was replied in affirmation---Co-accused who were stated to be on bail, were taken into custody and sent to jail to serve out their sentences.

Zia-ur-Rehman v. The State 2000 SCMR 528 and Sarfraz Khan v. The State and 2 others 1996 SCMR 188 ref.

Sardar Altaf Hussain Khan and Sahibzada Farooq Ali for Appellants.

Tanvir Haider Buzdar for the State.

Date of hearing: 19th January, 2006.

2006 M L D 1237

[Lahore]

Before Jawwad S. Khawaja, J

ARAB GUL and 10 others---Petitioners

Versus

PATHANA and 2 others---Respondents

Civil Revision No.937 of 2004, heard on 22nd March, 2006.

Specific Relief Act (I of 1877)---

----S. 12---Transfer of Property Act (IV of 1882), S.41---Suit for specific performance of agreement to sell---Suit decreed but decree set aside in appeal---Validity---Defendant, who was original allottee of suit-land, entered into agreements with predecessor of plaintiffs whereby lot in question was agreed to be sold to latter upon conferment of proprietary rights---Total consideration of land was paid vide receipt but after grant of proprietary rights defendant refused to convey the land to plaintiffs---Suit seeking specific performance of agreements was contested by both vendor/defendant and subsequent vendee---Finding of appellate Court that impugned agreements and receipts were not proved in accordance with law,` was not tenable because defendant/vendor through his written statement had admitted said documents and there was no further need of formal proof of said documents through marginal witnesses---Receipt of Zar-e-lagan produced by plaintiffs was strong proof in support of their case---Cultivating possession of plaintiffs over suit-land at all material times was established through Rapt Roznamcha Waqiati of concerned Patwari and said document also constituted notice to subsequent vendee of interest claimed by plaintiffs in suit-land---Payment of consideration and possession of suit property was not proved by subsequent vendee, marginal witnesses of subsequent agreement and receipt of even general attorney of vendor, alleged executor of subsequent sale-deed, or his power of attorney was not produced on record by subsequent vendee---Claim of subsequent vendee that he was a bona fide purchaser entitled to protection of his title was not established---Onus to prove the allegation of collusion between plaintiffs and defendant/vendor as alleged by subsequent vendee was placed on him but he failed to discharge the same---Appellate decree was held not legally sustainable and therefore was set aside.

Syed Ijaz Qutab for Petitioners.

Ghulam Farid Sanotra for Respondents Nos. 1 and 2.

Muhammad Nawaz, Bajwa, A.A.-G. Respondents No.3.

Date of hearing: 22nd March, 2006.

2006 M L D 1241

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

GHULAM SHABBIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.425 and 508 of 2001, Criminal Revision No.325 of 2001 and Murder Reference No.499 of 2001, heard on 20th January, 2006.

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

----S. 302(b)/34-Appreciation of evidence---F.I.R. was promptly lodged---Both parties being residents of same village and known to each other, there was no possibility of mistaken identity, especially when it had been mentioned in F.I.R. that from the voice of one of accused, complainant had recognized him as well as in the light of bulb, which had been mentioned in the F.I.R.---Complainant and other prosecution witness had no animus against accused---Accused, who had admitted his relationship with complainant party, had submitted that he had been falsely implicated due to enmity---Nothing was on record in the shape of oral as well as documentary evidence that what was the enmity between the parties---Eye-witnesses' account, coupled with medical evidence, could be believed---Report of Fire=arm Expert showed that, crime empty recovered from the spot, matched with 7-mm rifle recovered on pointation of accused, which was a big circumstance against the accused---No mitigating circumstances existing in favour of accused, appeal filed by him against his conviction and sentence, was dismissed and his conviction and sentence, were maintained---Death sentence to accused was confirmed and Murder Reference was replied in affirmative.

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

---S. 302(b)/34---Appreciation of evidence---Co-accused though was present at the spot and had raised `Lalkara', but being father of accused, possibility of his false implication, could not be ruled out---Appeal filed by co-accused was accepted and he was acquitted from the charge---Conviction and sentence recorded against him by the Trial Court, was set aside and he was ordered to be released from jail.

Noor Khan Hunse for Appellant (in Crl. A. No.425 of 2001).

Shaukat Riaz Chaudhry for Appellant (in Crl. A. No.508 of 2001).

Syed Altaf Hussain Bukhari for the State.

Syed Asad Abbas for the Complainant (in Crl. Revision No.325 of 2001).

Date of hearing: 20th January, 2006.

2006 M L D 1250

[Lahore]

Before Jawwad S. Khawaja, J

Mst. SAKINA BIBI and 9 others---Petitioners

Versus

Mst. MUKHTAR BEGUM and 4 others---Respondents

Civil Revision No.299 of 2000, heard on 6th March, 2006.

Specific Relief Act (I of 1877)---

----Ss. 9 & 42---Qanun-e-Shahadat (10 of 1984), Arts.117 & 118---Suit for possession on the basis of title---Burden of proof---Plaintiffs did not state in plaint as to when and from whom they acquired title---Sole basis on which plaintiffs had asserted title in suit-land was revenue record but Jamabandies did not create any title in favour of plaintiffs instead said documents raised a rebuttable presumption that entries therein were correct---Decision of Board of Revenue produced by plaintiffs in their favour was not relevant as it did not make any mention of disputed mutation---Khasra Girdawries of relevant years wherein names of defendants were recorded as being in possession of suit-land for two decades, remained un-controverted and were sufficient for falsifying the claim of plaintiffs that defendants took possession of suit-land three years prior to the filing of suit---Details were also not given as to when and how the defendants took possession of disputed land---Lack of probity of plaintiffs was also established through false plea set up by them alleging their forcible dispossession from land in dispute---Plaintiff, without explanation, did not choose to appear in witness box even though he was present outside the Court room when his general attorney was testifying before Court---Plaintiffs on whom onus to prove their title lay, had failed to discharge the same so they were not entitled to the declaration and possession prayed for in the plaint.

Malik Noor Muhammad Awan for Petitioners.

Ch. Bashir Hussain Khalid for Respondents.

Date of hearing: 6th March, 2006.

2006 M L D 1253

[Lahore]

Before Muhammad Farrukh Mahmud and Sardar Muhammad Aslam, JJ

MUHAMMAD RAMZAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1105 of 1999, Criminal Revision No.652 of 1999 and Murder Reference No.511 of 1999, heard on 6th April, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Appreciation of evidence---Accused were stated to be two in number while prosecution witnesses four in number at the time of occurrence, but none of the prosecution witnesses tried to rescue deceased who were their nearest relatives or to cause any harm to accused---Medical evidence as well as other circumstances showed that prosecution witnesses were not present at the time of occurrence---Motive was presumed on the basis of gestures between deceased and accused---Recoveries of weapons also were of no avail to prosecution, as pistols were not sealed---No one from the public was associated with recovery proceedings and no empty was recovered from the scene of occurrence---Recovered pistols were not sent to Forensic Science Laboratory and it could not be said; whether same were in working condition or not---Calibre of the pistols was also not described in F.I.R. at all---Prosecution case being replete with doubts, benefit of doubt was extended to accused and he was acquitted of the charge and was released setting aside judgment passed by the Trial Court.

Sultan Ahmad Khawaja for Appellants.

Rana Muzafar Hussain for the Complainant.

A.H. Masood for the State.

Date of hearing: 6th April, 2006.

2006 M L D 1259

[Lahore]

Before Jawwad S. Khawaja, J

YASEEN ALI---Petitioner

Versus

SAKINA BIBI and others---Respondents

Civil Revision No.54 of 2006, heard on 20th March, 2006.

Islamic Law---

----Gift---Proof---Rule that limitation does not run against a co-sharer through inheritance---Applicability---Gift, in the present case, of inherited property was made by sisters in favour of brother---Subsequently gift was challenged by one of the sisters and she sought declaration claiming inheritance---Suit was contested on ground that after death of father property had been duly mutated in the names of all legal heirs but thereafter all sisters including plaintiff gifted their shares vide mutations in favour of defendant---Suit was dismissed but appeal was accepted---Validity---Gift in favour of defendant stood established on record by statement of witnesses---Out of two identifying witnesses one was dead while other confirmed the factum of gift---Discrepancy in his testimony, which was given more than 27 years after the mutations, was not sufficient for discrediting said witness---Even gift, was not challenged by remaining sisters but their deposition was disbelieved by Appellate Court for untenable reasons---Rule that limitation does not run against a co-owner through inheritance was not applicable as case was not of inheritance from deceased and inheritance mutations had been recorded in the names of all legal heirs including plaintiff since death of their father and it was at a subsequent date that impugned mutations of gift were recorded in the name of defendant---Suit was time-barred and gift in favour of defendant was proved on record.

Qazi Abdul Hameed for Petitioner.

Ch. Anis-ur-Rehman for Respondents.

Date of hearing: 20th March, 2006.

2006 M L D 1265

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

HAFEEZULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.220 of 2001 and Murder Reference No.268 of 2001, heard on 24th January, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Conversion of death sentence into life imprisonment---Case was of promptly lodged F.I.R.---Both complainant and other eye-witness, had fully supported prosecution version---Ocular account furnished by said two witnesses was fully corroborated by medical evidence---Case was that of single accused and parties were known to each other---Substitution or false implication of accused was not possible because in such-like situation, false implication or substitution was a rare phenomenon---Accused had been fully proved to have committed murder of deceased---Certain factors, however had made out mitigating circumstances in favour of accused, which were; that it was a case of single shot; and that occurrence had taken place when accused was less than eighteen years of age---Conviction of accused was maintained but his death sentence was converted to life imprisonment with benefit of S.382-B, Cr.P.C., accordingly.

Sardar Altaf Hussain for Appellant.

Abdus Salam Alvi for the State.

Date of hearing: 24th January, 2006.

JUDGEMNT

KHAWAJA MUHAMMAD SHARIF, J.---The appellant Hafeez Ullah, ' along with his co-accused Irshad Hussain, Faiz Muhammad and Abdul Karim, was tried by the learned Sessions Judge, Rajanpur, for offence under sections 302/109/34 P.P.C. Vide judgment dated 20-3-2001, the learned trial Judge, while acquitting the co-accused, convicted and sentenced the appellant for offence under section 302(b) P.P.C. to death plus payment of Rs.50,000 as compensation to the legal heirs of Ashraf deceased, in default thereof to undergo R.I. for six months.

1. Aggrieved by his above said conviction and sentence, the appellant has filed the instant appeal, while the learned trial Court has made reference bearing Murder Reference No.268 to 2001, seeking confirmation or otherwise of death sentence imposed upon the appellant. Both these matters are being decided through this single judgment.

2. Briefly, the facts of the case, as narrated by Khadim Hussain-complainant in 'Exh.PE/1, are that on 27-5-1998 at 11-45 a.m. the complaint along with his brother Haji Ahmed went to Fazilpur in connection with the repair of their tractor, where they met Muhammad Iqbal, Nasar Ullah and Muhammad Ashraf and they all sat in a hotel on cots to take tea. They all were chatting each other. They saw Hafeez Ullah-appellant firing with a pistol, which hit Muhammad Ashraf on his back. Hafeez Ullah ran away towards south, being accompanied by Irshad Hussain and Faiz Muhammad and Irshad Hussain said that the task had been done so they should go. Irshad and Faiz Muhammad went towards south on motorcycle. Muhammad Ashraf succumbed to the injuries on the spot. Ten minutes earlier to the occurrence, Abdul Karim came and seeing Muhammad Ashraf at the spot went back, whereafter the aforesaid accused came and in furtherance of their common intention committed the murder of the deceased.

3. As to the motive, it was alleged that Muhammad Ashraf had given the hand of his sister Mst. Kaneez to Muhammad Shafi and in exchange had taken the hand of Mst. Amna, daughter of Shafi. Nikah had been performed but Muhammad Shafi was not allowing Rukhsati of his daughter, whereupon Muhammad Ashraf had abducted her and for that reason, the accused had committed the murder of the deceased Muhammad Ashraf. When the complainant was on his way to police station, he came across Mazhar Hussain, S.-I./P.W.8, near the hotel of Salamoon and recorded his statement Exh.PE/1, on the basis of which formal F.I.R. Exh.PE was registered.

4. Mazhar Hussain, S.-I. took over the investigation of the case and proceeded to the place of occurrence, prepared injury statement Exh.PC and inquest report Exh.PB of the deceased and sent the dead body for post-mortem examination. On spot inspection, he took into possession blood stained earth and made a sealed parcel through memo Exh.PG. He also took into possession empty P-5 from the place of occurrence through memo Exh.PH and then recorded the statement of the P.Ws. under section 161 Cr.P.C. After post-mortem examination, he took into possession the last-worn blood stained clothes of the deceased (P-1 to P-3), sealed phial containing pellets P-4 and a blood cot P-6 through memo Exh.PF. Hafeez Ullah, accused/appellant, was arrested on 5-6-1998. On 9-6-1998, while in custody, the accused led to the recovery of .12-bore pistol P-7, which was taken into possession vide memo Exh.PJ. After completion of investigation, the accused were challaned to face trial.

5. To prove its ease at the trial, the prosecution examined nine P.Ws., in all, and after tendering in evidence the reports of Chemical Examiner Exh.PM. Serologist Exh. PN and that of Forensic Science Laboratory Exh. PP closed its side. The statement of Riaz Ahmad, SST, - Higher Secondary School, Fazilpur, was also recorded as CW-1. Thereafter, the appellant in his statement under section 342 Cr.P.C. pleaded his innocence and false implication. He however, placed on record his primary School Certificate as Mark 'A'.

6. Learned counsel for the appellant, in support of this appeal, submits that it was an unwitnessed occurrence; that the eye-witnesses are closely related to the deceased; that the F.I.R. was recorded after due deliberations and consultations; that it was a case of family honour; that the appellant was minor at the time of occurrence; that according to Allah Bakhsh Constable/P.W.-5, when he along with the police party reached the place of occurrence, many persons had gathered and the accused Hafeez Ullah produced crime empty and that no pistol was recovered from him in his presence; that no case is made out against the appellant. Lastly, the learned counsel submits that according to the entry in Exh.C-I, the appellant was minor at the time of occurrence, so death penalty was not warranted.

7. Conversely, learned counsel for the State submits that it was a broad-daylight occurrence; that appellant was the only accused; that the ocular account is fully corroborated by medical evidence; that the appellant failed to prove his minority and, thus, does not deserve any leniency in case of conviction and sentence. Learned counsel supports the impugned judgment.

8. We have heard the learned counsel for the parties at a great length and have gone through the record with their assistance.

9. The occurrence took place on 27-5-1998 at 11.45 a.m. The matter was reported to the police at 12.20 the same day and the formal F.I.R. was registered at the police station at 12.35 p.m. the same day, so it was a case of promptly lodged F.I.R. The complainant Khadim Hussain is maternal nephew of the deceased. Two eye-witnesses, A namely, Khadim Hussain and Muhammad Nasarullah were produced before the trial Court as P.Ws.6 and 8, who fully supported the prosecution version. The ocular account furnished by the aforesaid two witnesses is fully corroborated by the medical evidence, coupled with the fact that post-mortem examination was conducted on the very same day at 5.30 p.m. and the duration given by the doctor P.W.-1 between the injury and the death was 3 to 5 hours, which also fits in with the time of occurrence. It is a case of single accused. Parties were known to each other there is no question of substitution or false implication of the appellant because in such-like situation false implication or substitution is B a rare phenomenon. However, the appellant had claimed to be below eighteen years of age at the time of occurrence and in order to ascertain his minority, Riaz Ahmad, SST/CW-1 appeared before the learned trial Court. According to the statement of P.W.-1, appellant was admitted in the School Class VI on 5-5-1992 and was discharged on 9-9-1993. His date of birth mentioned in Register of Entry and Discharge, copy whereof has been placed on record as Exh.C-1, is 1-8-1980. As far as proving the case against the appellant by the prosecution is concerned, we have not even a slightest doubt in our mind that it was the appellant, who had committed the murder of the deceased. There are following three factors, which made out mitigating circumstances in favour of the appellant:

(i) That his date of birth is 1-8-1980.

(ii) That the occurrence took place on 27-5-1998 when the appellant was less than eighteen years of age; and

(iii) That it was a case of single shot, without any repetition.

1. Taking into consideration all these facts, we maintain the conviction of the appellant for offence under section 302 (b) P.P.C. but convert his death sentence to life imprisonment with benefit of section 382-B Cr.P.C. As far as the payment of Rs.50,000 as compensation to the legal heirs of the deceased is concerned, we maintain the same but in default thereof, the appellant would further undergo S.I. for six months instead of R.I.

2. With the above modification in the sentence, this appeal, over and above, is dismissed. The death sentence is NOT confirmed. The Murder Reference stands answered accordingly.

2006 M L D 1269

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. JAMEEL FATIMA and another---Petitioners

Versus

S.H.O. P.S. GULGHAST, MULTAN and 5 others---Respondents

Writ Petition No.5182 of 2005, heard on 4th April, 2006.

Constitution of Pakistan (1973)---

----Art. 199(I)(a)(i)---Constitutional petition---Writ of mandamus---Petitioners who were tenants in the premises in question owned by predecessor-in-interest of respondent were in legal possession on the date when they were forcibly dispossessed with the help of police in violation of law and particularly all provisions protecting rights of tenants of urban property---Mandamus had been sought directing respondent to restore possession of petitioner, which was taken illegally---If petitioners being tenants had committed default in payment of rent of premises in question or that premises was personally required bona fide by respondent, she could file ejectment proceedings against petitioners with Rent Controller under S.13 of West Pakistan Urban Rent Restriction Ordinance, 1959---Allowing constitutional petition, respondent Police concerned was directed to take steps for delivering back possession of premises to the petitioners within stipulated time and to file a report in the High Court accordingly.

Ijaz Ahmad and others v. The State PLD 2001 Lah. 94; Abdul Haq and 2 others v. The Resident Magistrate Uch Sharif and others PLD 2000 Lah. 101 and Muhammad Aslam v. Station House Officer and others 1993 MLD 152 ref.

Mehr Haqnawaz Hamayon for Petitioner. Zafarullah Khakwani, A.A.-G.

Malik Muhammad Tariq Rajwana for Respondent No.6.

Ch. Maqbool Ahmad, Inspector/S.H.O., Police Station Gulgasht.

Shehzad Hameed, Inspector Legal, DIG Office.

Qaiser Jan, Inspector, DPO Office, Multan.

Date of hearing: 4th April, 2006.

2006 M L D 1274

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUMTAZ HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2721-B of 2006, decided on 28th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 337-A(i), L(ii),F(iii), 334, 336, 342, 148 & 149---Bail, grant of---Further inquiry---Accused was not armed with any fire-arm, but allegedly he was armed with Sota during the time of incident and according to complainant, he had not caused any injury to any of victim during incident and injuries caused to victim with Sota fell within ambit of S.337-A(i) and L(ii), P.P.C., which were bailable offences---Two persons from the side of accused party were also alleged to have received fire-arm injuries during occurrence, which were suppressed by complainant in his statement before the police---Private complaint filed by co-accused was. still pending adjudication before the Court of competent jurisdiction---Case of accused was not distinguishable from the case of co-accused who was granted bail by High Court---Accused who was behind the bars, his person was no more required by police for further investigation as same was complete---Bail could not be withheld as a punishment---Whether accused had shared common intention with co-accused in the commission of crime, was a question of further inquiry, which would be seen by the Trial Court after recording evidence---Accused was admitted to bail, in circumstances.

Dr. Ehsan-ul-Haq Khan for Petitioner.

Syed Tahir Abbas for the State.

Ajmal Hussain, A.S.-I. with record.

2006 M L D 1279

[Lahore]

Before Shaikh Azmat Saeed, J

WAHGH---Petitioner

Versus

RAMZAN and 22 others---Respondents

Civil Revision No.3050 of 2004, decided on 24th March, 2006.

Colonization of Government Lands (Punjab) Act (V of 1912)---

----S.19---Specific Relief Act (I of 1877), S. 42---Suit for declaration relating to the mutation---Original allottee of land, after obtaining requisite permission in terms of section 19 of Colonization of Government Lands (Punjab) Act, 1912 transferred in favour of plaintiffs and defendant one half and 1/5th share in the land respectively---Mutation attested in favour of defendant was challenged by plaintiffs on ground that defendant was entitled to 1/5th share of the half property---Suit was decreed by Courts below---Validity---Held, affidavit filed by original allottee while seeking permission to transfer his rights in land had made it clear that contention of plaintiffs was a mathematical impossibility---Defendant was entitled to 1/5th share of the total land and mutation in his favour to this effect was, correctly made---Findings of Courts below suffering from an error of fact and law were set aside by High Court.

Mian Muhammad Siddique Kamiana for Petitioner.

Hafiz Asad Ullah for Respondents.

Ch. Hassan Ali Advocate.

2006 M L D 1281

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD SAEED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6433-B of 2005, decided on 25th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Emigration Ordinance (XVIII of 1979), Ss.17 & 22---Bail, grant of---Further inquiry---Involvement of accused with specific role seemed to be a later innovation during investigation---Accused, according to school leaving certificate was minor at the relevant time, which had given strength to arguments of accused that in fact his elder brother had received amount but in order to pressurize accused party the entire family of co-accused had been roped in the case; in that view of the matter, prima facie case of accused fell within the ambit of further inquiry entitling him to concession of bail---Accused was admitted to bail, in circumstances.

Fayyaz Ahmed Mahr for Petitioner.

Muhammad Jhangir Wahlah, Standing Counsel.

Shoaib Ahmed Haroon, S.-I.

2006 M L D 1283

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD ARIF NADEEM CHAUDHRY---Appellant

Versus

Syed ZULFIQAR ALI and others---Respondents

R.S.A. No.82 of 2005, decided on 30th November, 2005.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement---Plaintiff had impugned judgment whereby decree of Trial Court was set aside by Appellate Court and suit seeking specific performance of agreement to sell had been dismissed---Trial Court had accepted correctness of case set up by plaintiff and decreed his suit---Appellate Court blow examined documents on record and had rightly concluded that plaintiff had no case for specific performance of agreement because he had received total consideration for disputed land---High Court declined interference.

Ch. Abdul Waheed for Appellant.

Fazal Haq for Respondents.

Date of hearing: 30th November, 2005.

2006 M L D 1288

[Lahore]

Before Muhammad Farrukh Mahmud, J

Hafiz MUHAMMAD ASLAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellancaus No.706-M in Criminal Appeal No.429 of 2005, heard on 21st March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 345---Penal Code (XLV of 1860), S.302(b)---Sentence, reduction in---Compromise effected between legal heirs of deceased and accused with free consent, was genuine---Appeal was allowed to the extent of conviction and sentence under S.302(b), P.P.C. and conviction and sentence recorded by the Trial Court, were set aside on the basis of compromise and accused was acquitted of the charge of murder of deceased---Accused had been set free on capital charge under S.302(b), P.P.C. due to compromise effected between legal heirs of deceased and accused.

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

----S. 345---Penal Code (XLV of 1860), S.377---Compromise in non-compoundable offence---Effect---Compromise effected between parties could be considered for the purpose of sentence, when offence was not compoundable---While maintaining conviction of accused for offence under S.377, P.P.C., his sentence was reduced to two years' R.I. and sentence of fine was also reduced to Rs.1000.

Sardar Muhammad Sadiq for Appellant.

Sh. Abdul Samad for the Complainant.

Rao Atif Nawaz for the State.

Date of hearing: 21st March. 2006.

2006 M L D 1290

[Lahore]

Before Jawwad S. Khawaja, J

WARYAM---Petitioner

Versus

PROVINCE OF PUNJAB, through the Collector District, Faisalabad and another---Respondents

Civil Revision No.871 of 2003, heard on 15th February, 2006.

Colonization of Government Lands (Punjab) Act (V of 1912)---

----S.24---Specific Relief Act (I of 1877), S.42---Grow More Food Scheme---Resumption of land---Failure to fulfil conditions of, grant---Proof---Concurrent findings of fact by the Courts below---Authorities refused to grant proprietary rights to plaintiff on the ground that allotment of land was cancelled and the land was resumed from him---Plaintiff assailed the order of authorities before Court but his suit and appeal were concurrently dismissed by Trial Court and lower appellate court---Plea raised by plaintiff was that no notice under S.24 of Colonization of Government Lands (Punjab) Act, 1912, was issued to him to controvert the report of revenue authorities---Validity---Order of Collector proceeded simply on the basis of a report. submitted by Assistant Commissioner---No indication in the report that plaintiff was associated or examined during preparation of report---Such report at the best furnished basis to District Collector to issue notice to plaintiff under S.24 of Colonization of Government Lands (Punjab) Act, 1912---Plaintiff thereafter would have had right to assail findings recorded in the report---Such process was not followed, thus causing prejudice to plaintiff---Report of Assistant Commissioner was based on incorrect reporting by field staff, and plaintiff was not afforded opportunity to disprove such report and to establish that he was not in breach of any condition of lease---Even if plaintiff did not fulfil terms of lease, resumption of land was not an automatic consequence of such lapse---Plaintiff should have been given time to rectify any breach of conditions under S.24 of Colonization of Government Lands (Punjab) Act, 1912---Resumption of suit land was not in accordance with law and both the courts below had not taken note of the circumstances---Lower appellate court was unduly swayed by the fact that there was a chain of orders passed in revenue courts against plaintiff---Orders passed by revenue courts proceeded on the sole premises that plaintiff's application for conferment of proprietary rights was liable to be dismissed because lease in his favour stood cancelled--Such fundamental premise on which orders of revenue forums and courts below had been based, was faulty because resumption of land was not proved---Even if the land had been resumed, such resumption was unlawful, having been made without fulfilling the requirements of S.24 of Colonization of Government Lands (Punjab) Act, 1912---Judgments and decrees passed by both the courts below were set aside and plaintiff was held entitled to grant of proprietary rights on the usual terms applicable to such grants---Revision was allowed in circumstances.

Mehr Ahmad Bukhsh Bharwan for Petitioner.

Ch. Muhammad Nawaz Bajwa, A.A.-G. for Respondent.

Javed Iqbal, Supdt. DO(R) Office/Faisalabad.

Date of hearing: 15th February, 2006.

2006 M L D 1295

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD HANIF and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.71 and Criminal Revision No.37 of 2001 and Murder Reference No.261 of 2001, heard on 18th January, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 337-A(ii)---Appreciation of evidence---Sentence, reduction in---F.I.R. revealed that one of accused persons who was armed with gun, gave butt blow on person of complainant/injured prosecution witness---Later on complainant got recorded supplementary statement in which an injury on the abdomen of deceased was also attributed to him---Doctor who conducted post-mortem examination on dead body of the deceased, found two injuries, one with sharp-edged weapon and other with fire-arm on the person of deceased---Even during cross-examination, defence itself confirmed said injuries on person of deceased---Eleven crime empties were recovered from the spot and one of them matched with the gun of the accused---Two injured prosecution witnesses who had no animus against accused, had fully supported prosecution case---Prosecution, in circumstances had been successful in proving its case against the accused---Appeal filed by accused against his conviction and sentence, was dismissed, but as he had no direct motive and fire-arm injury was attributed to him in the supplementary statement and same was not mentioned in F.I.R., maintaining his conviction under S.302(b), P.P.C., his sentence was converted to imprisonment for life with benefit of S.382-B, Cr.P.C. and his death sentence was not confirmed and murder reference was replied in negative---Co-accused who was armed with sharp-edged weapon and caused injury on the abdomen of deceased, did not deserve any leniency---Appeal filed by co-accused was dismissed and conviction and sentence recorded against him by the Trial Court was maintained in toto---Injury attributed to third accused was simple in nature and he was awarded two years' R.I. by the Trial Court; he had already undergone 4/5 months imprisonment--Sentence which he had already undergone, was treated to be sufficient to meet the ends of justice.

Nafees Ahmad Ansari, Sahibzada Farooq Ali Khan and Abdul Aziz Khan Niazi for Appellants.

Hassan Raza Rizvi for the State.

Nemo for the Complainant.

Date of hearing: 18th January, 2006.

2006 M L D 1303

[Lahore]

Before Jawwad S. Khawaja, J

Mst. SARDARAN BIBI and others---Petitioners

Versus

MANZOOR ALI---Respondent

Civil Revision No.209 of 2006, heard on 4th April 2006.

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

----.Arts.17 & 79---Specific Relief Act (I of 1877), S.12---Agreement to sell---Proof---Failure to produce two marginal witnesses---Suit filed by plaintiff for specific performance of agreement to sell was concurrently decreed by Trial Court and Appellate Court in favour of plaintiff--L Defendants contended that out of two marginal witnesses, one stated that defendants did not sign in his presence, therefore, such witness was not an attesting witness---Defendants further contended that essential element qualifying an attesting witness to testify was that the signatures or thumb-impression being attested by him were affixed in his presence---Defendants also contended that other marginal witness had claimed that he had obtained signatures of one of the defendants and thumb-impressions of other defendants at their residence---Plea raised by defendants was that under the provisions of Arts. 17 and 79 of Qanun-e-Shahadat, 1984, agreement to sell was not proved---Validity---Held, it was clear that plaintiff did not prove execution of agreement to sell in accordance with the requirements of Qanun-e-Shahadat, 1984---Both the Courts below, therefore, fell in error by holding to the contrary---Judgments and decrees were not legally sustainable and were set aside---Suit filed by plaintiff was dismissed by High Court in exercise of revisional jurisdiction.

Mst. Kulsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135 rel.

Abdul Wali Khan through Legal Heirs and others v. Muhammad Saleh 1998 SCMR 760 and Manzoor Hussain Khan v. Mst. Asia Begum and 21 others 1990 CLC 1014 ref.

Muhammad Sharif v. Mst. Sardaran Bibi and others 2002 MLD 1002 distinguished.

Ch. Bashir Ahmad for Petitioners.

Ch. Manzoor Hussain for Respondents.

Date of hearing: 4th April, 2006.

2006 M L D 1306

[Lahore]

Before Khawaja Muhammad Sahrif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD IZHARUL HAQ and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.176, Criminal Revision No.106 and Murder Reference No.279 of 2001, heard on 23rd January. 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 337-A(i)(ii) & 337-F(i)---Appreciation of evidence---Sentence reduction in---Mitigating circumstances---Case was that of promptly lodged F.I.R.---Complainant/injured witness. though was the real brother of deceased and other prosecution witness was nephew of complainant, but they had no enmity or strong motive to falsely implicate accused in the occurrence, because it was a rare phenomenon that such a close relations would let off real killer and would substitute him---Witnesses were subjected to lengthy cross-examination, but nothing could be shaken from their testimony so far as ocular account was concerned---Presence of witnesses at the spot also appeared to be natural one---Ocular account was corroborated by medical evidence, evidence of recovery and positive report of Fire-arm Expert---Motive part of prosecution with regard to dispute of Lambardari, however, could not be believed---Argument regarding non-mentioning of injuries of complainant, had no force because there was a mention of his injuries not only in F.I.R., but also in the Inquest Report prepared by Investigating Officer---Prosecution had proved its case against accused beyond any shadow of doubt---Case, however was not of capital punishment as there were circumstances which had made it a .case of mitigation for the reasons; firstly motive which was dispute of Lambardari, was not proved by prosecution because same had come to an end in 1995, while occurrence in question had taken place in 1997 and nothing had happened during those two years; secondly, occurrence had happened at the spur of moment over the use of "Khal" or watercourse and thirdly, it was a case of single shot which was not repeated by accused---Maintaining conviction of accused under S.302(b), P.P.C. his death sentence was converted into imprisonment for life with benefit of S.382-B. Cr.P.C. by the High Court---Conviction and sentence awarded to co-accused, were maintained.

Muhammad Sahrif v. The State 2004 SCMR 8 ref.

Sahibzada Farooq Ali Khan for Appellants.

Zafar Mehmood Anjum for the State.

Malik Muhammad Qasim Awan for the Complainant.

Date of hearing: 23rd January, 2006.

2006 M L D 1314

[Lahore]

Before Syed Asghar Haider, J

EHSAN ELAHI BHATTI, ADVOCATE---Petitioner

Versus

WAPDA through Chairman WAPDA, Lahore and 2 others ---Respondents

Civil Revision No.349 of 2002, heard on 21st April, 2006.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O.XXVI, R.10---Suit for declaration of title---Report of Local Commission---Concurrent findings of fact by the Courts below---Dispute between the parties was with regard to recovery of electricity bill of one tube-well installed in the fields owned by plaintiff---Recovery was resisted by plaintiff on the basis of denial of installation of tube-well---Trial Court appointed Local Commissioner but instead of relying on his report, dismissed the suit on the basis of documentary evidence produced by the authorities in shape of initial application, undertaking signed by plaintiff and demand notice---Judgment and decree passed by Trial Court was maintained by Appellate Court---Plea raised by plaintiff was that the report of Local Commissioner was a binding evidence under O.XXVI, R.10 C.P.C., which was wrongly ignored---Validity---Inferences of Local Commissioner's report were not binding on the Court as it had to apply its own independent mind and consider evidence brought on record---Preponderance of convincing documentary evidence produced by the authorities was available on record---Contrarily no convincing or confidence-inspiring documentary evidence was produced by plaintiff to negate documents produced by the authorities---Material discrepancies were found in the evidence---Both the Courts below had appraised the evidence correctly---No non-reading, misreading or material irregularities could be pointed out by plaintiff in concurrent finding of facts---High Court having not found any infirmity in the judgments passed by the courts below, revision was dismissed.

Shafqat Mehmood for Petitioner.

Ch. Muhammad Hussain Naqashbandi for Respondent.

Date of hearing: 21st April, 2006.

2006 M L D 1317

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

SAEED AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.656 of 2001 and Murder Reference No.761 of 2001, heard an 23rd January, 2006.

Penal Code (XLV of 1860)---

----S. 302(b) & 34---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---One of co-accused had met his natural death during proceedings and other co-accused was acquitted of the charge---Regarding accused, ocular account was fully corroborated by medical evidence, recovery was also effected from him and there was a positive report of Fire-arm Expert in that regard---Some mitigating circumstances, however, existed in favour of accused which were that motive of occurrence as stated by complainant in F.I.R. which was marriage of son of deceased with a girl, was against son of deceased and not against his deceased father---Accused had also joined Nikah ceremony---No grievance should have been there on that score---Immediate cause of motive thus was shrouded in mystery and reasons for murder of deceased, was not proved by prosecution---Conviction of accused was maintained under S.302(b), P.P.C., but his death sentence was converted to imprisonment for life with benefit of S.382-B, Cr.P.C.

Sahibzada Farooq Ali Khan for Appellant.

Rao Atif Nawaz for the State.

Nemo for the Complainant.

Date of hearing: 23rd January, 2006.

2006 M L D 1326

[Lahore]

Before Jawwad S. Khawaja, J

NAZIR AHMAD---Petitioner

Versus

Mst. KHURSHID BEGUM through Attorney---Respondent

Civil Revision No.1580 of 2004, heard on 7th March, 2006.

Specific Relief Act (I of 1877)---

----S.12---Qanun-e-Shahadat (10 of 1984), Arts.117, 120 & 129 (g)---Specific performance of oral agreement to sell---Adverse presumption---Non-appearance of defendant in witness box---Onus to prove a fact---Shifting of onus---Concurrent findings of fact by the Courts below---Plaintiff claimed that defendant entered into oral agreement to sell with regard to suit-land and had received part payment---Defendant through her attorney filed written statement and denied her presence in Pakistan during the period when alleged oral agreement to sell was executed---Defendant relied solely on a certificate issued by a Solicitor in UK wherein it was stated that defendant or her husband remained in U.K. during the period when the agreement was allegedly executed-Both the Courts below relying on the certificate, concurrently dismissed the suit and appeal filed by plaintiff---Plea raised by the plaintiff was that defendant did not appear as her own witness and the attorney and her other witness were not present at the site---Validity---After the plaintiff had testified on oath, the onus probandi of the concerned issue shifted to defendant and had to be discharged by her---Copies of all documents, which were produced by defendant as evidence, were filed with the petition, which did not prove that defendant was not in Pakistan at the relevant time---Was not difficult for defendant to prove her absence from Pakistan at the relevant time; all that she was required to establish the fact of her absence was to produce her original passport in Court, which she failed to do---Courts below had fallen in error by relying on inadmissible evidence and also failed to draw adverse inference against the defendant for not appearing as her own witness---Judgments and decrees passed by both the Courts below were a result of misreading of evidence and failure to apply the law and were set aside---Suit filed by plaintiff was decreed in his favour---Revision was allowed accordingly.

Muhammad Iqbal Bajwa for Petitioner.

Mian Muhammad Aslam for Respondent.

Date of hearing: 7th March, 2006.

2006 M L D 1329

[Lahore]

Before Muhammad Farrukh Mahmud and Sardar Muhammad Aslam, JJ

NAIK MUHAMMD alias NAIKA and another---Petitioners

Versus

THE STATE---Respondent

Criminal Appeal No.1072 of 2000 and Murder Reference No.388 of 2000, heard on 5th April, 2006.

Penal Code (XLV of 1860)---

----Ss.302(b) & 34---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Accused had submitted that he would not press for his acquittal, but would pray for reduction of their sentence alone as mitigating circumstances existed in their favour---Complainant was father of deceased, while other prosecution witness was cousin of deceased and they lived at a distance of two miles from the place of occurrence; but mere fact of their relationship with deceased would not be enough to discard their evidence---Both said witnesses were cross-examined at length, but no describable dent was caused to the veracity of their statements---Witnesses had corroborated each other on all material aspects of the case---Contradictions in their statements were very minor in nature and same related to the name of driver of the tractor concerned---Statements of said witnesses were recorded after more than three years and with the lapse of time such contradictions naturally cropped up---Statements of the witnesses were confidence-inspiring and were supported by circumstances of case and medical evidence and were also corroborated by the motive---Counsel for accused, in circumstances had rightly not pressed for acquittal of accused---Mitigating circumstances in the case were that both accused were real brothers; that one shot had been attributed to each of said accused and that it was not ascertainable from medical evidence as to whose shot proved fatal---While maintaining conviction of accused for offence _under Ss.302(b) & 34, P.P.C., their sentence of death was reduced to imprisonment for life accordingly by the High Court.

Allah Dad and another v. The State 1995 SCMR 142 ref.

Masood Mirza for Appellant.

Ch. Muhammad Sharif Cheema for the State.

Date of hearing: 5th April, 2006.

2006 M L D 1335

[Lahore]

Before Mian Hamid Farooq, J

AKHTAR ALI---Appellant

Versus

Mirza MUHAMMAD SARWAR BAIG---Respondent

Regular Second Appeal No.14 of 2005, heard on 24th February, 2006.

Civil Procedure Code (V of 1908)---

----O. VII, R.2 & S. 100---Suit for recovery of amount---Documentary as well as oral evidence produced by plaintiff in proof of his claim was recorded by the Trial Court, but defendant having not produced any evidence, his evidence was closed---Trial Court after hearing arguments, passed decree for recovery of principal amount together with profit and appeal against said decree was dismissed by Appellate Court---Validity---No error of law had been committed by both Courts below, while rendering concurrent findings of fact---Impugned judgments rendered by both Courts below after rightly appreciating evidence on record, were legal, unexceptionable, apt to the facts and circumstances of case and did not call for any interference by the High Court in second appeal---Even otherwise concurrent findings of facts, were not liable to be interfered with by High Court in exercise of its appellate jurisdiction conferred upon it under S.100, C.P.C.

Ananta Kumar Majumdar and others v. Gopalk Chandra Majumdar and others PLD 1961 Dacca 65; Muhammad Shafi and another v. Sher Ali 1970 SCMR 510; Hafiz Muhammad Hussain and another v. Abbas Khan and another 1981 SCMR 1233; Fazal Rahman v. Amir Haider and another 1986 SCMR 814; Abdul Ghani v. Muhammad Akhtar 1988 SCMR 137; Abdul Rashid v. Bashiran and another 1996 SCMR 808; Haji Sultan Ahmed through Legal Heirs v. Naeem Raza and 6 others 1996 SCMR 1729; Mussarat Sultana v. Muhammad Saeed 1997 SCMR 1866; Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 and Muhammad Amir v. Khan Bahadur and another PLD 1996 SC 267 ref.

Sh. Abdul Sattar Zahid for Appellant.

Muhammad Sultan Kasuri for Respondent.

Date of hearing: 24th February, 2006.

2006 M L D 1337

[Lahore]

Before M. Bilal Khan and Shaikh Azmat Saeed, JJ

Ch. MUHAMMAD RIAZ---Petitioner

Versus

MUHAMMAD ANSAR and 3 others---Respondents

Writ Petition No.1282 of 2006, heard on 3rd May, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 173 & 512---Penal- Code (XLV of 1860), Ss.302, 324, 148 & 149---Constitution of Pakistan (1973), Art.199---Constitutional petition--Reinvestigation of case of absconded accused---Large number of accused had been nominated in the case with specific roles including the accused who was declared proclaimed offender by the Trial Court---Trial Court, after conclusion of the trial, convicted three accused persons under S.302(b), P.P.C. and awarded them punishment on various offences, whereas with regard to the absconded accused, it was ordered that on his arrest, trial would commence qua him-Perpetual warrants of arrest, however had been sent to District Police Officer and District Co-ordination Officer concerned for execution---On basis of some application filed on behalf of absconded accused, re-investigation in his case commenced on basis of order passed by District Police Officer during course of which proclaimed offender had been declared innocent and he was directed to be discharged from the case---Validity---Trial Court had taken cognizance of the matter and initiated proceedings against proclaimed offender under S.512, Cr.P.C.---Fugitive from law or a proclaimed offender, would. lose some of his normal rights granted by procedural and substantive law; it was ironical that while a fugitive from law had lost his rights to approach a Court of law, Executive Authorities/District Police Officer, could be allowed to circumvent or sabotage legal impediment by entertaining applications made by him or on his behalf---Carrying out multiple investigations or re-investigations, were governed by express provisions as contained in Police Order, 2002 and Police Officers no more enjoyed unbridled discretionary powers in that behalf---Entertaining application on behalf of absconded accused by District Police Officer and accepting the plea of alibi of said accused, was not warranted by any provision of law, especially when perpetual warrants of arrest had been issued against him by Trial Court---All actions taken on application of the proclaimed offender, which had finally resulted into submission of a supplementary report under S.173, Cr.P.C., were declared to be without lawful authority and of no legal effect.

Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 ref.

Ch. Muhammad Din Ansari for Petitioner.

Rana Ijaz Ahmad Khan for Respondent No.1.

Najeeb Faisal Chaudhry, Addl. A.G. for the State with Tahir ?Mahmood Malik, DPO, Okara, Raja Munawar DPO, Gujrat and Nasir Mahmood, Inspector/S.H.O., Date of hearing: 3rd May, 2006.

2006 M L D 1339

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD YOUSAF and others-Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.124-J and 300 of 2004, decided on 25th January, 2006.

Penal Code (XLV of 1860)---

----S. 295-B/34---Appreciation of evidence---Trial Court put a query to accused after closure of proceedings, in reply whereof accused had admitted commission of offence for gain and expressed shame over that act, seeking pardon from the Court---Criminal Procedure Code, 1898, had nowhere provided for adopting such a course---Neither any query could be made nor any admission allegedly made in consequence, could be relied upon---Trial Court in such an eventuality was under obligation to stay its hands off in the matter---Undoubtedly serious prejudice having been caused to accused, their conviction was not sustainable in law---Allowing appeals, judgment of the Trial Court was set aside--Case would be deemed to be pending before Sessions Judge for decision afresh in accordance with law expeditiously.

Muhammad Owais for Appellant.

Sarfraz Ali assisted by Aslam Gondal for the State.

Date of hearing: 25th January, 2006.

2006 M L D 1343

[Lahore]

Before Muhammad Muzammal Khan, J

MUNEER AHMAD MALIK---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner and 3 others---Respondents

Writ Petition No.3382 of 2003, decided on 17th February, 2006.

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

----S. 152(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Disqualification from being a candidate in election---Petitioner was non-seated from office of Tehsil Nazim holding him disqualified on ground that Matriculation Certificate appended by petitioner to his nomination papers, was fake and fictitious---Election Commission of Pakistan sent a query to the Board of Intermediate and Secondary Education concerned to which the Board remitted negative report stating that Matriculation Certificate did not belong to petitioner---Election Commission cancelled Matriculation Certificate declaring it fake and disqualified the petitioner after hearing him and due examination of record---No factual error was found in the order of Election Commission---Impugned order being in consonance with record, deserved no interference by High Court---Even otherwise, a lawful decision within the ambit of conferred jurisdiction, could not be substituted in constitutional jurisdiction of High Court.

Dr. A. Basit for Petitioner.

Shaukat Rafique Bajwa for Respondent.

2006 M L D 1347

[Lahore]

Before Jawwad S. Khawaja, J

Haji MUHAMMAD AKRAM and another---Petitioners

Versus

PROVINCE OF PUNJAB through District Collector/District Officer (Revenue) District Khushab, and 4 others---Respondents

Civil Revision No.149 of 2006, heard on 15th March, 2006.

Canal and Drainage Act (VIII of 1873)---

----S. 20---Water dispute---Shifting the lands from one outlet to another and amendment of Warabandi---Non-issuance of notice---Effect---Section 20 of the Canal and Drainage Act, 1873 expressly stipulates that notice has to be issued to all irrigators affected by any Warabandi or change therein---Documentary evidence available on record including the testimony of the functionaries of Canal Department had established that plaintiffs had never been served with any notice in accordance with section 20 of the Act before passing impugned orders by Canal Department---Defendant/Department was supposed to prove the service of notice but it failed to do so---Assertion of Department that plaintiffs were aware of the first order on account of some previous litigation, was baseless as no copy of record of such litigation was ever produced in evidence---Courts below were, therefore, not justified in non-suiting the plaintiffs on ground of limitation.

Syed Iqbal Hussain Shah Gillani for Petitioners.

Ch. Muhammad Nawaz Bajwa, A.A.-G. for Respondents.

Respondent No.5 in person.

Date of hearing: 15th March, 2006.

2006 M L D 1349

[Lahore]

Before Fazal-e-Miran Chaulian, J

NIZAM-UD-DIN---Petitioner

Versus

DISTRICT COORDINATION OFFICER, MUZAFFARGARH and 4 others---Respondents

Writ Petition No.663 of 2006, decided on 21st April, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 190, 154, 155, 156 & 157---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of criminal case---Petitioner had sought direction for District Police Officer concerned to proceed against the S.H.O. and to get registered a case against the accused---Criminal Procedure Code, 1898 had divided offences into two classes; cognizable and non-cognizable and in the category of cognizable cases, all those offences for which a police officer could arrest without warrant; while in category of non-cognizable cases, Police Officer was not competent to arrest without warrant---Nature of class of offences was to be determined in accordance with the provision made in Second Schedule appended to Criminal Procedure Code, 1898---In order to be a cognizable case, it was enough if one or more of offences were cognizable---In order to set criminal law in motion, two modes had been provided in Criminal Procedure Code, 1898; one by way of lodging or report under S.154, Cr.P.C. with Police in respect of commission of a cognizable offence and the other by filing of private complaint before Magistrate as provided by S.190, Cr.P.C.---Section 154, Cr.P.C. provided that substances of every information relating to the commission of a cognizable offence, if given to an officer Incharge of Police Station, would be entered in a book, to be kept for such purpose; so far as non-cognizable offence was concerned S.155, Cr.P.C. provided that substance of such information, would be recorded in the book and informant be referred to Illaqa Magistrate---Chapter XIV, Part V, Cr.P.C., provided that Police Officer under S.154, Cr.P.C. was under a statutory obligation to enter/record information relating to cognizable offence in the prescribed register---It was not his sweet will to record or not to record it---Police Officer failing to register such case, would render himself, liable to be dealt with by his superiors for negligence of duty---Provisions of 5.154, Cr.P.C., were mandatory as it had left no scope for exercise of any discretion by the police officer concerned in recording F.I.R. or in refusing to record same---Allowing constitutional petition S.H.O. concerned was directed by the High Court to record information under S.154, Cr.P.C. and thereafter to proceed in accordance with law.

Sreedhara Marar Raman Pillay and others v. State of Kerala AIR 1965 Kerala 196; Nandamuri Anandayya's case SC 25 Ind. Cas. 630 (SC); Jagdami Pershad Singh v. Mahadeo Kandoo and others SC 5 Ind. Cas. 693; Lord Chancellor (Viscount Simon), Lords Porter, Simonds and Gaddard and Sir Madhavban Nair Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18; State of Uttar Pradesh v. Vhagwant Kishore Joshi AIR 1964 SC 221; Faiz Muhammad v. The State PLD 1979 Kar. 513; M. Bashir Saigol and another v. The State and another PLD 1964 Lah. 148; Ghulam Muhammad alias Gaman v. The State PLD 1981 FSC 121; Islamuddin v. P.O. Sindh and others 1995 MLD 372 Karachi DB; Mst. Shehnaz v. S.H.O., Sariab, Police Station, Quetta and 2 others 2003 YLR 1941 (Quetta) and Muhammad Hafez v. Special Judge, Anti-Terrorism Court, Mirpurkhas and 2 others (2001 PCr.LJ 199 (Karachi) ref.

Rana Muhammad Arshad Khan for Petitioner.

Muhammad Qasim Khan, Assistant Advocate-General for Respondents Nos. l to 4.

Ch. Muhammad Anwar-ul-Haq for Respondent No.5.

2006 M L D 1361

[Lahore]

Before Mian Saqib Nisar, J

JAMIL KHATOON and others---Petitioners

Versus

MUSARRAT HUSSAIN and others---Respondents

Civil Revision No.924 and R.S.A. No.53 of 2000 decided on 8th June, 2004.

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

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Suit was decreed by Trial Court, but Appellate Court reversed decision of the Trial Court and dismissed suit on the ground that plaintiffs could not establish making of Talbs---Validity---Appellate Court had given valid reasons for its findings that `Talab-i-Muwathibat' had not been established by plaintiffs---Testimony of sole witness produced by plaintiffs to prove making of Talab-i-Muwathibat, was not reliable as he had not specified the day, date, year and time, when he informed the plaintiffs about factum of sale of suit property---Plaintiffs, in circumstances had failed to prove Talb-i-Muwathibat, so far as question of Talb-i-Ishhad was concerned, notice brought on record by plaintiffs, itself did not bear the signatures of all the plaintiffs, particularly the signatures/thumb-impressions of three out of four ladies were missing and it was not established, that said ladies had also made Talb-i-Ishhad which was a sine qua non for maintaining right of pre-emption---Finding of appellate court was upheld on issue of Talbs.

Khan Khizar Abbas Khan for Petitioners.

Altaf-ur-Rehman Khan for Respondents.

Date of hearing: 8th June, 2004.

2006 M L D 1367

[Lahore]

Before Fazal-e-Miran Chauhan, J

Mst. PARVEEN BIBI---Petitioner

Versus

S.H.O. and 4 others---Respondents

Writ Petition No.1474 of 2006, decided on 20th April, 2006.

Criminal Procedure Code (V of 1898)---

----Ss.22-A & 154---Constitution of Pakistan (1973), .Art. 199---Constitutional petition---Petitioner had sought a direction to the S.H.O. Police Station concerned to register case against accused--On filing application by petitioner under S.22-A of Cr.P.C. for registration of case against accused persons before Justice of Peace, Presiding Officer directed petitioner to appear before S.H.O. who would hear the petitioner, record her version and proceed strictly in accordance with law---Petitioner had alleged that accused who actually were police officials, in civil uniform, while armed with lethal weapons, scaled over the wall of house of petitioner and gave severe beating to womenfolk---On raising hue and cry, Patrolling Police was called and said party informed the S.H.O. about the occurrence and also informed him that some Police Officials of Police Station concerned were creating panic and terror---Said S.H.O. instead of taking any legal action against the Police Officials, left the place of occurrence, threatening petitioner and inhabitants of the locality---Report was called from S.H.O. but he did not comply with said order and S.H.O. did not comply, with order passed by Justice of Peace in order to save named accused who caused harassment and threatened petitioner and her family---S.H.O. was bound to register a case under 5.154, Cr.P.C. on the receipt of information of commission of cognizable offence, but he, despite submission of application by petitioner in that respect, had not registered F.I.R., simply because accused nominated in the application, were Police Officials of his Police Station---Negligence on the part of Police was established and they had misused their powers---Courts were emblem of dignity which were to protect the rights of the citizens and maintain the scales of justice even, which had been enshrined in Constitution as well as in the Holy Qur'an---S.H.O. was directed to register F.I.R. against accused/persons and proceed strictly in accordance with law and .to submit his report, accordingly.

Nadim Ahmad Tarrar for Petitioner.

Muhammad Qasim Khan Assistant A.-G.

Azam Bajwa, Inspector/S.H.O., Machi Wal.

Muhammad Islam, S.-I., Police Station Machi Wal.

Shahid Farooq, S.-I. and Wajid Zubiar, A.S.-I., Patrolling Police, Ratta Tibba.

2006 M L D 1371

[Lahore]

Before Mian Muhammad Najum-uz-Zaman, J

IKHLAQUE AHMAD and others---Appellants

Versus

THE STATE---Respondent

Crl. A. No.1797 of 2003, decided on 16th September, 2005.

Penal Code (XLV of 1860)---

----Ss. 409, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Appreciation of evidence---Remand of case---Case was fit for remand and re-investigation to unearth the truth and to put to trial the real culprits---While setting aside impugned judgment, matter was remanded to the Trial Court by the High Court with direction to send case to Director, Anti-Corruption Establishment for fresh investigation/ inquiry to get hold of all real culprits and submit fresh challan---Such exercise was directed to be completed within specified period and after submission of challan, Trial Court was to proceed with the matter expeditiously and conclude case within specified period.

Azam Nazir Tarar for Appellant.

A.H. Masud for Respondent.

Date of hearing: 16th September, 2005.

2006 M L D 1375

[Lahore]

Before Jawwad S. Khawaja, J

GHULAM RASOOL SHAHZAD---Appellant

Versus

MUHAMMAD SAEED---Respondent

R.S.A No. 18 of 2006, heard on 3rd May, 2006.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 117---Civil Procedure Code (V of 1908), S.100---Suit for specific performance of agreement to sell---Denial of execution of agreement by defendant---Proof---Marginal witness of agreement deposed that plaintiff had not purchased stamp paper in his presence; and that one "Q" was scribe of the agreement---Plaintiff as witness deposed that such marginal witness had purchased stamp paper; and that he and marginal witness. got agreement inscribed by a lawyer namely "M"---Held: Plaintiff had failed to discharge onus of proof placed on him---Plaintiff was non-suited for such material discrepancies in testimony of his witnesses---Plaintiff was not in a position to show existence of any grounds mentioned in 5.100, C.P.C. which would justify interference in the concurrent decrees of the Courts below---Second appeal was dismissed.

Mst. Zainab Khatoon v. Amir Abdullah Khan PLD 2004 Lah. 330 ref.

Ch. Muhammad Nasrullah Warraich for Appellant.

Raza Abbas Chaudhri for Respondent.

Date of hearing: 3rd May, 2006.

2006 M L D 1378

[Lahore]

Before Mian Saqib Nisar, J

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION through Chairman---Petitioner

Versus

ATIF RIAZ---Respondent

Civil Revision No.1501 and 1504 of 1999, decided on 19th January, 2006.

Educational institution---

----Correction of dates of birth---Civil suit, maintainability of---Respondents who appeared in Matriculation examination, had themselves mentioned specific dates of their birth in Admission Forms---Subsequently respondents without approaching Board, of Secondary Education, instituted civil suits seeking correction of their dates of birth, which were decreed by Trial Court and Education Board filed appeals---Validity---Civil Court had no jurisdiction to entertain suits seeking correction of entries of the record of Education Board---No allegation was levelled by respondents with regard to mala fide and lack of good faith on part of the Board---Judgments and decrees passed by Courts below, were without jurisdiction and lawful authority and being nullity in the eye of law, could not be sustained and same were set aside.

Board of Intermediate and Secondary Education through Chairman and 3 others v. Javed Iqbal Bajwa 2005 YLR 2114; Board of Intermediate and Secondary Education, Lahore through Chairman v. Ishrat Sultana 2001 YLR 66; Board of Intermediate and Secondary Education, Lahore through Secretary v. Mst. Sobia Chand 1999 CLC 1166 and Board of Intermediate and Secondary Education, Lahore through Secretary v. Mst. Ghazala Roohi 2002 MLD 1966 ref.

Sheikh Shahid Waheed for Petitioner.

Nemo for Respondent (C.R. No.1501/99).

Nemo for Respondent No. I (C.R. No.1504/99).

Hasnain Haider for Respondent No.2. (C.R. No.1504/99).

Date of hearing: 19th January, 2006.

2006 M L D 1386

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD ARIF---Petitioner

Versus

THE STATE---Respondent

Criminal Misc. No.6495-B of 2005, decided on 14th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Emigration Ordinance (XVIII of 1979), Ss.17 & 22---Bail, grant of---Complainant of F.I.R. bore no animosity or ill-will towards the petitioner---Ample incriminatory material was available against the accused---Offences charged with attracted prohibitory clause of section 497(1), Cr.P.C.---Bail was refused.

Syed Zulfiqar Ali Bukhari and A.D. Naseem for Petitioner.

Ch. Muhammad Jahangir Wahlah, Standing Counsel for Government of Pakistan/the State.

Shaukat Ali, S.I. FIA/P.C., Faisalabad with record.

2006 M L D 1388

[Lahore]

Before Syed Zahid Hussain and Mian Saqib Nisar, JJ

LAND ACQUISITION COLLECTOR, NATIONAL HIGHWAY AUTHORITY and another---Appellants

Versus

MUHAMMAD YAQOOB---Respondent.

Regular First Appeal No. 397 of 2004, decided on 14th February, 2006.

Land Acquisition Act (I of 1894)---

----Ss. 4, 11, 18, 23 & 54---Acquisition of land---Determination of compensation---Reference to the Court---Enhancement of compensation--Landlord, being dissatisfied with award of Acquisition Collector, .filed reference to the Court, and referee Court enhanced the amount of compensation against which appeal had been filed by the Land Acquisition Collector---Validity---Referee Court had fixed/enhanced compensation on appraisal and appreciation of evidence that was led by the parties---Court, while fixing amount of compensation had taken into consideration, amount fixed for adjoining land---Just and fair compensation having been fixed by the Court, keeping in view facts and circumstances of case, would not call for any interference by High Court in appeal.

1990 MLD 2668; 1994 CLC 126; 1999 ALD 170(2) and NLR 1989 Revenue 148 ref.

Fauzi Zafar for Appellants.

Syed Asghar Haider for Respondent.

Date of hearing: 14th February, 2006.

2006 M L D 1390

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD SARWAR---Petitioner

Versus

MUHAMMAD ARSHAD and 2 others---Respondents

Writ Petition No.5337 of 2006, decided on 29th May, 2006.

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

----O. VI, R.17---Punjab Pre-emption Act (IX of 1991), S.22---Constitution of Pakistan (1973), Art.199---Constitutional petition---Pre­emption suit---Amendment in pleadings---Power of Court to allow amendment---Scope and extent---Court had got ample powers to allow amendment in pleadings irrespective of the stage of suit, provided the same was just and essential for proper decision of the matter---Court would keep in view that proposed amendment would neither change the complexion of the suit nor include a ground created during pendency of the suit.

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

----O. VI, R.17---Punjab Pre-emption Act (IX of 1991), S.22---West Pakistan Land Revenue Act, (XVII of 1967), S.42---Constitution of Pakistan (1973), Art.199---Constitutional petition---Pre-emption suit---Amendment in pleadings---Defendant wanted to amend his written statement so as to add ground regarding construction on the suit-land purchased by him during pendency of pre-emption suit---Trial Court allowed amendment in pleadings---Appellate Court set aside the order of Trial Court---Validity---Land was sold through mutation---Written statement filed by defendant bore no reference to the purchase of land and construction raised thereon---Admittedly during the pendency of suit, defendant raised construction on the land, despite knowing the pendency of suit qua earlier sale---Raising of construction over suit-land could not be made a part of original sale and subject of pre-emption suit---Under S.22 of Punjab Pre-emption Act, 1991, however, after original sale and before Talb-e-Ishhad, Vendee/defendant could claim compensation with regard to the improvement effected by him---Defendant could not claim compensation after Talb-e-Ishhad---Order of Appellate Court did not suffer from any illegality---Constitutional petition was dismissed.

Ch. Muhammad Yasin Zahid for Petitioner.

Date of hearing: 29th May, 2006.

2006 M L D 1393

[Lahore]

Before Syed Zahid Hussain, J

Mst. KAFIA BIBI and 6 others---Petitioners

Versus

CHIEF ADMINISTRATOR, AUQAF, LAHORE and another---Respondents

C.R. No.633 of 2005, decided on 17th February, 2006.

Civil Procedure Code (V of 1908)---

----O.VI, R.17---West Pakistan Waqf Properties Ordinance (XXVII of 1961), S.7---Amendment of pleadings---Amendment had been sought in petition filed under S.7 of West Pakistan Waqf Properties Ordinance, 1961---Ground/plea sought to be raised by way of amendment, was neither inconsistent nor had the effect of changing the character/scope of the matter in dispute---No injustice or prejudice would have been caused to respondents' side had the amendment been allowed to be made in the petition---Amendment sought for was allowed, accordingly.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 ref.

Pervaiz I. Meer, for Petitioners.

Muhammad Ashraf Waraich for Respondents.

Date of hearing: 17th February, 2006.

2006 M L D 1395

[Lahore]

Before Maulvi Anwarul Haq, J

Rana MUHAMMAD KHURSHID and 12 others----Petitioners

Versus

FAROOQ HAIDER KHAN and 3 others---Respondents

Revision Petitions Nos.685-D and 686-D of 1991, heard on 4th May, 2006.

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

----Ss. 6(2) & 35(2)---Pre-emption suit on ground of superior pre-emptive right being Shafi Jar and Shafi Khalit was instituted on 21-10-1989---Zarar and Zaroorat was not mentioned in the plaint---Dismissal of suit---Validity---Non-mentioning of Zarar and Zaroorat in the plaint was not fatal---Superior right to claim pre-emption was available under new dispensation enacted pursuant to the judgment of Supreme Court given in Kamal Shah's case reported as PLD 1986 SC 360---Talbs having been sufficiently pleaded, matter was governed by section 35(2) of Punjab Pre-emption Act, 1991---Impugned judgments and decrees were set aside and suit was to be deemed pending before Trial Court.

Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1; Mst. Bashiran Bibi v. Muhammad Kashif Khan and others PLD 1995 Lah. 200 and Government of N.W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 ref.

Syed Hamid Ali Shahmir for Petitioners.

Abdul Rehman Khan Laskani for Respondent.

Date of hearing: 4th May, 2006.

2006 M L D 1402

[Lahore]

Before Muhammad Khalid Alvi, J

MUHAMMAD SHARIF---Petitioner

Versus

MEMBER (COLONIES), BOARD OF REVENUE, PUNJAB, LAHORE and 4

others---Respondents

W.P. No.1989 of 2005, heard on 30th June, 2005.

Colonization of Government Lands (Punjab) Act (V of 1912)---

----Ss. 10 & 30---Constitution of Pakistan (1973), Art.199---Constitutional petition---Allotment of land on 15 years' lease Scheme---Resumption of such land---Land in question was duly allotted to petitioner in 1971 on 15 years lease Scheme---Petitioner who was considered for grant of proprietary rights in respect of land in question, was called upon to pay amount of land in instalments---Petitioner having failed to deposit instalments even in extended period, land in question was resumed---Subsequently Deputy Commissioner on application of the petitioner, allowed him to make payment of instalments within one month and petitioner, except for one instalment, paid rest of the arrears in compliance with order of Deputy Commissioner---Commissioner, however, refused to review resumption order earlier passed against the petitioner---Representative of Authorities stated in the High Court that petitioner was associated with land in question for the last 30/35 years and the land was not required for any purpose and that even, if said land was resumed from the petitioner, same would be leased out to some other person for cultivation as per ongoing policy---In view of said statement of representative of the department, petitioner could be allowed to continue in possession of land in question as lessee in terms of existing policy---Representative of the authorities was directed to calculate entire outstanding amount and penalties leviable on petitioner and amount deposited by petitioner towards lease money; if anything was still outstanding against petitioner, same would be recovered from him.

Syed Kabir Mehmood Shah for Petitioner.

Rana Muhammad Amir Khan, A.A.G. and Muhammad Khalid Zauq D.D.O. (R) Pakpattan for Respondents.

Date of hearing: 30th June, 2005.

2006 M L D 1405

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD SARWAR KHAN and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3151-B of 2006, decided on 5th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860),Ss. 392 & 109---Bail, grant of---Petitioners were not nominated in the F.I.R.---Complainant had implicated the petitioners persons for the first time in his supplementary statement, made two months after lodging of F.I.R.---No identification parade was held in the case, nor any recovery was effected from the petitioners---Petitioners were declared innocent by the police---Effect---Case of the petitioners was of further inquiry as envisaged by S.497(2), Cr.P.C.---Petitioners were admitted to bail accordingly.

Hafiz Ansar-ul-Haq for Petitioner.

Siddiqa Altaf Khan for the State.

Bashir-Ahmad, S.-I. , P.S. City Hafizabad with Police file.

2006 M L D 1407

[Lahore]

Before Ijaz Ahmad Chaudhry, J

LIAQAT ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Misc. No. 1000-B of 2006, decided on 20th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII. of 1979), S.16---Bail before arrest, refusal of---Accused was named in F.I.R. with specific role that he along with co-accused while armed with fire-arms, had abducted sister of complainant, who had not been recovered or produced before Investigating Officer, which was a heinous offence---Accused had not joined investigation, even after grant of ad interim pre-arrest bail by High Court and he even did not appear before the Court of first instance at the time of final hearing after grant of interim bail---Alleged abductee was not being produced before the police to narrate the true story, which circumstance went against accused, who was still at large and alleged abductee was in the custody of accused---Mere contention of counsel of accused that accused was councillor and had made decision in favour of alleged abductee and against the complainant, could hardly be a reason for false implication of accused in case of heinous nature, when no proof of said decision was available with counsel of accused---Evidence was on record to prima facie connect accused with commission of crime---Grant of pre-arrest bail to accused could hamper investigation as recovery of alleged abductee was still to be effected---Conduct of accused had shown that he had no regard for the law or the Court as he had not joined investigation and absented himself from the Court of first instance when bail application was fixed for final hearing, while grant of pre-arrest bail was an extraordinary relief and such-like accused could not be benefited therewith---Case being not fit for grant of bail before arrest, his petition for bail, was dismissed.

Farhad Ali Shah for Petitioner.

Ch. Khadim Hussain Qaisar for Complainant.

Ch. Muhammad Siddique for the State.

2006 M L D 1410

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD ISMAIL---Appellant

Versus

Rana GHULAM MOHY-UD-DIN---Respondent

Second Appeal from Order No.127 of 2004, decided on 29th May, 2006.

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

----Ss. 13-A & 15(6)--Bona fide personal need of landlord---Non­-mentioning of such need in the first notice issued to the tenant under S.13-A of West Pakistan Urban Rent Restriction Ordinance, 1959---Effect---Non-mentioning of demand of vacation of premises on the ground of personal need by landlord in notice under S.13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 would not affect the bona tide requirement of premises by landlord---Petitioner failed to point out any illegality or irregularity in the findings of two Courts below--Appeal was accordingly dismissed.

Mst. Umme Khatoon v. Mst. Umme Salam PLD 1990 SC 755 rel.

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

----S. 13-A---Service of notice under S.13-A, West Pakistan Urban Rent Restriction Ordinance, 1959---Object and scope---Service of notice under S.13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 had the only effect to save a tenant from ejectment on the ground of default---Maintainability of ejectment application on the ground other than the default in payment of rent, had nothing to do with service of notice under S.13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959.

Sabu Mal v. Kika Ram alias Hemandas 1973 SCMR 185 and Muhammad Hussain v. Haji Chaudhry Umar Bakhsh and another PLD 1982 SC 212 rel.

Mian Israr ul Haq for Appellant.

Muhammad Iqbal Akhtar for Respondent.

2006 M L D 1420

[Lahore]

Before M.A. Shahid Siddiqui, J

MUHAMMAD MUNIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.74-B of 2006, decided on 19th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420, 468 & 471---Pre-arrest bail, refusal of---Co-accused had prepared a forged rent agreement in favour of another co-accused and accused was stated to have affixed his signature as a marginal witness---Notary Public during investigation of case had declined to have attested the alleged agreement---Reasons were available to believe that accused had committed offence with which he had been charged---No ground being available for pre-arrest bail, petition was dismissed.

Hameed Ahmad Butt for Petitioner.

Qamar-ul-Qadoos for Complainant.

Maqbool Ahmad Qureshi with Iftikhar Ahmad A.S.-I. for State.

2006 M L D 1422

[Lahore]

Before Muhammad Jehangir Arshad, J

GHAFOORAN BIBI and 4 others---Petitioners

Versus

IFTIKHAR AHMAD and 4 others---Respondents

C.R. No.2615 of 2001, decided on 1st June, 2006.

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

---O.XLI, R. 23, 0. XLIII R. 1(u) & S.105(2)---Specific Relief Act (I of 1877) S.42---Appeal against order of remand was competent even after disposal of suit on remand by Trial Court---Mutation of inheritance attested in favour of deceased's son excluding his daughters---Declaratory suit filed by plaintiffs/daughters was decreed---Only matter regarding the determination of shares of legal heirs of deceased was remanded to trial Court with consent of parties in appeal---Findings of trial Court declaring the daughters as entitled to inherit the estate of deceased was assailed by defendant son through appeal but same was dismissed---Validity---Perusal of record that order of remand made by appellate Court was only for limited purposes of determining the shares of parties and no finding on remaining issues were recorded by appellate Court hence defendants rightly challenged said findings of Trial Court and their appeal was competent and correctly decided by appellant Court on merits on all the issues.

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

---O. VI, Rr. 2 & 4---Pleadings---Plea of fact not pleaded---No case can be founded on such plea---Plea of defendant that family of deceased at the time of his death was governed by custom whereby daughters were excluded frome inheritance had not been specifically mentioned in written statement hence said plea was rightly ignored---In absence of any cogent and strong evidence, contention of defendant that deceased had died before enforcement of West Pakistan Muslim Personal Law (Shariat Application), Act, 1948 was also rightly repelled.

Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad PLD 1976 SC 469 ref.

(c) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

---S. 2-A [added by Punjab Muslim Personal Law Shariat (Amendment) Ordinance (XIII of 1983)]---Termination of customary restrictions regarding land in possession of female owners which was inherited by them prior to promulgation of section 2-A of the West Pakistan Muslim Personal Law (Shariat) appellate Act, 1962---After judgment of Shariat Appellate Bench of Supreme Court in Ishaq's case reported as PLD 1983 SC 273 declaring custom no more rule of inheritance in Pakistan, being repugnant to injunctions of Islam, even decrees passed prior to said judgment giving any right to any person basis on/of such custom were declared as abated.

Ishaq's case PLD 1983 SC 273 rel.

Abdul Ghafoor's case PLD 1985 SC 407 ref.

Ch. Muhammad Naeem for Petitioners.

Maqbool Hussain Sheikh for Respondents.

2006 M L D 1439

[Lahore]

Before Ijaz Ahmad Chaudhry, J

TALIB HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1040-B of 2006, decided on 28th February, 2006.

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

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Bail, refusal of---Specific allegation of commission of Zina with daughter of complainant had been levelled against accused---Counsel for accused had failed to show any mala fide on the part of complainant or the victim girl for false implication of accused by putting at stake the chastity of the girl and involving honour of whole family of complainant---Offence against accused was covered by prohibitory clause of S.497, Cr.P.C.---If the Doctor had not found marks of violence on the body of the victim, same could not be treated as a contradiction in the ocular account and medical evidence and it was not sufficient to bring case of accused within the ambit of further inquiry---Trial Court had rightly cancelled bail of accused and there was no reason to grant bail to accused merely on the ground that he had been declared innocent by the police as the finding of the police was not binding on the Court.

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

---Ss. 41 & 57---Criminal Procedure Code (V of 1898), Ss.497 & 498---Professional, misconduct of counsel---Proceedings against---Counsel for accused earlier filed in the High Court petition seeking pre-arrest bail for accused on which ad interim bail was granted till specified date and on said date counsel argued case and in his presence petition for bail before arrest was dismissed by High Court with certain observations---Same counsel filed application for bail after arrest in Trial Court thereafter, without disclosing factum of dismissal of petition for bail before arrest by High Court earlier---Explanation tendered by said counsel was that it was not felt necessary to mention about said fact as criteria for bail before arrest and bail after arrest was entirely different---Validity---Counsel was duty bound to mention in a bail application filed by him the fact of having filed an earlier bail application, also stating the result thereof---Failure on the part of counsel to do so, would in fact amount to professional misconduct---Counsel, in circumstances, prima facie was found guilty of professional misconduct---Show-cause notice was issued to counsel, but he could not satisfy court about alleged misconduct committed by him---High Court office would send a reference against said counsel to Provincial Bar Council for proceeding against him under S.41 of Legal Practitioners and Bar Councils Act, 1973 and till final disposal of the reference by the Bar Council, licence of said the counsel would remain suspended and he would not appear in any Court.

The State v. Zubair and 4 others PLD 1986 SC 173 ref.

Imran Chaudhry for Petitioner.

Muhammad Khalid Khatak for the State.

2006 M L D 1443

[Lahore]

Before Muhammad Akhtar Shabbir, J

RAEES KHAN and 3 others---Petitioners

Versus

NASEEB KHATOON---Respondent

C.R. 1018 of 2006, decided on 17th May, 2006.

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

----S. 6---Civil Procedure Code (V of 1908)---S.115---Findings on question of fact and law---Revisional jurisdiction of High Court---Scope---Plaintiff filed a pre emption suit on ground of superior pre-emptive right being Shafi Jar---Contention of defendant was that plaintiff had failed to prove that her property was adjacent to suit property---Courts below, while passing judgments/decrees took into consideration oral as well as documentary evidence i.e. copy of register of Record of Rights along with copy of Parcha Shajra/Aks Shajra produced by plaintiff is support of her claim, observed that plaintiff had established her superior right successfully---Such concurrent findings of fact was assailed through revision---Validity---Findings on question of fact or law recorded by Court or competent jurisdiction could not be interfered with in revisional jurisdiction by High Court unless those findings suffered irregularities or jurisdictional defect, illegality or material irregularities.

Muhammad Ismail Khaliq v. Anees Ahmad 2002 YLR 3840; Abudl Rahim and another v. Mst. Jantay Bibi and others 2000 SCMR 346; Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431 and Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 ref.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Revision petition applies to cases involving illegal assumption, non-exercise or irregular exercise of jurisdiction and cannot be invoked against conclusions of law or fact which do not in any way affect the jurisdiction of the Court, no matter how erroneous, wrong or perverse the decision might be either on a question of fact or law---Matter of jurisdiction and erroneous conclusion of law or fact is liable to be corrected in appeal but revision will not be competent on such a ground unless an error of law had been committed in arriving at such conclusion.

Gul Raz v. Sargand 2002 PLR 1906 rel.

(c) Words and phrases---

----"Acted illegally" "acted with material irregularity"---Meanings---Term acted illegally means acting in breach of some provisions of law and the term acted with material irregularity refers to committing of some error of procedure in the course of trial which is material, in that it may affect the ultimate decision.

Zia Ullah Khan Naizi for Petitioners.

2006 M L D 1447

[Lahore]

Before Muhammad Jehangir Arshad, J

KASHIF ALI KHAN and another---Petitioners

Versus

SHER JAN MUHAMMAD and another---Respondents

Civil Revision No. 2298 of 2005, decided on 23rd May, 2006.

Civil Procedure Code (V of 1908)---

----O.1X, O.XVII, Rr.1, 3 & O.XXX, R.4(2)---Revision---Right of cross-examination, closing of---Despite two opportunities, counsel for defendant showed his inability to cross-examine plaintiffs' witnesses---Trial Court closed the right of defendant to cross-examine plaintiffs' witnesses---Plea raised by defendant was that Trial Court had no jurisdiction to close the right to cross-examine a witness---Validity---Trial Court could not have proceeded under O.IX or XVII C.P.C. for the reason that unless the advocate of defendant had either withdrawn his power of attorney or his power of attorney was determined with leave of Court in terms of O.XXX, R.4(2) C.P.C., his inability to cross-examine the plaintiffs' witnesses was not only against the provisions of law but also amounted to misconduct on his part---Trial Court had the jurisdiction to close the right of cross-examination iii such circumstances---Case was adjourned to several dates in a routine manner and without proper application of mind by Trial Court in terms of O.XVII, Rr. 1 and 3, C.P.C. hence the order passed by Trial Court was not legally justified, specially when there was neither any notice to the defendant giving him last and final opportunity for such purpose, nor the plaintiffs were themselves serious for the production of their evidence---While maintaining the order of Trial Court on legal plane , High Court declined to sustain the same in view of the factual position and held that Trial Court was a bit slow in passing such order and for that matter the Trial Court could adjourn the case on payment of some costs directing the counsel either to make the defendant available on the next date of hearing or to come prepared to cross-examine plaintiffs' witnesses; as such the same would have not only saved the parties from further litigation but in the meanwhile even the main suit would have been decided uptil now---Order passed by Trial Court was set aside by High Court in exercise of revisional jurisdiction, subject to payment of costs.

Nazir Ahmad v. Collector and others 1993 CLC 241; Mukhtar Ahmad v. Mushtaq Ahmad and 2 others 2004 YLR 392 (Lhr.); Asad Ullah Khan v. Senior Civil Judge and another 1990 CLC 803; Haji Muhammad Tayyab v. Muhammad Sharif Malik 1996 SCMR 1967 and Farman Ali v. Muhammad Yousaf Ali 1990 CLC 1936 (LHR) ref.

Syed Ali Raza Rizvi and Syed Muhammad Javed Rizvi for Petitioners.

Muzammal Akhtar Shabbir and Syed Faiz-ul-Hassan for Respondents.

2006 M L D 1451

[Lahore]

Before Muhammad Muzammal Khan, J

FAHMIDA AKHTAR---Petitioner

Versus

GHAFFAR AHMED and 2 others---Respondents

Writ Petition No.15826 of 2000, heard on 27th April, 2006.

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

----S. 12(2), O. VII, R. 11 & O. IX, R.I3---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Ex parte decree---Defendant's application under S.I2(2), C.P.C. for setting aside of ex pane decree for not having engaged a counsel and joined proceedings before Trial Court, after withdrawal of revision by plaintiff filed against order of recall of earlier ex parte decree---Dismissal of defendant's application on basis of plaintiff's application filed under O. VII, R. 11, C.P.C:---Validity---Defendant's application did disclosed a cause of action and was not barred by any law, thus, could not be rejected by invocation of provisions of O. VII, R. 11, C.P.C.---Application under S.12(2), C.P.C., was to be tried like a suit---Assertions made in defendant's application did make out a case of fraud and misrepresentation qua the Court, which could not be rejected without recording evidence---Proceedings before Trial Court had been adjourned sine die due to pendency of plaintiff's revision before High Court filed against setting aside of earlier ex parte decree---Defendant's earlier application under O. IX, R. 13, C.P.C. had been accepted on the ground that she was served in suit and had not appointed counsel to concede suit on her behalf---After withdrawal of revision by plaintiff and receipt of file from High Court previous counsel of defendant for being already found to have no authority on behalf of defendant could neither be issued notice in suit nor could his presence be again marked without concurrence of defendant---Defendant had been condemned unheard-High Court accepted constitutional petition, set aside impugned order with direction to Trial Court to decide afresh application under S. 12(2), C.P.C. in accordance with law.

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

----O. VI, R. 17 & 0. IX, R. 13---Amendment of plaint, application for---Closing of defendant's right of defence for non-filing reply to such application due to non-appearance---Non-issuance of notice to defendant in suit after filing of amended plaint---Effect---Non-filing of such reply would not have effect to exclude defendant in suit after filing of amended plaint.

Raja. M. Munir for Petitioner.

Fazal ur Rehman Khan for Respondent.

Date of hearing: 27th April, 2006.

2006 M L D 1457

[Lahore]

Before Muhammad Akhtar Shabbir, J

Dr. TAHIR MAHMOOD AWAN---Petitioner

Versus

TARIQ MAHMOOD and another---Respondents

W.P. 4899 of 2006, decided on 18th May, 2006.

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

---O. XXVI, R. ' 9---Constitution of Pakistan (1973), Art. 199-Constitutional petition---Local Commissioner, appointment of---Discretion with the Court whether to appoint a Local Commissioner or not and Court was not bound to so appoint in all cases---Grievance of petitioner in the present case was that Courts below by declining his application for appointment of Local Commission to ascertain the actual possession of suit property had caused prejudice to his case---Validity---Where controversy could be resolved by producing evidence by parties then spot inspection through Local Commission was not permissible---Court has to decide necessity-of local investigation---Local investigation could not be substitute for legal evidence and a judgment could not be based on local inspection unless the parties agreed to adopt such a course---Dispute in the present case, was with regard to the possession which being a question of fact had to be proved by the party who alleged the possession---Petitioner could not seek appointment of local commissioner for his own convenience when not in a position to prove his plea through evidence.

Kishwar Banoo v. Metropolitan Corporation Lah. 2003 CLC 397; Muhammad Saeed v. Muhammad Akram Munir 2001 YLR 919; Akbar Dad Khan v. Muhammad Sharif 2001 YLR 1911 and Jalal Khan and 10 others v. Khandoo Malik and 24 others 2003 SCMR 1351 ref.

Malik Noor Muhammad Awan for Petitioner.

2006 M L D 1460

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD SHAKEEL---Petitioner

Versus

MUHAMMAD MUJTABA and 4 others---Respondents

W.P. No.5I77 of 2006, decided on 29th May, 2006.

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

----Ss. 13(6) & 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Challenge to interim order passed by Appellate Court to deposit the rent---Maintainability---Legislature had specifically prohibited the filing of appeal against interim order under S.13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959---Constitutional petition against interim order would amount to defeating and diverting the intent of Legislature---Petition not being maintainable was dismissed.

W.P. No.1107 of 2005 and Syed Saghir Ahmad Naqvi v. Province of Sindh through Secretary S & GAD Kar. and others 1996 SCMR 1165 rel.

Haider Ali for Petitioner.

2006 M L D 1468

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD FAROOQ NAJMI---Petitioner

Versus

RENT CONTROLLER, JHANG and another---Respondents

Writ Petition No. 2755 of 2006, decided on 2nd June, 2006.

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

----Ss. 13(6), 15, Proviso(l)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Denial of relationship of landlord and tenant---Effect---Before passing an order under S.13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, Rent Controller had to determine the question of jurisdiction.

Akhtar Ali Pervaiz v. Altafur Rehman PLD 1963 (W.P) Lah. 390 ref.

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

----S. 13(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition Maintainability---Constitutional petition filed against interlocutory order under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, which order was declared non-appealable by the legislature---Effect---Constitutional petition was not maintainable Akhtar Ali Pervaiz v. Altafur Rehman (PLD 1963 (W.P.) Lah.390 Full Bench) distinguished.

Abdul Rehman v. Haji Mir Ahmad Khan and another PLD 1983 SC 21; Muhammad Saeed v. Mst. Saratul Fatima and another PLD 1978 Lah. 1459 and Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary S&GAD, Karachi and another 1996 SCMR 1165 rel.

(c) Act of the Court---

----Act of Court should not prejudice any person.

Faryad Ali for the Petitioner.

Mian Nisar Ahmad for Respondent.

2006 M L D 1473

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

FAZAL DIN---Petitioner

Versus

MAQBOOL AHMAD and others---Respondents

Civil Revision No. 1421-D of 1992, heard on 12th May, 2006.

Punjab Pre-emption Act (I of 1913)---

----Ss. 15 & 30---Punjab Pre-emption Act (IX of 1991), S.34---Pre emption suit on ground of superior pre-eruptive right being co-sharer---Decree after the target date---Suit was filed on 27-7-1973 plaint was rejected on 2-2-1981 appeal was allowed and case was decided on 15-11-1987 in favour of plaintiff---Appeal was accepted with finding that no decree could have been passed after the crucial date of 31-7-1986---Contention of plaintiff was that since suit had been decided on 2-2-1981 therefore further proceedings were required to be regulated under provisions of section 34 of Punjab Pre-emption Act, 1991 but such contention was repelled---Validity---Suit filed in 1973 was decreed for the first time on 15-11-1987 i.e., after the target date of 31-7-1986 set down by Supreme Court in Kamal Shah's case reported as PLD 1986 SC 360---Suit was therefore rightly dismissed.

Government of N.-W.F.P. v..Said Kamal Shah PLD 1986 SC 360 ref.

Muhammad Sharif v. Muhammad Sharif 1992 SCMR 1129 distinguished.

Zaheer-ud-Din Babar and another v. Allah Lubhaiya 2004 SCMR 1338 and Sh. Hukmat Khan v. Hashim Khan and 2 others PLD 2004 SC 15 rel.

Ch. Muhammad Anwar Ghumman for Petitioner.

Muhammad Aslam Nagi for Respondents.

Date of hearing: 12th May, 2006.

2006 M L D 1477

[Lahore]

Before Mian Muhammad Najum-uz-Zaman, J

MUHAMMAD RAFIQ and others---Appellants

Versus

THE STATE---Respondent

Crl. Appeals Nos. 353-J and 1291 of 2003, decided on 23rd February, 2006.

Penal Code (XLV of 186U)-

----Ss. 302(b), 324 , 452 & 34---Appreciation of evidence---Accused, at the time of occurrence, were not known to complainant and during investigation on the basis of statement of deceased which was statedly recorded on the day of occurrence, accused were involved in the case---Accused, after their arrest, were never put to the test of identification parade to rule out possibility of their false involvement at the instance of complainant and witnesses who had seen accused running away from the spot---Complainant though had stated before the Trial Court that accused had committed offence, but in the next breath, complainant had admitted that accused were shown to her in jail and that after their arrest accused were never got identified by her in identification parade---Statement of complainant was recorded after two years of occurrence and identification of accused in the Court after such a long time, could not be relied upon---Police Officer, who recorded dying declaration of deceased, never bothered to fix his signature on document for verification of same nor such document was bearing signatures or presence of' any doctor who was available at the relevant time---Ocular account along with evidence of dying declaration, stood contradicted by medical evidence---Case against accused being full of doubt, they were entitled to benefit of doubt--Conviction and sentence awarded to accused by the Trial Court were set aside and they were acquitted of the charges and were released.

Rana Abdul Hameed Khan assisted by Mian Abdul Qayyum Anjum for Appellants.

Masood Sadiq Mirza for State.

Date of hearing: 23rd of February, 2006.

2006 M L D 1480

[Lahore]

Before Syed Hamid Ali Shah, J

PALA MASIH and others---Petitioners

Versus

NAZAR MUHAMMAD and another---Respondents

Civil Revision No.60 of 2005, decided on 29th December, 2005.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession---Suit for possession was concurrently decreed by the Trial Court and Appellate Court---Validity---Courts below, after appraising evidence of parties, had drawn their conclusion that petitioners were in illegal possession of land belonging to respondents---Petitioners had failed to prove that suit-land was purchased by them or they were rightful owners of that property---Demarcation proceedings were carried and land of respondents was demarcated without any objection from petitioners and demarcation proceedings were not challenged in any other forum and same had attained finality---Impugned judgments and decrees passed by Courts below did not suffer from defects of non-reading or misreading of evidence or wrong assumption of law---In absence of any infirmity in concurrent findings of Courts below, same could not be interfered with in revisional jurisdiction of High Court.

Sher Ali Khan v. Miran Shah and 5 others 1995 MLD 308 ref.

Moiz Tariq for Petitioners.

Sh. Naveed Shaharyar for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 23rd December, 2005.

2006 M L D 1483

[Lahore]

Before Mian Muhammad Najum-uz-Zaman and Muhammad Khalid Alvi, JJ

MUHAMMAD ISLAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 127-J and Murder Reference No. 201 of 2001, decided on 15th February, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---Sentence, reduction in---Case of promptly lodged F.I.R. and occurrence took place during bright hours of the day on the street of village surrounded by uouses---F.I.R. contained all minor details of occurrence and specific role qua accused---Promptness in lodging F.I.R., had ruled out possibility of false involvement of accused and fabrication of the story---Eye-witnesses who had deposed before the Trial Court had not only supported prosecution case by deposing in a very natural and normal manner, but also had painted a vivid picture of occurrence---Ocular account also found support from medical evidence---Location, duration and nature of injuries as narrated by eye-witnesses found confirmation from Medico-legal Reports---No contradiction was found between medical evidence and ocular account---Though no empty was recovered from the spot and no direct evidence was available on record to show that said crime weapon was actually used during occurrence, but still recovery of the weapons was a strong circumstance to strengthen prosecution case---Except complainant no other witness had deposed regarding motive for commission of offence which was money dispute between deceased and accused---Accused at relevant time had ample opportunity to cause injuries to deceased on the vital part of deceased, but injuries were caused by him on the lower limbs of the body of deceased---Possibility that accused never had any intention to commit murder of deceased also could not be ruled out---Award of capital sentence to accused was not justifiable and lenient view, in that regard would meet the ends of justice---Sentence of death awarded to accused by the Trial Court was reduced to imprisonment for life with benefit of S.382-B, Cr.P.C. accordingly.

Miss Tazneem Amin for Appellant.

Ch. Imtiaz Ahmad for State (in M.R. No.201 of 2001).

Maqbool Ahmad Qureshi for State (in CrI.A. No.127-J of 2001). Date of hearing: 15th February, 2006.

2006 M L D 1489

[Lahore]

Before Syed Sajjad Hussain Shah, J

Mrs. NAHEED RANA---Petitioner

Versus

NAHEEDA SHAMIM and 3 others---Respondents

P.S.L.A. No.119 of 2005, decided on 15th May, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 249-A, 265-K & 417(2)---Illegal Dispossession Act (XI of 2005), S.5---Appeal against acquittal---Petition for Special Leave to appeal---Acquittal of the accused without recording of evidence---Effect---Expression "at any stage" in Ss.249-A & 265-)C, Cr.P.C.---"Connotation", Scope and effect---Under Ss.249-A, 265-K of Cr.P.C., Trial Court at any time during trial, that is, at an initial stage, after taking cognizance or after recording some proceedings or at later stage, could acquit the accused provided that the Court had reasons to believe that there was no probability of the accused being convicted of any offence---Expression "at any stage" used in sections 249-A and 265-K had nothing to do with recording of prosecution evidence---Petition for leave to appeal being without merit was dismissed.

State through Secretary Ministry of Interior v. Ashiq Ail Bhutto 1993 SCMR 523 and Muhammad Khalid Mukhtar v. The State through Deputy Director FIA (CBA), Lahore PLD 1997 SC 275 rel.

Farhad Ali Shah for Petitioner.

Sohail Zahoor for Respondents.

Muhammad Arif Bhinder, Addl. A.G.

2006 M L D 1492

[Lahore]

Before Mian Muhammad Najum-uz-Zaman, J

GAHNA KHAN---Petitioner

Versus

THE STATE---Respondent

Writ Petition No.3594 of 2005, decided on 12th-April, 2005.

Criminal Procedure Code (V of 1898)---

----S.173---Penal Code (XLV of 1860), Ss.161, 162 & 419---Prevention of Corruption Act (II of 1947), S.5---Constitution of Pakistan (1973), Art. 199 Constitutional petition---Submission of supplementary challan---Trial Court, after going through data available on record, being satisfied about involvement of petitioner/accused for commission of offence, had directed the Agency to submit supplementary report under S.173, Cr.P.C. against petitioner for the offence under Ss.161 & 162, P.P.C.---Validity---Whenever a matter would come to the Court for taking cognizance, the Court would take cognizance of the whole of the matter and not only against accused sent for trial---If Trial Court was satisfied about the involvement of petitioner, then it was within cognizance/jurisdiction of the Trial Court to summon him as well to face trial irrespective of the fact that he was not shown as accused in the report under S.173, Cr.P.C.---Direction of Trial Court to the Agency for submission of a supplementary challan against petitioner and his co-accused, was not justifiable---If the Trial Court was satisfied that sufficient material was on record to proceed against, petitioner, Trial Court, after taking cognizance of the matter upon the report already submitted by Agency, could summon petitioner to face trial---Impugned order to the extent of direction to the Authority for submission of supplementary report against petitioner, was set aside, with that modification in the impugned order, constitutional petition was disposed of.

Imtiaz Hussain Baloch for Petitioner.

Zafar Iqbal Chowhan for Respondent.

Muhammad Akbar Tarar, Addl. A.G.

Muhammad Akram Khan, Dy. Director, ACE.

2006 M L D 1496

[Lahore]

Before Jawwad S. Khawaja, J

HAMAYUN KABEER and 6 others---Appellants

Versus

QAISER NAZIR and others---Respondents

Regular Second Appeal No. 186 of 2005, heard on 22nd May, 2006.

(a) Limitation---

----Will found to be invalid in earlier suit between predecessors of parties to subsequent suit---Right of inheritance asserted in subsequent suit after six years of decision of earlier suit---Limitation--Plaintiff in subsequent suit was in possession of a part of the property belonging to deceased---Question of limitation would not arise in view of such finding recorded by Court in earlier suit.

(b) Partition Act (IV of 1893)---

----S. 4---Civil Procedure Code (V of 1908), O. XX, R. 18---Suit for partition of joint property---Limitation---Such suit by co-owner could be instituted at any time.

Ch. Muhammad Yaqoob Sidhu for Appellants.

Malik Noor Muhammad Awan for Resondents Nos, l to 3.

Allah Bakhsh Gondal for Respondents Nos. 4 and 5.

Date of hearing: 22nd May, 2006.

2006 M L D 1500

[Lahore]

Before Mian Muhammad Najum-uz-Zaman, J

ASMATULLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6907-L of 2005, decided on 21st February, 2006.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), Ss.392 & 412---Bail, refusal of---Report submitted by Trial Court revealed that case would be disposed of within six months and delay in disposal of the matter was due to non-production of accused regularly by the police---Record had also revealed that accused was involved in almost seven cases of like nature---Allowing bail to accused in circumstances would amount to provide accused another opportunity to repeat such-like offences---Bail was refused.

Ch. Shahid Tabassum for Petitioner.

Miss Tahseen Irian and Muhammad Zafar, A.S.-I. for the State.

2006 M L D 1504

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD EHSAN ULLAH ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1997/B of 2006, decided on 24th March, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 561-A---Penal Code (XLV of 1860), S.295-C---Petition for confirmation of ad interim pre-arrest bail and quashing of F.I.R.---Accused had flatly refused allegations levelled against him in F.I.R. and had claimed himself to be true Muslim having full faith in Holy Prophet Muhammad (peace be upon him) being the last Prophet---Complainant had failed to produce any tangible evidence before Investigating Officer to make out a case against accused---Superintendent of Police had found accused innocent during course of investigation---Ad interim pre-arrest bail already allowed to accused, was confirmed in circumstances.

Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1860), S.295-C---Quashing of proceedings---Superintendent Police (Investigation) had found accused to be innocent; complainant had failed to adduce sufficient evidence to make out case against accused; accused was victim of attack and was murderously assaulted by complainant; state counsel had not supported prosecution case and had no objection to quashing of F.I.R. and continuation of criminal proceedings pursuant to registration of F.I.R. would create law and order situation in the society---High Court, while exercising powers under S.561-A, Cr.P.C., quashed F.I.R. registered against accused with a further direction that a criminal case be registered against complainant under S.324, P.P.C. who had injured the accused by beating him.

The State v. Asif Ali Zardari and another 1994 SCMR 798; Ayub Masih v. The State PLD 2002 SC 1048 and The State v. Mushtaq Ahmad PLD 1973 SC 418 ref.

Abdul Hameed Rana for Petitioner with petitioner in person.

Ch. Muhammad Hanif Khatana, Addl. A.G., Punjab assisted by Ms. Sarwar Nawaz and Hameedullah, Inspector with record for the State.

2006 M L D 1508

[Lahore]

Before Mian Muhammad Najum-uz-Zaman and

Muhammad Khalid Alvi, JJ

SHABBIR AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.282-J and M.R. No.22-T of 2003, decided on 14th February, 2006.

Penal Code (XLV of 1860)

---S. 302(b)-Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Sentence, reduction in---F.I.R. was promptly lodged---Medico-legal Report had affirmed presence of injured witness at the spot---Injured witness along with other police officials, while supporting prosecution case had specifically stated qua the role of accused---Ocular account had found much support from the Medico-legal Report and statements of Doctor who had deposed before the Trial Court---All eye witnesses had successfully stood the test of lengthy and searching cross-examination and no evidence was on record to show any malice of said witnesses for false implication of accused in the case---No reason existed to doubt credibility of the evidence of said eye-witnesses who had deposed in a very natural manner before Trial Court while supporting prosecution case---Statements of witnesses were persuasive in nature and their ocular account could safely be relied upon to uphold conviction of accused even in absence of any corroborative piece of evidence---Accused, however, never caused any injury to any of the deceased and precise allegation against him was that of causing fire-arm injuries to one of the prosecution witnesses---Participation of accused in occurrence though stood established from the data available on record, but Trial Court while awarding sentence to accused on charges under S.302(b), P.P.C. and S.7 of Anti-Terrorism Act, 1997, had taken a harsh view---While dismissing appeal of accused his sentence of death was reduced to imprisonment for life, accordingly.

Muhammad Khalid Sajjad and Muhammad "Tufail for Appellant.

Ch. Ghulam Hussain for State.

Date of hearing: 14th February, 2006.

2006 M L D 1515

[Lahore]

Before Jawwad S. Khawaja, J

MUMTAZ AHMAD and others---Petitioners

Versus

AZIZ AKHTAR---Respondent

Civil Revision No.2114 of 2005, decided on 13th December, 2005.

Civil Procedure Code (V of 1908)---

----O. VII, R.2---Suit for recovery of amount---Respondent, who was landlord, filed ejectment petition against petitioners who were his tenants---Petition was accepted finally up to Supreme Court and petitioners were ejected in execution proceedings---Respondent thereafter tiled suit for recovery of arrears of rent---Courts below awarded arrears of rent to respondent at the rate of Rs.350 per month, whereas case of petitioner was that throughout ejectment proceedings and even in the plaint filed by respondent in suit for recovery of amount of arrears, respondent had claimed Rs.150 as monthly rent---Even when respondent appeared as his own witness for the first time, he maintained that amount of rent was Rs.150 per month---Counsel for respondent was unable to controvert submission of petitioner---Courts below, in circumstances, were not justified to determine amount recoverable from petitioners at the rate of Rs.350 per month---In view of facts established on record, impugned decree was not sustainable and same was modified accordingly.

Mian Ghulam Rasool for Petitioners.

Javaid Iqbal Sheikh for Respondent.

Date of hearing: 13th December, 2005.

2006 M L D 1517

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD TAHIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 439-B of 2006, decided on 23rd February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.392---Bail, refusal of---Looted property (car) was recovered from accused during investigation---Accused was also named in F.I.R. with specific role, that at the relevant time he, along with other co-accused had committed, robbery---Trial in the case had already commenced and report submitted by Trial Court revealed that case was likely to be concluded within six months---Bail petition in circumstances stood dismissed.

Syed Farooq Hassan Naqvi for Petitioner.

Masood Pervaiz Chaudhary for the State.

2006 M L D 1519

[Lahore]

Before Ali Nawaz Chowhan and Umar Ata Bandial, II

ELOCHUKWU TONY---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1561 of 2004 , decided on 14th December, 2005.

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

----S. 9(c)---Appreciation of evidence---Sentence, reduction in--- Order of conviction of accused, had not been assailed before High Court nor there was any cogent objection raised against Investigating Agency---Counsel for accused had candidly stated that he was more anxious in reduction of sentence awarded to accused by the Trial Court and contended that accused had no history of any previous involvement and that he was merely a carrier who, out of sheer poverty, could have been involved by a principal living in safe heavens abroad---Conviction of accused was upheld, but keeping in view circumstances of the case sentence of accused was reduced from twelve years' to seven years' R.I. and amount of fine was also reduced from Rs. 4,00,000 to Rs.300,000.

Aftab Ahmad Bajwa for Appellant.

Muhammad Sarwar Awan for the State.

2006 M L D 1521

[Lahore]

Before Jawwad S. Khawaja, J

BASHIR AHMAD---Petitioner

versus

NAZIR AHMAD and another-Respondents

Civil Revision No.315 of 2002, heard on 21st April, 2006.

(a) Plea---

----Correctness of plaintiff's case could be inferred from falsity of defendant's plea.

(b) Plea---

----Defendant arguing a plea not raised in written statement and proved through evidence---Defendant had failed to prove his defence.

Mian Sarfraz-ul-Hassan for Petitioner.

Sardar Muhammad Arif Khan for Respondents.

Date of hearing: 21st April, 2006.

2006 M L D 1523

[Lahore]

Before Syed Shabbar Raza Rizvi, J

SAJJAD ALI alias KAKA---Petitioner

Versus

THE STATE---Respondent

Cr1. Misc. No. 7906-B of 2005, decided on 3rd January, 2006

Criminal Procedure Code (V of 1898)---

---S. 498---Penal Code (XLV of 1860), Ss. 337-A(i), 337-A(II), 337-L(11), 148 & 149---Pre-arrest bail, refusal of---Bail application of accused was dismissed by Additional Sessions Judge on the ground that he failed' to appear in the Court as well as to furnish surety bonds as directed by the Court---Present bail application for pre-arrest bail had been submitted after more than two months from dismissal of earlier bail application---Accused was named in F.I.R.. and his presence had been believed by Investigating Officer during course of investigation---Challan had not been submitted in the Court---No sign of mala fide existed on behalf of police or complainant---Accused being not entitled for grant of extraordinary concession of pre-arrest bail, his bail application was dismissed.

Muhammad Ashfaq Mughal for Petitioner.

Muhammad Yaqub Pannu for Complainant.

Ms. Sumaira Afzal for State.

2006 M L D 1526

[Lahore]

Before Mian Muhammad Najum-uz-Zaman, J

SHAKEEL AHMAD MALIK---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 486-B/2006, decided on 20th February, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Emigration Ordinance (XVIII of 1979), Ss.17, 18 & 22---Pre-arrest bail, grant of---Further inquiry---Case of prosecution rested upon statements of three deportees, but all of them had been involved in the case as accused as they were fugitives from law; and their whereabouts were not known---During trial, the deportees never appeared before the Trial Court and though Trial Court had convicted and sentenced co-accused, but their sentences were suspended by High Court keeping in view non-appearance of deportees and Supreme Court had also upheld order of the High Court---Accused who left Pakistan, had entered the country after more than one year---Agency had failed to collect any evidence to show that accused was present in Pakistan on the day occurrence took place---Investigation was complete and accused was no more required for investigation---Sending accused behind the bars would not serve any useful purpose---Case of accused falling within ambit of further investigation, interim pre-arrest bail already granted to him, stood confirmed, in circumstances against same surety bond.

Maqbool Elahi Malik for Petitioner.

Tariq Shamim, Standing Counsel.

2006 M L D 1537

[Lahore]

Before Maulvi Anwarul Haq, J

Syed MUHAMMAD SIDDIQUE SHAH---Petitioner

Versus

Mian JAVED IQBAL and 15 others---Respondents

F.A.O. No.23 of 2006, heard on 31st May, 2006.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Factual controversy---Deeper appreciation of evidence---Plaintiff claimed to have purchased the suit property jointly with defendant, after payment of consideration amount and was owner of 1/3rd share---Plaintiff further asserted that his name was deleted from sale-deeds illegally---Contention of the defendants was that plaintiff did not pay his full share and thus was not entitled to 1/3rd share in suit property and his name was deleted with his consent---Application for interim injunction was dismissed by Trial Court---Validity---Primary plea of plaintiff was that he had acquired title in the suit property by means of sale-deeds wherefrom his name had been deleted illegally---Such matter required deeper consideration after recording of evidence---Plea of defendants that name of plaintiff was deleted with his consent after refund of the amount actually paid by him also needed to be established in the course of trial---Plaintiff through both the sale-deeds had purchased 9 marlas out of total land sold through those sale-deeds---High Court granted interim injunction in favour of plaintiff and restrained defendants from alienating the land mentioned in the sale-deeds to have been acquired by plaintiff wherefrom later on his name was deleted---Application was allowed accordingly.

Muhammad Ghias-ul-Haq Sheikh for Appellant.

Muhammad Amir Bhatti for Respondents.

Date of hearing: 31st May, 2006.

2006 M L D 1542

[Lahore]

Before Muhammad Akhtar Shabbir, J

Messrs SHEIKH CARPETS---Appellant

Versus

STATE BANK OF PAKISTAN---Respondent

Appeal No. 59 of 2004, decided on 6th June, 2005.

Foreign Exchange Regulation Act (VII of 1947)---

----Ss. 12(1) & 23-B(4)(5)(6)---Adjudication Proceedings and Appeal Rules, 1988, R.4(10)(4)(1)(5),(6),(7) & (8)---Non-realisation of balance export proceeds---Show-cause notice---Adjudication proceedings by Authorised Officer---Non-observance of provisions of Adjudication Proceedings and Appeal Rules, 1988---Effect---Allegation against accused/appellant was that in contravention of provisions of S.12(1) of Foreign Exchange Regulation Act, of 1947 it failed to repatriate balance sale proceeds within stipulated period---Accused, in response to show-cause notice, appeared before Adjudication Officer and submitted that non-realisation of balance export proceeds was due to non-cooperative attitude of authorized dealer---Numerous opportunities were given to accused to realize balance sale proceeds but accused failed to do the needful---Authorised Officer proceeded to hear the case under Rule 4(10) of .Adjudication Proceedings and Appeals Rules, 1988 and after recording statement of complainant and authorized dealer and after scrutiny of relevant record, Authorized Officer imposed fine on accused---Validity---While passing impugned order, Authorised Officer had not fulfilled requirement of sub-rule (4) to sub-rule (8) of Rule 4 of Adjudication Proceedings and Appeal Rules, 1988---Accused was not asked to file written explanation nor it was determined whether accused pleaded guilty or not---Authorised Officer also did not frame the charge---Without performing mandatory requirement of law, statement of complainant and authorized dealer was recorded---Accused was not given an opportunity to defend its case---Judicial or quasi-judicial authority was under legal obligation to complete the requirement of law and such exercise was to be completed in accordance with prescribed procedure provided in law and rules---Where a method was prescribed to do a thing, it was to be done in that way and not otherwise---Adjudication Officer had deviated from prescribed procedure---Appeal was allowed and case was remanded.

Javed Hotel (Pvt.) Limited v. Capital Development Authority PLD 1994 Lah. 315; Mst. Qaisra Ellahi v. Hazara (Hill Tract) Improvement Trust through Chairman and 5 others PLD 1995 Pesh. 22; The Collector of Customs v. Muhammad Akram PLD 1999 Pesh. 33; New Garden Town Welfare Society (Registered) through President v. Lahore Development Authority and 2 others 2001 CLC 1589 and Jagin and 2 others v. The State PLD 2001 Quetta 64 ref.

Sheikh Azhar Salam for Appellant.

Amir Farooq for Respondents No.2.

Zulfiqar Ali Babar, FEO for State Bank of Pakistan Lahore.

2006 M L D 1546

[Lahore]

Before Khawaja Muhammad Sharif and M.A. Shahid Siddiqui, JJ

MUHAMMAD SARFRAZ alias SAFFA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.2165 of 2003, decided on 20th March, 2006.

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

----Ss. 9(c) & 15---Criminal Procedure Code (V of 1898), S.516-A---Appreciation of evidence---Framing of charge---Object---Error in charge sheet as to place of recovery---Effect---Accused were arrested and tried for carrying Charas weighing 80 Kgs. in a vehicle---Trial Court convicted accused under Ss.9(c) & 15 of Control of Narcotic Substances Act, 1997 and sentenced them to imprisonment for life, fine and forfeiture of assets derived by convicts from drug trafficking, and also forfeited vehicle used in commission of crime---Validity---Accused contended that Trial Court omitted to specify the place of recovery in charge-sheet as such charge-sheet was defective; that prosecution failed to specify place of recovery in its evidence and case property was not produced before Trial Court; that Chemical Examiner's report was vague and could not be used as an incriminating piece of evidence against accused---Charge-sheet contained the date, time and recovery of 80 Kgs. of charas but exact place where vehicle was intercepted had not been specified in it---Object of framing charge was primarily to enable accused to know the exact nature of offence allegedly committed by him at a particular date and time---Accused were not misled in their defence by error in framing the charge as to place of recovery---Mere misdescription of few shops as place of recovery would not render recovery of drug doubtful---Accused did not suggest to prosecution witnesses as to why they had been falsely involved in the case---In absence of ill-will and bitterness on the part of prosecution witnesses, plea of false involvement and substitution for real culprits could not be accepted---No reason existed to discard evidence of prosecution witness as to recovery of quantity of Charas---Case property was produced and exhibited before Trial Court---No objection was raised by accused regarding genuineness of case property during statements of prosecution witnesses---No defect was found in Chemical Examiner's report---Driver of vehicle, who was acquitted by Trial Court, had no knowledge about bags containing Charas---Forfeiture of vehicle which belonged to some person other than driver was illegal and unwarranted by law---Appeal as to restoration of vehicle was allowed---Prosecution having established its case against accused beyond reasonable doubt, appeals of accused challenging conviction by Trial Court were dismissed.

?

S.M. Nazirn for Appellant (in Crl. Appeal No.2165 of 2003).

Zafar Iqbal Chohan for Appellant (in Crl. Appeal No.1073 of 2004).

Mian Abdul Qaddus for Appellant (in Crl. Appeal No.2219 of 2003).

S. D. Qureshi for Appellant (in Crl. Appeal No.132-J of 2004).

Muhammad Sharif for Respondent.

Date of hearing: 8th December, 2005.

2006 M L D 1553

[Lahore]

Before Mian Saqib Nisar, J

ABDUL KARIM---Appellant

Versus

ABDUR RASHID and another---Respondents

Regular Second Appeal No.85 of 1999, heard on 23rd January, 2004.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration on basis of ownership---Adverse possession, plea of---Suit was for declaration that the suit property was owned by father of the plaintiff and he gifted same to the plaintiff in family settlement---Plaintiff had also took the plea of adverse possession---Defendant, who was real brother of the plaintiff also filed suit for possession which was decreed---Appeals by the plaintiff had failed---Validity---Pleas of ownership on basis of family settlement and adverse possession were self-destructive---Plea of the defendants that they purchased the suit plot was found false as at the time of purchase he was only 13 years old---Case was decided on statement of the mother of plaintiff and defendant who were brothers---Concurrent findings of Courts below were not disturbed in circumstances.

Sh. Naveed Shahryar for Appellant.

Syed Muhammad Kaleem Ahmad Khursheed for Respondents.

Date of hearing: 23rd January, 2004.

2006 M L D 1555

[Lahore]

Before Sheikh Azmat Saeed and Sardar Muhammad Aslam, JJ

NASIR MEHMOOD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.939 of 2003, heard on 25th January, 2005.

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

----S. 9(c)---Appreciation of evidence---Case property consisted of two pieces and it was not clear as to from which of the two pieces the sample of narcotics was taken for submission to the Chemical Examiner---Admittedly only one sample was taken and there was no other conclusive finding that the other piece was also of "charas"---Accused could not be. convicted for the recovery of the second piece out of which no sample was taken--Weight of the piece from which the sample was taken could not be possibly ascertained so as to hold the accused guilty of the offence under section 9(a), 9(b) or 9(c) of the Control of Narcotic Substances Act, 1997---Conviction of accused was upheld but his sentence was reduced to the imprisonment already undergone by him in circumstances.

Naveed Inayet Malik for Appellant.

Muhammad Ishaq Malik for Respondent.

Date of hearing: 25th January, 2005.

2006 M L D 1560

[Lahore]

Before Ch. Ijaz Ahmad and Mian Hamid Farooq, JJ

FAROOQ UMER and 2 others---Appellants

Versus

Mst. SAFIA UMER and 4 others---Respondents

R.F.A. No. 515 of 2003, decided on 4th March, 2004.

Partition Act 1893---

----S.2---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2, O.XV, R.1 & O.XXI, R.66---Suit for partition and rendition of accounts--Preliminary decree---Impartable nature of property---Court Auctioneer---Appointment---Schedule for auction---Estoppel---Preliminary decree was passed with the consent of the parties---Relief for rendition of accounts was given up---Parties had accepted the fact of impartable nature of the suit properties---Objection as to appointment of Court auctioneer and new schedule for the auction was held be the only follow up orders after the basic and parent order---Petitioner could only challenge the Schedule of auction and were estoppel to challenge the auction of the property by the trial Court---No legal infirmity was found, orders were maintained---Appeal was dismissed in circumstances.

Sh. Zia Ullah for Appellant.

Ahmad Waheed Khan, for Respondent No.1 to 4.

Syed Zafar Ali Shah for Auction Purchaser.

Zeshan Ashraf Meer for Respondent No.5.

Dates of hearing: 10th and 19th February, 2004.

2006 M L D 1568

[Lahore]

Before Jawwad S. Khawaja, J

KHADIM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, and others---Respondents

Writ Petition No.1644 of 2001/BWP decided on 1st November, 2004.

Hindu Married Women's Right to Separate Residence and Maintenance Act (XIX of 1946)---

----S. 2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dissolution of marriage of Hindu wife---Both petitioner/husband and respondent/wife were Bheel by caste and adhered to Hindu religion---Petitioner had impugned order passed by Appellate Court below whereby marriage of petitioner with respondent was dissolved---Trial Court proceeded to dismiss respondent's suit for dissolution of marriage on the ground that dissolution of marriage was not permitted under Hindu Law, but on appeal, Appellate Court below had reversed finding of the Trial Court---Under provisions of S.2 of Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946, a Hindu married women, would be entitled to separate residence and maintenance from her husband on one or more of the grounds mentioned in S.2 of the Act---Respondent wife though had been able to establish said grounds, but for the restriction on dissolution of marriage among Hindus, respondent could only claim separate residence and maintenance and not dissolution of marriage on said grounds---Impugned Appellate Judgment was modified---Decree for separate residence and maintenance, was passed in favour of respondent against petitioner by the High Court.

Ch. Muhammad Ashraf Mohandra for Petitioner.

Respondents No.3 ex parte.

Date of hearing: 1st November, 2004.

2006 M L D 1571

[Lahore]

Before Muhammad Farrukh Mahmud and Tariq Shamim, JJ

ABDUL RAZZAQ alias GULLOO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 825 and Murder Reference No.868 of 2001, heard on 17th July, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 148 & 149---Appreciation of evidence---Sentence reduction in---Case of two versions---Version nearer to truth was to prevail---Delay in reporting matter to police---Effect---Injuries received by accused were suppressed in F.I.R. by complainant---Accused/appellant along with co-accused was nominated in F.I.R. by complainant for committing murder of deceased---Matter was reported to police two days after the occurrence---Accused, in his defence recorded statement under S.342, Cr.P.C. alleging therein that he along with his co-accused was working on thresher when. complainant party armed with 'Sotas' raised Lalkara that accused party would be taught lesson for registration of case against them---Accused/appellant and co-accused in the ensuing fight, received injuries from complainant party---During fight, deceased received injury at the hands of accused/appellant in exercise of right of self-defence by latter and died two days after the occurrence---Accused, in his defence produced doctor who stated before Trial Court that he had examined accused/appellant and co-accused on the day of occurrence---Accused/appellant alleged that he had lodged F.I.R. of occurrence before that of complainant but the same was cancelled by police after death of deceased---Principal accused/appellant, who was attributed fatal blow to deceased was sentenced to death, two co-accused were sentenced to imprisonment for two years each and two co-accused were acquitted by Trial Court---Validity---No explanation was available as to why complainant reported matter to police two days after the occurrence---Complainant did not state in the F.I.R. a word about injuries caused on person of accused/appellant and co-accused---Prosecution witnesses also suppressed injuries received by accused---Injuries received by deceased were not concealed in F.I.R. recorded by the accused---Story of motive stated in F.I.R. by complainant was not convincing---Enmity existed between complainant and accused parties two years prior to occurrence, over registration of a case against deceased by father of accused/appellant---Version of accused/appellant appeared to be nearer to truth---Conviction of appellant was altered from S.302-b to S.302(c) of P.P.C.---Sentence of accused was reduced to already served out by accused.

Sahibzada Farooq Ali for Appellant.

Masood Sabir for the State.

Date of hearing: 17th July, 2006.

2006 M L D 1577

[Lahore]

Before Syed Jamshed Ali, J

MUHAMMAD RAMZAN---Petitioner

Versus

Mst. ALLAH WASAI and 3 others---Respondents

Civil Revision No.1954 of 1994, heard on 20th February, 2004.

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

----O. XVII R.3---Specific Relief Act (I of 1877), S.42---Default---Closure of evidence---Provisions of Order XVII, Rule 3, C.P.C. are penal in nature and had to be applied with due care and caution---If a litigant was to be visited with a penalty such as closure of his evidence, he was entitled to put to notice---Defendant was not put to notice that if on the next date of hearing, he failed to produce evidence, his right to lead evidence shall be closed---Penal provision was applied because it was three years old case---Reasonable opportunity to produce evidence was not allowed---Judgments and decrees of both the Courts and the order of closure of evidence were set aside and the case was remanded to the Trial Court to decide it after recording of evidence.

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

----O.VII, R.1(e)---Cause of action---Property had changed hands from first defendant to second, third and fourth defendant---Defendant No. 1 had cause of action, because if the transaction made by him failed, he was bound to reimburse the sale consideration to the vendee.

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

----S.115---Separate revisions by defendants---Revision petition filed by one of the defendants having been dismissed in limine would not operate against the other defendants.

Shamim Abbas Bokhari for Petitioner.

Sultan Mahmood Janjua for Respondents:

Date of hearing: 20th February, 2004.

2006 M L D 1582

[Lahore]

Before Muhammad Farrukh Mahmud and Tariq Shamim, JJ

ABDUL MAJID---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 68 of 2003 and Murder Reference No.150 of 2001, heard on 19th July, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Benefit of doubt---Appreciation of evidence---Contradiction between medical and ocular account---Allegation against accused/appellant as given in F.I.R. was that accused/appellant along with co-accused murdered deceased with "Kassi" blows---Trial Court sentenced appellant to death and acquitted the co-accused---Validity---Complainant had alleged in F.I.R. that accused gave 4/5 blows, causing injuries on the head and neck of deceased---Post-mortem report showed that deceased received eight injuries in all, six of which were caused by sharp-edged weapon and two were caused by blunt weapon---During trial complainant and other eye-witness tried to increase the number of injuries---Prosecution witnesses made dishonest improvements in their statements after going through post mortem report---F.I.R. did not mention that accused/appellant caused injuries with sharp as well as blunt sides of "Kassi", but during trial both eye-witnesses stated that injuries were caused by blunt side as well as sharp side of "Kassi"---Prosecution miserably failed to prove motive---Corroboratory 'evidence should come from distinct source---Eye-witnesses were witnesses of motive and once they were disbelieved regarding motive, then it would reflect on the credibility of their ocular account as eye-witnesses of the occurrence---Prosecution story was based on statements of witnesses, who were related inter se and they did not see the occurrence---Blood-stained "Kassi" was of no help to prosecution as it was collected from the spot and not from possession of accused/appellant---Medical account did not support ocular account---Prosecution's case was not free from doubt---Accused/appellant was acquitted in circumstances---Appeal was allowed.

Sahibzada Farooq Ali and Muhammad Waseem Khan Babar Defence Counsel for Appellant.

Mehar Muhammad Saleem for the State.

Date of hearing: 19th July, 2006.

2006 M L D 1590

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD BOOTA alias BOTTI---Petitioner

Versus

MUHAMMAD ASLAM and 3 others---Respondents

Writ Petition No.5082 of 2004, heard on 28th April, 2004.

Criminal Procedure Code (V of 1898)---

----S. 145---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Four. criminal cases registered against the parties had shown that they were quarrelling at the spot on the dispute of the land in question---S.H.O. thus had rightly submitted the report before the Magistrate in order to maintain peace in the Ilaqa who had ordered for initiating proceedings under S.145; Cr.P.C.---Impugned order passed by Sessions Court setting aside the attachment order passed by the Magistrate was set aside in circumstances---Order of the Magistrate being fight in all respects was restored---Constitutional petition was accepted accordingly.

Ch. Muhammad Din Ansari for Petitioner.

S.M. Tayyab and Muhammad Hanif Khatana for Respondents.

Date of hearing: 28th April, 2004.

2006 M L D 1593

[Lahore]

Before Muhammad Sair Ali, J

ASIF HUSSAIN SHAH through Mother Mst. Zohra Khatoon---Appellant

Versus

ABDUL REHMAN through Legal Heirs---Respondent

Regular Second Appeal No.16 of 1996, heard on 26th January, 2004.

Punjab Pre-emption Act (I of 1913)---

----S.4---Non-pre-emptibility of sale---Concurrent finding---Courts below upon due and proper appraisal and appreciation of evidence arrived at concurrent findings of fact that respondents were Mangla Dam affectees and enjoyed the privilege of non-pre- emptibility of their transaction and they had been declared as Mangla Dam affectees in an other case by the Supreme Court---Appeal was dismissed in circumstances.

Mehdi Khan Chauhan for Appellant.

Syed Abid Mumtaz Tirmizi for Respondent.

Date of hearing: 26th January, 2004.

2006 M L D 1596

[Lahore]

Before Sh. Abdur Rashid and M. Bilal Khan, JJ

MUHAMMAD SHAFI KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.102-J and 327-J of 2002, heard on 29th September, 2004.

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

---Ss. 9(c) & 6---Sentence, reduction in---Convictions of accused having not been contested the same were upheld---Sentences of each accused were, however, reduced in view of the principle laid down in 2004, PCr.LJ 1424---Sentences of death and imprisonment for life awarded to accused by Trial Court under S.9(c) of the Control of Narcotic Substances Act, 1997, was reduced to eight years' R.I. each; whereas their sentences under S.6 of the said Act to suffer five years' R.I. each was reduced to three years' R.I. each---Sentences were directed to run concurrently with the benefit of S.382-B, Cr.P.C.---Fine imposed upon each accused was also substantially reduced.

Jahangir Muhammad Khan and others v. The State 2004 PCr.LJ 1424 rel.

Sh. Khalid Habib for Appellant.

Muhammad Aslam Malik for Respondent.

Date of hearing: 29th September, 2004.

2006 M L D 1598

[Lahore]

Before Sheikh Azmat Saeed and Sardar Muhammad Aslam, JJ

PERVEZ AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.491-J of 2003, heard on 18th January, 2005.

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

----Ss. 9(c) & 9(b)---Appreciation of evidence---Recovery witness had deposed that only 200 grams "charas" was recovered from the accused---Other recovery witness had been given up by the prosecution without any reason which had cast doubt on the prosecution case---Offence of accused, thus fell under S.9(b) of the Control of Narcotic Substances Act, 1997, which was substituted for his offence under S.9(c) of the said Act and his sentence was reduced to five years' R.I. with a fine of Rs.5000 in circumstances.

Mian Abdul Qayyum Anjum for Appellant.

Mr. Ishaque Malik for Respondent.

Date of hearing: 18th January, 2005.

2006 M L D 1600

[Lahore]

Before Mian Saqib Nisar, J

ABDUL SATTAR and others---Petitioners

Versus

SARDAR AHMAD and 6 others---Respondents

Civil Revision No. 100-D of 1999, heard on 15th January, 2004.

(a) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 2---Specific Relief Act (I of 1877), S.42---Limitation Act (IX of 1908), S.3---Suit for possession on basis of inheritance---Limitation---Suit was dismissed by both the Courts below on the plea of limitation---No limitation was provided for enforcing the inheritance---Where the alienation was made in excess of legal share, such alienation being void, therefore to non-suit the legal heir on question of limitation was illegal and unlawful---Judgments and decrees of both the Courts below were set aside and suit was decreed to the extent of 3/4th, the legal share of the plaintiffs in circumstances.

(b) West Pakistan Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act (XXV of 1975)---

---Preamble, Ss.2 & 3---Specific Relief Act (I of 1877), S. 8---Succession---Limitation---Principles---Extention of limitation---Preamble and S. 2 of the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 clearly showed that fresh period of limitation was provided under the law to such alienations and orders of successions of the property, which had become time-barred--Person aggrieved would get fresh period of limitation---Where the alienation was made in 1982, the said provision was not attracted to the facts and circumstances of such case.

Hakeem Mahboob Ali Khan and others v. Deputy Commissioner Gujranwala and 70 others PLD 1977 Lah 1354 quoted.

Mian Sarfraz-ul-Hassan for Petitioners.

Ch. Ali Muhammad for Respondents.

Date of hearing: 15th January, 2004.

2006 M L D 1604

[Lahore]

Before Ch. Ijaz Ahmad and Mian Hamid Farooq, JJ

Mst. REHANA NASREEN---Appellant

Versus

SHAHID PERVAIZ and others---Respondents

R.F.A. No.247 of 1997, heard on 3rd March, 2004.

(a) Partition Act (VI of 1893)---

----S.2---Suit for partition---Mode of partition---Preliminary decree---Trial Court passed the preliminary decree without deciding the mode of partition---Validity---Co-sharers had not consented to the auction of the suit property---Trial Court had not applied its mind to the resolution of dispute and had not followed the required procedure---Judgment and decree passed by the Trial Court was set aside and case was remanded to be decided after allowing defendants to file the written statements.

Mollah Ejahar Ali v. Govt. of East Pakistan PLD 1970 SC 173 ref.

(b) Limitation Act (IX of 1908)---

---S.4---Vacations---Holidays---Exclusion of period---Limitation period for filing of suit, appeal or application expiring on a day when the Court was closed---Effect---Such suit, appeal or application as the case may be was to be filed on the day when the Court re-opens.

Fazal Karim v. Ghulam Jillani 1975 SCMR 452 and Nooruddin v. Pakistan 2000 SCMR 354 rel.

M. Hussain Awan for Appellant.

M. Naeem Sadiq for Respondents Nos. 1, 4 and 6.

Nemo for the Remaining Respondents.

Date of hearing: 3rd March, 2004.

2006 M L D 1607

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

JEHANGIR and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.431 and Murder Reference, No.122 of 2000, heard on 11th January, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Sentence, reduction in---Elder brother of the accused had been murdered on the same day by the complainant party and obviously he had received a lot of provocation on this account---Keeping in view the village background of the parties and over all circumstances, the death sentence awarded to accused by the Trial Court was reduced to imprisonment for life with benefit of S.382-B, Cr.P.C.---Quantum of fine of accused was not interfered with---Appeal was disposed of accordingly.

Mokha v. Zulfiqar and 9 others PLD 1978 SC 10; Hafiz Muhammad Alam v. The State 1984 SCMR 276; Muhammad Din v. The State 1985 SCMR 625; Waris Ali and 5 others v. The State 2001 SCMR 640; Anwar and another v. The State 2001 SCMR 1518 and Ijaz Hussain v. The State 2002 SCMR 1455 ref.

Sardar Latif Khan Khosa for Appellant.

Ch. Nazir Ahmad for Respondent.

Date of hearing: 11th January, 2005.

2006 M L D 1614

[Lahore]

Before Jawwad S. Khawaja, J

Mst. ANWERI BIBI and others---Appellants

Versus

AMINA BIBI and 5 others---Respondents

Regular Second Appeal No.134 of 2004, heard on 7th June, 2006.

Specific Relief Act (IX of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O. XXXII, R.1---Alienation of property on basis of special power-of-attorney executed by a man allegedly of unsound mind---Proof---Contention of plaintiff, nephew and alleged attorney of deceased, that alienation of suit property by way of gift on basis of special power of attorney was valid, had no force---Perusal of record disclosed that in life time of deceased a declaratory suit had been filed by his daughter on his behalf as his next friend wherein she moved an application asserting that her father was neither insane nor he appointed any person to act as his attorney nor alleged attorney could protect his rights whereas the attorney had failed to produce his uncle in Court to prove that his uncle was in good mental condition moreover no explanation was available on record as to why deceased himself did not appear before Revenue Officer for purpose of recording the gift mutation---Courts below had rightly drawn the inference that deceased was not of sound mind.

Rana Rashid Akram Khan for Appellants.

Ch. Riasat Ali for Respondents.

Date of hearing: 7th June, 2006.

2006 M L D 1616

[Lahore]

Before Ijaz Ahmad Chaudhry, J

YAQOOB MASIH --Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.146 of 2004, decided on 20th January, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---F.I.R. was promptly lodged---Complainant, who was widow of deceased (victim) was a natural witness as occurrence had taken place in front of her house---Other prosecution witness who was residing near the place of occurrence, had reached the spot after hearing alarm---Said witness had fully supported the statement of complainant---Both said eye-witnesses had no enmity, grudge or ill-will to falsely implicate accused in the case and their presence was fully established at the place of occurrence---No reason, in circumstances existed for disbelieving their statements---Minor discrepancies in statements of said witnesses could not be held sufficient to discard their evidence, which could be due to lapse of time because their statements were recorded after more than two years of the occurrence---Accused, who caused single fatal blow on the chest of deceased, was only one who was nominated in the case and accused being previously known to the eye-witnesses, there was no chance of misidentification and it was proved on record that accused had motive in the case---Statements of eye-witnesses were fully in line with medical evidence---Prosecution had been able to bring home guilt to accused beyond any shadow of doubt---Contention of accused that occurrence had taken place at the spur of the moment due to the family honour and that accused could not be convicted under S.302(b), P.P.C. could not be accepted---Conviction and sentence awarded to accused by the Trial Court were maintained considering, the circumstances of the case.

Sikandar v. The State PLD 1966 SC 555 ref.

Pervaiz Aslam Chauhdry and Ghulam Asghar Qadri for Appellant.

Nemo for the Appellant.

Asif Hussain Sheikh for the State.

2006 M L D 1622

[Lahore]

Before Mian Saqib Nisar, J

SHUJAAT MAND---Appellant

Versus

FEROZE DIN and 2 others---Respondents

Regular Second Appeal No. 91 of 2000, heard on 31st May, 2006.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17, 18 & 30-Suit for specific performance of agreement to sell---Onus to prove---Perusal of evidence showed that both the marginal witnesses of document had not been examined and thus agreement to sell was not proved as required by Art. 79 read with Art. 17(2) of Qanun-e-Shahdat, 1984---Son of defendant who was alleged to be the witness of document when appeared in Court the document .had not even been put to him while the other marginal witness was not examined by plaintiffs without any explanation---Scribe of document admitted that alleged promisor was not present at the time of execution of document nor he thumb marked the document before him---Defendant in written statement only stated that he thumb marked some blank documents but never admitted that it was with the intention for the sale agreement, therefore, admission could not improve the case of plaintiffs---Mere thumb impressions/signatures, of a person upon a document was not the due proof of its execution, where the defence taken was that it was not so thumb marked/signed as it purported to be---In such a situation, it remained the duty of the plaintiff to prove in positive terms that it was executed as it was purported---Courts below had rightly formed the view that plaintiff had failed to discharge said basic burden of proof---Concurrent findings of facts were therefore not interfered by High Court in second appeal---Matter was dismissed on merits and deficiency of the court-fee was to be made up by appellant as per direction of lower appellate Court.

Pervaiz I. Mir for Appellant.

Ch. Mushtaq Hussain for Respondents.

Date of hearing: 31st May, 2006.

2006 M L D 1626

[Lahore]

Before Jawwad S. Khawaja, J

GHAUS, MUHAMMAD through L.RS. and others---Petitioners

Versus

AHMED BAKHSH and 2 others---Respondents

Civil Revision No.29 of 2002, heard on 23rd May, 2006.

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

----Ss. 27(b) & 41---Bona fide purchaser---Proof---Defendants vandees had asserted that vendor sold the suit-land to them by virtue of a consent decree but they could not prove themselves to be in possession of the same, they expressed reluctance to suggestion given by Court, that a local commission be appointed to determine the question of possession---Perusal of rapt Roznamcha revealed that only symbolic possession "qabza malkana" was delivered to defendant vendees who claimed to be in physical possession of suit-land but same had become dubious because of defendants resorting to execution of .consent decree---On account of failure of defendants either to take physical possession or to get their title reflected in revenue record, the title of the plaintiffs, subsequent vendee, acquired from vendor, who remained the ostensible owner of suit property even after the 'passing of said consent decree, could not have been defeated---Sufficient material was available on record to show that plaintiffs had made the requisite inquiry from the revenue record before they purchased the property from vendor---Plaintiff were, therefore, entitled to the protection of their title under S.41 of the Transfer of Property Act, 1882.

Sheikh Naveed Shaheryar for Petitioners.

Muhammad Farooq Qureshi Chishti for Respondents.

Date of hearing: 23rd May, 2006.

2006 M L D 1629

[Lahore]

Before Umar Ata Bandial, J

MUMTAZ KHAN---Petitioner

Versus

MUHAMMAD ASHRAF KHAN---Respondent

Civil Revision No.103 of 2006, decided on 22nd May, 2006.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), S.115---Suit for declaration of joint ownership---Observation of Appellate Court to the effect, that there was a vacant land and same be given to plaintiff through process of partition, was attacked on the ground that evidence on record about the type of land covered by Khata in question went against the finding that the land was vacant---Submission made by defendant was that plaintiff had no right to be accommodated within the vacant land---Validity--Observation made in the judgment of Appellate Court to that extent exceeded the relief claimed by plaintiff and could be modified---With the consent of parties, said observation was deleted---Remaining order of Appellate Court which affirmed order of the Trial Court, was maintained.

M. Aurangzeb Daha for Petitioner.

Zahid Sultan Khan for Respondent.

2006 M L D 1631

[Lahore]

Before Nazir Ahmad Siddiqui, J

ABDUL WAHID---Petitioner

Versus

AMIRAN BIBI---Respondent

C.R. No. 350-D of 1989, decided on 5th April, 2004.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Suit was decreed by the Trial Court and appeal against judgment of the Trial Court was also dismissed by Appellate Court---Application moved by defendants before Appellate Court remained unattended and same was not disposed of by Appellate Court while passing final impugned judgment---Validity---Any application moved before the Court of first instance or Appellate Court, was required to be disposed of in accordance with law before passing the final judgment and failure to advert to and decide same would amount to failure to exercise jurisdiction---Impugned judgment and decree of Appellate Court were set aside and case was remanded to it for deciding appeal afresh on merits in accordance with law after disposal of said application.

Mst. Umari and another v. Faqir Muhammad and another PLD 1983 Lah. 349 ref.

Ch. Muhammad Ashraf Mohandra for Petitioner.

Ch. Zamir Ahmad Khan for Respondent Nos.1 and 2.

Date of hearing: 5th April, 2004

2006 M L D 1633

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD AFZAL---Petitioner

Versus

MUHAMMAD SHARIF and 2 others---Respondents

Civil Revision No.809 of 2006, heard on 1st June, 2006.

Civil Procedure Code (V of 1908)---

----O.VII, R.2---Suit for recovery of amount and rendition of accounts---Case of plaintiff was that defendant was responsible for organizing a committee in which plaintiff had participated---According to plaintiff, defendant had failed to pay amount to him which was due from defendant as a result of his participation in the committee---Defendant denied allegations made in the plaint---Trial Court dismissed suit, but Appellate Court reversed findings of the Trial Court and decreed suit---Defendant had firstly argued that appellate Court had relied on a document which purported to be a card relating to a committee and said document had not been proved; secondly, contents of plaint revealed that a punchayat was convened for resolving controversy between the parties, but plaintiff and his witness had not made reference to any punchayat nor had any member of alleged punchayat was produced to prove case set up by plaintiff and thirdly, it had been pointed out that witness produced by plaintiff was himself an interested witness---Submissions of defendant, which had merits, had remained un-controverted in the absence of plaintiff---Such circumstances had not been duly considered and Appellate Court had also not met reasoning which prevailed with Trial Court for dismissing suit of plaintiff---Impugned decree which was result of misreading and non-reading of record, was set aside by High Court in revision and decree of trial Court stood restored.

Haji Muhammad Ramzan for Petitioner.

Nemo for Respondents.

Date of hearing: 1st June, 2006.

2006 M L D 1635

[Lahore]

Before Khawaja Muhammad Sharif, J

Syed TAHIR HUSSAIN SHAH---Petitioner

Versus

MUSTAFA HUSSAIN SHAH alias MOHSIN SHAH and others---Respondents

Criminal Miscellaneous No.618-CB of 2006, decided on 7th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 337-H(2), 452, 148 & 149---Police Order (22 of 2002), Art.18---Petition for cancellation of bail---Accused were allowed bail after arrest under S. 337-H(2), P.P.C. as offence under S. 452, P.P.C. was deleted, but later on said section was added by a police official, who was not Investigating Officer of the case---Resume of the facts of the case, coupled with perusal of bail granting order, whereby pre-arrest bail allowed to accused was confirmed, would lead to irresistible' conclusion that Trial Court was right in confirming bail before arrest of accused---Even otherwise addition of S.452, P.P.C. by a said police official was not tenable because -same was violative of procedure laid down in Art.18 of Police Order, 2002---Accused had not misused the bail allowed to him---Grounds given by Trial Court in bail granting order, were not alien to settled principles on the subject---Bail granting order passed by the Trial Court, did not call for interference by High Court.

Syed Mubashar Hussain for Appellant.

Muhammad Ilyas Jhummat with Khalid, Inspector for the State.

Rana Muhammad Azam Khan for Respondents.

2006 M L D 1638

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD BASHIR and through Legal Heirs---Appellants

Versus

Mst. KHADIJA BEGUM alias NASIM BEGUM and others ---Respondents

Civil Revision No.969 of 1994, heard on 15th May, 2006.

Partition Act (IV of 1893)---

----S.4---Suit for partition---Original owner of estate had died and was succeeded by widow, two sons, five daughters and one grandson from predeceased daughter---Out of five daughters, four filed suit for partition---During pendency of said suit fifth daughter of deceased vide application had relinquished her share which was 7/64th in favour of one of her brothers; she appeared before the Court on same day and made statement to that effect---Trial Court, at the time of passing decree, did not take note of said statement of relinquishment of share and said share was not given to defendant/brother in accordance with statement of his sister---Appellate Court below too had not granted said share to the defendant---Sister of defendant brother had filed application through her counsel and according to judicial record presumption of correctness was attached to her statement as she appeared before the Court and acknowledged relinquishment of her share; besides she had also filed appeal against judgment and decree of Trial Court when her share was not added to that of her brother--Impugned judgments and decrees were modified holding that 7/64th share of fifth daughter of deceased owner, would form part of share of her brother.

Habib Ullah Chaudhry for Appellants.

Shaukat Rafique Bajwa for Respondents.

Date of hearing: 15th May, 2006.

2006 M L D 1640

[Lahore]

Before Jawwad S. Khawaja, J

ZAFAR ABBAS and another---Petitioners

Versus

MUHAMMAD RIAZ---Respondent

Civil Revision No.480 of 2006, heard on 24th May, 2006.

Tort---

--Malicious prosecution---Suit for recovery of damages---Case set up by plaintiff was that defendants had maliciously prosecuted him by lodging F.I.R. against him and others, in which he was acquitted---Counsel for defendants had referred medico-legal report showing that one of the defendants had received injuries on his body which was proof that F.I.R. in question was based on an occurrence and was not lodged on account of malice---Defendants had also brought on record certain facts to show that prosecution of plaintiff was not malicious---Counsel for plaintiff was unable to controvert said submissions---Appellate Court had not taken note of material circumstances in the case---Impugned appellate decree in favour of plaintiff being result of misreading of the record, was set aside and decree of the Trial Court was restored.

Ch. Haider Bakhsh for Petitioners.

Malik Muhammad Imtiaz Mahl for Respondent.

Date of hearing: 24th May, 2006.

2006 M L D 1642

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAUKAT ALI---Appellant

Versus

THE STATE---Respondent

Crl. A. No.46-J of 2004, decided on 31st January, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 306 & 308---Qanun-e-Shahadat (10 of 1984) Art. 121---Appreciation of evidence---Matter was promptly reported to the police---Complainant, who was brother-in-law of accused, had no enmity with accused---Deceased, aged six years was the real son of accused---Two prosecution witnesses were real sons of accused and it was repellent to common sense that real sons would falsely depose against their father---Testimony of said witnesses was worthy of credence and inspired confidence; their statements were corroborative to each other and nothing could be shaken from their testimony, notwithstanding the fact that they were subjected to lengthy cross-examination---Ocular account was corroborated by Medical evidence---Defence version, did not appeal to common sense as accused failed to substantiate same under Art.121 of Qanun-e-Shahadat, 1984 and it could not be believed that a real mother would substitute real killer of her child and would falsely involve accused---When both versions of accused and prosecution were taken into juxtaposition, ocular account was more plausible and convincing and defence version had no legs to stand upon---Prosecution had proved its case against accused beyond any shadow of doubt to sustain conviction against accused---Trial Court had already taken very lenient view qua conviction of accused despite cruel act of killing his own son---Conviction and sentence awarded by the Trial Court to accused, were maintained.

S.M. Farhad Tirmizi for Appellant.

Mian Liaqat Ali for the State.

Date of hearing: 31st January, 2006.

2006 M L D 1645

[Lahore]

Before M. Bilal Khan, J

Mst. MUNAZZA SALEEM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1519-B of 2006, decided on 19th June, 2006.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Bail, refusal of---Accused had been found guilty in investigation---In view of callous and cruel manner in which a young girl had been, done to death, female accused was not entitled to grant of bail, even under first proviso to S.497(1), Cr.P.C.---Investigating Officer stated that defence version as put forward by accused, did not synchronize with the actual happening and accused had not been able to explain some vital points raised during course of investigation on basis of which she could, at least, put forward a viable story qua her innocence---Deeper appreciation of material available on record while deciding bail application was deprecated---Accused had claimed that she being a female was entitled to grant of bail under first proviso to S.497(1), Cr.P.C.---Validity---woman was not entitled to grant of bail as of right in every case and that discretion was to be exercised, keeping in view facts and circumstances of each case---Claim of accused was rejected.

Azam Nazeer Tarar for Petitioner.

Sardar Khurram Latif Khan Khosa for the Complainant.

Tanvir Ahmad Shami for the State.

Azmat Ullah Gondal, S.P. (Investigation) Model Town, Lahore with Abdul Abdul Ghafoor S.I./Staff Officer.

2006 M L D 1649

[Lahore]

Before Muhammad Sayeed Akhtar and M. A. Shahid Siddiqui, JJ

Miss MADIHA SIDDIQUI---Petitioner

Versus

CONTROLLER OF EXAMINATIONS, UNIVERSITY OF HEALTH SCIENCES LAHORE and 3 others---Respondents

Writ Petition No. 1808 of 2006, decided on 6th March, 2006.

Educational institution---

----Examination of M.B.,B.S.---Candidate appeared in first professional M.B.,B.S., part-II examination and availed three chances but could not qualify said examination---Contention of the candidate was that at least two students were allowed fifth chance to clear the First Professional Examination and that two others were allowed to appear under the orders of the Court---Validity---Fourth chance was not permissible under the

rules---University authorities had submitted that a candidate who failed to pass first professional part-II examination in three consecutive chances, availed or un-availed, after becoming eligible for said examination, would cease to become eligible for further medical education- and that other candidates, who were granted fifth chance, belonged to old course---No indulgence of High Court was called for in the case in circumstances.

Abdul Samad Hashmi for Petitioner.

Rasaal Hassan Syed for Respondents.

2006 M L D 1651

[Lahore]

Before Fazal-e-Miran Chauhan, J

GHULAM RASOOL---Petitioner

Versus

MEMBER (JUDICIAL-IV) BOARD OF REVENUE, PUNJAB, LAHORE and another--Respondents

Writ Petition No.5377 of 2006, decided on 7th July, 2006.

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

----S. 36---West Pakistan Land Revenue Rules, 1968, R.17---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Appointment of lamberdar---No one has a vested right to be appointed as Lamberdar---Respondent, a fit young educated person with a hereditary 'claim was appointed as Lamberdar---Petitioner, who had no preferential right, assailed said appointment through constitutional petition---Validity---Appointment to the office of Lamberdar cannot be claimed as of right and such appointments are made by relevant Revenue authorities on administrative grounds---Exclusive jurisdiction so vested with the Revenue authorities cannot be interfered with by High Court in exercise if its constitutional jurisdiction.

Rana Munir-ul-Hassan for Petitioner.

2006 M L D 1652

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ANWAR---Appellant

Versus

THE STATE---Respondent

Crl. A. No.49-J of 2004, decided on 31st January, 2006.

Penal Code (XLV of 1860)---

----S. 311---Appreciation of evidence---F.I.R. was lodged promptly---Accused was the real brother of complainant as also of deceased---Accused, in the presence of eye-witnesses fired a shot at deceased which led to his instantaneous death at the spot---One of prosecution witnesses who was real brother of deceased, had no enmity or strong motive to falsely implicate accused in the case and it was repellent to common sense that a real brother would falsely depose against his real brother---Said witness had reasonably explained his presence at the place of occurrence and there was no reason not to accept his statement---Said witness was subjected to cross-examination, but nothing could be shaken from his testimony---Other eye-witness also remained consistent on all material particulars of the case and nothing could be extracted from his testimony despite his cross-examination to which he was subjected during the trial---Said witness corroborated statement of other witness on the main point; he was an independent witness as he was not related either to deceased or accused---Said witness had also reasonably proved his presence at the spot to have witnessed the occurrence---Testimony of the witness was worthy of credence---Ocular account was corroborated by medical evidence coupled with factum of recovery of gun in working order and positive report of Forensic Science Laboratory---Prosecution, in circumstances had proved its case against accused beyond any shadow of doubt to sustain conviction against accused---Trial Court had already taken a lenient view, conviction and sentence awarded to accused by the Trial Court, were maintained, in circumstances.

S.M. Farhad Tirmizi for Appellant.

Syed Tahir Abbas Rizvi for the State.

Date of hearing: 31st January, 2006.

2006 M L D 1655

[Lahore]

Before Jawwad S. Khawaja, J

Mst. SURRIYA BEGUM and 8 others---Appellants

Versus

Mst. HAMIDA BEGUM and 2 others---Respondents

Regular Second Appeal No. 73 of 2002, heard on 29th May, 2006.

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

----Ss.6 & 13---Suit for pre-emption---Superior right of pre-emption and making of Talbs---Both the Courts below had concurrently concluded that notices of Talb-e-Ishhad were not sent to vendee---Said conclusion had been arrived at on the basis; firstly, that as original notices were produced in the Court by pre-emptors that was sufficient for the purpose of showing that same had not been sent and secondly that no functionary of postal department had been produced to prove the sending of said notices---Reasons of Courts below for holding that pre-emptors had failed to prove Talb-e-Ishhad, were proper and could not be rebutted---Courts below for valid reasons had found that pre-emptors had failed to prove that they had a superior right of pre-emption---Impugned decrees of Courts below were unexceptionable being consistent with record---In absence of any jurisdictional error or other legal infirmity in the impugned judgments and decrees, same could not be interfered with by High Court in exercise of its appellate jurisdiction.

Ch. Basharat Ali for Appellants.

Muhammad Idrees Khan for Respondents.

Date of hearing: 29th May, 2006.

2006 M L D 1661

[Lahore]

Before Khawaja Muhammad Sharif, J

LIAQUAT HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2992/B to 2996-B of 2006, decided on 16th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.489-F, 468 & 471---Bail before arrest, refusal of---Accused were specifically named in F.I.R.---No mala fide or ulterior motive had been argued by counsel for accused against complainant---Consideration for grant of bail before arrest and after arrest were totally different---No case for bail before arrest had been made out, bail petitions were dismissed.

2004 YLR 2997; 2005 MLD 1348; PLD 2005 Lah. 607 and PLD 1984 SC 192 ref.

Ch. Muhammad Naeem for Petitioner.

Miss Aaliya Neelum for Complainant.

Shahid Hussain Bhatti, Mian Abdul Qayyum Anjum, Raja Sher Zaman, Mr. Muhammad Akram Minhas and Malik Suleman Awan for the State.

2006 M L D 1665

[Lahore]

Before Muhammad Akhtar Shabbir, J

SHER MUHAMMAD---Petitioner

Versus

MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and 4 others---Respondents

Writ Petition No. 7323 of 2006, decided on 10th July, 2006.

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

----R. 17---West Pakistan Land Revenue Act (XVII of 1967), S. 36---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction of High Court---Scope---Appointment of Lambardar---Appointment of petitioner as Lambardar was challenged by rival candidate and Member Board of Revenue remanded the case to District Officer (Revenue) for decision afresh---Petitioner assailed said remand order through constitutional petition---Validity---Discretion of Revenue functionaries in appointment of Lambardar, if made after initiating thorough proceedings, should not ordinarily be interfered with in constitutional jurisdiction unless serious irregularity, injustice or perverseness is made out---In absence of such irregularity, injustice and perverseness, High Court could not exercise writ jurisdiction against remand order passed by Member Board of Revenue being an authority of competent jurisdiction.

Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 and Sub. Muhammad Asghar v. Mst. Safia Begum and another PLD 1976 SC 435 ref.

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

----Art. 199---West Pakistan Law Revenue Rules, 1968 R. 17---Constitutional jurisdiction of High Court---Scope---Appointment of Lambardar---Where factual controversy is involved, constitutional petition in High Court is not the proper remedy---Controversy with regard to the ability and character of a candidate for the post of Lambardar being a question of fact could not be gone into by High Court in exercise of its constitutional jurisdiction.

Muhammad Asghar v. Mst. Safia Begum and another PLD 1976 SC 435; Benediet Souza v. Karachi Building Control Authority and 3 others 1989 SCMR 918; Federation of Pakistan and 2 others v. Major (Retd.) Muhammad Sabir Khan PLD 1991 SC 476 and Muhammad Younas Khan v. Government of N.W.F.P. through Secretary and others 1993 SCMR 618 ref.

Ch. Nawab Ali Meo for Petitioner.

2006 M L D 1668

[Lahore]

Before Muhammad Muzammal Khan and Syed Sajjad Hussain Shah, JJ

Miss REHANA KAUNWAL MOHAL---Petitioner

Versus

VICE-CHANCELLOR, UNIVERSITY OF HEALTH SCIENCES, LAHORE and 2 others---Respondents

Writ Petition No.3897 of 2006, decided on 24th May, 2006.

Constitution of Pakistan (1973)---

----Art.199---University of Health Sciences Regulations, Regln. No.2---Candidate appeared in final professional M.B.,B.S. examination, but failed as she could not get 50% marks in clinical part---Candidate sought the direction of the High Court to compute the petitioner's marks obtained by her in internal assessment towards her practical part of the subject of Surgery, instead of computing the same according to the specified weightage 75% marks of clinical part---Validity---Regulation No.2 of University of Health Sciences Regulations, had clearly provided that clinical components were to be passed separately by securing 50% marks and no internal assessment was to be added to the clinical score---Final examination of M.B.,B.S., had clinical part separate from theory and it had its own marks as students had to come in practical life to deal with lives of public at large---In view of important aspect of clinical side of examination for entering into practical life, students did not deserve any kind of adjustment from other parts of examination, even though a candidate had scored much more marks therein---Lawful decision of University within the ambit of conferred jurisdiction, could not be substituted in constitutional petition.

Muhammad Ilyas v. Baha-ud-Din Zakariya University, Multan 2005 SCMR 961 and Khurram Nazir v. University of Health Sciences and others 2005 MLD 1130 ref.

Anwar-ul-Haq for Petitioner.

Rasaal Hassan Syed for Respondents.

2006 M L D 1671

[Lahore]

Before Jawwad S. Khawaja, J

Mst. RABIA BIBI and another---Petitioner

Versus

BATI and 6 others---Respondents

Review Petition No.21-C of 2005, decided on 18th January, 2006.

Civil Procedure Code (V of 1908)---

----S.114 & O.XLVII, R.1---Review of judgment-Application for---Two applicants and respondents were daughters and sons of female owner of property in dispute---Owner of property gifted away her property in favour of another son---Respondents, sons filed suit for annulment of mutation of said gift without impleading applicants---Said mutation was finally annulled up to High Court and property in dispute was held to be the property of mother of parties to be vested in all her legal heirs by way of inheritance after death of their mother/owner of property---Claim of applicants/daughters of deceased owner was that they being daughters of deceased, were entitled to inheritance in estate of deceased and they claimed that they were entitled to inheritance in estate, though they were not impleaded as parties in the suit filed by respondents and that they were beneficiaries of decree whereby gift mutation was annulled---Respondents without disclosing to the Court that two review applicants were also legal heirs of deceased mother, filed applications to get property in dispute as legal heirs of deceased and it was on account of said concealment that impugned order was passed declaring respondents to be entitled in equal shares of 2/3 of the total land owned by their deceased mother---Impugned order having been based on concealment of material circumstances, which respondents were obliged to disclose was set aside---Consequences flowing from the finding that suit-land reverted to mother of parties, would include the right of applicants and also their third sister to inherent from the property of their mother.

M. Baleegh-uz-Zaman Ch. for Petitioner.

Ch. Riasa Ali for Respondents Nos. 1 & 2.

Respondent No.4 in person.

Date of hearing: 18th January, 2005.

2006 M L D 1674

[Lahore]

Before Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ

MUHAMMAD NAEEM BHATTI and another---Appellants

Versus

UMAR ALTAF and 9 others---Respondents

Regular First Appeals Nos. 155 and 255 of 2001, heard on 10th February, 2004.

Civil Procedure Code (V of 1908)---

----O.XXIII, R.3---Specific Relief Act (I of 1877), S.42---Plaintiffs had appointed a general attorney for sale of their property---General attorney appointed a special attorney who made five sale transactions regarding suit property---Plaintiffs challenged both the powers of attorney and five sales in single suit---Parties compromised and filed compromise in the Court---Trial Court dismissed the suit on the ground that suit was bad for multifariousness of the causes of action and compromise was beyond the claim of the plaintiffs---Validity---Compromise between the parties was a lawful agreement, which substantially covered the dispute between the parties---Defendants had conceded the annulment of their sales and had received back consideration---Suit to the extent of the sale-deed should have been decreed, and Trial Court had acted with material irregularity in refusing to exercise its proper jurisdiction, and consequently judgment and decree of the trial Court were set aside with the direction that the suit of the plaintiffs shall stand decreed in terms of agreement on the record in circumstances.

Rana Mahmood Ahmad Khan for Appellants.

Masood Ahmad Ghuman and Waqar Saleem Malik for Respondent No.1.

Aizad Masood for Respondents Nos.2 to 8.

Date of hearing: 10th February, 2004.

2006 M L D 1676

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

ZULFIQAR ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.969 of Murder Reference No.496 and Criminal Revision No.548 2000, heard on 16th September, 2004.

Penal Code (XLV of 1860)----

---S. 302(b)-Criminal Procedure Code (V of 1898), S.544-A---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Occurrence was admitted by the accused which had taken place in his house---Deceased could not be expected to go to the house of accused at 10.30 p.m. in the night merely to retrieve his debt, when two days earlier he had a skirmish on this aspect with the accused---Defence version being in course of natural behaviour of a man, appeared to be more convincing which the accused had taken before the Investigating Officer at the very outset---Motive part of the prosecution story was disbelieved---Accused had merely seen the deceased in his house and had presumed that he might have come there for committing Zina with his wife, but he did not see the same actually taking place---Previous background in the same connection also existed as mentioned by the Investigating Officer in his statement about which there was a bare denial on behalf of the complainant side---Possibility of the deceased having come to the house of accused only to meet his wife was also there and the case, thus, was of a family honour---Family honour killings were to be discouraged, but it did not mean that the benefits of mitigation were not to be given at all to the accused in whose house someone had trespassed and invaded privacy to fulfil his lust---Case had certainly called for mitigation---Conviction of accused was upheld and his death sentence was commuted to imprisonment for life in circumstances---Deceased being not "Masoom-ud-Dam", compensation under S. 544-A, Cr.P.C. was disallowed to his heirs.

Muhammad Saleem v. The State PLD 2002 SC 558 ref.

Malik M. Akram Khan Awan for Appellant.

Azam Nazir Tarrar for Complainant.

Salam Safdar for the State.

Date of hearing: 16th September, 2004.

2006 M L D 1683

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ABDUL RASHID---Petitioner

Versus

GOVERNMENT OF PUNJAB through Home Secretary, Punjab, Lahore and another---Respondents

Writ Petition No.454 of 2004, decided on 4th July, 2005.

National Accountability Ordinance (XVIII of 1999)---

----S. 10(d) [As amended by National Accountability (Amendment) Ordinance (CXXXIII of 2002)]---Criminal Procedure Code (V of 1898), S. 401---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Remission in sentence---Petitioner had claimed that he was entitled to remissions under S. 401, Cr.P.C. as well as to what was granted by President of Pakistan and other competent Authorities from time to time to prisoners and that amendment brought under S. 10(d) of National Accountability Ordinance, 1999 on 23-11-2002 through which remission had been disallowed, could not be applied with retrospective effect as petitioner was convicted. on 25-4-2001 prior to that date---Interior Ministry had issued letter dated 22-12-2001 through which remissions were disallowed to a convict under National Accountability Ordinance, 1999---Sanctity of letter dated 22-12-2001 issued by Interior Ministry, could, not be questioned, as presumption was attached to official acts---Said letter could be applied unless something was brought on the record against issuance of said letter by competent Authority---Jail authorities were directed to include remission earned by petitioner from date of his conviction i.e. 25-4-2001 to 22-12-2001 when said letter was issued as no such restriction had been imposed during said intervening period of undergoing sentence by petitioner---Jail authorities were also directed not to include remissions granted on auspicious occasions and if petitioner was found to have earned remission under other provisions for remaining period till 23-11-2002 that could not be taken away as well--Petitioner would not be entitled to remissions after 23-11-2002 when amendment had been brought under S.10(d) of National Accountability Ordinance, 1999.

Muhammad Ashraf Qureshi for Petitioner.

Ch. Saghir Ahmad, Standing Counsel for the Federal Government.

M.R. Khalid Malik, Addl. A.G. along with Ali Akbar, Assistant Superintendent, New Central Jail, Multan.

2006 M L D 1685

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD HANIF---Petitioner

Versus

Mst. MEHMOODA BIBI ---Respondent

C.R. No.924 of 2003, heard on 23rd February, 2004.

Specific Relief Act (I of 1877)---

----S.12---Specific performance of agreement to sell---Burden of proof---"Pardanasheen" illiterate woman---Where there is alienation by a "Parda­nasheen" lady or ignorant or illiterate woman through document or mutation, the burden of proof qua the execution of said document would be on that person who was claiming title under said document and it was to be shown that execution was independent and voluntary---Where the scribe had not entered the NIC number, one witness was inimical and the other was the son of the plaintiff, execution of document was not established in circumstances---Plaintiff had failed to disclose the existence of agreement to sell in the earlier suit---Such fact also clouded the existence of agreement to sell---No infirmity or illegality was pointed out---Judgment and decree of the Appellate Court were affirmed in circumstances and revision was dismissed.

Janat Bibi v. Sikandar Ali PLD 1990 SC 642 and Badsha Begum v. Ghulam Rasul PLD 1991 SC 1140 ref.

Amazai v. Khan Sher 1996 MLD 1235 rel.

Mst. Shahnaz Bibi v. Muhammad Ikhlaq Khan 1996 MLD 1060 and Taleh Bibi v. Maqsooda Bibi 1997 SCMR 459 quoted.

Taqi Ahmad Khan for Petitioner.

Ch. Muhammad Abdullah for Respondent.

Date of hearing: 23rd February, 2004.

2006 M L D 1689

[Lahore]

Before Rustam Ali Malik, J

MUHAMMAD NAWAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3151-B of 2004 decided on 15th October, 2004.

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

----S. 498---Emigration Ordinance (XVIII of 1979), S.17/22 --Pre-arrest bail, refusal of---Accused was nominated in the F.I.R. with the clear allegation of fraudulently depriving the complainant of an amount of Rs. 600,000 along with his passport and I.D. Card on the false promise of sending him to U.S.A. and for providing him employment there---After the dismissal of his application for pre-arrest bail by the Special Judge, Central accused had disappeared and had not surrendered himself---Accused during the course of enquiry had been found guilty by the prosecution agency and thereafter the F.I.R. was registered against him---F.I.A. , therefore, had no mala fide reason to falsely implicate the accused in the case in connivance with the complainant---Extraordinary concession of bail before arrest was refused to accused in circumstances.

Javed Iqbal for Petitioner.

M.S. Shad for the Complainant.

Jahangir Wahla Standing Counsel.

Shoukat Ali, Inspector, F.I.A.

2006 M L D 1691

[Lahore]

Before Khawaja Muhammad Sharif, J

ALTAF HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1637 and Criminal Revision No.950 of 2003, heard on 27th January, 2005.

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

----S. 302(b)---Appreciation of evidence---Three injured eye-witnesses had supported the prosecution story on all material particulars corroborating each other and proving their presence at the scene of occurrence---Relationship of the eye-witness with the deceased was of no consequence as they had no animus or motive to falsely depose against the accused---Oral testimony having come from unimpeachable source inspired confidence which was also supported by medical evidence and recovery from the accused---Incident having occurred in broad-daylight and the parties being known to each other, no question of mistaken identity or false implication or even of substitution could arise--Conviction and sentence of accused were maintained in circumstances.

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

----S. 302(b)---Appreciation of evidence---Related witnesses---Principles---Testimony of closely related witnesses is believable if they have no enmity or motive for false implication of accused in the case.

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

----S. 302(b)---Appreciation of evidence---Evidence of eye-witnesses can be believed qua the convicted accused which was disbelieved qua the acquitted accused.

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

----S. 302(b)---Sentence---Normal penalty of death has to be awarded to the accused against whom prosecution case stands proved through reliable evidence, otherwise sound reason have to be given by the Trial Court for not doing so.

Malik Yousaf Farooq for Appellant.

Ijaz Ahmad Bajwa for the State.

Ejaz Anwar for Complainant.

Date of hearing: 27th January, 2005.

2006 M L D 1696

[Lahore]

Before Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ

IFTIKHAR AHMED and another---Appellants

Versus

LAND ACQUISITION COLLECTOR, NATIONAL HIGHWAY AUTHORITY and 2 others---Respondents

Regular First Appeal No.207 of 2001, heard on 18th February, 2004.

Land Acquisition Act (I of 1894)---

----S.54---Acquisition of land----Compensation---Referee Court, decree of---Enhancement of compensation---Landowners had applied for reference---Referee Court enhanced the compensation but landowners who were not satisfied, filed appeal against the judgment and decree of the Referee Court---Validity---Landowners had produced a notification issued by District Collector about the value of land in the village whereby the value of land exceeding 10 Marlas was fixed as Rs.4600 per `Marla'---Compensation was enhanced to Rs.3000 per Marla as there was no rebuttal and same was appropriate keeping in view the potential value of the land in question.

Syed Zafar Ali for Appellants.

Ch. Nusrat Javed Bajwa for Respondents.

Date of hearing: 18th February, 2004.

2006 M L D 1698

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD SIDDIQUE and 8 others---Petitioners

Versus

SHAMLAT DEH VILLAGE KAMALA BHAG through Muhammad Rasheed and another---Respondents

Civil Revisions Nos.690 and 691 of 2003, heard on 3rd March, 2004.

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

----S. 175---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction by plaintiffs and suit for mandatory injunction by the defendants---"Shamlat"---Village common property--Encroachment upon common lands---Two suits involving similar question of law and facts arising out of the two consolidated suits, between the same parties were decided through a consolidated judgment and decrees---Plaintiffs in one suit had prayed that they being owners in possession of "Havaili" in "Abadi Deh" be protected from wrongful dispossession and nuisance---Defendants in their suit for mandatory injunction had prayed for removal of illegal and forcible construction raised by the plaintiffs (in first suit), on the village common land "Shamlat" used as village pond "Chhapar"---Trial Court found the suit property as a "Chhapar" and ordered removal of construction---Appeal against order failed---Both the parties had not denied the nature of land as "Shamlat Deh" within the "Abadi" and in possession of plaintiffs for the last more than 20 years whereas the defendants had asserted that the land in possession of the plaintiffs was a part of "Shamlat" left out for a village pond, construction by the plaintiffs was forcible---Plaintiffs had pleaded that the defendants intended to pass their drainage system from the suit property and they had dug 'a pit for said purpose which clearly indicated that village pond was .forcibly filled by the plaintiffs and they had raised construction on it---Report of the Collector had persuasive value and judgments of the two Courts below on such basis had committed no illegality in non-suiting the plaintiffs---Findings of the two Courts below were not misplaced---Suit of the plaintiffs could not be decreed to perpetuate an illegal act of raising construction over the "Shamlat" land left for pond---Interference in concurrent findings of facts was not permissible in revisional jurisdiction.

Muhammad Ahsan Bhone for Petitioners.

Shaukat Ali Mehr for Respondent.

Date of hearing: 3rd March, 2004.

2006 M L D 1703

[Lahore]

Before Khawaja Muhammad Sharif, J

NASIR ALTAF---Appellant

Versus

KHALID BASHIR BUTT and another---Respondents

Criminal Appeals Nos.1958 of 2003 and 362 of 2004 decided on 12th October, 2004.

Prevention of Corruption Act (II of 1947)---

----S. 5(2)---Penal Code (XLV of 1860), S.161---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Neither any member of the raiding party, according to the raid report, had heard the conversation between the complainant and the accused, nor had seen the accused putting the tainted money of Rs.10,000 in the pocket of his stenographer---Impugned order passed by Trial Court acquitting the accused did not suffer from any illegality or irregularity---Appeal against acquittal of accused was dismissed accordingly.

S.M. Masood (in Criminal Appeal No.1958 of 2003) for Appellant.

Muhammad Hanif Khatana Addl. A.G. (in Criminal Appeal No.362 of 2004) for Respondents.

2006 M L D 1709

[Lahore]

Before Ch. Ijaz Ahmad and Mian Hamid Farooq, JJ

Messrs SHAHEEN PUMPS (PVT.) LTD. through Chief Executive---Appellant

Versus

Messrs BEACON ENGINEERING INDUSTRY through Proprietor and another---Respondents

Regular First Appeal No.268 of 2003, heard on 19th January, 2004.

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

----O.XXXVII, Rr.2 & 3(2)---Suit for recovery of money on the basis of dishonoured cheques---Conditional leave to defend---Discretion---Trial Court granted leave to defend the suit on the condition that the defendant should furnish a bank guarantee of a part of suit amount and personal surety for the remaining sum---Defendant did not comply with the terms of conditional order---Trial Court had recorded ex parte evidence and decreed the suit---Validity---Matter was within discretion of the Court---Order passed was not illegal, without jurisdiction or even arbitrary and harsh---Tagging condition of bank guarantee and personal surety being in the interest of justice, was maintained in circumstances.

Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1996 SC 749 and Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 ref.

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

----O.XXXVII, R.3(2)---Suit for recovery of money on the basis of dishonoured cheques---Leave to defend---Conditional order---Condition attached to leave to defend was not complied with, Trial Court dismissed application for leave to defend, recorded ex parte evidence and passed a decree with costs and interest at rate 20% per annum---Validity---Defendant had failed to fulfil the condition subject to which leave to defend was granted---Was the duty of the Court to pass a decree against the defendant in circumstances.

Abdullah v. Shaukat 2001 SCMR 60 Col. (Retd.); Ashraf Ahmad and others v. Sh. Muhammad Wasim 1999 SCMR 2832; Aftab Iqbal Khan Khichi and another v. Messrs United Distributors Pakistan Ltd. Karachi 1999 SCMR 1326 and Fayyaz-ul-Hassan v. Messrs National Feed (Pvt.) Ltd. 2001 MLD 1630 ref.

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

----O.XXXVII, R.2(2)(a)---Negotiable Instruments Act (XXVI of 1881), S.79---Suit for recovery of money on the basis of dishonoured cheques---Interest---Trial Court had awarded interest at the rate of 20%-Order of Trial Court was neither based on any material or document, nor same was contractually stipulated---Rate of interest was reduced to 6% in circumstances.

Khan Iftikhar Hussain Khan of Mamdot (Represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd. Lahore PLD 1971 SC 550 rel.

Muhammad Ibrahim for Appellant.

Rana Farman Ali Sabir for Respondents.

Date of hearing: 19th January, 2004.

2006 M L D 1714

[Lahore]

Before Ijaz Ahmad Chaudhry, J

IMAM BAKHSH---Petitioner

Versus

THE STATE and another- -Respondents

Criminal miscellaneous 177-CB of 2004, decided on 4th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.16 & 10---Penal Code (XLV of 1860), S.494---Bail, cancellation of---Sessions Court had allowed bail to accused on the grounds that she had filed a suit for jactitation of marriage and that the offence did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Both the said grounds were not available to accused for grant of bail---Allegation that the accused was guilty of commission of Zina with her co-accused was, prima facie, supported by the different stands taken by her regarding her marriage---Even after the registration of the case the accused had given birth to two children---Accused had failed to satisfy about her present abode and her remaining on bail might amount to repetition of offence---Accused could not get benefit of being a woman, as under proviso first to S.497, Cr.P.C. bail could not be claimed as of right which was the discretion of the Court and had to be exercised judiciously and properly---Bail granted to accused by the Trial Court was cancelled in circumstances.

Ijaz Ahmad Toor for Petitioner.

Mian Masood Akhtar for Respondent No.2.

Ramzan Sial for the State.

Irshad-ul-Hassan, S.-I. along with the record.

2006 M L D 1717

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD SARWAR---Petitioner

Versus

JAMIAT KHAN ANWAR and another---Respondents

Civil Revision No.2398 of 2003, heard on 9th February, 2004.

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

----O.VII, R.11---Specific Relief Act (I of 1877), Ss.39 & 42-Suit for declaration---Rejection of plaint---Cancellation of instrument---Trial Court rejected the plaint in a suit for declaration on the ground that power of attorney was not challenged, ad valorem Court-fee on basis of price mentioned in the sale-deed was not paid and the suit should have been for cancellation of instrument---Validity---Plaint could be rejected only if it did not disclose any cause of action or was barred by any law---Assertions in the plaint did disclose cause of action and authority to alienate and sale made by the attorney in favour of his real daughter were also challenged as being fictitious and without consideration which could only be determined after a full-fledged trial of the suit and after recording of evidence---Suit could not have been determined in a summary manner at the initial stage---Such aspects of the case had escaped notice of the Trial Court, whd erroneously rejected the plaint---Judgments and decrees passed by the Courts below suffered from patent illegalities/irregularities and were set aside---Case was remanded, and the suit will be deemed to be pending before the Trial Court which would be decided after framing of issues and recording of evidence.

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

----S.214---Duty of agent to communicate with the principal---Personal - gain by the agent---Alienation by the attorney in favour of his kith and kins needed consent of the principal.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 314; Mst. Shumal Begum v. Mst. Gulzar Begum 3 others 1994 SCMR 818; Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 18,11 and Sultan and another v. The State 2003 SCMR 494 ref.

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

----O.XXXIX, R.1 & 2---Specific Relief Act (I of 1877), S.54---Injunction---Prayer restraining further alienation---Plaintiff had to show prima facie, arguable case, suffering of irreparable loss in case of refusal of the relief and balance of convenience lay in his favour---Where attorney had executed sale-deed in favour of his real daughter, tentatively without written consent of the plaintiff, the plaintiff had a prima facie an arguable case in his favour---In order to provide smooth trial of the suit further alienation was to be stayed---Property was in possession of respondent and he was enjoying usufruct, there was no probability of suffering of any loss or inconvenience---Relief of temporary injunction was wrongly refused in circumstances.

Ch. Akbar Ali Shad for Petitioner.

Rana Liaqat Ali for Respondents.

Date of hearing: 9th February, 2004.

2006 M L D 1723

[Lahore]

Before Sardar Muhammad Aslam, J

TARIQ MAHMOOD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.413-J of 2002, decided on 31st January, 2005.

Penal Code (XLV of 1860)---

----Ss. 308, 302(a) & 302(b)---Appreciation of evidence---Accused had committed the murder of his wife---Trial Court had wrongly interpreted S.308, P.P.C. in violation of the principle of law laid down in Muhammad Akram v. The State (2003 SCMR 855), according to which S.308 P.P.C. would only be attracted in case of Qatl-i-Amd liable to Qisas under S.302(a), P.P.C. and not in case in which sentence for Qatl­i-Amd has been awarded as Tazir under Ss.302(b), P.P.C. and 302(c), P.P.C.---Impugned judgment convicting the accused under S.308, P.P.C. was consequently set aside and the case was remanded to Trial Court for fresh decision in accordance with law.

Muhammad Akram v. The State 2003 SCMR 855 and Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203 ref.

Mirza Abdullah Baig for Appellant.

Masood Sadiq Mirza for the State.

2006 M L D 1725

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD RAMZAN and others---Petitioners

Versus

GULZAR HUSSAIN and others---Respondents

Writ Petition No. 11347 of 2003, decided on 20th August, 2003.

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

----S.13---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bona fide personal need of landlord---Default in payment of rent;--Appellate Authority had accepted the ejectment petition on ground of default and personal need---Tenant through constitutional petition challenged such order---Validity---No misreading or non-reading of evidence was pointed out---No jurisdictional defect, violation of statute or law, was found---Judgment was not arbitrary---Reappraisal of evidence was not permissible in constitutional petition---Constitutional petition was dismissed in circumstances'.

Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246 and Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 ref.

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

Muhammad Amir Khan Niazi for Petitioners.

2006 M L D 1727

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ABDUL RAZZAQ and 3 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2196-B of 2005, decided on 8th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(ii) & 337-F(i)---Bail before arrest, confirmation of---One of accused persons while armed with Sota, allegedly had inflicted injury on the little finger of left hand of victim falling within purview of S.337-A(i), P.P.C. which was bailable---Remaining accused had not been attributed any injury to the victim or to any of prosecution witnesses though they were armed with Sotas---Chances of false implication of accused in the case could not be ruled out as there was tendency in the society to involve maximum number of family members of opponents by widening the net---One of accused allegedly had received injury from the hands of complainant side which injury fell within purview of S.337-A(ii), P.P.C., but said injury had been suppressed by complainant though cross-version had also been recorded---Prima facie, it appeared that complainant had not come to the Court with clean hands---No authenticity could be given to medical certificate which, as per showing of complainant himself was obtained by him after making illegal gratification---Occurrence had taken place all of a sudden without any premeditation---Whether accused had shared common intention with co-accused was a question of further inquiry--Pre-arrest bail already granted to accused was confirmed, in circumstances.

Rasheed Ahmad Randhawa for Petitioners.

Mehr Muhammad Saleem for the Complainant.

Sheikh Arshad Ali for the State.

Riasat Ali, A.S.-I. along with the record.

2006 M L D 1730

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD HUSSAIN and 3 others---Petitioners

Versus

MUHAMMAD RAFIQ and 11 others---Respondents

Civil Revision No.1196 of 2000, heard on 30th January, 2004.

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

----O.XXI, R.35, Ss.47 & 152---Executing Court---Objection petition---Amendment of decree sheet by executing Court--Decree-holder had filed an execution petition for execution of partly decreed pre-emption suit--Judgment-debtor filed objection petition for amendment of the decree sheet as it included the whole property---Executing Court issued warrant for possession only to the extent of property decreed in the pre-emption suit and dismissed the application for amendment---Judgment-debtor who had filed appeal on the issue of amendment, on failure of appeal, filed a revision petition and then petition for leave to appeal to Supreme Court which was also dismissed---During the pendency of petition for leave to appeal to Supreme Court objection petitioner had filed an application for revival of execution proceedings---Executing Court recalled the order and ultimately, after dismissal of the petition, ordered that on account of completion of execution proceedings the execution petition be consigned to record room---Such order was challenged in appeal and then in revision before the High Court---Validity---Dispute with regard to correction of decree stood finally determined by the order passed by executing Court which was affirmed by all the Courts, upto the Supreme Court, after judgment the same matter could not be reopened through back door---No issue remaining alive for determination by the executing Court, revision petition had no merits which was dismissed with costs in circumstances.

Malik Sarfraz Hussain for Petitioners.

Mian Muhammad Hanif for Respondents Nos.1-4 and 7-11.

Ex parte for Respondents Nos.5, 6 and 12.

Date of hearing: 30th January, 2004.

2006 M L D 1734

[Lahore]

Before Fazal-e-Miran Chauhan, J

Mst. MUSARRAT NAZAR---Petitioner

Versus

S.H.O. POLICE STATION ROHILANWALI and another---Respondents

Writ Petition No.3985 of 2005, decided on 20th September, 2005.

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

----S. 16---Constitution of Pakistan (1973)---Art. 199---Constitutional petition---Quashing of F.I.R.---Police Officer concerned, was directed by High Court to record statement of petitioner/alleged abductee who was present in the Court---Petitioner in her statement had stated that she was not abducted by anybody; that she was major, sui juris, adult and had contracted Nikah with accused of her own free-will and volition, and that no body had committed Zina with her---Nikah of petitioner was evidently solemnized with accused, who had also paid dower amount to petitioner's father---High Court allowing constitutional petition had declared that petitioner, being sui juris, had contracted Nikah of her own free-will and volition with accused and no case was made out under S.16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---F.I.R. was quashed accordingly.

Waseem Shahab for Petitioner.

Ghulam Hashim S.-I., Police Station, Rohilanwali with record.

2006 M L D 1737

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD ISHAQ SHAH---Petitioner

Versus

KHAN MEER KHAN---Respondent

Civil Revision No.271 of 2001, heard on 20th January, 2004.

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

----S.13---Suit for pre-emption---Making of Talbs---Corroboration---Witness---Relation---Talb-i-Muwathibat---Talb-i-Ishhad---Suit was dismissed by the trial Court due to failure to prove Talbs---Appellate Court decreed the suit---Evidence of the plaintiff revealed that story of Talb-i-Muwathibat was made by the clerk who drafted the notice---Witness of Talb-i-Muwathibat was a relative of the plaintiff, his statement was not corroborated---Source of knowledge, date and time were not shown---Appellate Court had misconstrued the points in the evidence---Judgment and decree being based on misreading and non-reading of evidence were set aside in circumstances.

Inayat Ullah Khan Niazi for Petitioner.

Wajeeh-ud-Din Pervez for Respondent.

Date of hearing: 20th January, 2004.

2006 M L D 1739

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ZAFAR IQBAL and another---Petitioners

Versus

ASGHAR ALI and another--Respondents

Writ Petition No. 1337 of 2004, decided on 20th June, 2005.

Criminal Procedure Code (V of 1898)---

----Ss.476 & 195---Penal Code (XLV of 1860), Ss.471, 420, 406, 193 & 34---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of proceedings---Admitted fact in the case was that suit was filed by respondent against petitioners under O.XXXVII, R.1., C.P.C. for recovery of amount and petitioners moved application for leave to defend said suit which application was allowed subject to filing surety bond---Petitioner submitted surety bond along with documents which were forged one as no such documents were issued by Revenue Authorities and one of the petitioners was not owner of said land---Petitioner was alleged to have prepared forged documents and presented same before the Court during proceedings of said suit, whereupon notice was issued to petitioners to show-cause---Petitioners, instead of proving said documents as genuine which they had produced at the time of grant of leave to defend suit, had started delaying tactics in disposal of case and filed petition for quashing of proceedings on ground that Trial Court was not empowered to take cognizance---Validity---Under S.476, Cr.P.C., Trial Court could try case having Magisterial powers and could exercise same while passing sentence---Petitioners could prove their innocence before the Court while producing evidence---Contention that since original suit had been later on dismissed, no proceedings whatsoever could be initiated, was repelled, because, if any of the parties was prima facie found to be guilty of producing forged documents during pendency of suit, proceeding could be initiated by same Court under S.476, Cr.P.C. irrespective of fate of suit.

Mian Hafeez-ur-Rehman for Petitioners.

Ch. M. Sabir Shah for Respondent No.1

2006 M L D 1741

[Lahore]

Before Mian Hamid Farooq, J

PERVAIZ AHMED and another---Petitioners

Versus

FATEH SHER and 17 others---Respondents

Civil Revision No.2626 of 2002, heard on 25th February, 2004.

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

----S.13---"Making of Talbs"---Trial Court had dismissed the pre-emption suit but appellate Court had decreed the same partly---Validity---Trial Court had given cogent reasons and rendered its findings on all the issues after taking into consideration the evidence on record---Appellate Court had failed to take into consideration the evidence on record and had not adverted to reasoning adopted and findings given by the Trial Court---Material pieces of evidence were not taken into account---Case was remanded to Appellate Court for fresh decision in circumstances.

Madan Gopal and 4 others v. Mardan Bepari and 3 others PLD 1969 SC 617 quoted.

Mir Haji Khan and 11 others v. Mir Aijaz Ali and 2 others PLD 1981 SC 302 ref.

Farooq Qureshi Chishti for Petitioners.

Ex parte for Respondents.

Date of hearing: 25th February, 2004.

2006 M L D 1744

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD YASIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.596 of 2000, heard on 26th January, 2005.

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

----S. 302(b)---Appreciation of evidence---Eye-witnesses though closely related to the deceased had no enmity or motive for false implication of accused in the case---Ocular testimony was consistent and confidence inspiring and was also corroborated by medical evidence---Six hours' delay in lodging the F.I.R. was not fatal to the prosecution case in the given circumstances---Accused in his statement under S.342, Cr.P.C. had made bald allegations of ill repute against his deceased wife and he did not deserve any further leniency---Husbands could not be given a licence to kill their wives on such type of bald assertions which was neither permitted by law, nor was recognized in any society---Conviction and sentence of accused were maintained accordingly.

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

----S. 302(b)---Appreciation of evidence---Principles---Testimony of an interested witness is trustworthy and confidence inspiring if he has no enmity or ill will to falsely implicate the accused.

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

----S. 302(b)---Appreciation of evidence---Principles---Approach of the Court should be dynamic and it should, weigh the quality of evidence and not its quantity.

Arshad Ali Chowhan for Appellant.

Kh. Fahim Ijaz for the State.

Abdul Salam for the Complainant.

Date of hearing: 26th January, 2005.

2006 M L D 1748

[Lahore]

Before Maulvi Anwar ul Haq, J

ISRAR HUSSAIN and 2 others---Petitioners

Versus

Mst. GHULAM KALSOOM and 5 others---Respondents

Civil Revision No. 53-D of 1992, heard on 6th April, 2006.

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

----Ss. 20, 21(a) & 3---Succession devolves. on those who would have succeeded, if tenancy were agricultural land acquired by original tenant---Section 20 of Colonization of Government Lands (Punjab) Act, 1912 provides that on death of original tenant, in absence of male lineal descendants, tenancy shall devolve upon the widow of tenant until she dies or re-marries failing the widow tenancy to devolve upon unmarried daughters of tenant until they die or marry therefore petitioner widow when contracted second marriage suit-land mutated in favour of daughter of deceased original tenant---Definition of such original tenant in section-3 of the Colonization of Government Lands (Punjab) Act, 1912 confines strictly to male grantees to whom tenancy is first allowed by Collector---Daughter of deceased original tenant was the limited owner of suit-land hence when she died unmarried the tenancy was held to have devolved under section 21(a) of the Act upon all the persons entitled to inherit the deceased (original) tenant according to Shariat---Share of late daughter however would also be distributed among her legal heirs in accordance with Sunni Law of inheritance as petitioners had failed to prove that deceased lady was governed by Shia Law.

(b) Islamic law---

----Faith -Every Muslim unless proved to the contrary shall be deemed to be a Sunni:

Malik Sharif Ahmad for Petitioners.

Syed Kabir Mehmood for Respondents.

Date of hearing 6th April, 2006.

2006 M L D 1752

[Lahore]

Before Fazal-e-Miran Chauhan, J

SHAHIDA PERVEEN and another---Petitioners

Versus

SHER AFZAL and 2 others---Respondents

Writ Petition No.17291 of 2005, decided on 24th May, 2006.

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

----Ss.5, Sched., 9, 14 & 18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for maintenance---Filing of written statement through attorney---Appearance through attorney---Respondent against whom suit for maintenance was filed, being abroad, could not appear in the Court, Family Court proceeded to pass ex parte decree in favour of petitioners and against respondent---On filing petition for setting aside ex parte decree by respondent through his attorney, ex parte decree was set aside and suit was ordered to be decided afresh on merits---On fresh proceedings respondent filed written statement through his special attorney---Petitioner filed applications with a prayer that respondent had not appeared in person as required under S.9 of West Pakistan Family Courts Act, 1964, under which he was required to appear in person and file written statement with his own signatures---Family Court proceeded to hold that where written statement was filed through attorney, it did not deserve consideration and without hearing respondent, rejected written statement filed by respondent through his special attorney and decreed suit filed by petitioner holding same to be uncontroverted---Appellate Court reversed findings of Trial Court---Validity---Respondent could not be deprived of his right to defend the suit against him through his attorney---Appellate Court below had rightly set aside judgment and decree of Family Court---Impugned judgment passed by Appellate Court, was not illegal in the eye of law, but was based on principles of natural justice---Respondent, who had come back from abroad, would be provided one opportunity to defend his case.

PLD 2001 Lah. 495; 1981 SCMR 395 and Khalid Mehmood v. Razi Abbas Bokhari Judge family Court and another PLD 1979 Lah. 217 ref.

Nisar Ahmad Baig for Petitioners.

Ch. Zulfiqar Ali for Respondent No.1.

Respondents Nos. 2 and 3 are pro forma respondents.

2006 M L D 1756

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. MISBAH SADDIQUE---Petitioner

Versus

S.H.O. and 3 others---Respondents

Criminal Miscellaneous No. 161-H of 2006, decided on 21st July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 491---Petition for custody of minor---Respondents had contended that petitioner/mother of minor girl having contracted second marriage with person not falling within prohibitory degree, she had lost her right of Hizanat---Female minor was in the custody of her paternal grand­mother---Plea of petitioner was that if. she had lost her right of Hizanat by contracting marriage with a person outside prohibited degree, the right of Hizanat of female child automatically transferred to maternal grand­mother--Validity-Held, in such-like cases question of preference between maternal grandmother and paternal grandmother with regard to the custody of female minor, could not be determined in summary proceedings, but as welfare of minor was main consideration, evidence, was required in that respect---Petition was disposed of accordingly and question regarding determination of entitlement to have custody of female minor between two grandmothers was' left for determination by the Guardian Judge.

Para. 354 of Mohammedan Law by D.F. Mulla; Para. 353 .Mohammedan Law by Mulla; Mst. Firdous Iqbal v. Shifaat Ali and others 2000 SCMR 838 and Sardar Hussain and others v. Mst. Parveen Umer and others PLD 2004 SC 357 ref.

Muhammad Sarwar Awan for Petitioner.

Miss Rashida Bokhari and Sajid Chaudhry for Respondents Nos. 2 to 4.

Muhammad Akram, S.-I.

2006 M L D 1763

[Lahore]

Before Fazal-e-Miran Chauhan, J

Haji NAZIR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1759-B of 2006, decided on 24th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 109, 148 & 149---Bail, grant of---Bail had been sought by accused on the ground that he was kidney patient and had fallen seriously ill in jail, where he was medically examined by Jail Doctors as well as Doctors of District Headquarter Hospital, wherein it transpired that his treatment was not possible within jail premises---Continued detention of accused in jail, in circumstances was hazardous to his life and treatment which he needed could not be provided within jail premises---Accused was admitted to bail, in circumstances.

Mian Manzoor Ahmad Watto v. The State 2000 SCMR 107 and Muhammad Yousafullah Khan v. State PLD 1995 SC 58 ref.

Azam Nazeer Tarar for Petitioner.

Shahid Shaukat for the Complainant.

Ms. Hafiza Saira Umar Hayat Khan for the State with Zulfiqar A.S.-I. Police Station, Hyderabad, District Bhakkar with record.

2006 M L D 1768

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

Mst. ZUBAIDA BIBI and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos. 8012-B and 8015-B of 2005, decided on 8th December, 2005.

Criminal Procedure Code (V of 1898)---

---Ss. 497 & 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 11---Bail, grant of---Allegation against accused persons was that they had abducted daughter of complainant---Contention of accused was that alleged abductee had contracted marriage with one of accused with her free consent---Alleged abductee who was aged fifteen years and six months, had stated in her statement under S.164, Cr.P.C. that none had abducted her and that she had contracted marriage with accused with her free consent and that she wanted to live with him---Alleged abductee had attained puberty and during investigation Nikahnarna was found to be correct---Accused were not required by police for further investigation---Case being fit for grant of bail, accused were admitted to bail---Father and mother of accused who were already granted pre-arrest bail, their bail was confirmed accordingly.

Zeenat Bibi and another v. The State and 2 others 2005 PCr.LJ 1312 and Abdul Ghaffar v. Ishtiaq Ahmad Khan and another 1997 PCr.LJ 1 150 ref.

Muhammad Amjad Pervez and Rana Muhammad Khalid for Petitioners.

Mian Abdul Qayyum and Ch. Muhammad Suleman. A.A.-G. along with Liaqat S.-I. Aness Begum, Superintendent, Dar-ul-Aman with Mst. Sana Bibi.

2006 M L D 1775

[Lahore]

Before Sardar Muhammad Aslam, J

JAVED IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6456-B of 2005, decided on 16th November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.406 & 420---Bail, grant of---Accused was behind the bars since his arrest and was no more required for further investigation---Investigation qua accused was complete---Keeping accused behind the bars, would not serve any beneficial purpose or advance the case of prosecution---Offence against accused did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Accused was admitted to bail, in circumstances.

Zafar Iqbal Chohan for Petitioner.

S.A. Irshad with Muhammad Amin, S.-I. for State.

2006 M L D 1776

[Lahore]

Before Maulvi Anwarul Haq and Muhammad Jehangir Arshad, JJ

MUQARAB AKBAR---Appellant

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Registrar and 2 others---Respondents

I.C.A. No.64 of 2003, in Writ Petition No.9746 of 2000, decided on 8th June, 2006.

(a) Bahauddin Zakariya University Regulations---

----Regln. 23---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court appeal---Re-evaluation of answer papers, prayer for---Disputed papers were shown by University to father of student, but no answer to any question was found un-marked nor any miscalculation in total marks given to student or discrepancy in totalling marks recorded on papers was located---Constitutional petition not disclosing commission of criminality, irresponsibility, fraud or abuse of any regulation by Examiner in marking disputed paper---Dismissal of constitutional petition by High Court was proper.

Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263;' Muhammad Jailer Hussain v. Chairman, Board of Intermediate and Secondary Education, D.G. Khan and others 1999 SCMR 2405 and Board of Intermediate and Secondary Education Lahore v. Saima Azad 1996 SCMR 676 rel.

(b) Bahauddin Zakariya University Regulations---

----Regl. 23---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court appeal---Answer books, re-evaluation of---Vice-Chancellor, powers of---Scope---Vice-Chancellor could order re-evaluation of papers, but only on satisfying himself as to existence of exceptional circumstances---Satisfaction of Vice-Chancellor being his exclusive discretion, High Court could not interfere with such discretion in its constitutional jurisdiction.

Board of Intermediate and Secondary Education, Lahore through Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263 rel.

Rana Muhammad Nazir Saeed for Appellant.

2006 M L D 1780

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

AHMAD YAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.472 of 2001 and Murder Reference 252 of 2001, decided on 16th March, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---F.I.R. in the case was recorded after due deliberation and consultation---Relations between the parties were not so strained as was alleged by prosecution---Occurrence had allegedly taken place at 5.30 p.m. in the month of December when there was sufficient darkness and it was not possible for eye-witnesses to have seen accused and also witnessed occurrence---Twenty six injuries were allegedly found on the person of deceased, but not a single empty was taken into possession from the spot---Accused allegedly after coming out from sugarcane field reached at the deceased and then fired, but no blackening, scorching or burning was around the wounds on the person of deceased which proved that eye-witnesses were not present at the spot---Record showed that deceased was a womanizer and in the habit of abducting women, inasmuch as he abducted twice one woman---Deceased was also a heroin addict---Possibility of false involvement of accused in the case could not be ruled out and the doubts were floating on the surface of record---Conviction and sentence awarded to accused by the Trial Court were set aside extending him benefit of doubt, accordingly.

Syed Ihtesham Qadir Shah for Appellant.

S. D. Qureshi and Tehsim Irfan for the State.

Dates of hearing: 15th and 16th March, 2006.

2006 M L D 1785

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD RAMZAN and 6 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.888 and Murder Reference No.859 of 2001, heard on 18th January, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 148---Appreciation of evidence---Very large net had been spread in the case; even mother of accused, was involved---One of co-accused, who caused one Sota blow on the head of deceased, his appeal was dismissed---Three other co-accused had caused no injury to deceased or any prosecution witness---Two other co-accused were alleged to have caused one Sota blow each to the complainant, but those injuries were simple in nature---Occurrence had taken place five years before---Out of said accused five remained behind the bars for more than nine months---Sentence which they had already undergone, would meet the ends of justice---Appeal to the extent of said co-accused was disposed of accordingly---Maintaining conviction of accused under S.302(b), P.P.C., his sentence of death, was converted into life imprisonment, with benefit of S.382-B, Cr.P.C.---Compensation and sentence in default thereof; however was maintained in toto---Appeal of accused was dismissed; his death sentence however was not confirmed and Murder Reference was replied in the negative.

Sahibzada Farooq Ali for Appellants.

Mian Muhammad Abbas for Complainant.

Mehr Muhammad Saleem for the State.

Date of hearing: 18th January, 2006.

2006 M L D 1789

[Lahore]

Before Muhammad Farrukh Mahmud and Tariq Shamim, JJ

ALLAH DITTA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 179 and Murder Reference No. 209 of 2002, heard on 18th July, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Appreciation of evidence---Sentence, reduction in---Grave and sudden provocation---F.I.R. was recorded with -delay and deliberations---Allegation against accused was that accused, who had divorced his wife, held deceased responsible for divorce and committed murder of deceased on this grudge---Accused, during trial, took plea of grave and sudden provocation---Trial Court sentenced accused to death---Validity---F.I.R. of occurrence having not been recorded at police station the same was looked with suspicion, calling for deeper scrutiny---Incident was reported to police after considerable unexplained delay and deliberations and story containing motive was carved out by complainant---As to motive of occurrence, it was alleged by complainant that accused was convinced that deceased was behind divorce of his wife who was sister of wife of deceased---Prosecution failed to prove motive---During trial Investigating Officer conceded that he did not investigate whether accused had divorced his wife or not prior to occurrence---Complainant stated at trial that accused had divorced his wife orally three months prior to occurrence---Accused emphatically said that he had not divorced his wife---Prosecution failed to prove factum of divorce---Accused had taken plea that on seeing his (accused's) wife with deceased in objectionable position, accused under grave and sudden provocation murdered deceased with single blow of "Phuara" while his wife ran away---Accused, however, failed to explain "objectionable position" in which he found his wife and deceased---Case "of accused did not all within the ambit of S.302(c), P.P.C.---Case was not that of extreme penalty of death---Death sentence was reduced to imprisonment for life---Appeal was partly allowed.

Malik Muhammad Latif Khokhar for Appellant.

Masood Sabir for the State.

Date of hearing: 18th July, 2006.

2006 M L D 1796

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD HANIF and others---Appellants

Versus

SIRAJ DIN and others---Respondents

Regular Second Appeal No.106 of 2004, decided on 15th December, 2005.

Civil Procedure Code (V of 1908)---

----S. 100---Specific Relief Act (I of 1877), Ss.12 & 27(b)---Second appeal---Suit for specific performance of agreement to sell---Trial Court decreed suit, but on filing appeal against judgment and decree of Trial Court, Appellate Court reversed findings of Trial Court---Reasons given by Appellate Court were more cogent, convincing and based upon proper appreciation of evidence---Superior Court of fact could always upset findings of the Court subordinate to it---Reasons given by Appellate Court, however, must be powerful enough to distinguish and discard reasons of the Trial Court---No misreading and non-reading or any illegality had been shown in the judgment of Appellate Court---Second Appeal, which otherwise was barred by time, was dismissed.

Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 ref.

Muhammad Sohail Bhatti for Appellants.

Muhammad Anwar. Mughal and Sajjad Ahmad Joya for Respondents.

2006 M L D 1801

[Lahore]

Before Tariq Shamim, J

MUHAMMAD AKRAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1820 of 2006, decided on 25th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.420 & 406---Bail, grant of---Further inquiry---Delay of twelve days in lodging F.I.R., had not been explained and false involvement of accused on account thereof could not be ruled out---Accused had been involved in the case by complainant through supplementary statement made by him after lapse of fourteen months---Accused was on physical remand with the police but no recovery was effected from him---Provisions of Ss.420 & 406, P.P.C., prima facie, were not attracted to the case of accused---Even otherwise maximum sentence under Ss.420 & 406, P.P.C. was seven years which was not hit by prohibitory clause of S.497, Cr.P.C.---Accused was behind the bars for the last six months, but without being any progress in the trial---Accused was no more required by the police as the challan had been submitted---Keeping accused behind the bars would amount to punish him without trial---Tentative assessment of evidence on record revealed that no sufficient evidence was available with the prosecution to connect accused with commission of offences alleged against him---Case of accused squarely fell within S.497(2), Cr.P.C. being one of further inquiry---Accused was allowed bail, in circumstances.

Mujeeb-ur-Rehman Hashmi for Petitioner.

Muhibb-ul-Hasnain, Advocate for the State along with Khizar Hayat, A.S.-I. with record.

2006 M L D 1803

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

HAZOOR BAKHSH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 7/J and Murder Reference No.187 of 2000, heard on 16th January, 2006.

Penal Code (XLV of 1860)----

----S. 302(b)-Appreciation of evidence---Case was of promptly lodged F.I.R. and it was not a case of grave and sudden provocation as claimed by accused---Story set up by accused was afterthought, whereas circumstances of case had proved that accused with premeditation had killed two innocent persons merely on suspicion---Story set up by prosecution, was' corroborated by recovery of hatchet, which, according to report of Serologist, was stained with human blood---Complainant, father of deceased died before commencement of the trial, but two real brothers of deceased, who appeared as prosecution witnesses, had fully supported case of prosecution---Said prosecution witnesses had no animus against accused---Prosecution, in circumstances had proved its case against accused up to the hilt beyond any shadow of doubt---Appeal filed by accused against his conviction and sentence recorded by the Trial Court, was dismissed and his conviction and sentence were maintained in toto---Death sentence was confirmed and Murder Reference was answered in the affirmative.

Khalid Bin Aziz for Appellant.

Masood Sabir for the State.

Syed Nizam-ud-Din Shah for the Complainant.

Date of hearing: 16th January, 2006.

2006 M L D 1807

[Lahore]

Before Muhammad Nawaz Bhatti and Tariq Shamim, JJ

MAQBOOL HUSSAIN alias JAMALA DOGAR and 4 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.229 of 2000, decided on 13th June, 2006.

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

----Ss. 302(b) & 149---Appreciation of evidence---Accused, who was armed with rifle and participated in the occurrence, had committed murder of two persons with fire-arm---Prosecution witnesses, who deposed against accused, no doubt were inimical towards him, but presence of said witnesses at the place of occurrence, had not 'been shattered by accused in cross-examination---Accused had motive to commit the murder---Ocular account was fully supported by Medical evidence and recoveries of incriminating articles---Prosecution, in circumstances had established guilt of accused---Trial Court, had thus rightly convicted the accused under Ss.302(b) & 149, P.P.C. and sentenced him to death which was maintained.

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

----Ss.302(b) & 149---Sentence, reduction in---Co-accused, who were armed with rifles and .12-bore gun at the place of occurrence, made Lalkaras for killing the complainant party and also made fire in the air---Though no injury was attributed to said co-accused, but recovery of fire-arms was effected from them---Prosecution witnesses though were inimical towards said co-accused, but their presence at the time of occurrence was natural---Motive was stated to be the enmity between the parties due to an incident in which two step-brothers of main accused and two others, were murdered and legs of main accused had been chopped off; for that reason, co-accused while forming unlawful assembly shared common intention in the murders of five persons---Conviction of said co-accused was maintained, but their sentence of death was converted into imprisonment for life, accordingly.

Muhammad Yaqoob v. State 1983 SCMR 969 and Muhammad Ahmad v. The State 1997 SCMR 897 ref.

Sardar Balakh Sher Khan Khosa for Appellants.

Sh. Imtiaz Ahmad for the State.

Sh. Farooq Ahmad for the Complainant.

Dates of hearing: 7th, 8th and 13th June, 2006.

2006 M L D 1815

[Lahore]

Before Asif Saeed Khan Khosa and M.A. Shahid Siddiqui, JJ

ABDUL MAJEED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.139-J of 2004, heard on 11th October, 2005.

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

---S. 9(c)---Appreciation of evidence---Trial Court, despite having observed that serious irregularities had been committed during investigation of the case; and that accused was not given an opportunity by Investigating Officer to produce evidence in defence, convicted and sentenced the accused---Challan of case had been prepared by S.H.O. on the next day of registration of the case and forwarded by Circle Officer after 15 days of preparation of challan---Haste with which challan had been submitted in the case involving death penalty, especially when accused's wife had made a complaint to the higher police officer alleging that her husband/accused had been arrested from his house, had shown keenness of S.H.O. to prosecute accused---Trial Court had further observed that Investigating Officer was bound to allow an opportunity to accused to prove his innocence, but he failed to do so---Trial Court, in circumstances, had rightly come to the conclusion that investigation of the case had not been done fairly, it could be said that investigation was carried out dishonestly---No person from the public was associated during investigation of the case---Two recovery witnesses and Investigating Officer belonged to same police station; they were supposed to record their movements not only in the case diary, but also daily register maintained at the police station, but that had not been done in the case---Signature of complainant on the complaint appeared to be different from his signature on recovery memo. and site plan of place of recovery---Subsequently production of case property before the Trial Court would become open to doubt---Prosecution of accused, in circumstances was not free from malice---Prosecution having failed to establish its case against accused, conviction and sentence awarded to accused by the Trial Court, were set aside and accused was ordered to be set at liberty.

Muhammad Rafiq Ch. I, for Appellant.

Ch. Muhammad Sharif for the State.

Date of hearing: 11th October, 2005.

2006 M L D 1821

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

ALLAH DITTA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.367 and Murder Reference No.308 of 2001, heard on 19th January; 2006.

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

----S. 302(b)---Appreciation of evidence---Case of promptly lodged F.I.R.---Prosecution witness who was also complainant of the case, though was real son of deceased, but he had no enmity or strong motive to falsely implicate accused in the case---Moreover, it was rare phenomenon that a son of deceased would substitute the culprit of the case; he had also reasonably explained his presence at the place of occurrence---Complainant was subjected to lengthy cross-examination, but nothing could be shaken from his testimony--Other prosecution witness, who was real brother of deceased, also had no animosity with accused to falsely depose against him; he also remained consistent on all material particulars of the case and nothing could be extracted in favour of accused from his testimony, despite his lengthy cross­-examination---Said witness also corroborated statement of eye-witness on main points; he had reasonably proved his presence at the spot to have witnessed the occurrence and his testimony was worthy of credence Prosecution, in circumstances had proved its case against accused through an independent and unimpeachable evidence, but stand of minority taken by accused during the trial, was not rebutted by the prosecution---When a case of an accused would become of two views, view favouring accused should be given preference---High Court while maintaining conviction of accused under S.302(b), P.P.C., converted his sentence of death into imprisonment for life---Amount of compensation and imprisonment in default of fine, however, would remain the same---Benefit of S.382-B, Cr.P.C., was also extended to accused.

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

----S. 302(b)---Appreciation of evidence---Age of accused---Determination/consideration of---Accused claimed that he was minor aged 17/18 years at the time the occurrence had taken place---Complainant denied claim of accused alleging that he was major at the time of occurrence---When dispute arose qua the age of accused, duty was cast on the Court to ascertain correct age of accused so that nobody should suffer due to the act of the Court--Whenever a Court was confronted with the question of age of an accused, it was incumbent upon the Court to hold an inquiry and Court should always feel free to requisition the original record; to summon and examine the authors of and custodians of such record and documents to determine the genuineness of the same; to summon persons; if needed be, who, on account of some special knowledge, could depose about the age of concerned accused; and to take such other and further steps which might help the Court in reaching at a just conclusion about the age of accused---Opinion of medical experts regarding age of accused could offer a valuable guide to Court in resolving the controversy in issue---Order accordingly.

Sultan Ahmad v. Additional Sessions Judge-I, Mianwali and 2 others PLD 2004 SC 758 ref.

Rao Atif Nawaz for Appellant.

Zafarullah Khan Khakwani Asstt. A.G. for the State.

Ch. Faqeer Muhammad for the Complainant.

Date of hearing: 19th January, 2006.

2006 M L D 1829

[Lahore]

Before Jawwad S. Khawaja, J

RAJA YUSUF and others---Petitioners

Versus

SHARIFAN BIBI, and others---Respondents

C.R. No.1897 of 2001 decided on 13th September, 2005.

Specific Relief Act (I of 1877)---

----Ss. 12, 42 & 54---Suit for specific performance, declaration and injunction---Case set up by plaintiffs was that they had purchased vacant land from defendant through oral agreement and had constructed house thereon through their own resources---Case of defendant, on the other hand, was that he was owner of suit-land and had never entered into any agreement to sell the same to plaintiffs---Suit filed by plaintiffs having concurrently been decreed by the Trial Court and Appellate Court, defendant had challenged same in revision---Validity---Both Courts below had not cared to go through evidence on record and had committed serious error in overlooking significant features of the case---Contents of plaint were ambiguous and had not been proved by plaintiffs---Even though an amount was allegedly paid to defendant, but no receipt of said payment had been produced on record---Witnesses produced by plaintiffs, did not inspire confidence as they had given contradictory statements in material particulars, Courts below had not taken into account material aspects of the case and had brushed aside material contradictions in the case put forth by plaintiffs by holding that there were only minor discrepancies in the testimony of witnesses of plaintiffs---Evidence and nature of contradictions between witnesses of plaintiffs had not even been discussed by Appellate Court---Courts below having fallen into material error, their judgments and decrees were not legally maintainable---Same were set aside and as a consequence, suit filed by plaintiffs, was dismissed.

Hakeem Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153 ref.

Abdul Wahid Chaudhry for Petitioners.

Shaikh Abdul Aziz for Respondents.

Date of hearing: 13th September, 2005.

2006 M L D 1845

[Lahore]

Before M. Bilal Khan, J

KHALID alias BILU---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2826/B of 2006, decided on 2nd May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Pre-arrest bail, grant of---Accused who was Christian by faith, had produced a permit for buying liquor which was issued in his name for six units of liquor---Accused had contended that bottle of liquor which had been allegedly recovered from him had been validly purchased and was being kept with him---Said contention could not be brushed aside summarily---Case of accused was clearly one of further enquiry within the meaning of subsection (2) of S.497, Cr.P.C.---Ad interim bail granted to accused was confirmed, in circumstances,

Kh. Awais Mushtaq for Petitioner.

Ch. Nazeer Ahmad for the State.

2006 M L D 1849

[Lahore]

Before Tariq Shamim, J

YOUSUF JAMEEL---Petitioner

Versus

ADDL. DISTRICT JUDGE, DERA GHAZI KHAN and 2 others---Respondents

Writ Petition No.2542 of' 2006, decided on 17th July, 2006.

Civil Procedure Code (V of 1908)---

----O. XXI, R.2 & O.XXXVII, Rr.1 & 2---Negotiable Instruments Act (XXVI of 1881), S.4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of amount-Promissory note---Payment of decretal amount out of Court---Proof---Plaintiff/respondent filed suit for recovery of money on the basis of promissory note against defendant/petitioner---Trial Court decreed suit in favour of plaintiff on the basis of compromise deed; wherein it was agreed between both the parties that defendant/petitioner would pay decretal amount to plaintiff/decree-holder till a stipulated date and in case of defendant's failure to pay decretal amount, then plaintiff would be free to file execution proceedings to recover said amount from defendant/judgment­-debtor---On defendant's failure to pay decretal amount, plaintiff filed execution petition before Trial Court---Defendant filed application before Trial Court stating therein that as he had paid decretal amount to plaintiff through two cheques, therefore, execution proceedings were misconceived---Plaintiff denied the receipt of any amount from defendant---Trial Court/executing Court after framing issues and recording evidence led by the parties dismissed defendant's application---Revision filed by defendant before lower Appellate Court was also dismissed---Validity---Defendant did not adopt the mode of payment of decretal amount as settled between the parties in compromise deed---Defendant also did not follow conditions laid down in O.XXI, R.2, C.P.C., for payment of money out of Court; therefore he could not prove before the Court that decretal amount had been paid to plaintiff---Cheques through which amount was allegedly paid were neither crossed cheques, nor the same were exclusively issued in the name of plaintiff rather the same were bearer cheques which could be encashed by anyone---Manager of the Bank who appeared as witness in the Court categorically stated that purported signatures on reverse side of cheques did not match with signatures of plaintiff' on execution petition and power of attorney submitted in the Court---Defendant/petitioner failed to

produce any receipt before Court executed by plaintiff while receiving alleged decretal amount-- -Merits of the case did not call for interference by High Court in exercise of its constitutional jurisdiction---Court or Tribunal might decide a matter rightly or wrongly and even if a decision given by such Court or Tribunal was wrong, the same was not to render decision without jurisdiction---Defendant failed to show any misreading or non-reading of evidence by courts below---High Court, in constitutional jurisdiction, could neither interfere with concurrent finding of fact nor reappraise the evidence---Petition was dismissed.

Abdur Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 and Moazam Hanif v. Settlement Commissioner/Collector and others 2006 SCMR 642 rel.

Qamar-ud-Din v. Muhammad Din and another PLD 2001 SC 518 ref.

Syed Muhammad Hussain Shah Qadari for Petitioner.

Bashir Ahmad Chaudhry for Respondents.

2006 M L D 1853

[Lahore]

Before M.A. Shahid Siddiqui, J

MUHAMMAD NAWAZ and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.17-Q of 2006, decided on 7th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.302, 109, 148 & 149---Quashing of proceedings---Petition for---No evidence connecting petitioners with alleged occurrence was available and in circumstances there was no possibility of petitioners being convicted of any offence---Further proceedings against petitioners would amount to sheer abuse of process of the Court---Accepting petitions, proceedings against petitioners were quashed.

Ansar Ali Waraich for Petitioners.

Mrs. Zobia R. Chaudhry for Respondents.

2006 M L D 1858

[Lahore]

Before Maulvi Anwarul Haq, J

ALLAH DITTA and 2 others---Appellants

Versus

MUHAMMAD SHARIF and another---Respondents

R.S. As. Nos. 21 and 22 of 1990, heard on 23rd May, 2006.

Specific Relief Act (I of 1877)---

----Ss. 12 & 27(b)---Colonization of Government Lands (Punjab) Act (V of' 1912), S.19---Suit for specific performance of agreement to sell--Bona fide purchaser without notice---Scope---Suit-land was allotted to defendant/allottee who had not yet acquired proprietary rights---Plaintiff/ respondent entered into sale agreement of suit land with defendant/ allottee on 26-4-1967 and paid entire amount of sale. consideration to the latter---Possession was already lying with plaintiff as lessee---Plaintiff kept depositing instalments qua suit-land till acquisition of proprietary rights by defendant/allottee, as per terms of the agreement---Defendant/ allottee after acquiring proprietary rights on 18-4-1970, transferred suit-land to other persons (defendants/appellants) vide registered sale-deed dated 22-4-1970---Plaintiff/respondent filed suit against defendants, vendor and vendees---Defendants did not deny execution of agreement to sell in favour of plaintiff but asserted that, being in violation of S.19 of Colonization of' Government Land (Punjab) Act, 1912, the agreement to sell was void---Trial Court decreed the suit on ground that defendants/vendees were not bona fide purchasers without notice---Appeal filed thereagainst was also dismissed by lower Appellate Court---Validity---Plaintiff's agreement to sell with defendant/allottee and receipt of sale consideration by the latter were proved and established on record---Agreement simpliciter along with payment of consideration and delivery of' possession was not to attract mischief of S.19 of Colonization of Government Lands (Punjab) Act, 1912---Defendants/vendees' contention that they were bona fide purchasers without notice was controverted by testimony of affidavit executed by defendant/allottee and attested by one of the defendants/vendees---One of defendants/vendees had admitted in cross-examination that plaintiff was in possession of' suit-land and defendants/appellants never made any inquiry from plaintiff--Appeals, filed by defendants were dismissed in circumstances.

Sher Muhammad Khan and other v. Ilam Din and others 1994 SCMR 470 rel.

Ch. Abdul Ghani for Appellant.

Mian M. Arshad Latif for Respondent No. 1.

Zia ud Din Qamar for Respondent No.2.

Date of hearing: 23rd May, 2006.

2006 M L D 1863

[Lahore]

Before Ali Nawaz Chowhan and M.A. Shahid Siddiqui, JJ

TAJ MUHAMMAD alias TAJI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 2068 of 2005, decided on 25th April, 2006.

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

----S. 9(c)---Appreciation of evidence---Sentence, reduction in---Counsel for accused was only asking for reduction in sentence, which would mean that he was not impeaching the credibility of witnesses, though they all were officials---Conviction of accused was upheld, but sentence was reduced from eight years to four years' R.I.---Fine was also reduced from Rs.50,000 to Rs.20,000---Accused would also be entitled to benefit under S.382-B, Cr.P.C.

Masood Mirza for Appellant.

Faisal Masood for the State.

Date of hearing: 25th April, 2006.

2006 M L D 1864

[Lahore]

Before Muhammad Jehangir Arshad, J

Malik MUHAMMAD IQBAL---Petitioner

Versus

ELECTION TRIBUNAL, ADDITIONAL.DISTRICT JUDGE, MIAN CHANNU DISTRICT KHANEWAL and 19 others---Respondents

Writ Petition No.2172 of 2006, decided on 21st July, 2006.

Punjab Local Councils Elections Rules, 2005---

----Rr. 65, 68 & 71---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Election dispute---Review of order by Election Tribunal---Scope---Petitioner was declared as returned candidate for the seat of General Councillor---During pendency of election petition, Election Tribunal, dismissed the application of respondent for decision of election petition in terms of recounting of votes cast at two polling stations on the ground that recounting could not be ordered at such stage before recording the evidence, for recounting it 'was necessary that case for recounting should be made out by establishing malpractice and mala fide on the part of Presiding Officer and his rival contesting candidate--Subsequently, the same Election Tribunal, without framing of issues and recording of any evidence, admitted second application of the respondent on the same issue and directed for recounting of ballot papers on the ground that from the facts it was found that it was a simple case of recounting and petition could be finally disposed of if recounting of the votes polled at the two polling stations was carried out---Validity---Order of Election Tribunal smacked of foulplay on the part of the Tribunal who without going into the law, passed the subsequent order without any material available to the Tribunal---Such subsequent order, in fact, amounted to reviewing the earlier order---Power of review being a statutory right could not be exercised unless available under the law governing the proceedings---No such power was available either under Punjab Local Government Ordinance, 2002, or Punjab Local Councils Elections Rules, 2005---Subsequent order passed by Election Tribunal could not be sustained and was declared as without lawful authority and of no legal effect-Petition was allowed in circumstances.

Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 and Muhammad Khan Junejo v. Fida Hussain Dero and others PLD 2004 SC 452 rel.

Altaf Ibrahim Qureshi for Petitioner.

Chaudhry Shafiq Ahmad and Rana Shoukat Hussain Noon for Respondent No.2.

2006 M L D 1871

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. SONAM NAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9149-B of 2005, decided on 23rd December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-L(ii), 342, 354, 452 & 34---Pre-arrest bail, grant of---F.I.R. was got registered by mother of accused after five days of occurrence after obtaining medico-legal report in which she had explained the injury on the person of injured to have been caused by accused in her self-defence as she was dragged and also beaten after taking her to their house---Case was of two versions and which one was correct, would be seen after recording of evidence of both the parties by the Trial Court---For the time being there was no reason for sending accused to jail who was a Parda Nishin lady and also a student of 3rd year whose career would be spoiled---Even otherwise recovery effected from accused after six months of the incident, would not be of any help to prosecution---Medical report though had been placed on record, but the final result of the same from the doctor in whose supervision injured was being treated, was not available on the record and it could not be determined whether opinion of doctor was correct or it was based on surmises---Accused being a woman, her case fell within the first proviso of S.497(1), Cr.P.C.---No justification existed to send accused to jail, which could spoil her future life when she had no previous crime history---Ad interim pre-arrest bail already granted to accused, was confirmed, in circumstances.

Muhammad Ayub Tahir for Petitioner.

Dawar Sherazi, along with Allah Ditta, A.S.-I.

2006 M L D 1878

[Lahore]

Before Jawwad S. Khawaja, J

Mst. SAKINA BIBI and others---Petitioners

Versus

KHURSHID ALI and others---Respondents

Civil Revision No. 2704-D of 1996, decided on 21st November, 2005.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Defendant was owner of suit property and another person obtained mutation whereby defendant purportedly sold suit-land to said person---Defendant impugned said mutation before Revenue forums and Additional Commissioner set aside said mutation---Plaintiff, during pendency of said proceedings, tiled pre-emption suit against defendant on alleged sale recorded in disputed mutation, which suit was decreed ex parte against defendant---Defendant, who was deaf and dumb lady, was never served and it had fully been proved that Plaintiff and the other person through conspiracy had deprived, defendant of her rights in the suit property---Trial Court, after considering ex parte evidence, dismissed suit on the basis of the findings recorded by Additional Commissioner, but Appellate Court decreed suit for pre­emption--Validity---Conduct of plaintiff and other person had shown that they were in collusion with each others--Mutation in dispute in respect of alleged sale of suit-land had not been proved; it would work undue hardship on defendant if she was compelled to go through another round of litigation; appellate decree which proceeded on the assumption that defendant had been served, was set aside-and judgment of the Trial Court was affirmed by the High Court.

Sh. Aftab Umar for Petitioners.

Shaikh Irfan Akram for Respondents.

Date of hearing: 21st November, 2005.

2006 M L D 1884

[Lahore]

Before M. Bilal Khan, J

ANEES AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Revision N.449 of 2004, decided on 12th November, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 265-K, 435 & 439---Emigration Ordinance (XVIII of 1979); Ss.17, 18 & 22--Passports Act (XX of 1974), S.6---Prevention and Control of Human Trafficking Ordinance (LIX of 2002), Ss.3 & 4---Accused had called in question order passed by Special Judge, whereby application for his acquittal filed under S.265-K, Cr.P.C. was dismissed---Two prosecution witnesses in their statement under S.161, Cr.P.C. had fully implicated the accused, but they took a totally divergent stand in their statements recorded by a Special Judicial Magistrate at a belated stage---Since the trial had already commenced, making any observations on the pleas advanced by counsel for accused would not be appropriate as said pleas related to merits of the case and it could not be said that no case was made out against the accused---Credibility of prosecution's star witnesses against accused, would be determined only by the Trial Court---Necessity of getting their statements recorded by a Special Judicial Magistrate would also be ascertained during the course of trial---Any interference at present stage by High Court in exercise of its powers under S.561-A, Cr.P.C. would tantamount to pre-empting the functions of the Trial Court---Prosecution at that stage in case of such a serious nature, could not be deprived of its right to prove its case against petitioner---No merits having been found in the petition, same was dismissed by High Court.

Naroo v. The State 1986 PCr.LJ 174; Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203; Sheikh Mahmood Saeed and others v. Amir Nawaz Khan 1996 SCMR 839; Sheikh Muhammad Yamin v. The State 1973 SCMR 622 and Mst. Saleem Bibi and 3 others v. Fazal Hussain 1976 PCr.LJ 555 ref.

Ahmad Awais for Petitioner.

Tariq Shamim, Standing Counsel for the State.

2006 M L D 1888

[Lahore]

Before Sardar Muhammad Aslam, J

ROSHAN DIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3454-B of 2005, decided on 23rd December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 11---Bail, grant of---Disappearance of alleged abductee at midnight from the house in presence of her father, mother and family members, negated her abduction---Allegation of Zina was neither made by her when her father asked where she had been the previous night nor in her statement under S.161, Cr.P.C.---Supplementary statement, though, had. no value in the eye of law, but even in that statement of -alleged abdcutee she had said that since she was with accused, hence they had committed Zina---Alleged abductee was uncertain about the commission of Zina with her---Co-accused with similar role had been released on bail---Case of accused being at par, he was entitled to concession on principle of consistency---Accused was admitted to bail, in circumstances.

Muhammad Fazal alias Bodi v. The State 1979 SCMR 9 ref.

Rai Bashir Ahmad for Petitioner.

M. Salim Shad, along with Abdul Jabbar, A.S.-I. for the State.

2006 M L D 1894

[Lahore]

Before Jawwad S. Khawaja, J

MAQSOODA BEGUM---Petitioner

Versus

GHAZANFAR ALI SHAH and another--Respondents

Civil Revision No.447 of 1999, decided on 24th November, 2005.

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

----S. 42--Suit for declaration--Original owner vide mutation, gifted away some of his land to his son and the rest to his widow and two daughters---Plaintiffs in their suit for declaration claimed that suit-land had been gifted by original owner to them and others vide another mutation---Plaintiffs, on that bases claimed title to suit-land---Validity---Plaintiffs did not produce on record alleged other mutation which was basis of title asserted by them; they also did not produce any Rapt Roznamcha in respect of said mutation---Possession of suit-land had never been delivered to plaintiffs and' they were never in possession of suit-land---Very basis of claim set up by plaintiffs, in circumstances, stood demolished; they could not prove their title in respect of suit­land---Suit was motivated by mala fides and for that reason also discretionary relief by way of declaration was to be declined---Suit otherwise was patently time barred---Appellate Court though set aside decree passed by the Trial Court, but had remanded matter for decision afresh---Impugned remand order being illegal was set aside and decree of Trial Court was affirmed by the High Court.

Muhammad Shahzad Shaukat for Petitioner.

Mian Hameed-ud-Din Kazmi for Respondent.

Date of hearing: 24th November, 2005.

JUDGEMENT

JAWWAD S. KHAWAJA, J.---The petitioners/defendants impugn the appellate order, dated 17-3-1999 whereby the decree of the learned Trial Court, dated 22-7-1996 was set aside and the matter was remanded for decision afresh. The sole reason which prevailed with the learned Appellate Court was that issue No.1-A which had been framed by the learned trial Court had not been decided through its judgment. Issue No.1-A was framed in the following terms:

("1-A) Whether the order of the Collector, dated 6-4-1961, is illegal, void, collusive and against the facts, therefore, not binding upon the right of the plaintiff? OPP"

1. After having heard both learned counsel and having examined the record, I am clear that the remand order was not justified.

2. The brief facts of this case are that one Mubarik Ali Shah was owner of 354-Kanals of land. Vide Mutation No.185 (Exit. P.6), dated 4-5-1982, he gifted 198-Kanals out of the aforesaid land to his son Syed Afzaal Ali Shah (petitioner No.2). The balance land was gifted to the remaining three petitioners, who respectively are his widow and two daughters. This was done vide Mutation No.1119 (Exh.P.7) sanctioned on 17-6-1986. At this juncture it is relevant to note that Mst. Irshad Begum (petitioner No.3) daughter of Mubarik Ali Shah, was married to respondent No.3 namely, Mubashir Ali Shah, but their marriage had ended in divorce.

3. The respondents/plaintiffs filed a declaratory suit that the above-referred land had been gifted by Mubarik Ali Shah to them and others vide Mutation No.5 sanctioned on 25-8-1960. On this basis they claimed title to the suit-land. Based on the pleadings of the parties, the learned Trial Court framed as many as 14 issues including that of relief. However Issues Nos. 1, 2 and 5 are pivotal in this case and are dis-positive of the matter in hand. These three issues were framed in the following terms:--

"(1) Whether the plaintiffs are in possession of land in dispute as co-owner and impugned Mutation No.815, dated 27-8-1982 and Mutation No.1119, dated 17-6-1988 in favour of the defendants Nos. 2 to 6 are illegal, void, inoperative hence not binding upon the rights of the plaintiffs? OPP

(2) Whether the plaintiffs are entitled to the injunction as prayed for? OPP