MLD 2007 Judgments - Pakistan Legal Archive

Courts in this Volume

High Court Azad Kashmir
Karachi High Court Sindh
Lahore High Court Lahore
Peshawar High Court
Quetta High Court Balochistan

High Court Azad Kashmir

MLD 2007 HIGH COURT AZAD KASHMIR 1144 #

2007 M L D 1144

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, J

MUHAMMAD HUSSAIN KHAN and 13 others---Appellants

Versus

Mst. AZIZA BEGUM and 28 others---Respondents

Civil Appeal No. 101 of 2002, decided on 28th February, 2007.

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

----Art. 118---Forged document---Burden of proof---Beneficiary of document would be bound to prove its due execution.

Muhammad Zaman Khan's case PLD 1984 SC(AJK) 138 rel.

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

----S. 115---Revision---Scope---Concurrent findings of fact---Not immune from challenge in revision petition.

----Interpretation of document would always be a question of law.

Ahmad Khan's case PLD 1975 SC 311 rel.

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

----Ss. 39 & 42---West Pakistan Land Revenue Act (XVII of 1967), S.42---Registration Act (XVI of 1908), S.49---Qanun-e-Shahadat (10 of 1984), Art. 100---Suit for declaration and cancellation of agreement and mutation---Thirty years old un-registered agreement purporting transfer of land by issueless husband in favour of his wife in lieu of dower---Attestation of mutation on basis of such agreement---Suit against wife by other legal heirs of her deceased husband claiming inheritance in suitland---Validity---Muslim owner could transfer property only through modes recognized by law and not otherwise---Such agreement executed in contravention of provisions of Registration Act, 1908 would not be admissible in evidence and no notice thereof could be taken in view of Art. 100 of Qanun-e-Shahadat, 1984---Such agreement was ab initio void---Mutation on basis of such agreement could not be attested---Suit was decreed declaring the parties to be entitled to inherit suit-land.

Muhammad Yasin's case 2006 CLC 1257; Bostan's case PLD 1993 SC (AJK) 24; Mst. Bushra Bibi's case 2002 CLC 587; Muhammad Din's case PLD 1977 Lah. 513 and Aksar Ali's case 198 CLC 1309 ref.

Bank of Khulna Ltd. v. Jyoti Prokash Mitraand others Indian appeal cases (Vol. LXVII) 1939 40 (377) rel.

(e) Islamic Law---

----Transfer of property by Muslim owner---Scope---Such transfer could be made only through modes recognized by law and not otherwise.

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

----S. 42---Registration Act (XVI of 1908), S.49---Mutation on basis of un-registered document could not be attested.

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

----Ss. 39 & 42---Civil Procedure Code (V of 1908), S. 100 & O. XXII, Rr. 1 & 2---West Pakistan Land Revenue Act (XVII of 1967), S.42---Registration Act, (XVI of 1908), S.49---Suit for declaration and cancellation of agreement and mutation---Plaintiffs claiming right of inheritance in suit-land---Suit decreed by Trial Court and First Appellate Court---Death of one of several plaintiffs-respondents during pendency of second appeal---Application by defendant-appellant to implead legal heirs of deceased plaintiff made seven months after his death---Validity---Such agreement as a whole was void ab initio---Appeal' would not abate on account of death of such plaintiff---Legal heirs of deceased plaintiff would not be deprived of inheritance as they had independent right to file such suit---Where an independent right was conferred upon a party for filing a suit, then he could not be deprived of fruits of litigation on account of death of anyone else---Appellate Court proceeded to decide second appeal on merits.

Iftikhar Hussain Khan's case 2005 CLC 811; Sardar Noor Hussain's case PLD 1983 SC 62 and Kh. Jalal Din's case 1985 SCMR 1359 ref.

Raja Gull Majeed Khan for Appellants.

Muhammad Arif Khan Abbasi for Respondents.

MLD 2007 HIGH COURT AZAD KASHMIR 1444 #

2007 M L D 1444

[High Court (AJ&K)]

Before Muhammad Younas Tahir, J

MUHAMMAD YAQOOB---Petitioner

Versus

2007 M L D 54

[Karachi]

Before Faisal Arab, J

MUHAMMAD ALI RAZI KHAN---Plaintiff

Versus

MUHAMMAD ALI ZAKI KHAN and others---Defendants

Suit No. 554 of 1987, decided on 29th May, 2006.

(a) Powers of Attorney Act (VII of 1882)---

----S. 2---Specific Relief Act (I of 1877), S.39---Power-of-Attorney---Cancellation of---Law did not require cancellation of Power-of-Attorney through a formal legal document, such as deed of cancellation on stamp paper---Power-of-Attorney would stand cancelled, the moment it was communicated to the attorney through any mode---It was only when a document had been admittedly executed and for certain legitimate reasons a party which was going to be affected by its existence would seek its cancellation---Such party was required to file suit for cancellation of document---However, when a document was claimed to a product of fraud or forgery then mere declaration that it was product of such fraud or forgery, was sufficient to nullify the legal effect of such document and there would be no need to seek its cancellation.

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

----S. 42---Form of legal proceedings could not take precedence over legitimate considerations of substance of a case---When the parties were aware of the controversy involved in case and had been given opportunity to lead evidence on their respective stands, then it matters Y. not whether specific relief was sought in the plaint or whether specific plea was raised in the proceedings---If a relief or a plea was covered by necessary implication, then omission to expressly take such plea or seek such relief would not disentitle a party to seek requisite relief provided he satisfactorily established his case in evidence---Where a matter was even obscurely touched in the issues involved and evidence had been led on it, then any objection to it would only be technical and had to be rejected---All that a Court was required to examine, was whether the parties were aware of the questions involved in a controversy and they had led evidence and on examining so, it could either grant or reject the requisite relief depending upon the merits of the case---When a party would fail in establishing its claim, but if one of the opposing parties had admitted such claim, then the party admitting the claim, had to honour its admission to the extent of his share in the property.

----S. 4---Limitation Act (IX of 1908), Art.127---Suit for partition---Limitation---Suit house being joint family property, Art.127 of Limitation Act, 1908 providing 12 years limitation period, would be attracted---In exclusion of plaintiff in the present case took place in 1982 and present suit filed in 1987, was well within limitation period.

1981 CLC 503 ref.

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

----S. 54---Powers of Attorney Act (VII of 1882), S.2---Sale of property---Where members of a family held property in common and any member of such family was in occupation or management of joint family property, then such person would stand in active confidence of other co-owners---Any exercise of power either in his own favour or in favour of his close fiduciary relation; whereby joint property was claimed to have been sold with the consent of all other members, then onus to prove such consent as well as good faith of transaction would be on him---Unless consent as well as good faith, were established, any transfer of property had to be regarded as nullity---In such cases even where Power-of-Attorney was executed by family members in favour of one of them, what needed to be examined was whether such power was exercised as a shield to cover-up fraudulent nature of transaction---Where a person held a subsisting power of attorney, which had not been revoked on the date of alleged sale transaction entered into by the attorney in his own favour or in favour of his near or dear one, such sale transaction could be successfully questioned in a Court of law, if it was established that it was a product of fraud and deceit---Sale transaction could always be nullified if it was proved that it was sham and based on dishonest intention of a person who stood in active confidence of the owner of property.

Maqsood Ahmed v. Salman Ali PLD 2003 SC 31; Fida Hussain v. Pir Muhammad Khan (deceased) through Legal Heirs and others PLD 1985 SC 341; Muhammad Yasin and another v. Dost Muhammad through Legal Heirs and others PLD 2002 SC 71; Jamil Akhtar v. Las Baba PLD 2003 SC 494; 1993 SCMR 428; 1999 SCMR 382; 1976 SCMR 379; 1992 SCMR 1265; 1994 SCMR 2209; 1985 SCMR 1335; PLD 1988 22; 1968 PLD 505; PLD 1981 175; PLD 1964 SC 456; PLD 1984 SC 424; PLD 1999 194; PLD 2003 439; 1992 MLD 11792(sic); 1986 MLD 1335; 2001 MLD 963; 2003 MLD 293, 294; 1985 CLC 2263; 1991 CLC 2078; 2004 CLC 360 and 1999 YLR 676 rel.

Plaintiff in Person.

Haleem Siddique for Defendant No.1

S. Saeeduddin Nasir for Defendants Nos.3 to 5.

Date of hearing: 14th March, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 97 #

2007 M L D 97

[Karachi]

Before Muhammad Afzal Soomro, J

Syed ABDUL REHMAN SHAH---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.13 of 2006, decided on 10th April, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A, 517 & 523(2)---Confiscation of vehicle allegedly used in crime---Accused from whose possession 'Bhang' (hemp) and bottles of wine were allegedly recovered, were acquitted of the charge, but car allegedly used by accused was confiscated---Application for restoration of car in question was rejected by Trial Court and the Appellate Court holding that application was time-barred---Accused were acquitted under benefit of doubt---Nowhere in acquittal judgment was any mention that car in question was used in commission of alleged crime or its owner/applicant was in any manner, connected with the offence---After conclusion of the case, when applicant approached the Trial Court for restoration of car in his favour claiming to be his property, Trial Court was under obligation to consider said application on merits by dilating upon the entitlement of applicant over the car in question in order to meet the ends of justice---Courts below adopting shortcut course dismissed application of applicant labelling same to be time-barred without taking into consideration the documents which applicant had produced before the Trial Court---Trial Court had not quoted any provisions of law in support of his finding that application by applicant was time-barred---Orders passed by the Courts below suffering from error of law, were set aside and matter was remanded to the Trial Court with direction to consider entitlement of applicant by taking into consideration the documents which applicant had produced and thereafter pass appropriate order as per law.

Abdul Lateef Channa for Applicant.

Muhammad Ismail Bhutto, State Counsel.

MLD 2007 KARACHI HIGH COURT SINDH 112 #

2007 M L D 112

[Karachi]

Before Azizullah M. Memon, J

MUHAMMAD ILYAS and others---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No.89 of 2006, decided on 3rd August, 2006.

Penal Code (XLV of 1860)---

----Ss. 324, 353, 395 & 34---Criminal Procedure Code (V of 1898), S.342---Appreciation of evidence---Statements of accused were not properly recorded inasmuch as the recoveries allegedly made from their respective possession were not put to them therein---Circumstances of the case were indicative of the fact that accused were prejudiced by such lacuna in the trial proceedings---Proper and legal way of dealing with criminal case for recording statement of accused under S.342, Cr.P.C., was that; the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of prosecution witnesses, particularly the eye-witnesses and probability of the story told by them and then examine the statement of accused under S.342, Cr.P.C. with 'statement, if made, under S.340(2), Cr.P.C.---If statement under S.342, Cr.P.C. was exculpatory, then accused must be acquitted; and if same was believed as a whole; and if it constituted some offence punishable under law, then accused should be convicted for that---Case was remanded to the Trial Court to proceed with it afresh from the stage of recording of statements of accused persons under S.342, Cr.P.C. and then to hear the parties and to decide the case afresh according to law.

Asif Ali Zardari v. The State PLD 2001 SC 568 and Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879 ref.

Abdul Razzak for Appellants.

Sardaruddin Qureshi for the State.

Date of hearing: 3rd May, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 123 #

2007 M L D 123

[Karachi]

Before Rahmat Hussain Jafferi, J

ABDUL RAHIM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.S.-49 of 1999, decided on 1st September, 2006.

Penal Code (XLV of 1860)---

---S. 489-F---Appreciation of evidence---Assistant Chief Manager of State Bank of Pakistan sent report that currency note in question was forged one, but he based his opinion on the report submitted by Assistant Chief Manager Cash-Prosecution did not examine said two Managers---Effect---Mere production of report of the Managers, would not absolve prosecution from examining the person who issued said document/ report---Said report would not come within the ambit of S.510, Cr.P.C. so as to exclude recording of evidence of concerned officer whose report was produced in the Court---Without such evidence, it could not be held that currency note in question was forged one---Prosecution, in circumstances had failed to prove main ingredients of the offence---Finding such defect in the prosecution evidence, Advocate General had not supported prosecution case---Conviction and sentence awarded to accused by the Trial Court under impugned judgment were set aside and accused was acquitted and set free, in circumstances.

Noor Ahmed Awan for Appellant.

Habib-ur-Rahman Shaikh for the State.

Date of hearing: 1st September, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 126 #

2007 M L D 126

[Karachi]

Before Azizullah M. Memon, J

LIAQUAT ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.472 of 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302---Bail, grant of---Specific role regarding attack upon deceased was not attributed to accused and his co-accused were also found to be not involved in incident during investigation---Accused was admitted to bail, in circumstances.

Muhammad Ayaz Soomro for Applicant.

Muhammad Ismail Bhutto, Counsel State.

2007 M L D 157

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Faisal Arab, JJ

Messrs POPULAR BOARDS (PVT.) LTD.---Appellant

Versus

CUSTOMS, EXCISE AND SALES TAX APPELLATE TRIBUNAL and another---Respondents

Special Sales Tax Appeal No.553 of 2004, decided on 3rd October, 2006.

Administration of justice---

----Dismissal of appeal by short order---Judgment containing reasons written by Presiding Officer or Tribunal on a subsequent date---Validity---Disposal of cases by short order was exclusive prerogative of superior Courts---Subordinate Courts must announce judgment/order after recording reasons and signing same---High Court set aside impugned order for being illegal---Principles.

Abid S. Zuebri for Appellant.

Raja M. Iqbal for Respondent No.2.

MLD 2007 KARACHI HIGH COURT SINDH 162 #

2007 M L D 162

[Karachi]

Before Rahmat Hussain Jafferi, J

SIKANDAR ALI and 4 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.20 of 2001, decided on 5th September, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 148 & 149---Appreciation of evidence---Prosecution witnesses deposed that complainant informed them about the incident, but complainant did not state that he informed any fact to prosecution witnesses---Statements of prosecution witnesses, in circumstances would come within the ambit of hearsay which were inadmissible in evidence---All three witnesses were unanimous that night of the incident was dark and there was no electricity in their village at the time of incident; it was, in circumstances, highly improbable that complainant would have been able to identify the crowd of persons having specific weapons in their hands---Chances of error in the identification of accused, could not be ruled out---Deceased, according to the complainant had received injury outside his house and died immediately---Deceased having received injury on his leg, it was not possible that deceased would have been dead instantaneously---Medical Officer was also of the view that deceased could not have died instantaneously, but he might have died within one hour as his right leg's vessels were ruptured---Complainant and prosecution witnesses had stated that place of receipt of injury was front of house of complainant and the body of deceased was lying at the said place till the arrival of the police, but Investigating Officer found dead-body lying on a cot in the abandoned courtyard of the house of father of accused---No evidence was available on record to show that body of deceased was removed from the place of incident or shifted to the courtyard of the house of father of accused persons---Such aspect of the case also had created doubt on the veracity of ocular testimony and identification of accused outside the house of the complainant---Case of prosecution was highly doubtful---Prosecution having failed to prove case against accused, allowing appeal of accused, conviction and sentence awarded to them by the Trial Court, were set aside.

Abdul Fattah Malik for Appellant.

Muhammad Mahmood Khan Yousifi A.A.-G.for the State.

2007 M L D 200

[Karachi]

Before Muhammad Mosa K. Leghari, J

FIDA HUSSAIN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-626 of 2006, decided on 27th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.380, 411 & 457---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Pre-arrest bail, grant of---Accused neither were apprehended on the spot, nor stolen property/livestock, was recovered from their possession---Possibility of their false implication, could not be straightaway ruled out---Offence alleged against accused did not fall within prohibitory clause as contained under S.497,Cr.P.C.---Accused were entitled to concession of bail, in circumstances---Interim pre-arrest bail granted to accused was confirmed on the same terms and conditions.

Khadim Hussain D. Solangi for Applicants.

Anwar H. Ansari for the State.

MLD 2007 KARACHI HIGH COURT SINDH 214 #

2007 M L D 214

[Karachi]

Before Ali Sain Dino Metlo, J

MEENHAL and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Appeal No.574 of 2006, decided on 8th November, 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---No recovery either of stolen motorcycle or of any weapon, was made from accused despite they remained in custody of police for about 12 days---Such circumstances had militated against reasonableness of grounds put forward by prosecution for believing accused guilty of offence and matter required further inquiry as contemplated by S.497(2), Cr.P.C.---Accused were entitled to grant of bail, in circumstances.

Jai Jai Veshno Mange Rain for Applicants.

Mushtaque Ahmed Abbasi, Asst. A.G. for the State.

MLD 2007 KARACHI HIGH COURT SINDH 227 #

2007 M L D 227

[Karachi]

Before Rahmat Hussain Jafferi and Mrs. Yasmeen Abbasey, JJ

ATTAULLAH alias QASIM and another---Appellants

Versus

THE STATE---Respondent

Special Anti-Terrorism Appeal No.26 and Confirmation Case No.10 of 2004, decided on 22nd November, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(i)(a)---Appreciation of evidence---Both complainant and other eye-witness, being compounders in the clinic of deceased Doctor, were natural witnesses---Presence of both said witnesses at the time and place of incident, had also not been denied---Complainant had fully supported prosecution case and gave details of incident---Evidence of complainant was also natural as he gave facts which he actually saw at the place of incident and did not exaggerate the facts---Ocular testimony of both the witnesses, was supporting and corroborating each other---Prosecution witnesses had no enmity with accused and even accused had not suggested any enmity with them---Prosecution witnesses, in circumstances, had no motive, cause or reason to falsely implicate accused with the said heinous crime---No infirmity was found in evidence of witnesses to discard the same---Merely on discrepancy with regard to fact having beard by accused at the time of identification test, ocular testimony could not be thrown out of consideration---Ocular testimony was corroboratory to identification test, which was sufficient to involve accused in the commission of crime---Oral evidence was sufficient to connect accused with the commission of crime---Incident had taken place at the time when offence against accused was punishable under S.7(i)(a) of Anti-Terrorism Act, 1997 with death sentence only---Case was to be dealt with in accordance with law prevailing at the time when offence was committed---Trial Court having rightly convicted and sentenced accused for the offence, conviction and sentence awarded to accused by the Trial Court under impugned judgment, were confirmed.

Mushtaq Ahmed for Appellant No 1.

M.R. Sayed for Appellant No.2.

Habib Ahmed Asstt. A.G. for Respondent.

Date of hearing 17th November, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 240 #

2007 M L D 240

[Karachi]

Before Raltmat Hussain Jafferi and Gulzar Ahmed, JJ

ABDUL LATEEF---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.91 of 2005, decided on 18th February 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---State counsel had no objection to grant of bail to accused---Police did not show as to how much quantity of Charas was secured from personal search of accused---Total weight of Charas secured from the possession of accused and compartment of the motorcycle was 490 grams---Was yet to be determined as to whether accused was the owner of motorcycle as no registration papers of motorcycle had so far been produced'--Police had also not obtained any information from Registration Authorities about the ownership of motorcycle---F.I.R. had alleged that a small piece of Charas was recovered from the possession of accused, but exact weight of same had not been mentioned by prosecution---Was yet to be determined as to how much quantity of Charas was secured from the possession of accused--Accused, in circumstances was entitled to concession of bail.

Azizullah M. Buriro for Applicant.

Mushtaque Ahmed Korejo for the State.

MLD 2007 KARACHI HIGH COURT SINDH 242 #

2007 M L D 242

[Karachi]

Before Munib Ahmed Khan, J

MURTAZA HUSSAIN ZAIDI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1046 and M.A. No.3489 of 2006, decided on 27th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 397 & 392/34-Bail, grant of---Complainant stated that deceased had given some statement to the complainant, which had been recorded through complainant in the shape of statement under S.161,,Cr.P.C. which was in addition to the F.I.R.---Medical report showed that deceased remained alive for more than 15 hours, but police had failed to record his statement which could be converted into dying declaration---Co-accused who allegedly pointed out place of incident and was not identified, was brought from the jail under permission of District Judge and then he allegedly pointed out the place of incident---Delay in identification parade was also serious while same was missing from police file---Conflict existed between the ocular and medical evidence as well as absence of specific role---Benefit of doubt created in case, was to be given to accused---Accused was admitted to bail, in circumstances.

1997 SCMR 32; 1980 SCMR 784; 2006 MLD 81;and 2004 PCr.LJ 1080 rel.

Aamir Mansoob Qureshi for Applicant/accused.

Muhammad Sabir Haider Asst. A.G. for the State.

MLD 2007 KARACHI HIGH COURT SINDH 252 #

2007 M L D 252

[Karachi]

Before Maqbool Baqar, J

Sardar SHER MUHAMMAD and 4 others---Applicants

Versus

THE STATE---Respondent

Bail Application Nos. S-389, 358, 359, 360, 361 and 362 of 2006, heard on 13th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Explosives Act (III of 1884), Ss.3 & 4---Anti-Terrorism Act (XXVII of 1997), S.7---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Bail, grant of--Both Mashirs of recovery and arrest were associated with elder brother of accused, both said brothers were inimical to each other as there was a dispute regarding possession of certain land between the two---Such situation had created doubt regarding the entire story of arrest and recovery as put forth by the prosecution---Authenticity of the prosecution case was further jeopardized in view of the fact that though the recovered weapons did not bear any number, but only bore the inscription "Geay Sardar Sher Muhammad Rind"---Said inscription was the only distinct identification of the weapons, but Expert Report did not say that weapons examined by him bore such inscription---Was not certain as to whether the weapons sent to the Arms Expert were in fact the weapon allegedly recovered---Purported grenades though were destroyed after about 20 days of recovery, but same were not sent to the Ballistic Expert to verify as to whether same in fact were hand-grenades and were serviceable---Was difficult to believe that the police party comprising of two S.H.Os. and their staff, would have allowed driver of the car carrying accused to park the same side---No proper description of the car was given in the F.I.R., neither its make nor the model was disclosed---Accused were admitted to bail, in circumstances.

Raja Qureshi for Applicant No.1.

All Muhammad Dahri for Applicant (in Criminal Bail Applications Nos. 358/06, 360/06, 361/06 and 362/06).

Syed Madad Ali Shah for Applicant (in Criminal Bail Application Nos. 359/06 and 389/06).

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

MLD 2007 KARACHI HIGH COURT SINDH 263 #

2007 M L D 263

[Karachi]

Before Muhammad Moosa K. Leghari and Munib Ahmed Khan, JJ

ASLAM PERVEZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 59 of 2006, decided on 23rd November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9---Bail, grant of---Contention of accused as that he had been implicated on the statement of co-accused and that narcotics were not recovered from his possession---Accused was granted bail .in circumstances.

2006 PCr.LJ 1034; 2005 MLD 950 and 2001 SCMR 14 rel.

Syed Madad Ali Shah for Applicant.

Anwar H. Ansari for the State.

MLD 2007 KARACHI HIGH COURT SINDH 270 #

2007 M L D 270

[Karachi]

Before Khilji Arif Hussain, J

Mst. TAZBUNNISA through Attorney---Plaintiff

Versus

ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Health and another---Defendants

Suit No.1139 of 2003, decided on 27th November, 2006.

Fatal Accidents Act (XIII of 1855)---

----S. 1---Fatal accident---Suit for compensation---Determination of amount of compensation---Deceased aged 35 years, died on account of fatal injuries suffered by him in a traffic accident which took place by a . truck owned by defendant and driven by driver who was employee of the defendant---Evidence produced by plaintiff had fully proved that accident was caused by the driver who was driving the truck carelessly, rashly and negligently---Defendant had not denied that accident was caused by the driver while discharging his duties under his employment---Both defendant and the driver in circumstances, were jointly and severally liable to pay compensation---Defendant, had not only failed to examine driver of the truck, but also failed to produce any evidence that they were properly maintaining the truck in question and that accident was caused due to sudden failure of the brake of the truck---Amount of compensation payable to plaintiff was determined taking into consideration average life span in Pakistan, which was about 70 years, earning capacity of deceased, loss of pecuniary benefits and other expenses etc. and suit was decreed accordingly.

Nasir Maqsood for Plaintiff.

Asghar Farooqui for Defendants.

Dates of hearing: 31st October and 2nd November, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 284 #

2006 M L D 284

[Karachi]

Before Sabihuddin Ahmed, C.J. and Mrs. Qaiser Iqbal, J

Haji ABDUL RAZZAK through Attorney---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Finance and Economic Affairs, Islamabad and 2 others---Respondents

C.P. No.1640 of 2001, decided on 4th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 195(1)(c)---Penal Code (XLV of 1860), Ss.403, 406, 420, 471, 475 & 476---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Prosecution for certain offences relating to documents given in evidence---Requirements to be satisfied before invoking provisions of S.195(1)(c), Cr.P.C. were that offence was alleged to have been committed by a party to any proceeding in the Court that the offence was committed in respect of a document produced and that said offence fell under either S.463, 471, 475 or 476, P.P.C.---Copies of disputed letters were placed on record, whereas clause (c) of S.195(1), Cr.P.C. had contemplated production or giving in evidence the original document and not a copy thereof manipulated to defraud through cheating and fraud with intent to cause financial loss to the Bank---Petitioner had been charged for commission of offences under Ss.406 and 420, P.P.C. whereas provisions of S.463, P.P.C. were not attracted to the complaint---Order of the special Court (in respect of Banks) had explicitly revealed that complaint was registered under Ss.403 &,420, P.P.C.---Bar contained in S..195(1)(c), Cr.P.C., in circumstances; did not operate---Normally evidence and judgment in civil case between the same parties, could another be made applicable nor used as evidence in a criminal case---Issues involved in civil and criminal cases, were adjudicated upon the evidence led by the parties on different notions.

The State v. S. Ali Hussain and others PLD 1974 Kar. 403; Zahid Hussain v. State 1990 PCr.LJ Kar. 1209; Malik Khuda Bux v. The State 1995 SCMR 1621; Mst. Naseer Begum v. Sain and 6 others 1972 SCMR 584 and Kumar Gopika Raman Roy v. Atal Singh and others AIR 1929 Privy Council 99 rel.

Abdul Hafiz Lakho for Petitioner.

Mehmood Alam Rizvi DAG for Respondent No.1.

Khalid Anwar and Rizwan Ahmed Siddiqui for Respondent No.3.

MLD 2007 KARACHI HIGH COURT SINDH 294 #

2007 M L D 294

[Karachi]

Before Amir Hani Muslim, J

SHAMMON alias SAMANDAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Appeal No. S-661 of 2006, decided on 15th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), 5.459---Bail, grant of--Maximum Maximum punishment provided for the offence was 10 years and there appeared to be previous enmity between the parties.---Accused, who had been remanded to judicial custody, was not required for police investigation---Challan had been submitted in the Court---Accused was granted bail in circumstances.

Irfan Ahmed Qureshi for Applicant.

Rasheed Qureshi Asstt: A.G. for Respondent.

MLD 2007 KARACHI HIGH COURT SINDH 303 #

2007 M L D 303

[Karachi]

Before Muhammad Moosa K. Leghari, J

MUHAMMAD SHABBIR alias MITHO and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-566 of 2006, decided on 3rd November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 364, 452, 147, 148, 149 & 114---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Bail, grant of---Further inquiry---Name of accused did not appear in F.I.R. and co-accused along with other co-accused was alleged to be having a Lathi with him---Case of accused, calling further inquiry, they were admitted to bail, in circumstances.

Khadim Hussain D. Solangi for Applicants.

Anwar H. Ansari for the State.

MLD 2007 KARACHI HIGH COURT SINDH 310 #

2007 M L D 310

[Karachi]

Before Rahmat Hussain Jafferi and Mrs. Yasmin Abbasey, JJ

ATTAULLAH and another---Appellants

Versus

THE STATE---Respondent

Special Criminal Anti-Terrorism Appeal No.2 of 2004, heard on 13th November, 2006.

Penal Code (XLV of 1860)---

----S. 302---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Prosecution witnesses had differently deposed regarding recovery of empties from the place of incident---All prosecution witnesses had shown a different place of recovery of empties though the area was same, but no one was definite about a particular place or point, which had created doubt about the presence of prosecution witnesses---No corroborating evidence was found at the place of incident---Presence of one of prosecution witnesses, further appeared to be doubtful when not a single word had been deposed. by complainant about his presence while narrating as to how he received information of the incident---Contradiction made by prosecution witness in the identification parade, was evident of the fact that neither he was present at the place of incident nor he had seen the incident and he appeared to have been set up by the prosecution to act as eye-witness---Recovery was a corroborative piece of evidence, which by itself was not sufficient to convict accused without substantive piece of evidence---Substantive piece of evidence of eye-witnesses, in the case having already been discarded, no conviction could be based on recovery alone---Allowing appeal, conviction and sentence, awarded to accused by the Trial Court, were set side.

Asghar Ali alias Sahab and others v. The State and others 1992 SCMR 2088 rel.

Mushtaq Ahmed for Appellant No. 1.

Abdul Rasheed Nizamani for Appellant No.2.

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

Date of hearing: 13th November, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 318 #

2007 M L D 318

[Karachi]

Before Munib Ahmad Khan, J

MUHAMMAD SALEEM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.781 of 2006, decided on 11th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 392, 397 & 34---Bail, grant of---Benefit of doubt---Complainant had stated that deceased had made statement before complainant which had been recorded through complainant in the shape of statement under S.161, Cr.P.C., which was in addition to F.I.R.---Medical report showed that deceased remained alive for 15:35 hours, but the police had failed to record his statement which could be converted into dying declaration---Accused was brought from the jail under permission of District Judge and then he allegedly pointed out the place of incident, while the police itself was submitting in the challan that accused had not been identified---Benefit could be given to accused when conflict existed between the ocular and medical evidence as well as absence of specific role---Some doubts having been created, benefit of the same was given to accused and he was admitted to bail.

1997 SCMR 32 and 2006 MLD 81 ref.

Aamir Mansoob Qureshi for Applicant.

Sohail Jabbar for the State.

MLD 2007 KARACHI HIGH COURT SINDH 327 #

2007 M L D 327

[Karachi]

Before Munib Ahmed Khan, J

MUHAMMAD ZAMAN---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.375 of 2004, decided on 5th October, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 452 & 34---Appreciation of evidence---Benefit of doubt---Sentence, reduction in--Incriminating articles having not been sealed at the place of Wardat before Mashirs, sanctity of recovery, was injured---Story of prosecution, was that two small girls were also injured, but no medical report of either of them had been produced--- Provisions of S.324, P.P.C. was not attracted, in circumstance and version of the girl itself that she was injured by some intruders, was also doubted---Record failed to show as to what was nexus between incriminating articles as well as the deceased as those articles were not sent to Chemical Examiner for report nor were sealed at the spot---Said articles could not be linked with the murder-Complainant had not only avoided to appear as witness himself, but he restrained girl from appearing as witness in the case---Strong doubt was present, in circumstances for prosecution story, benefit of which was to be given to accused who was in continuous custody since 2-3-1999 without any break---Assistant Advocate-General, had no objection if appeal of accused was accepted subject to the sentence which accused had already served---Judgment of the Trial Court was modified to the extent that accused be awarded sentence which he had already undergone and he would be released, accordingly.

Mansoob Ali Qureshi for Appellant.

Muhammad Sabir Haider A.A.-G. for Respondent.

Date of hearing: 27th September, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 340 #

2007 M L D 340

[Karachi]

Before Maqbool Baqar, J

FAKEER MUHAMMAD and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-698 of 2006, decided on 8th December, 2006.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Further inquiry---Explanation for delay of 16 hours in lodging F.I.R., was not plausible---Statements of eye-witnesses had been recorded after a delay of five days---Neither the complainant nor the witnesses had seen any of accused firing and killing deceased---Complainant in his direct complaint in respect of incident, had admitted that accused persons had been falsely implicated by him in F.I.R. at the instance of' his step-brother and that in fact it was accused cited in the direct complaint, who had committed the crime---Post-mortem report had shown that post-mortem of deceased was conducted before recording the F.T.R.---Case requiring further inquiry, accused were admitted to bail.

Aminullah v. State PLD 1982 SC 429; Kouro and another v. State 2004 YLR 2434; Muhammad Javed v. State 1995 SCMR 1178; Peeral and others v. State 2003 MLD 1698 and Amir v. State PLD 1972 SC 277 rel.

Sycd Madad Ali Shah for Applicants.

Riazuddin Siddiqui for the State.

MLD 2007 KARACHI HIGH COURT SINDH 347 #

2007 M L D 347

[Karachi]

Before Ghulam Rabbani and Azizullah M. Memon, JJ

FRIDA ROHAIL---Petitioner

Versus

THE STATE through Regional Director, National Accountability Bureau, Karachi ---Respondent

Constitutional Petition No.D-841 of 2005, decided on 17th August, 2005.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iii), (iv) & (vi) '& 10---Constitution of Pakistan (1973)---Art. 199---Constitutional petition---Bail, refusal of---Agreement in question had been signed by accused/petitioner---Whether signature of petitioner on said agreements was genuine or not and whether petitioner entered into agreement with two witnesses by using misappropriated amount could only be considered after conclusion of trial---Petitioner, in circumstances, was not entitled to grant of bail.

Mrs. Riaz Qayyum v. The State 2004 SCMR 1889 rel.

Miss Shaista Shamim for Petitioner.

Shafat Nahi K. Sherwani DPG for Respondent.

MLD 2007 KARACHI HIGH COURT SINDH 355 #

2007 M L D 355

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

FAISAL JAMEEL---Appellant

Versus

THE STATE---Respondent

Criminal Accountability Appeals Nos. 4, 5, 6 of 2005, 60, 61, & 62 of 2001, 2, 5, 6, 7, 24, 38, 42, 67, 68 of 2002 17 and 19 of 2003, decided on 7th February, 2006.

(a) Administration of justice---

----Once it had been found that the Presiding Officer of the court had abused the process of the court, then it was not only incumbent upon the superior courts but was one of their duties to correct such wrongs of the subordinate courts by exercising whichever powers were available with them whether supervisory, revisional, inherent or constitutional---Such powers of superior courts, could be exercised in appropriate proceedings, either on application of any party or under its suo mote jurisdiction---For any act of the court, no one could be made to suffer.

Rehmdil v. Province of Balochistan 1999 SCMR 1060; Mehran Ali v. State PLD 1998 SC 1445; Zahid Ali v. Mubarak Bano PLD 1976 Kai. 68; Bashir Ahmed v. Zafar-ul-Islam PLD 2004 SC 298; Madhya Pradesh v. Awadh Kishore Gupta AIR 2004 SC 517; Muhammad Iqbal v. Khan Muhammad PLD 1999 SC 35; Shaheen Akhtar v. Muhammad Alam 1999 YLR 2325 SC AJ&K; Amanatullah Begum v. Munwar Akhtar 1999 SCMR 1700 and Muhammad Munsha v. Sabir Ali 1999 SCMR 1782 ref.

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

----Ss. 10, 11, 18(g), 31-A & 32---Constitution of Pakistan (1973), Art.199---Constitutional petition---Void judgments---Ratification of void judgment---Void judgments, neither could be ratified nor confirmed---If those were allowed to remain operating then it would perpetuate injustice and would cause miscarriage of justice instead of advancing cause of justice---If void ab initio judgments were allowed to remain in the field and some actions or orders were passed by any Authority, then such orders or actions would be illegal, for the reason that when foundation on which such orders or actions were taken by any Authority, was illegal, then superstructure i.e. orders and actions based on such foundation, would be illegal and of no consequence---Under suo motu jurisdiction, in exercise of constitutional, inherent and revisional powers, High Court set aside judgments passed in Criminal Accountability Appeals---Nevertheless, that judgment would not be construed to preclude the Trial Court from taking any proceedings in accordance with law and adopt legal procedure for trial of offence punishable under S.31-A of National Accountability Ordinance, 1999---Conviction and sentence awarded to appellant under impugned judgments were set aside.

Muhammad Ashfaq v. The State 1998 PCr.LJ 1486; Muhammad Jamil Ahmed v. The State SBLR 2005 Sindh 1146; Gul Hasan v. State PLD 1965 SC 89; Hayat Bakhsh v. State PLD 1981 SC 265; Allah Bux v. State PLJ 1982 295; Chan Shah v. Crown PLD 1956 FC 43; Noor Muhammad Khatti v. The State 2005 PCr.LJ 1889; Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104; Chairman Distt. Screening Committee v. Sharif Ahmed Hashmi PLD 1976 SC 258; Ali Muhammad v. Hussain Bakhsh PLD 1976 SC 37; Christian Edu E. Trust v. Dy. Commissioner 1987 SCMR 1189; Altai. Hussain v. Chief Settlement Commissioner PLD 1965 SC 68; Muhammad Ayub Khuhro v. Pakistan PLD 1960 SC 237; Abul A'LA Maudoodi v. Government of West Pakistan PLD 1964 SC 673; Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Rchmdil v. Province of Balochistan 1999 SCMR 1060 and Yousuf Ali v. Muhammad Aslam Zia PLD 1958 SC 104 ref.

Saleem Khan, Rasheed A. Rizvi S. Aamir Raza Naqvi I.A. Hashmi, Hassan Sabir, M. Ilyas Khan, Muhammad Farooq and Gul Muhammad for Appellants.

Messrs Shafaat Nabi Khan Sherwani, DPGA and Khaliqu Ahmed for Respondent.

Dates of hearing: 8th and 15th December, 2005.

MLD 2007 KARACHI HIGH COURT SINDH 372 #

2007 M L D 372

[Karachi]

Before Rahmat Hussain Jafferi and Mrs. Yasmeen Abbasey, JJ

ATTAULLLAH alias QASIM and another---Appellants

Versus

THE STATE---Respondent

Special Anti-Terrorism Appeal No.27 of 2004, decided on 21st October, 2006.

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

----S. 161---Statement of witness recorded under S.161, Cr.P.C. was not a substantive piece of evidence, however it could be used for the purpose of contradiction.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(i)(a)---Appreciation of evidence---No material contradiction had been pointed out by counsel for accused to doubt the credibility of prosecution witness---If at subsequent stage any fact, not deposed earlier, was brought on record, it could not be said a dishonest improvement---Identification of accused in identification parade had become more important when all the three eye-witnesses confidently identified accused to be culprit who had committed murder of deceased---Non-recognition of co-accused by prosecution witnesses, was further explicit proof of truthfulness of prosecution witnesses---Occurrence though had taken place at midnight and it was not possible to identify accused, but sufficient evidence was available to the effect that bulbs were on the outside of the house of lane/street which facilitated all the eye-witnesses to identify accused whom they had earlier seen on the day of incident---Majority of witnesses had clearly implicated accused as the culprit, who caused death of deceased---Credibility of prosecution witness, could not be disputed as along with identification, sufficient evidence was on record coupled with report of medical officer confirming the death of deceased because of fire-arm weapon, from a short distance as deposed by eye-witness, which was an additional evidence or proof due to presence of blackening around the injuries of deceased---No previous enmity was found between the parties to falsely implicate them---Witnesses had assigned role to accused before the Court---Prosecution, in circumstances had fully proved the guilt against accused---Conviction awarded to accused for offence punishable under S.302(b), P.P.C. was maintained and his conviction for offence punishable under S.7(a) of Anti-Terrorism Act 1997, was modified to the then S.7(i)(a) of the Act as at the time of incident the latter provision was applicable which carried only death sentence---Trial Court had further ordered that properties of accused were to be forfeited to the Government to the extent of Rs.5,00,000---Said sentence having not been provided under any provision of law, was set aside.

Solat All Khan v. The State 2002r-SCMR 820 ref.

---S. 302---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---Benefit of doubt---No specific role of co-accused in the commission of offence, was appearing on record---At the most, if he was presumed to be present at the spot at the time of occurrence he was only shown in company of main accused and that was all---Presence of co-accused along with main accused on the day of incident with uncertain evidence, appearing to be doubtful, benefit of which would go to co?accused---Case of co-accused being doubtful, conviction and sentence awarded to him by the Trial Court, were set aside, in circumstances.

Mushtaq Ahmed for Appellant No.1.

M.R. Syed for Appellant No.2.

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

Dates of hearing: 20th and 21st October, 2006.

2007 M L D 587

[Karachi]

Before Muhammad Athar Saeed, J

REHMAN and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Application No.S-570 of 2006, decided on 11th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 504, 114, 147, 148 & 149---Bail, grant of---Further inquiry---Injuries attributed to accused were simple in nature and injuries attributed to co-accused were not on vital parts of the body of complainant---Further inquiry was needed to determine exact nature of injuries and reconcile discrepancies between the ocular evidence and medical evidence---Case did not fall within the provisions of exception to S.497, Cr.P.C.---Accused being entitled to grant of bail, he was granted bail.

Abdul Rasool Abbasi for Applicants.

Rasheed Qureshi Asstt: A.-G. for the State.

MLD 2007 KARACHI HIGH COURT SINDH 612 #

2007 M L D 612

[Karachi]

Before Muhammad Moosa K. Leghari, J

TAJ MUHAMMAD and 4 others---Applicants

Versus

THE STATE---Respondent

Cr. B.A. No. S-604 of 2006, decided on 16th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(ii), 337-F(i), 114, 147, 148 & 504---Pre-arrest bail, confirmation of---F.I.R. showed that specific role of causing injuries had been assigned to co-accused--No role had been attributed to accused---Besides other co-accused were placed in Column-II of the challan by the police---Punishment for the alleged offence, did not fall within. the prohibition contained in S.497, Cr.P.C.---Case had been challaned and was being proceeded by Magistrate---State counsel had no objection against confirmation of interim pre-arrest bail granted to accused---Parties were infested by the previous enmity as evident from the contents of F.I.R.---Malicious prosecution could not be ruled out, in circumstances---Interim pre-arrest bail granted to accused, was confirmed, in circumstances.

Abdul Rasool Abbasi for Applicants.

Anwar H. Ansari for the State.

MLD 2007 KARACHI HIGH COURT SINDH 732 #

2007 M L D 732

[Karachi]

Before Ali Sain Dino Metlo, J

KAZIM IMAM JAN through Attorney---Petitioner

Versus

SOHAIL GUL and 3 others---Respondents

Constitutional Petition No.S-455 of 2006, decided on 16th November, 2006.

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

----S. 2(1)(j)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Tenant---Kinds of---Landlord and tenant, relationship of---Licensee or mortgagee---Status---Tenants were of two kinds; contractual and statutory---Contractual tenant was one who undertook to pay rent and was bound as such to pay during the contractual period of tenancy---Statutory tenant was one who was bound to pay rent by operation of law, such as a contractual tenant continuing possession or occupation of the premises on expiry of agreed period of tenancy or heirs of a tenant in possession or occupation of the premises after death of the tenant---Persons, who were in possession of premises on the basis of contract of sale executed by petitioner in favour of another person did not fall in any of the two categories of tenants---Person in possession or occupation of another person's property could not necessarily be his tenant and an owner out of possession, could not necessarily be a landlord of possessor or occupier of his property---Licensee, a mortgagee or a trespasser, could not be treated as tenant.

Muhammad Ramzan for Petitioner.

Date of hearing: 16th November, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 742 #

2007 M L D 742

[Karachi]

Before Zia Perwaz, J

SHAHID UMER---Applicant

Versus

CITY DISTRICT GOVERNMENT and others---Respondents

J.M. Applications Nos. 43, 52 and 53 of 2004, decided on 6th June, 2006.

Civil Procedure Code (V of 1908)---

----S.12(2)---Auction---Application on plea of fraud and misrepresentation---Order sought to be recalled by applicant was passed with consent of parties---Estoppel, principle of---Applicability---Counsel for applicant was unable to show that any permission was obtained from the court to file application under S.12(2), C.P.C. in view of orders of the High Court wherein certain observations in that regard were made---Neither counsel for applicant nor applicant himself raised any objection to the conduct of auction for lease-hold rights in respect of shop in question for 99 years---If any misrepresentation was made to the Court, it was made by the applicant himself when he consented to the auction for lease-hold rights in said shop---Once applicant consented to the order he gave up his right of appeal and was estopped from filing another proceedings---No doubt there were exceptions and in appropriate cases, an application under S.12(2), C.P.C. could be entertained against a consent order/decree, but counsel for applicant had not been able to show that application attracted any such exception---Applicant having been estopped by his consent from challenging impugned order as it was passed with his express consent, application was dismissed and interim order passed was recalled.

Karim Bakhsh and others v. Riaz Hussain and another 1993 SCMR 1667 and Muhammad Khan and another v. Massan and other 1999 SCMR 2464 ref.

Mehmood Ahmed Khan for Applicant.

Manzoor Ahmed for Respondent No.1.

K.A. Wahab for Respondent No.7.

MLD 2007 KARACHI HIGH COURT SINDH 767 #

2007 M L D 767

[Karachi]

Before Mushir Alam, J

Mst. UROOJ IRFAN---Plaintiff

Versus

Mst. QAISER SAEED FAROOQUI and others---Defendants

Suit No. 414 of 2005, decided on 17th April, 2006.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Co-operative Societies Act (VII 1925), Ss. 70A & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Ad interim order, grant of---Plaintiff claimed to be owner of the suit property having acquired by him from its original allottee of the society---Defendant had also claimed suit property and had filed suit for declaration and injunction, which had been dismissed---Dispute regarding the rights and interests in the suit property was in issue---Plaintiff claimed to have raised construction over suit property, which was alleged to have been forcibly occupied---Controversy involved resolution of serious question of facts and law---Even otherwise right between private parties as to the title to the property, could not be adjudicated upon under Co-operative Societies Act, 1925---Ad interim orders passed earlier were confirmed in view of the rival claims of the parties---Parties were restrained from creating any third party interest or further encumbrance over the property in question.

Messrs Syed Hasan Ali and Ali Nawaz Bhutto for Plaintiff.

Munir Rehman for Defendants Nos.1 and 2.

Shaukat Ali Shaikh for Intervenor.

MLD 2007 KARACHI HIGH COURT SINDH 770 #

2007 M L D 770

[Karachi]

Before Ajmal Mian and Nasir Aslam Zahid, JJ

HYDRI SHIP BREAKING INDUSTRIES LTD.---Petitioner

Versus

SINDH GOVERNMENT and others---Respondents

Constitutional Petition No. 1736 of 1979 and 129 other Petitions, decided on 19th November, 1981.

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

----Art. 199---Constitutional petition---Maintainability---Rule that High Court would not entertain a constitutional petition when other appropriate remedy was available, was not a rule of law barring jurisdiction of High Court---Such was a rule by which the Court would regulate the exercise of its own discretion---One of the well-recognized exceptions to that general rule was a case where an order was attacked on the ground that it was wholly without authority---In certain cases Superior Courts do not allow petitioners to invoke constitutional petition on the ground of availability of an alternative remedy by way of appeal or otherwise, but on the other hand, in other cases, notwithstanding the pendency of an appeal or availability of an alternate remedy the Courts do not hesitate to exercise such constitutional jurisdiction and it could be expressed as a generally accepted principle, that just because an alternate remedy by way of appeal or otherwise was available to a petitioner, High Courts would not invariably decline to exercise their extraordinary constitutional jurisdiction---Mere availability of an alternate remedy, would not debar High Court from exercising such jurisdiction---In cases of total lack or absence of jurisdiction of authority or apparent excess of jurisdiction, the Courts in general would not hesitate much in entertaining a constitutional petition, although an alternate remedy could well be available; in other cases, the Courts would generally direct the party to avail and exhaust the alternate remedies available first before entertaining constitutional petition, if in the opinion of the Courts the alternate remedy was an adequate remedy.

Province of East Pakistan v: Kshitl Dhar Roy PLD 1964 SC 636; Mohammad Anwar v. Allah Wasaya 1969 SCMR 178; Mehboob Alam v. Secy., Government of Pakistan 1969 SCMR 217; Nawaza v. Additional Settlement Commissioner PLD 1970 SC 39; Nawazish Ali Shah v. Meraj Din 1970 SCMR 196; Yasin Sakaff Shah v. Government of Pakistan 1970 SCMR 494; Pakistan v. Province of Punjab PLD 1975 SC 37; Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24 and Irshad Ahmed v. Settlement Authority Punjab 1981 SCMR 758 rel.

Tariq Transport Co. v. Sargodha-Bhera Bus Service PLD 1958 SC 437; S.A. Haroon v. Collector of Customs PLD 1959 SC 177; PLD 1963 SC 322; PLD 1971 SC 205; Burma Oil, Company (Pakistan Trading) v. The Trustees of the Port of Chittagong PLD 1962 SC 113; Pakistan and another v. Kazi Ziauddin PLD 1962 SC 440; Abdul Ghani and another v. Government of Pakistan and others PLD 1968 SC 131; Muhammad Amir Khan v. Controller of Estate Duty PLD 1972 SC 279; Lt. Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others PLD 1961 SC 119; PLD 1975 Kar. 128; PLD 1976 Lah. 726; Salahuddin and others v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 226; PLD 1980 Lah. 449; PLD 1981 Lah. 50; Mahboob Ali Malik v. Province of West Pakistan and another PLD 1963 Lahore 575; Khurshid Anwar Shaikh 1972 SCMR 257; PLD 1976 SC 37; Yousaf Ali v. Muhammad Aslam Zia and another PLD 1958 SC 104; Syed Ali Abbas and others v. Visham Singh and others PLD 1965 SC 68; PLD 1988 Lah. 361 and Hassan Ali v. Muhammad Ahsan Baloch 1930 CLC 412 ref.

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

----Art. 199---Constitutional petition---Alternate remedy---Whether the alternate remedy available to petitioner, who was seeking constitutional remedy was adequate or not, depended on the special or particular circumstances of the individual case and it was precisely for that reason that in one case High Court could not entertain petition under its constitutional jurisdiction and in another case same could be entertained--In taking a decision whether alternate remedy in a given case was adequate or not, to enable the High Court to take the further decision relating to entertaining the constitutional petition, the Court, in the background of the particular facts of the case before it, would consider several factors---Question of speed and expenses of-the alternate remedy, could be considered---Whether the alternate remedy was as effective or efficacious as the constitutional remedy, was also a relevant factor---Whether in the circumstances of the case, alternate remedy or the constitutional petition would be the appropriate remedy, could also be a pertinent consideration.

---Rr. 48 & 216---Constitution of Pakistan" (1973), Art.199---Constitutional petition---Alternate remedy--Alternate remedy by way of appeal under Rr.48 & 216 of West Pakistan Municipal Committee Octroi Rules, 1964, was available to the petitioners---Petitioners in some cases, had in fact, filed appeals which were pending before' concerned officers of Municipal Corporation; in other cases appeals had not been filed and the petitioners had straightaway approached the High Court---High Court entertained constitutional petitions for the reasons that the vires of the relevant Octroi Rules had been challenged in the petitions and it could not be reasonably expected that an officer of Principal Corporation, the designated Appellate Authority would decide that said Rules, were ultra vires that on merits the point involved in the petitions was the interpretation of the words "consumption, use or sale of the Octroi limits" used in West Pakistan Municipal Committee Octroi Rules, 1964; that nearly two years had passed and not a single decision by the Appellate Authority had apparently been given; that huge amounts were involved and practically the entire Ship-breaking Industry was affected; that speedy decision on the question involved was not only necessary, but desirable to clarify the legal position that if petitioners would be directed to go back and file appeals, final decision would be further delayed by some years, that point involved for decision in the petitions, was a matter of general importance and was going to affect a very large number of citizens and that question being decided did not involve an inquiry into any disputed facts and in fact the decision being given was based on admitted facts only---Constitutional petition, in circumstances was the appropriate remedy in the present cases and appeal under Rr.48 & 216 of West Pakistan Municipal Committee Octroi Rules, 1964 was not an adequate and efficacious remedy.

(d) West Pakistan Municipal Committee Octroi Rules, 1964---

----R. 2(i)(m)---Interim Constitution of Pakistan (1972), Fourth Sched. Provincial Legislative List, Item No.47---Octroi on import---Scope---Import simpliciter of any goods within the Octroi limits, would not attract Octroi, but the import within the octroi limits must also be coupled with the purpose of consumption, use or sale within the octroi limits---Unless octroi was equated with customs duty, how such tax would fall within the items of Federal Legislative List of two Constitutions of 1972 & 1973; as by item No.47 of Provincial List of the Fourth Schedule to the Constitution, framers of that Constitution specifically and with clarity included octroi within the Provincial Legislative field.

Pakistan Textile Mills Owners Association v. Administration of Karachi PLD 1963 SC 137; Pakistan Tobacco Co. Ltd. v. K.M.C. PLD 1967 SC 241 and Nawab Brothers v. Collector of Customs PLD 1977 Kar. 947 ref.

(e) West Pakistan Municipal Committee Octroi Rules, 1964--

----R. 2(m)-Octroi Tax---Octroi tax had been clearly distinguished from other taxes and the basic reason was that it was a tax "upon goods which were brought in not only within the city, but for consumption, use or sale within the city"---Octroi tax on goods coming from abroad and entering the municipal octroi limits for the purpose of consumption, use or sale within the octroi limits could not be equated with duties of customs.

Attorney-General v. McDonald Murphy Lumber Co. AIR 1930 PC 173; A.G. Alberta v. A.G. Canada AIR 1943 P.C. 76; Lahore Municipality v. Daulat Ram AIR 1942 P.C. 14; A.G. Canada v. A.G. Quebec AIR 1947 P.C. 44; 1930 CLC 704 and Pakistan Textile Mill Owners Association v. Administrator of Karachi and others PLD 1963 SC 137 rel.

(f) West Pakistan Municipal Committee Octroi Rules, 1964---

----Rr. 2(1), 48 & 216---Constitution of Pakistan (1973), Art.199---Constitutional petition---Import of unserviceable ship for the purpose of scrapping---Demand and payment of octroi---Petitioner imported unserviceable ship for purpose of scrapping---Import duty and sales tax levied by Customs Authorities were paid by petitioners---Petitioners, who dismantled and scrapped said ship, wanted to bring ship scrap into the city by road---Superintendent octroi of City Municipal Corporation demanded octroi at the rate of 2% ad valorem of duty paid value of vessel, but petitioners were willing to pay octroi at Rs.3.50 per ton on scrap of ship---Petitioners had filed constitutional petition against demand of 2% octroi ad valorem of the duty paid value of vessel---Contention of petitioners was that after the vessel was scraped, scrap which was recovered, could not possibly be treated as a ship' orvessel' and if any scrap recovered from any of the said ship or vessels, was being brought by road, it would be an import of the scrap and not the import of the vessel from which scrap was recovered---Admitted position was that ship in question had not been dismantled or scrapped within the octroi limits of Municipal Corporation but was dismantled and scrapped at the Sea port of another Province---Ship having been imported for the purpose of scrapping,. contention of counsel for the petitioners had force that when scrap was imported from the other province to the city of another Province, it was scrap which was being imported and not the ship and it could not be said by any stretch of imagination that when the scrap of a ship was being imported, it could be treated as the import of the ship itself---By bringing the scrap of ship within city octroi limits, there was no consumption, use or sale' of ship within the octroi limits of City Municipal Corporation---Ship having been imported for scrapping, by dismantling and scrapping, same was consumed and no longer remained ship---Petitioners, in circumstances were not liable to pay octroi at 2% ad valorem of the duty paid value of the ship in question according to ScheduleA' of the octroi Schedules and demands of City Municipal Corporation---Petitioners, however were liable to pay octroi on the scrap at the prescribed rates.

Habib Ahmed v. Income Tax Officer 1972 SCMR 556; Zubair Siddiqui v. M.H. Sufi PLD 1964 Lah. 453; BECO Industries v. K.M.C. PLD 1976 Kar. 1011; Mahboob Ali v. Mubina Khatoon PLD 1977 Kar. 558; Mohammed Amir Khan v. Controller of Estate Duty PLD 1961 SC 119; Nagina Silk Mill v. Income Tax Officer PLD 1963 SC 322; Usmania Glass Sheet Factory v. Sales Tax Officer PLD 1971 SC 205; Murree Brewery Co. Ltd. v. Pakistan PLD 1972 SC 279; S.I.T.E. Ltd. v. Central Board of Revenue PLD 1975 Kar. 128; Municipal Committee Multan v. Burmah Shell PLD 1976 Lah. 726; Begum Nusrat Bhuto v. Income Tax Officer PLD 1980 Lah. 449; Syed Riaz Husain Zaidi v. Mahomed Iqbal PLD 1981 Lah. 215; Premier Cloth Mills Ltd. v. Sales Tax Officer 1972 SCMR 257; Ali Mohammad v. Husainbux PLD 1976 SC 37; Ghulam Ali v. Commissioner, Lahore PLD 1981 Lah. 368 and PLD 1961 SC 120 rel.

Ram Krishna Rannath v. Secretary, Municipal Committee, Kamptee AIR 1950 SC 11 and Burmah-Shell Oil Storage and Distribution Co. of India Ltd. v. Belgaum Borough Municipality AIR 1963 SC 906 ref.

Tariq Hussain Haider Mota Abbas Ali, Muhammad Akram Zuberi, Mohsin Tayabally, Khurshid Anwer Shaikh, Mustafa Lakhani, Azhar Ali Siddiqui, Hassan Inamullah, A. Sattar Silat for Petitioners.

Ali Ahmad Fazeel, S.M. Muslim Naqvi and Abdul Sattar Shaikh, Add. A.G. for Respondents.

Dates of hearing: 7th, 12th and 13th, October, 1981.

MLD 2007 KARACHI HIGH COURT SINDH 800 #

2007 M L D 800

[Karachi]

Before Gulzar Ahmed, J

QAMARUL BASHIR---Plaintiff

Versus

MUHAMMAD GHOUS KHAN and another---Defendants

Suit No.623 of 1998, heard on 16h February, 2007.

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

----S. 4---Inheritance---Distant kindered---Distant kindered only inherits when there are no residuaries---Once it is established that the deceased had left as his heirs the sharers and residuaries, there will be no occasion for inheritance being claimed from the estate of the deceased by a distant kindered---Person claiming inheritance admittedly being son of predeceased sister is a distant kindered and in the presence of sharer the residuaries will not inherit from the estate of deceased when relationship of the claimant with deceased is- admitted and his place in the matter of inheritance is determined---Such place by means of analogy to S.4, Muslim Family Laws Ordinance, 1961 cannot be changed as he will remain what he is.

Mst. Zafran Bibi v. The State PLD 2002 FSC 1; Mst. Saima Naz and others v. Shaikh Pervaiz Fazal and others 2002 SCMR 164; Mst. Rasheeda Begum and others v. Mst. Rehana Nasreen and others 2004 MLD 1304; Mst. Zainab v. Kamal Khan alias Kamala PLD 1990 SC 1051; Mst. Iqbal Jan v. Mst. Habib Jan and others 1992 SCMR 935; Mohammadam Law by Mulla and Mulla's Mohammadan Law ref.

(b) Islamic Law---

----Inheritance---Distant kindered---Son of predeceased sister is a distant kindered and in the presence of sharer the residuaries will not inherit from the estate of deceased when relationship of the claimant of inheritance with deceased is admitted and his place in the matter of inheritance is determined.

Khalid Javed for Plaintiff.

Haider Raza Naqvi for Defendant No. 1.

Date of hearing: 16th February, 2007.

MLD 2007 KARACHI HIGH COURT SINDH 806 #

2007 M L D 806

[Karachi]

Before Ali Sain Dino Metlo, J

DILAWAR and another---Applicant

Versus

THE STATE---Respondent

Criminal Bail A. No.560 of 2006, decided on 12th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Further inquiry---State counsel had no objection to the grant of bail as accused were found innocent in the investigation of the police and one man from the side of accused persons was also killed by the complainant party on the same day, place and time---Police papers had shown that police had found accused innocent and exonerated them on the basis of statements of five independent persons in the background of enmity and committing murders of each other---Statements and version of the parties, could not be taken as gospel truth and some weight would have to be given to the finding of investigating officer based upon evidence of independent persons---Case of accused requiring further inquiry as contemplated by S. 497(2), Cr. P. C., they were admitted to bail.

Habibullah G. Ghouri for Applicants.

Muhammad Ismail Bhutto for the State.

MLD 2007 KARACHI HIGH COURT SINDH 825 #

2007 M L D 825

[Karachi]

Before Muhammad Moosa K. Leghari and Sajjad Ali Shah, JJ

HABIBULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. D-149 of 2006, decided on 17th January, 2007.

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

----S. 9(c)---Appreciation of evidence---Benefit of doubt---Contradictions in prosecution evidence being very material and major in nature, could neither be reconciled nor brushed aside, more particularly when the prosecution witnesses were literate and experienced professional police officials quite oftenly appearing as prosecution witnesses in the Courts---Chemical Examiner's report had made the sample of "Charas" received in his office doubtful, being in two pieces and deficient in quantity---Prosecution witness who had weighed the "Charas", sealed the same on the spot and prepared the mashirnama of recovery and arrest, was not examined by the prosecution, though he was a key witness---Accused had throughout been pleading his false implication in the case on account of his enmity with the police against whom he had filed a case in the Anti-Corruption Court and he had placed a copy of the said complaint on record---Possibility of false involvement of accused, thus, could not be ruled out---Case against accused was full of doubts, benefit of which must go to him---Accused was acquitted in circumstances.

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

----S. 9(c)---Appreciation of evidence---Principles---Finding of guilt against accused must rest surely on the evidence of unimpeachable character and all factors and circumstances leading to doubt are to be resolved in favour of accused and cannot be withheld in favour of prosecution.

Allah Bachayo Soomro for Appellant.

Mashooq Ali Samo Asst. A.G. for Respondent.

Date of hearing: 17th January, 2007.

MLD 2007 KARACHI HIGH COURT SINDH 837 #

2007 M L D 837

[Karachi]

Before Sajjad Ali Shah, J

Haji MUHAMMAD IBRAHIM and others---Applicants

Versus

MUHAMMAD USMAN GHANI QURESHI and others---Respondents

R.As. Nos. 115 and 116 and C.M.A. No. 474 of "2005, decided on 6th March, 2007.

(a) Islamic Law---

----Gift---Onus of proof---Principles---When a gift is claimed, the onus to prove the execution of gift deed by the donor rests on donee who claims to be its beneficiary---If the person who claims to be the donee, without assigning any reason, has failed to examine the marginal witnesses, withholding of such necessary evidence raises serious adverse inference against the donee as rule of best evidence has been violated---Delivery of actual physical possession of the property, subject-matter of gift, is though not necessary in all cases, specially when the donor himself is not in actual physical possession but in such cases the donor must spell out his intention by divesting himself not only from the ownership but of all rights attached thereto---Donor is further liable to do all that he could to vest the donee with the ownership---In the present case, neither physical possession nor constructive possession of the properties alleged to have been gifted by the donor, was ever handed over to the donee---Gift, if any, was void in circumstances.

Muhammad Ashraf v. Bahadur Khan 1989 SCMR 1390; Muhammad Shafiq v. Abdul Karim 2006 CLC 1790; Province of Punjab v. Fateh Muhammad 2006 CLC 1733; Syed Haider Raza v. Syed Imam Ali PLD 1961 (W.P.) Lahore. 800; Abdul Raoof v. Mst. Khalida PLD 1968 Lahore 423; Hakim Ali v. Shaikh Muhammad Nazhar Ali 1979 CLC 1645 and Mst. Rashidan Bibi v. Jantay Bibi 2005 MLD 1228 ref.

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

----O.XVIII, R.4---Where the parties agree and consent for recording of evidence by filing affidavits, then the normal procedure of recording of evidence by viva voce may be dispensed with, even otherwise when no prejudice was shown to have been caused to any of the parties by recording of evidence through such mode and parties had not only accepted such deviation by cross-examining the other party on the basis of his affidavit in evidence and also adopted the same method of filing affidavit in evidence and subjecting himself to cross-examination, objection on the deviation of a party at revisional stage, was not only frivolous but afterthought---Objection was liable to be repelled.

Basharat Ahmed Jatt for Applicants.

Qazi Munawar Ali for Respondent No.1.

S. Nasir Ali Shah for Respondents Nos.2 to 11 in R.A. No.116 of 2005.

MLD 2007 KARACHI HIGH COURT SINDH 851 #

2007 M L D 851

[Karachi]

Before Khilji Arif Hussain, J

AKHTAR ALI KHAN---Plaintiff

Versus

ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Health, Islamabad and another---Defendants

Suit No.1132 of 2003, decided on 27th November, 2006.

Fatal Accidents Act (XIII of 1855)---

----S.1---Provincial Motor Vehicles Ordinance (XIX of 1965), S.104---Prevention of Road Accidents Ordinance, 1978, S.3 (ii)---Constitution of Pakistan (1973), Art.9---Recovery of damages---Rash and negligent driving---Protection of life---Deceased died in a road accident by a truck owned by Government---Plea raised by plaintiff was that death was caused due to rash and negligent driving of driver who was a government employee and was performing his official duty---Validity---Authorities not only failed to examine truck driver but further failed to produce any evidence that they were maintaining truck in question and accident was caused due to sudden failure of brake---Authorities in discharge of their duties had to operate numbers of garbage trucks to ply on roads daily and it was their duty that before allowing any vehicle to leave station not only check engine oil, brake oil, etc. but also to satisfy that same was fit for plying on road---Any vehicle on road not fit for plying could endanger lives of citizens---Duty to take reasonable care increased many folds when engaged in the business either himself or through corporation or companies owned by the State---It was the duty of the State under Art.9 of the Constitution, not to deprive life of any person except in accordance with law---Accident was proved to have been caused due to negligence, lake of diligence and wrongful act of driver---Government did not deny that accident was caused by driver while discharging his duties under his employment, therefore, both the defendants (government and driver) were jointly and severally liable to pay the compensation---Average life span in Pakistan being 70 years and at the time of his death deceased was 35 years of age--Deceased was electrician by profession and was operating electric shop---Taking all such factors in consideration decree in a sum of Rs.37,90,000 was passed in favour of plaintiff---Suit was decreed accordingly.

Nasir Maqsood for Plaintiff.

Asghar Farooqui for Defendants.

Date of hearing: 31st October and 2nd November, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 863 #

2007 M L D 863

[Karachi]

Before Khilji Arif Hussain, J

HOLGAR HAHN---Plaintiff

Versus

COMSET SERVICES LIMITED and another---Respondents

Suit No. Nil of 2007, decided on 16th February, 2007.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.42, 21 & 55---Suit for declaration, permanent injunction and damages---Master and servant---Misconduct---Termination of services of employee---Application for grant of permanent injunction by employee---Balance of inconvenience---Service of employee, on the allegation of misconduct, can be terminated only after show-cause notice providing an opportunity to the employee to explain his position, however as per employment agreement in the present case, employee's service can be terminated by giving 12 month's notice in writing, since employment agreement between the parties is not capable of specific performance and an unacceptable employee cannot be imposed upon an employer, the balance of inconvenience also lies in favour of employer as the employee, in the present case, was appointed at a very important post and in discharge of his duties was required to take administrative as well as other major decisions about the working of the employer company and to re-induct the employee to same position may affect the entire working of the company---Employment agreement having provided 12 months' notice before termination of service; High Court, taking into consideration all such facts and principles observed that employee was not entitled to the injunction and his application for grant of injunction was disposed of directing the employer to deposit six months' salary and other benefits of the employee with Nazir of the Court which employee could withdraw on furnishing security equivalent to the amount deposited to the satisfaction of the Nazir of the Court.

Shahid Mahmood v. Karachi Electric Supply Corporation Ltd., 1997 CLC 1936, Aril' Majeed Malik and others v. Board of Governors Karachi, Grammer School, 2004 CLC 1029, Muhammad Mushtaq v. Chancellor, Government College University, Faisalabad, 2005 PLC (C.S.) 1300, Javed Akhtar Mashi v. Board of Intermediate and Secondary Education, Faisalabad 2003 PLC (C.S.) 1479, Agha Salim Khurshid and another v. Federation of Pakistan and others, 1998 SCMR 1930, Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; United Bank Limited and others v. Ahsan Akhtar and others, 1998 SCMR 68, Islamic Republic of Pakistan v. Muhammad Zaman Khan and others, 1997 SCMR 1508, Muhammad Umar Malik v. The Muslim Commercial Bank Ltd., 1995 SCMR 453, Qazi Inamul Haq v. Heavy Foundry and Forge Engineering (Pvt.) Ltd., 1989 SCMR 1855, Tahir Mahmood Rana v. The Tourism Development Corporation of Punjab, Lahore and 2 others 1994 CLC 2004, Anwar Hussain v. Agricultural Development Bank of Pakistan and others, PLD 1984 SC 194, Marghub Siddiqi v. Hamid Ahmad Khan and 2 others, 1974 SCMR 519; Muhammad Siddiq Javed. Government of West Pakistan, 1974 SC 393; Farasat Hussain and others v. Pakistan National Shipping Corporation, 2004 SCMR 1874; Secretary, Government of Pakistan v. Riaz-ul-Haq 1997 SCMR 1553 and Syed Ijaz Ahmed v. Bolan Bank Ltd. 2002 CLC 854 ref.

Arshad Tayebaly for Plaintiff.

Muhammad Masood Khan for Defendants.

MLD 2007 KARACHI HIGH COURT SINDH 881 #

2007 M L D 881

[Karachi]

Before Faisal Arab, J

IRSHAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.695 of 2006, decided on 12th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.396---Bail, grant of---Accused was not named in F.I.R., but his name was disclosed to be one of the culprits subsequently statement of prosecution witness made under S.161, Cr.P.C.---Five unknown persons were stated to have attempted to rob rickshaw and as rickshaw driver speeded away and refused to stop five assailants fired upon rickshaw which hit one of the passengers, who died---No recovery had been effected from accused---State counsel also conceded to the grant of bail---Accused was enlarged on bail, in circumstances.

Ghulam R. Dayo for Applicant.

Muhammad Ismail Bhutto for State.

MLD 2007 KARACHI HIGH COURT SINDH 884 #

2007 M L D 884

[Karachi]

Before Anwar Zaheer Jamali and Sajjad Ali Shah, JJ

AHSAN ALI through L.Rs. and others---Petitioners

Versus

PROVINCE OF SINDH through District Coordination Officer Thatta and 4 others---Respondents

Constitutional Petition No. D-31 of 2007, decided on 21st February, 2007.

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

----O. VII, R.11---Scope and applicability of O.VII, R.11, C.P.C.---Only the averments made in the plaint with presumption of correctness attached thereto or at best the admitted and undisputed documents, could be taken into, consideration for the purpose of O.VII, R.11, C.P.C. and not the pleas set up in defence.

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

----Ss. 172 & 53---Civil Procedure Code (V of 1908), S.9---Civil Court, jurisdiction of---Bar provided in S.172, West Pakistan Land Revenue Act, 1967---Applicability---Scope---Findings of Revenue hierarchy regarding entries in Deh Form VII would not debar an aggrieved party from approaching Civil Court for claiming his ownership over the suit land by way of inheritance, as entry in the Revenue record is not in itself proof of title in favour of the party in whose favour such entry exists, but entitlement/ownership is to be proved by such party independently and for this purpose appropriate forum available is Civil Court being the Court of ultimate jurisdiction.

1986 SCMR 598 ref.

---S. 53---Specific Relief Act (I of 1877), Ch.VI [Ss.42 & 43]---If any person considers himself aggrieved by any entry in the record-of-rights or in any periodical record as to any right which he possesses, he may institute a declaratory suit for' this purpose under Chapter VI, Specific Relief Act, 1877.

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

---S. 9---West Pakistan Land Revenue Act (XVII of 1967), Ss.172 & 53---Constitution of Pakistan (1973), Art.199---Constitutional petition---Where the allegations of lack of jurisdiction or mala fide were attributed to the tribunal/authority passing the impugned order(s) then it was within the domain of Civil Court to examine the propriety of such order in the context of such allegations being the Court of ultimate civil jurisdiction by virtue of S.9, C.P.C. and the bar of S.172, West Pakistan Land Revenue Act, 1967 will not oust the jurisdiction of Civil Court in such case.

1974 SCMR 356 and 1997 MLD 1309 ref.

Noor Ahmed Memon for Petitioners.

Masood A. Noorani Addl. A.G. Sindh for Respondents Nos. 1 to 9.

Aijaz Ali Hakro of Respondents Nos. 13 and 14.

Date of hearing: 21st February, 2007.

MLD 2007 KARACHI HIGH COURT SINDH 892 #

2007 M L D 892

[Karachi]

Before Mrs. Qaiser Iqbal, J

NASEEM UL HAQ---Plaintiff

Versus

KARACHI DEVELOPMENT AUTHORITY through Director General---Defendant

Suit No. 1394 of 2001, decided on 22nd February, 2007.

(a) Karachi Development Authority Order (5 of 1957)---

----Art. 12---Government notification under Art.12, Karachi Development Authority Order, 1957 declaring the land of the area as controlled area for the purpose of prevention of haphazard growth of colonies did not have the effect of vesting the land in Karachi Development Authority as the land was a government land and had not been transferred to Karachi Development Authority.

Suit No.605/1992 (Messrs Apparels (Pvt.) Ltd. v. Karachi Development Authority and another; High Court Appeal No.103/1994 and C.Ps. Nos.383-K/94 and 384-K/94 ref.

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

----Ss. 42 & 54---Karachi Development Authority Order (5 of 1957), Art.12---Suit for declaration and injunction---Plaintiff had established that his possession of land was proper---Demolition of boundary wall around the suit-land by Karachi Development Authority acting unlawfully and unauthorizedly---Court was required to determine the proper damages in view of the nature of the wrong done and loss caused---Plaintiff's suit was decreed in terms of prayer against the defendant accordingly.

2005 SCMR 1950 and PLD 1996 SC 737 ref.

Mushtaq Ahmed Memon and Shahid Ali Ansari for Plaintiff.

Qaiser Jamil for Defendant.

Date of hearing: 5th January, 2007.

MLD 2007 KARACHI HIGH COURT SINDH 902 #

2007 M L D 902

[Karachi]

Before Khilji Arif Hussain, J

Mst. KHALIDA SALEEM---Plaintiff

Versus

KARACHI ELECTRIC SUPPLY CORPORATION through Chairman/Managing Director and another---Defendants

Suit No. 618 of 1993, decided on 26th January, 2007.

Fatal Accidents Act (XIII of 1855)---

----S.1---Recovery of damages---Electrocution---Negligence in maintaining electric wires---Deceased died coining in contact with electric wires lying dangerously on road---Plea raised by Electric Corporation was that due to heavy rains wire was broken, thus there was no element of negligence---Validity---No evidence of quantity of rain which fell on the day in question was produced and it was not enough merely to assert that there were heavy rains---Nor any explanation was offered of how and in what manner the rain affected the wire therefore, there was an effect of displacing inference of negligence---Rain in itself was not such an unusual or violent phenomenon that reasonable precautions could not be taken to guard against it---In many parts of the world, in spite of extremely heavy rainfall electric supply continued unaffected and electric wires did not break down---If electric wires had broken at the first drop of rain, the fault was not in stars of citizens but in the workings of organization concerned with supplying electricity and maintaining the wires and other installations necessary for the purpose---Electric Corporation failed to produce any record that they were properly maintaining electric wires and also required safety guards were provided to defuse wire immediately when the same was broken---No witness was called by the Corporation from metrological department to prove that on the day of incident there was an abnormal situation in the city---Plaintiff was entitled to decree in a sum of Rs.28,35,000 with costs and interest/mark up at the rate of 12% per annum from the date of filing of the suit, till it realization---Suit was decreed accordingly.

Mst. Rafiqan v. KESC 1999 CLC 1812 and S. Iqbal Hussain Jaffery v. Karachi Electric Supply Corporation 1994 CLC 1903 fol.

Nasir Maqsood for Plaintiff.

Muhammad Ismail Memon for Defendant No.1.

Khalid Mahmood Siddiqui Defendant No.2.

Dates of hearing: 28th November and 19th December, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 910 #

2007 M L D 910

[Karachi]

Before Rahmat Hussain Jafferi and Munib Ahmed Khan, JJ

HAKIM ALI ZARDARI---Appellant

Versus

THE STATE---Respondent

Accountability Appeal No. 60 of 2002, decided on 22nd February, 2007.

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

----S. 9(a)(v)---Corruption and corrupt practices---Essentials---Prosecution in order to prove the offence must establish that the accused was holder of a public office; the nature and extent of the pecuniary resources or property found in possession of accused; known sources of income of accused, i.e., known to prosecution after thorough investigation, and such resources or property found in possession of accused were disproportionate to his known source of income.

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

----Ss. 9(a)(v) & 14(c)---Offence and presumption of guilt---Mere possession of any pecuniary resources or property is, by itself, not an offence, but failure to satisfactorily account for such possession makes the possession objectionable and constitutes the offence---Where the accused fails to explain such possession, presumption under section 14(c) of the National Accountability Ordinance, 1999, would be drawn that he is guilty of corruption and corrupt practices.

Biswa Bhushan Naik v. State AIR 1954 SC 350 ref.

---S. 9(a)(v)---`Known sources of income'---Connotation---"Known sources of income" must be taken to be the sources known to the prosecution on a thorough investigation of the case---Said expression does not mean sources known to the accused for the simple reason that prosecution cannot be expected to know the affairs of an accused person.

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

---S.10---Appreciation of evidence---Benefit of doubt---Entire prosecution case rested upon the Income Tax Returns filed by the accused---Said Income Tax Returns did not portray correct picture of the income of accused as they had shown exemption obtained on certain amounts without disclosing the total income---Prosecution had failed to hold proper inquiry or investigation to ascertain the known sources of income of accused---Apart from the impugned property accused had various other properties, which had not been mentioned in the Reference---Prosecution had chosen the impugned property out of the said properties with mala fide intention---Prosecution having failed to establish all the ingredients of the offence, the burden to account for the property had not shifted upon the accused---However, accused had explained his position in his detailed statement recorded under S. 342, Cr.P.C. which was supported by various documents, statement on oath of his Advocate and prosecution and defence witnesses, who had given full account as to how the property was purchased, and it was established that the accused had earned the income through legitimate sources---Accused was given benefit of doubt and acquitted in circumstances.

Biswa Bhushan Naik v. State AIR 1954 SC 350; Rameswar Prasad Upadhya v. State of Bihar AIR 1971 SC 2474; State of Maharashtra v. Laxman AIR 1962 SC 1204 and Ayyaswamy's case AIR 1965 AP 105 ref.

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

----S. 14(c)---Presumption against accused of corruption and corrupt practices---Presumption of corruption and corrupt practices is required to be drawn if the accused or any person on his behalf is in possession of pecuniary resources or property disproportionate to his known sources of income, for which he cannot satisfactorily account for---For shifting the burden upon accused to account for the sources of income, the words of the statute are pre-emptory and the burden must lie all the time on the accused to prove the contrary, after the conditions laid down in the earlier part of the section have been fulfilled by the prosecution through evidence to. the satisfaction of the Court, and then the Court is required to draw the presumption that the accused is guilty as provided under S.14(c) of the National Accountability Ordinance, 1999---Such presumption continues to hold the field unless the Court is satisfied that the statutory presumption has been rebutted.

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

----S. 14(c)---Burden cast on accused to rebut the presumption---Nature and extent---Accused is not bound to prove his innocence beyond any reasonable doubt, whereas prosecution is required to prove the charge against the accused beyond any reasonable doubt---While examining the explanation of accused the said principle is required to be kept in view---If the accused is able to explain the circumstances to the satisfaction of the Court, then that will be enough to discharge the burden.

Azizullah K. Shaikh for Appellant.

Shafaat Nabi Khan Sherwani D.P.G.A. NAB for Respondent.

Date of hearing: 24th January, 2007.

MLD 2007 KARACHI HIGH COURT SINDH 935 #

2007 M L D 935

[Karachi]

Before Rahmat Hussain Jafferi, J

WAZEER---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1 of 2006, decided on 6th October, 2006.

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

----Ss. 302(b) & 302(c)---Appreciation of evidence---Presence of eye-witnesses at the scan of occurrence was not seriously challenged by defence---Evidence of eye-witnesses coupled with the evidence of the complainant had established that accused had caused the hatchet injury to the deceased---Presence of accused at the place of incident was also established by the stand taken by him that he had filed a counter-case regarding the same incident which was pending in a Court---Hatchet allegedly recovered from the accused however, was not connected with the commission of crime---No previous enmity existed between the parties and there was no motive behind the occurrence, which was not premeditated---Incident had taken place at the spur of the moment in the heat of passion over a dispute of throwing earth---Hot words and abuses exchanged by the parties had not come on record---Accused had caused a single blow to the deceased and he did not repeat the same---Deceased had remained alive for one month and 24 days after the incident---Accused had not come with the intention to kill the deceased and he had also no intention to cause such bodily injury which in the ordinary course of nature was likely to cause death of the deceased---Accused, however, had caused the injury with full knowledge that it would be so dangerous as to cause death of the deceased---Case of accused thus, fell under third part of S.300, P.P.C.---Conviction of accused under S.302(b), P.P.C. was consequently altered to S.302(c), P.P.C. and his sentence was reduced to 14 years' R.I. in circumstances.

2000 SCMR 1166; Jai Parakash v. State (1991) 2 SCC 32; Faqira v. State AIR 1955 All 321; Abdul Zahir v. State 2000 SCMR 406; Ali Muhammad PLD 1996 SC 274 and Muhammad Hanif's case 1992 SCMR 2047 ref.

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

----S. 300---Qatl-i-amd---"Intention" and "knowledge"---Distinction---"Knowledge" as contrasted with "intention" signifies a state of mental realization with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive---"Intention" on the other hand is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end---"Intention" means shaping of one's conduct so as to bring about a certain event---Mental faculties in the case of "intention", therefore, are projected in a set direction---"Intention" need not necessarily involve premeditation---Whether such an intention exists or not is a question of fact.

Jai Parakash v. State (1991) 2 SCC 32 and Faqira v. State AIR 1955 All 321 ref.

----`Intention' and 'knowledge'-Distinction.

Jai Parakash v. State (1991) 2 SCC 32 and Faqira v. State AIR 1955 All 321 ref.

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

---Ss. 302 & 300---Qatl-i-amd---Crime and punishment---For punishing an offender under clauses (a) and (b) of S.302, P.P.C. the required "intention" as provided under the first and second parts of the provisions of S.300, P.P.C. should be available and proved, whereas for punishing an offender under clause (c) of S.302, P.P.C. required "knowledge" as provided under the third part of S.300, P.P.C. should be available without the required "intention" of parts one and two thereof---Qatl-iamd which is not punishable as Qisas or Tazir will be punishable under clause (c) of S.302, P.P.C.

Abdul Zahir v. State 2000 SCMR 406 ref.

Sher Muhammad Shar for Appellant.

Habib-ur-Rahman Shaikh A.A.-G. for Respondent.

Date of hearing: 18th September, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 951 #

2007 M L D 951

[Karachi]

Before Mushir Alam and Syed Zawwar Hussain Jaffery, JJ

Messrs DATARI INTERNATIONAL through Proprietor---Petitioner

Versus

NAVAID HUSSAIN and 9 others---Respondents

H.C.A. No.251 of 2006, decided on 5th December, 2006.

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

----Preamble---Karachi Building Control Authority and Town Planning Regulations, 1979---Civil Procedure Code (V of 1908), O.XXXIX, R.4 & S.151---Auction of plot in residential area by official Assignee---Conversion of residential plot for construction of high rise building---Appeal against order passed by Single Judge of High Court whereby application under O.XXXIX, R.4 read with S.151, C.P.C. was dismissed and appellants had prayed that said order may be set aside and the appellants may be allowed to raise a multi-storeyed building in residential area for which plan was approved by the Authority---Stand of the appellants was that certain multi-storeyed buildings had already been constructed in the area therefore the plaintiffs had no right to object to the impugned construction---No material had been brought on record to show that prescribed procedure was adopted by the appellants; letter issued by Karachi Building Control Authority was also issued apparently in violation of Karachi Building Control Authority and Town Planning Regulations, 1979 which tend to enforce restrictive provision contained in the lease deed and allotment condition relating to the Housing Society---Purported N.O.C. did not inspire confidence and the matter required thorough scrutiny and recording of evidence regarding conversion of residential plot into commercial plot and construction of high rise building over the same---Held, impugned order could not be set 'aside at the present stage as residents of area would be subjected to serious prejudice if appellants were allowed to raise multi-storeyed commercial complex on the said plot---Contention that commercial tag had been attached to the property, was repelled as a buyer could not get better title than seller had---Official Assignee while auctioning the plot merely stepped into the shoes of the seller and offered the property as it was described in the purported document---Character of property would not change by description in the title document, unless it was shown that character of the property from residential to commercial was effected in accordance with law---Publication for auction by the official Assignee was made on the basis of formal information without examining material regarding status of the plot---Multi-storeyed construction would violate rights and would become permanent source of nuisance as several complaints were made from the locality---Regulations applicable provided that the provisions of plot ratio did not contravene the provision of land grant condition of the plot and in such cases land grant condition shall prevail---Many disputed questions of facts and law had also been raised which could not be decided at such interlocutory stage---Permission granted to the appellant, prima facie, was not in accordance with prescribed formula---No case, in circumstances, for interference with the impugned order had been made out---Matter was pending and all the parties were anxious to proceed on merit, High Court directed that the suit be proceeded and decided expeditiously and preferably within six months.

Syed Ali Asghar v. Creator Builders and others 2001 SCMR 279; Irfan and others v. KBCA and others 2005 CLC 694; Ardeshir Cowajee and others v. KBCA and orders PLD 2006 Kar 63; Allah Ditta v. Abdul Ghafoor 1992 MLD 1301; Messrs Excel Builders and others v. Ardisher Cowasjee 1999 SCMR 2089; Nazir Ahmed Panhwar v. Govt. of Sindh 2005 SCMR 1814; Muhammad Saleem and others v. Administrator KBCA(KMC) and others 2000 SCMR 1748; IDBP through Deputy Chief Manager v. Saadi Asmatullah and others 1999 SCMR 2874; Haji Haroon Mandrah and others v. Abdul Rahim and others 2001 CLC 1312; Mehar Chand v. Milkhi Ram and others AIR 1932 Lah.401; Mrs. Naz Shaukat Khan and others. v. Mrs. Yasmin R. Minhas and others 1992 CLC 2540; Abdul Razak v. KBCA and others PLD 1994 SC 512; Ardeshir Cowasjee and others v. KBCA and others 1999 SCMR 2883 ref.

H.A. Rahmani, Muhammad Anwar Tariq and Ismat Mehdi for Appellants.

Rizwana Ismail for Respondents Nos. 1 to 6.

Manzoor Ahmed for CDGK.

Asghar Farooq Standing Counsel.

Anwar Ali Shah for KBCA.

Date of hearing: 5th December, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 962 #

2007 M L D 962

[Karachi]

Before Amir Hani Muslim, J

Messrs A.G.E. & SONS (PVT.) LTD through Chief Executive---Plaintiff

Versus

CANTONMENT BOARD CLIFTON through Executive Officer and another---Defendants

Suit No. 1396 of 2006, decided on 21st December, 2006.

Cantonments Act (II of 1924)---

----Ss. 185, 256 & 183-A---Specific Relief Act (I of 1877), Ss.42 & 55---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Application under O.XXXIX, Rr.1 & 2, C.P.C. seeking restraining order against the Cantonment Board for implementing or executing or enforcing impugned public notice issued in daily newspapers with further prayer to restrain the Cantonment Board from taking any penal or adverse action against the plaintiff till the pendency of the suit---Cantonment Board, in the present case, had approved deviation/unauthorised construction subject to concurrence of the competent authority in terms of S.185 of the Cantonments Act, 1924 and compounded the 'unauthorised construction and requisite composition fee was deposited by the plaintiff---Plaintiff was given one year's time to complete the construction of the project---Plaintiff, however, could not complete the construction within given time--Cantonment Board subsequently passed resolution adverse to the interest of the plaintiff without any notice to it and published public notice thereabout---Plaintiff was not put to notice to explain as to why it had failed to complete construction within the stipulated time---No specific letter was available on record to show the date when the plaintiff was informed that the project be completed within one year---No notice of any nature was even issued before the action when the staff of Cantonment Board came to the project and removed the construction material and even the material lying inside the project---Provisions of Ss.185 & 256, Cantonment Act, 1924 did not authorise the Cantonment Board or the Cantonment Executive Officer to remove the material from the site in given circumstances and in the manner it was done---Cantonment Board, after accepting the composition fee had taken action without providing any hearing to the plaintiff or to explain its viewpoint---Public functionaries normally, before taking any action against a party, were expected to issue notice to such party which was not done---Cantonment Board had no authority to stop construction on account of delay by holding such construction as illegal---Cantonment Board could not issue direction either to the DCO or to the Registrar or Sub-Registrar for cancelling the NOC or determining the lease or restraining them from registering documents/sub-leases---Entire act of Cantonment Board and the Executive Officer was without sanction of law and was unwarranted---High Court directed the Cantonment Board to restore the material which the functionaries had removed from the project of the plaintiff forthwith and in case the plaintiff had violated any provision of the Cantonments Act, 1924, the Board Authorities would be at liberty to take action after notice within four corners of law.?

State Life Insurance Corporation v. D.G. Military Lands and Cantonments 2005 SCMR 177 fol.

Rasheed A. Razvi and Syed Haider Imam Rizvi for Plaintiff.

Suhail H.K. Rana for Defendant No.1 Khawaja Iftikhar Ahmed, Mir, Cantonment Executive Officer, Clifton, Karachi.

MLD 2007 KARACHI HIGH COURT SINDH 974 #

2007 M L D 974

[Karachi]

Before Zia Perwaz and Nadeem Azhar Siddiqi, JJ

Messrs SAEED KHAN CONSTRUCTION COMPANY through Sole Proprietor---Petitioner

Versus

PROVINCE OF SINDH through Secretary Irrigation & Power Department Sindh Secretariat, Karachi and 3 others---Respondent

C.P. Nos.D-812 to 815-D of 2004, decided on 19th December, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Contractual dispute---Routine contractual disputes between parties and public functionaries are not open to scrutiny under the constitutional jurisdiction by the High Court---Exceptions.

The routine contractual disputes between private parties and public functionaries are not open to scrutiny under the constitutional jurisdiction. Breaches of such contracts, and matters involving derelictions of obligations flowing from a statute, rules or instructions can adequately be addressed by granting relief under the jurisdiction, if committed by Government, semi-Government or Local Authorities or like controversies and do not entail inquiry into or examination of controversial questions of facts that require to be proved by the evidence. However, in exceptional cases, where both the parties admit the factual position and the Court feels that matter is of an urgent nature and the very remedy may be frustrated, if the aggrieved party is directed to avail alternate remedy, the writ petition can be entertained. In the present case no such urgency was shown. No rule or statute had been cited which was violated. The proceedings in writ are summary in nature and disputed facts cannot be resolved. The petitioner claims amount arising out of contract on the plea that he has completed the work and has carried out extra work. The respondents have denied the same. This cannot be resolved without giving opportunity to the parties to lead evidence. In present matter the officials have refused to make payment for want of completion of work.

Authorities have not accepted the work carried out by the petitioner and have not recommended the payment. If in every contractual matter giving rise to enforcement of contractual obligation or resolution of a dispute which can be redressed through other remedy available under the law, writ petitions are entertained, then this would defeat the very purpose of law under which competent Courts are established and vested with jurisdiction under the law. The other adequate remedy by way of filing regular suit is available to the petitioner and if advised he may avail the same.

Dr. Sohail Mukhtar Ahmed v. Government of Punjab 2000 YLR 2583; Nizamuddin and another v. Civil Aviation Authority 1999 SCMR 467; Messrs Airport Support Services v. The Airport Manager Qaudi-e-Azam International Airport Karachi and others 1998 SCMR 2268; Messrs Sakrand Sugar Mills and another v. State Bank of Pakistan and others 2005 CLD 529 and Messrs Ahmed Clinic v. Government of Sindh 2003 CLC 1196 ref.

Abdul Fattah Malik for Petitioner.

G.D. Shahani Addl. A.G. for Respondents.

Date of hearing: 19th December, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 984 #

2007 M L D 984

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

ASAD alias ASADULLAH---Applicant

Versus

MANZOOR ALI and another---Respondents

Criminal Transfer Application No.94 of 2006, decided on 15th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 526---Penal Code (XLV of 1860), S.380---Transfer of case---Application for---Applicant/accused had sought transfer of criminal case pending against him in Court at place "W" to any Court having jurisdiction in `L' city---Contention of applicant was that he had matrimonial dispute with the complainant party and that there was imminent apprehension of life while attending the court at place "W"---Counsel for complainant and State counsel had no objection if case was transferred as prayed for by the applicant---In view of candid statements of counsel for respective parties, criminal case pending against applicant in the court at place "W" was recalled and was transferred to the Court at place 'L' as prayed for by applicant.

Jai Jai Veshnu Mange Ram for Applicant.

Sarfraz Khan Jatoi for Respondent No.1.

Mushtaque Ahmed Kourejo for the State.

MLD 2007 KARACHI HIGH COURT SINDH 989 #

2007 M L D 989

[Karachi]

Before Zia Pervaz and Nadeem Azhar Siddiqi, JJ

Syed QASIM ALI SHAH and another---Petitioners

Versus

GOVERNMENT OF PAKISTAN through the Ministry of Minorities Culture, Sports, Tourism and Youth Affairs and 4 others---Respondents

C.P. No.D-896 of 2002, heard on 24th January, 2007.

(a) Scheme for the Management and Disposal of Evacuee Trust Properties, 1971---

---Cl. 10(1)---Evacuee Trust Properties Management and Disposal Act (XIII of 1975), Ss.8 & 2(d)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Taking over of control and management of evacuee trust property by Evacuee Trust Property Board by notification---Validity---Committee of Management of the Evacuee Trust Property had resolved to hand over the Hospital (trust property) to the Municipal Committee and Municipal Committee had taken over the control thereof with the sanction of the Commissioner of the Division---Administrator Evacuee Trust Property, in exercise of his powers conferred on him by Cl.10(1) of the Scheme for the Management and Disposal of Evacuee Trust Property, 1971 took over the control and management of the Hospital and the attached urban and agricultural lands---Administrator Evacuee Trust Properties, thereafter entered into an agreement with Municipal Committee and handed over the management and control of Hospital to the Municipal Committee--Notification of taking-over the properties was issued on 25-1-1973 and was in the knowledge of the Municipality since its publication and the Municipality had never challenged the same and. agreed to continue with the management and control of the Hospital under an agreement dated 16-10-1974 entered into between Administrator Evacuee Trust Properties and the Municipality---By entering into the agreement the Municipality had forsaken its right if any, to challenge the notification of take-over by the Evacuee Trust Property Board---Nazim and Naib Nazim of the Local Government being successors in office, had also no right to challenge the notification after 25 years---Trust having been created by an evacuee and under C1.10 of the Scheme for Management and Disposal of the Evacuee Trust Properties, 1971 Board was authorized to take over the control and management of the evacuee trust properties---Notification of take-over. by the Board could be challenged within 30 days and the Central Government was also empowered to call for the record of proceedings and pass such order as it deemed fit accordingly---Administrator of Evacuee Trust Properties, in circumstances, had rightly and competently issued the notification and same could not be said to be void---High Court, while dismissing the constitutional petition against the notification of take-over of property by the Board, directed the Board authorities to look into the matter and suitable grant be allowed for the maintenance and development of the Hospital from the current financial year.

Queeta Hindu Punchiat v. Dilshad Akhter and others 1993 SCMR 21; Yummy Milk Products Pvt. Ltd. v. Government of Punjab and others 1999 CLC 1443; Ardeshir Cowasjee and 11 others v. Sindh Province and others 2004 CLC 1353; Jehan Khan v. Province of Sindh PLD 2003 Karachi 691; F.P.T.R. v. Rana Hamid Khan and others 1994 CLC 1807 and Farooq Inayat v. Haji Abdul Sattar PLD 1996 Kar. 429 distinguished.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---'Aggrieved person'---Connotation---Expression 'aggrieved person' would not confine to a person having strict legal right but would extend to any person having legitimate interest in performance of a public duty---Elected representatives had right to challenge the notification issued by Authority if the same was issued by statutory body without lawful authority.

----Art. 199---Constitutional jurisdiction of High Court---Scope---Laches---Applicability---Laches cannot be equated with limitation prescribed for doing any act under Limitation Act, 1908---Simpliciter laches is no ground to non-suiting a party if the equities are not against him---Constitutional petition cannot be dismissed on the ground of laches without examining the case on merits and if the party had a case on merits the laches will not come in his way except that the delay should not generate a belief or situation of abandonment of the right because, then vested right comes into operation which cannot be deviated from.

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

----Ss. 8 & 16---Constitution of Pakistan (1973), Art.199---Constitutional petition---Right guaranteed by the Constitution cannot be taken away by the enactment made under the Constitution.

David Lawarence for Petitioners.

Abdul Razak for Respondents.

Date of hearing: 24th January, 2007.

MLD 2007 KARACHI HIGH COURT SINDH 1000 #

2007 MLD 1000

[Karachi]

Before Nadeem Azhar Siddiqi, J

ZULFIQAR ALI and 2 others---Petitioners

Versus

P.O. SINDH through DCO Khairpur and 5 others---Respondents

Civil Revision No.122 of 2005, decided on 26th February, 2007.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Finding of fact---High Court could interfere with such finding, where an error of jurisdiction was apparent or an illegality and irregularity was found in the proceedings of Court below.

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

----O. XLI, Rr. 23 & 25---Remand of case by Appellate Court under O.XLI, Rr. 23 & 25, C.P.C.---Distinction.

Appellate Court is empowered to remand the case under Order XLI, Rules 23 and 25 of C.P.C. Under Rule 23, the Appellate Court may remand the case, if the suit was disposed of on a preliminary point and the decree is reversed. Where the suit is not disposed of upon a preliminary point, but is disposed of after discussion on all issues, then under Order XLI, Rule 25, C.P.C. the Appellate Court, after framing of the issue, shall refer the matter to the Trial Court with the direction to take additional evidence, and the Trial Court shall proceed to try such issues and shall return the evidence to Appellate Court together with its findings thereon and the reasons therefor. Under O.XLI, Rule 25, C.P.C. the case cannot be remanded to enable parties to produce evidence, which ought to have been produced before Trial Court and to decide the case afresh. Under O.XLI, Rule 25, C.P.C., where an issue is remitted, the suit continues to be pending in Appellate Court and the Court to which issue is remitted must give its findings, but cannot decide the suit itself. While remanding the case under said Rule 25, the Appellate Court cannot set aside the judgment and the appeal has to be kept pending to be decided on merits after receipt of findings and reasons from the Trial Court.

Akhtar Hussain Leghari for Petitioner.

S. Jaffar Ali Shah for Respondent Nos. 3 to 6.

G.D. Shahani Addl. A.G. for Respondents 1 and 2.

MLD 2007 KARACHI HIGH COURT SINDH 1016 #

2007 M L D 1016

[Karachi]

Before Nadeem Azhar Siddiqi, J

MUHAMMAD BUX and another---Applicants

Versus

RASOOL BUX and others---Respondents

Civil Revision Application No. 30 and C.M.A. No.71 of 2003, decided on 6th March, 2006.

Civil Procedure Code (V of 1908)---

----S. 115---Revision---Reappraisal and appreciation of evidence---Scope.

The exercise of jurisdiction in revision is supervisory in nature and to correct the errors made by the subordinate Courts in exercise of their jurisdiction. The reappraisal and appreciation of evidence is not permissible nor can any conclusion drawn by lower Courts be upset merely because on reappraisal and appreciation of evidence an opposite view is possible. Revisional jurisdiction can only be invoked in cases, which involve error relating to exercise of jurisdiction by the Courts below or where there are material irregularity or illegality apparent on the face of the record.

Sarfraz Khan Jatoi for Applicants.

Inayatullah G. Morio for private Respondents.

Muhammad Bachal Tonyo Addl. A.G. for Official Respondents.

MLD 2007 KARACHI HIGH COURT SINDH 1024 #

2007 M L D 1024

[Karachi]

Before Sajjad Ali Shah, J

NIAZ HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-805 of 2006, decided on 26th January, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)-Penal Code (XLV of 1860), S.161---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of---Further inquiry---No role whatsoever had been assigned to accused in, F.I.R.---No tainted money was recovered from accused and he was arrested-only on account of his presence along with co-accused---Case of accused being of further inquiry, he was admitted to bail, in circumstances.

Irfan Ahmed Qureshi for Applicant.

Mashooq Ali Santo, Asstt. A.G. for the State.

MLD 2007 KARACHI HIGH COURT SINDH 1030 #

2007 M L D 1030

[Karachi]

Before Zia Perwaz and Nadeem Azhar Siddiqi, JJ

ANIS-UR-REHMAN---Petitioner

Versus

DISTRICT RETURNING OFFICER and 3 others---Respondents

Constitutional Petition No.D-88 of 2007, heard on 28th February, 2007.

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

---Ss. 152 & 156(c)---Sindh Local Government Elections Rules, 2005, R. 40(3)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Name in more than one Electoral Rolls---Contesting bye-election---Name of respondent candidate appearing in more than one electoral rolls and District Returning Officer allowing him to contest bye-election---Plea raised by petitioner was that after losing election from one Union Council, respondent could not contest bye-election from another Union Council---Validity---Name of respondent appeared in more than one electoral rolls, therefore, he was entitled to participate from any of the Wards---As a consequence of bye-election any new comer or different group could assume the office in pursuance of the result of election---Such was not a continuation of the earlier office---Only distinction was that tenure for the office was restricted to the extent of remaining period of office of earlier incumbent---Respondent candidate was contesting for a different office---Any person who would have moved in the Ward and got his name entered in the list of Electoral Rolls was entitled to contest the election---Disqualifications of candidates were confined to those specified in S.12 of Sindh Local Government Ordinance, 2001, which did not cover the case of petitioner and the provisions being penal in nature were to be strictly construed---High Court declined to interfere with the order passed by District Returning Officer---Constitutional Petition was dismissed in circumstances.

C.P. No.D-881 of 2006 Mst. Parveen v. District Returning Officer and others rel.

Sarfraz A. Akhund for Petitioner.

G.D. Shahani, Addl. A.G. for Official Respondents.

M.B. Khageja for Respondent No.4.

Date of hearing: 28th February, 2007.

MLD 2007 KARACHI HIGH COURT SINDH 1033 #

2007 M L D 1033

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

KAPTAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.28 of 2006, decided on 26th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 337-H(ii), 114, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, refusal of---Bail had been sought on the ground of hardship---Trial Court had reported that charge was framed and absconders had been declared proclaimed offenders---Examination-in-chief of Medical Officer was recorded, but cross-examination was reserved at the request of the counsel for accused---Plea of hardship of accused could not be considered, in circumstances---Next date of hearing had been fixed and bailable warrants had been issued---Bail application was rejected with the observation that if no further progress was made within four months and the delay was not caused on the part of defence, accused would be at liberty to repeat bail application.

Jai Jai Veshnu Mange Ram for Applicant.

Muhammad Ismail Bhutto, State Counsel.

Ali Nawaz Ghanghro for the Complainant.

MLD 2007 KARACHI HIGH COURT SINDH 1080 #

2007 M L D 1080

[Karachi]

Before Anwar Zaheer Jamali, J

AJAL KHAN---Applicant

Versus

BAHARUDDIN KERIO and 5 others---Respondents

Criminal Revision Applications No.S-60 of 2006, decided on 9th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 200 ---Dismissal of direct complaint---Direct complaint under S.200, Cr.P.C. was dismissed by the Trial Court on sole ground that Entry No.20 in Roznamcha of police station concerned had clearly disclosed that action taken by the police party to apprehend absconding accused was a justified action---Applicant had alleged that while holding so the whole evidence adduced by the applicant in the proceedings of preliminary enquiry was ignored by the Trial Court in a slipshod manner and even entry No.21 showing the arrest of 4/5 other persons by the raiding police party was also overlooked--Additional Advocate General, when confronted with said facts, was unable to controvert that illegal arrest of 4/5 other persons had taken place at the hands of police functionaries who were among the raiding party---Facts had shown that substantial material was brought on record by the applicant for bringing his complaint under S.200, Cr.P.C. against said functionaries---Impugned order whereby complaint was dismissed, was set aside with direction for taking further proceedings in the matter in accordance with law.

Irfan Ahmed Qureshi for Applicant.

Masood A. Noorani, Addl. A.G. Sindh for official Respondents.

Despite notices to Respondents, none of them is present.

MLD 2007 KARACHI HIGH COURT SINDH 1086 #

2007 M L D 1086

[Karachi]

Before Nadeem Azhar Siddiqi, J

MUHAMMAD QASIM---Applicant

Versus

WAZIR through L.Rs.---Respondents

Civil Revision No. 5 of 1994, decided on 13th October, 2006.

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

----S. 54---Sale through registered deed---Proof---Denial of vendor to have sold suit property---Vendor in possession of suit property till filing of suit by vendee after five years of alleged sale-deed---Not proved by vendee that after sale, vendor was in. possession of suit property with his permission---No sale of suit property had taken place between the parties.

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

----S. 115---Concurrent findings of fact---Interference with such findings by High Court in revisional jurisdiction by re-appraising evidence--Scope.

High Court in revisional jurisdiction can interfere with a concurrent finding of fact, where an error of jurisdiction is apparent or an illegality and irregularity is found in the proceedings of the Court. Revisional Court cannot interfere with a concurrent finding of fact based on evidence on the ground that appreciation of evidence was not proper.

Reappraisal of evidence is not permissible nor can any conclusion drawn by Courts below be upset merely because an opposite view is also feasible.

Abdul Qadir Shaikh for Applicant.

Parya Ram Veswani for Respondents.

MLD 2007 KARACHI HIGH COURT SINDH 1092 #

2007 M L D 1092

[Karachi]

Before Munib Ahmad Khan and Nadeem Azhar Siddiqi, JJ

NADEEM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 23-D of 2007, decided on 29th March, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Punishment to accused was provided in view of S.9 of Control of Narcotic Substances Act, 1997 keeping in view the quantity of narcotic which was recovered from accused---To establish that entire quantity was specific substance, for which accused had been branded, needed verification and for that purpose it had been made practice by the prosecution that the sample was obtained from each piece or packet and sent for chemical examination to establish that said piece or packet contained same substance which had been verified by the Chemical Examiner---Slight increase in the quantum of narcotic substances, could enhance the punishment exorbitantly and even sentence of death could be provided---When slight change in the quantum of substances was affecting very seriously the life of human being, the allegation of prosecution in respect of the recovery of specific substances, was to be checked very strictly and, to be proved beyond doubt---When punishment was provided on the basis of quantum of recovery of narcotic, then it should be the main consideration for prosecution to establish that entire recorded substance was narcotic etc. and for that purpose it had to take all precautions and make the case fool proof---Case against accused was to be proved up to the hilt by establishing that accused was involved in the matter of specific quantity of narcotic substance of which allegation had been levelled---Until prosecution established the entire quantity in which accused had been allegedly involved was narcotic through sample from each pack, accused was entitled to bail.

Muhammad Hashirn v. The State PLD 2004 SC 856; Waris Khan and 2 others v. The State 2006 SCMR 1051; Shahmore v. The State and PLD 2003 Karachi 230; Afzal Ahmed v. The State 2003 SCMR 573; Mst. Anara Bibi v. The State 2005 MLD 386; Muhammad Uzair Siddiqui v. The State PLD 2005 Pesh. 81; Jangrez Khan v. The State 2005 PCr.LJ 1506; Muhammad Hashim v. the State PLD 2004 SC 856; Waris Khan and 2 others v. The State 2006 SCMR 1051; Nazan Shah v. The State 1998 PCr.LJ 1540; Muhammad Chhuttal v. The State 2001 YLR 654; Imtiaz Ali v. The State 2006 MLD 1961 and Fazal Shah v. The State PLD 1999 Kar. 465 ref.

Ali Nawaz Ghanghro for Applicant.

Muhammad Ismail Bhutto for the State.

MLD 2007 KARACHI HIGH COURT SINDH 1101 #

2007 M L D 1101

[Karachi]

Before Nadeem Azhar Siddiqi, J

NIAMATULLAH and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 73 of 2000, decided on 2nd March, 2006.

Penal Code (XLV of 1860)---

----Ss. 302 & 304---Criminal Procedure Code (V of 1898), Ss.342 & 364---Qanun-e-Shahadat (10 of 1984), Art.17---Appreciation of evidence---Counsel for accused had contended that the Trial Court had committed illegality while recording statement of accused under S.342, Cr.P.C. and instead of recording certificate in his own hand, signed on a typed certificate which was violative of mandatory provision of S.364, Cr.P.C.; and thus was a fit case to be remanded to the Trial Court for writing fresh judgment after recording fresh statement under S.342, Cr.P.C.---Statement under S.342, Cr.P.C. of accused was recorded and signed by accused and the Trial Court in the bottom required certificate under S.364, Cr.P.C. was typed and was also signed by the Trial Court---Said objection was not taken at the stage of trial---Counsel also failed to point out any injustice or injury to defence of accused---Contention that conviction was liable to be set aside on the sole ground that certificate was not written in the hand of the Trial Court, was not convincing in the absence of any injustice caused to accused---Counsel for accused had failed to cite any case law that recording of certificate was necessary in the handwriting of the Trial Court and signing the typed certificate was an illegality not curable---In absence of any injustice to accused that was a mere irregularity not amounting to vitiating the proceedings---Trial Court, however while convicting accused under S.302, P.P.C., had not mentioned in the judgment as to under which clause of S.302, P.P.C. accused had been convicted---Trial Court while awarding conviction, should bear in mind the provisions of S.302, P.P.C. in which accused was dealt with---impugned judgment had made it clear that provisions of S.304, P.P.C. and Art.17 of Qanun-e-Shahadat, 1984 were ignored---Trial Court also had not assigned any reason for not imposing sentence of Qisas---By not doing so the Trial Court had not properly followed the provisions of law resulting in miscarriage of justice caused either to the complainant or to accused---By not doing so the very purpose of Islamic provisions of law became frustrated---Judgment of the Trial Court was set aside, and case was remanded to the Trial Court for re-writing the judgment after hearing the parties within specified period.

Nawab Chandia v. The State 1990 MLD 1158; Allah Rakhio v. The State 2001 PCr.LJ 1959; Mst. Khial Meena v. State 1997 PCr.LJ 539; Unreported judgment in Cr.A. No.D-21 of 2000; Rizwan v. The State PLD 1986 Lah. 222; Shahnawaz and another v. The State PLD 1986 FSC 242; Mudassar alias Jimmi v. State 1996 SCMR 3 and Abdul Malik v. State PLD 1996 FSC 1 rel.

Habibullah G. Ghori for Appellant.

M.I. Bhutto for the State.

MLD 2007 KARACHI HIGH COURT SINDH 1110 #

2007 M L D 1110

[Karachi]

Before Nadeem Azhar Siddiqi, J

RAHAM HUSSAIN---Applicant

Versus

ABDUL RAHEEM and 2 others---Respondents

C.R. No. 82 of 2005, heard on 6th November, 2006.

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

----O. XLI, Rr. 31 & 33---Dismissal of appeal without hearting parties on merits---Validity---Such order/judgment would amount to an error apparent on the face of record---High Court set aside impugned order and directed Appellate Court to decide appeal afresh after giving proper opportunity of hearing to parties.

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

----O. XLI, R.31---Judgment given by Appellate Court without framing point for determination and giving finding thereon---Validity---Such act of Appellate Court would amount to an error apparent on the face of record not requiring any detailed inquiry.

----O. II, R. 2, O.VI, R. 17, O. XXIII, R. 1 & O. XLI, R. 33---Withdrawal/abandoning of part of claim in suit at stage of appeal---Scope---Appellate Court could exercise power under O. XXIII, R.1, C.P.C.---Party after abandoning claim partly would have right to seek amendment of pleadings.

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

----O. VI, R.17---Amendment to correct faulty drafting could be allowed to avoid multiplicity of suit, if character of suit remained unchanged---Principles.

Power to allow amendment is discretionary with the Court and is to be exercised in accordance with the judicial principles to avoid multiplicity of suits. The amendment can also be allowed to correct faulty drafting. The only restraint is that the amendment should not change or alter the character of the suit.

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

----O. VI, R.17---Amendment of pleadings of disposed of suit---Scope---Neither suit nor appeal thereagainst was pending in any court on the date of amendment application---Such application could not be allowed, thus, was dismissed.

Abdul Qadir Shaikh for Applicant.

Ishrat Qayyum Hanfi for Respondents.

Date of hearing: 6th November, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 1114 #

2007 M L D 1114

[Karachi]

Before Sabihuddin Ahmed, C.J. and Muhammad Athar Saeed, J

Mst. RAANA KHAN, ADVOCATE and 5 others---Petitioners

Versus

PROVINCE OF SINDH and others---Respondents

C.P. No. D-489 of 2005, decided on 16th November, 2005.

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

----S. 113---Constitution of Pakistan (1973), Art.199---Constitutional petition----Payment of honorarium---Entitlement to arrears---Petitioner was elected as Councillor with effect from 14-8-2001---Authorities in exercise of powers under S.113 of Sindh Local Government Ordinance, 2001 through resolution, sanctioned payment of honorarium to each Councillor---Said honorarium though was disbursed from the date of resolution but arrears with effect from the date of election of petitioner, were not paid---Authorities opined that payment of honorarium could not be allowed with retrospective effect---Additional Advocate General, however did not support said plea and agreed that petitioner was entitled to payment of honorarium from the date of her election as Councillor--Notification taking away right could not be allowed retrospectively, but those conferring benefit, could always be applied retrospectively---Authorities were directed to make payment of arrears of honorarium to petitioner within specified period.

Elahi Cotton Mills v. Federation of Pakistan PLD 1997 SC 582 ref.

Raana Khan, Advocate Petitioner in person.

Qazi Khalid Ali, Addl. A.G. for Respondent No. 1.

Manzoor Ahmed for Respondent No.2.

MLD 2007 KARACHI HIGH COURT SINDH 1115 #

2007 M L D 1115

[Karachi]

Before Rahmat Hussain Jaferi and Nadeem Athar Siddiqi, JJ

SAHIB KHAN---Appellant

Versus

THE STATE through A.A.G. Sindh and 2 others---Respondents

Criminal Acquittal Appeal No.39 and Criminal Jail Appeal No.61 of 1999, heard on 6th September, 2006.

Penal Code (XLV of 1860)---

----Ss. 302 & 404---Criminal Procedure Code (V of 1898), S. 417---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Contradictions were found in depositions of prosecution witnesses and said contradictions were material in nature and created doubt with regard to presence of said witnesses at the place of Vardat---Witnesses were not consistent on the point of distance of firing and were also not consistent in giving the time of reaching the police at the place of Vardat---Medical evidence had not supported the ocular evidence---Doctor was not sure with regard to the distance of firing and the time of incident---Recovery of pistol and empty was also not proved as the Mashirs in whose presence same were recovered were not examined and without evidence of Mashirs of recovery, it could not be said that recovery was proved---Motive for commission of crime was week---Witnesses were not consistent on the salient features of incident---Witnesses were related to each other and their evidence did not inspire confidence---All Such circumstances had created doubt with regard to the involvement of accused in the commission of offence---Once a reasonable doubt was created, benefit would go to accused---Even single circumstance would create doubt in prudent mind about the guilt of accused and he would be entitled to its benefit as of right---Appeal against acquittal was dismissed, in circumstances.

A.M. Mobeen Khan for Appellant (in Criminal Acq,. Appeal No.39 of 1999).

M. Mehmood Khan S. Yousifi, A.A.-G. for the State (in Criminal Acq. Appeal No.39 of 1999).

Ubedullah Malano for Respondents No.2 and 3 (in Criminal Acq. Appeal No.39 of 1999).

Maqbool Ahmed Awan for Appellant (in Criminal Jail Appeal No 61 of 1999).

M. Mehmood Khan S. Yousifi, A.A.-G. for the State (in Criminal Jail Appeal No 61 of 1999).

Date of hearing: 6th September, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 1127 #

2007 M L D 1127

[Karachi]

Before Zia Perwez and Nadeem Azhar Siddiqi, JJ

MUHAMMAD AMIN---Applicant

Versus

THE STATE---Respondent

Cr. Bail Applications Nos.666-D and S-669 of 2006, decided on 7th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51---Penal Code (XLV of 1860), Ss.302, 324, 353 & 365---Bail before arrest, refusal of---Complainant had resiled from the story narrated in the F.I.R. and had given a totally new story---Allegation in the F.I.R. was sufficient to connect accused with the crime and recovery of Charas---Huge quantity of Charas could not be falsely foisted upon accused---Deeper appreciation of evidence at bail stage, was neither desirable nor permissible and the facts had to be taken at its face value---Medical report had supported the contents of F.I.R.---No material was available on record to suggest that cross-firing had taken place between accused and the police---Complainant in her F.I.R. had clearly named accused---No cause had been shown for false implication of accused in the bail application---Bail application was to be disposed of on the basis of material available on record and the court was required to form a tentative assessment of the evidence available on record---Accused had failed to establish mala fide on the part of the police---Unless accused established that police wanted to arrest him for ulterior motives, when material was available on record to connect him with the crime, he was not entitled for grant of pre-arrest bail---No reasonable grounds were available for believing that accused had not committed offence falling under the prohibitory clause of S.497, Cr.P.C. and S.51 of Control of Narcotic Substances Act, 1997---No ground with regard to bail before arrest having been urged, applications for grant of pre-arrest bail, were dismissed.

Qadir Bakhsh and 5 others v. The State 2006 PCr.LJ 1251; Muhammad Farooq Khan v. The State 2007 PCr.LJ 89; Naseer Ahmed v. The State PLD 1997 SC 347 and The State through Force Commander ANF Rawalpindi v. Khalid Sharif 2006 SCMR 1265 rel.

Farman Ali Kanasiro the Applicant.

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

MLD 2007 KARACHI HIGH COURT SINDH 1135 #

2007 M L D 1135

[Karachi]

Before Gulzar Ahmed, J

C.I.T. GROUP/CAPITAL EQUIPMENT FINANCING INC. through Attorney---Applicants

Versus

M.T. EASTERN NAVIGATOR through Official Assignee and others---Respondents

C.M.A. No. 1186 of 2003 in Admiralty Suit No. 123 of 1996, decided on 19th April, 2007.

(a) Admiralty Jurisdiction of the High Courts Ordinance (XLII of 1980)---

----S. 3(2)(r)---Civil Procedure Code (V of 1908), O.III, R.4 & S.151---Admiralty suit---Admiralty jurisdiction of High Court---Scope and extent---Application under O.III, R.4 read with S.151, C.P.C. with prayer that Court may direct that applicant's (advocate's) fees be paid from out of the sale proceeds lying in the hands of Official Assignee, held as security for satisfaction of the judgment and decree passed in Admiralty suit in favour of intervenors---Validity---Admiralty jurisdiction could be exercised in a case, in which there was a maritime lien---Such jurisdiction was only confined to the things done at sea---Such things to be construed as things done at sea which involved salvage operations and other activities and services which a vessel might require while at sea---Such appeared to be the only jurisdiction that was to be saved by S.3(2)(r), Admiralty Jurisdiction of High Court Ordinance, 1980---Services rendered by the applicant (advocate) would not amount to things done at sea and in any case applicant had not rendered any service for the vessel---Principles.

Azhar Ahmed Khan v. M.V. Ashar PLD 1985 Quetta 278 rel.

PLD 2000 SC 57; Principles of Maritime Law by Susan Hodges and Christopher Hill page 521; The Dirigo (1920) P 425, British Shipping Laws Volume 14; Maritime Liens by D.R. Thomas page 260; The Paris (1896) P.77; Union of India v. Radhey Shyam (AIR 1979 Rajasthan 137); Kuttikrishna Menon v. Cochin Mercantile Ltd. (1962) 32 Company Cases 378 and Hitachi Ltd v. Rupali Polyester 1998 SCMR 1618 ref.

(b) Admiralty Jurisdiction of the High Courts Ordinance (XLII of 1980)---

----S. 3(2)(r)---Constitution of Pakistan (1973), Art.175(2)----Admiralty jurisdiction of High Court---Scope and extent---Principles of common law or equity and good conscience cannot confer jurisdiction on the Courts in Pakistan which has not been vested in them by law---Principles of English Common Law or equity or good conscience, therefore, cannot be pressed into service in Pakistan as having statutory force.

Azhar Ahmed Khan v. M.V. Ashar PLD 1985 Quetta 278 fol.

Muhammad Ali Saeed and Muhammad Naeem for Applicant.

Arif Khan for Respondent.

Dates of hearing: 22nd May, 12th, 15th and 22nd December, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 1159 #

2007 M L D 1159

[Karachi]

Before Nadeem Azhar Siddiqi, J

Dr. ZAHID ALI---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. 160 of 2005, decided on 14th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.420, 416, 463, 464, 468, 470 & 471---National Database Registration Authority Ordinance (VIII of 2001), Ss.30(F) & 31---Quashing of proceedings---Scope---High Court in exercise of jurisdiction under S.561-A, Cr.P.C. could quash proceedings where the case was of no evidence at all or where as a matter of law there could not be any possibility of conviction of applicant/accused; and that continuance of the proceedings before the Trial Court would be futile exercise, wastage of time and abuse of process of the Court---If on the basis of facts admitted on record no offence could be made out, then it would amount to abuse of process of the court to allow prosecution to continue with the trial---F.I.R. in the present case was not registered under S.30(F) of National Database Registration Authority Ordinance, 2000, but was registered under provisions of Penal Code, 1860---No charge, in circumstances existed against accused under S.30(F) of National Database Regulation Authority Ordinance, 2000---Allegations against accused/him were general in nature as no allegation had been made against him that he had committed cheating or prepared forged documents with the intention of cheating or personation---Since no allegations of cheating, forgery and personation were levelled against accused, there. was no possibility of his conviction---F.I.R. though was not registered under S.30(F) of National Database Registration Authority Ordinance, 2000, but even if it was presumed that F.I.R. was registered under the said Ordinance, no case had been made out as the ingredients for such offence were missing from the F.I.R.---Prima facie no case was made out against applicant as according to the F.I.R., there was nothing to show that applicant had the knowledge about issuance of first National Identity Card in the name of co-accused or to say that he had reason to believe that statement or information made or furnished before the accused was false in any material particular---To establish a case under S.420, P.P.C. there should be clear allegations to the effect that applicant was of a guilty mind from the very outset and knowingly had committed offence, which allegations were missing in F.I.R.---No case had been made out against applicant and to allow proceedings to continue before the Trial Court against accused, would amount to abuse of the process of the court---Proceedings against accused, were quashed, in circumstances.

Maqsood Ahmed Khan v. The State 2002 MLD 311; Bashir Ahmed v. State 2002 MLD 746; Sadruddin A. Ghanji v. The State 2005 YLR 2737 Sindh 864 and Miraj Khan v. Gul Ahmed 2000 SCMR 122 rel.

Ali Nawaz Ghanghro for Applicant.

Muhammad Bachal Tunio, Addl. A.G. for Respondent.

MLD 2007 KARACHI HIGH COURT SINDH 1171 #

2007 M L D 1171

[Karachi]

Before Gulzar Ahmed, J

CITY DISTRICT GOVERNMENT, KARACHI---Plaintiff

Versus

Messrs AA JOY LAND (PVT.) LTD.---Defendant

J.M. 29 of 2006 in Suit No. 772 of 2001, C.M.As. No. 4686 and 4687 of 2006 and C.M. R, decided on 19th March, 2007.

West Pakistan Entertainment Duty Act (X of 1958)---

----Ss.2(e), 3 & 8(2)-Civil Procedure Code (V of 1908), S.12(2)---Grant of exemption from levy of entertainment duty---Jurisdiction of City District Government---Scope---Decree challenged on plea of misrepresentation and fraud---Suit filed had sought declaration, cancellation, possession, injunction and recovery of amount---While matter was pending before Arbitration Tribunal, plaintiff submitted before the Tribunal, a settlement arrived at between plaintiff and defendant and prayed that arbitration proceedings be disposed of in terms of said settlement agreement---Arbitration proceedings having been disposed of in terms of said settlement/agreement, Provincial Government filed application under S.12(2), C.P.C. alleging that a specified clause of decree passed in arbitration proceedings, was based upon misrepresentation and fraud as City District Government had no power to grant exemption from levy of entertainment duty---Validity---Entertainment duty was to be levied under S.3 of West Pakistan Entertainment Duty Act, 1958, which had given power to Provincial Government by general or special order to exempt entertainment or class of entertainments from liability from entertainment duty--Apparently specified clause of the impugned decree by which City District Government had exempted the defendant park from entertainment duty, had gone against the mandate of law as no power was available to City District Government in such behalf ---Decree to the extent of said clause which exempted the park from levy of duty would be nullity in law--Allowing application filed under S.12(2), C.P.C. said clause of decree, was struck down.

Ahmed Prizada, A.A.-G. for Applicant.

Qaiser Jameel for Plaintiff.

Ms. Naheda Mehboob Ellahi for Defendant.

MLD 2007 KARACHI HIGH COURT SINDH 1185 #

2007 M L D 1185

[Karachi]

Before Munib Ahmad Khan, J

MUHAMMAD USMAN---Appellant

Versus

NASEER MUHAMMAD and another---Respondents

Criminal Acquittal Appeal No.10 of 2007, decided on 26th April, 2007.

Criminal Procedure Code (V of 1898)---

----S.417(2)---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Appeal against acquittal---Both trial Court and Appellate Court had passed impugned judgment on merit and counsel for appellant could not point out any illegality in impugned judgment---In absence of any illegality appearing on record, appeal against acquittal could not be converted into revision nor appellant was entitled to maintain appeal as an aggrieved person within the meaning of S.417(2-A), Cr.P.C.

2006 PCr.LJ 766; 2006 YLR 354 and 2001 PCr.LJ 2001 ref.

Muhammad Saleem Jesar for Appellant.

Muhammad Ismail Bhutto for the State.

MLD 2007 KARACHI HIGH COURT SINDH 1192 #

2007 M L D 1192

[Karachi]

Before Mrs. Qaiser Iqbal, J

M. ANWAR QURESHI---Plaintiff

Versus

JAMILUDDIN FAROOQI and 5 others---Defendants

Suit No. 324 of 2004, decided on 7th May, 2007.

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

----Ss. 12 & 55---Transfer of Property Act (IV of 1882), S.41---Contract Act (IX of 1872), Ss.187 & 226-Suit for specific performance of agreement and permanent injunction---Defendant, in the present case, could be termed as ostensible owner---Plaintiff was required to take reasonable care for ascertaining the title of the property and when no express or implied consent was advanced by other two defendants (owner and donee) in favour of the said defendant who could be depicted as an' ostensible owner, maxim that "buyer beware" was applicable---In the absence of express or implied consent on behalf of the principal, the principle enshrined, under Ss.187 & 226, Contract Act, 1872 attorney had no authority to act on behalf the principal, who admittedly had no written authority nor had contacted the other two defendants to obtain consent of the real owners---Suit was dismissed in circumstances.

1994 MLD 1059 and 1996 MLD 1123 ref.

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

----Ss. 12 & 55---Suit for specific performance of agreement and permanent injunction---Scope---Relief of specific performance was a discretionary relief, and in presence of evidence which connoted no relationship between plaintiff and defendants, which was the basis of the claim of plaintiff, such discretion could not be exercised in favour of the plaintiff.

PLD 2005 Kar. 280 and PLD 2003 Quetta 142 ref.

---Ss. 12 & 55---Suit for specific performance of agreement to sell and permanent injunction---If a person transacts with a lady or his beneficiary of such transaction, it is he (the beneficiary) who is required to prove by positive evidence that at the time of entering into transaction in question independent advice was available to the lady and that she had entered into the transaction with her free consent and full knowledge.

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

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

----Ss. 12 & 55---Suit for specific performance of agreement to sell and permanent injunction---Plaintiff, in order to succeed, had to prove free consent and knowledge of the owner and the donee that at the time of entering into deal, and to prove that the defendant, as an ostensible owner, had valid authority to sell the property of the owner principal/ donee---Factum about valid authorization to alienate the property in favour of ostensible owner, in the present case, was not established in his favour by the principal who was available at the time of alleged entering into deal by the plaintiff---Record also did not establish that transaction could be found valid as it was entered without consent of the principal---Plaintiff and the ostensible owner having not contacted the owner and the donee, it could be said that the sale in question was not valid in law---Plaintiff's suit, in circumstances, was not sustainable which was dismissed.

PLD 1971 Lah. 173; PLD 1997 Quetta 60; 1994 MLD 1059; 1996 MLD 1123; PLD 2005 K 280; PLD 2003 Quetta 142; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar PLD 1990 SC 1 ref.

Samiuddin Sami for Plaintiff.

Umar Soomro for Defendants Nos. 1 and 5.

Arshad Tayyab Ali for Defendant No.2.

Amir Aziz khan for Defendant No.4.

Date of hearing: 2nd March, 2007.

MLD 2007 KARACHI HIGH COURT SINDH 1203 #

2007 M L D 1203

[Karachi]

Before Nadeem Azhar Siddiqi and Munib Ahmed Khan, JJ

GHULAM RASOOL---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. D-114 of 2003, decided on 29th March, 2007.

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

----Ss. 302(b), 324 & 353---Anti-Terrorism Act (XXVII of 1997), S.7---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Appreciation of evidence---Eye-witnesses were not found present at the site and they were about 1000 paces away---Occurrence had taken place at night, but no evidence about presence of electric bulbs at the place of Wardat was available---Complainant had made improvements at the trial---Ocular evidence did not inspire confidence---Eye-witnesses had not seen the accused firing on the deceased---Delay of twelve days in recording the statements of prosecution witnesses who were all police officials under S.161, Cr.P.C. and another delay of one month and eleven days in sending the recovered articles to Ballistic Expert were not explained by the prosecution---Medical evidence had not supported the ocular testimony---When ocular evidence was unreliable and doubtful, remaining evidence could not justify the conviction---No motive had been assigned to accused for committing the offence---Accused was acquitted in circumstances.

Sobho v. The State 1982.PCr.LJ 243; Suleman and 2 others v. State 1981 PCr.LJ 434; Gulzar v. State 1976 PCr.LJ 419; Saeed Muhammad Shah v. The State 1993 SCMR 550 and Iltaf Hussain v. The State 1996 SCMR 167 ref.

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

----Ss. 302(b), 324 & 353---Recovery---Belated dispatch of recovered articles to Chemical Examiner---Effect---Delay of one month or more in dispatching the blood-stained articles to Chemical Examiner may be fatal to the admissibility of the recoveries.

Sobho v. The State 1982 PCr.LJ 243; Suleman and 2 others v. State 1981 PCr.LJ 434 and Gulzar v. State 1976 PCr.LJ 419 ref.

----S. 103---Search to be made in presence of witnesses---Police responsibility--Non-cooperation of some public witnesses due to risk to their life and liberty, cannot absolve the police of their heavy responsibility to produce witnesses from public---Citizens of strong views and character would come out to support cases, provided they are taken into confidence, given due respect and ensured full protection.

Iltaf Hussain v. The State 1996 SCMR 167 ref.

Nisar Ahmed G. Abro for Appellant.

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

Date of hearing: 29th March, 2007.

MLD 2007 KARACHI HIGH COURT SINDH 1225 #

2007 M L D 1225

[Karachi]

Before Mushir Alam and Maqbool Baqar, JJ

Dr. TARIQ MEHMOOD MEMON---Petitioner

Versus

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

C.Ps. Nos. D-609 and D-902 of 2006, decided on 13th October, 2006.

(a) Sindh Privatization Commission Ordinance (XXV of 2001)---

----S.2(a)---Contract Act (IX of 1872), Ss.2(h), 10 & 31---Constitution of Pakistan (1973), Art.199---Constitutional petition---Rejection of bid---Validly enforceable contract---Bids were invited through newspapers for sale of properties---Petitioners submitted their bids in response to said advertisement---Petitioners were invited for further negotiation with the Committee constituted by Privatization Commission and after negotiation, petitioners improved their bids, on which said bids were recommended by the Committee to Sindh Cabinet Committee on Privatization, which rejected bid of petitioners---Petitioners, in their constitutional petitions had challenged said rejection contending the same to be illegal, arbitrary and violative of rules of natural justice---Petitioners had also claimed that a `concluded contract' had come into being and that they had acquired some vested rights in the subject properties---Petitioners had contended that High Court in exercise of its constitutional jurisdiction, was competent to review administrative action of authorities being violative of principles of natural justice and liable to be struck down---Validity---Inviting bid was in fact an invitation to offer, which, unless accepted and confirmed by competent authority, would create no enforceable contract nor would it create any right in favour of highest bidder---Unless an offer was accepted unconditionally no enforceable contract would come into being---Where acceptance was contingent or conditional, then it would amount to a counter proposal---Unless thecontingency was met or condition was complied with or the counter proposal was unconditionally accepted, it could not be said that a valid contract was born--Competent authority in the present case was Sindh Cabinet Committee on Privatization and Sindh Privatization Commission had acted merely as an agent to said competent authority---Mere making highest bid by itself would not constitute any valid and enforceable contract unless there was unqualified acceptance by competent Authority which, in the present case, was missing---High Court could not exercise extraordinary constitutional jurisdiction in favour of petitioners in the facts and circumstances of the case.

Balochistan Construction Company v. Port Qasim Authority 2001 YLR 2716; Pacific Multinational Ltd. v. I.G. of Police PLD 1992 Kar. 283; Abdulah and Co. v. Province of Sindh 1992 MLD 293; Dada Bhoy Investment (Pvt.) Ltd. v. Federation of Pakistan PLD 1995 Kar. 33; Muhammad Ashraf v. Privatization Board 2002 MLD 550; Pakistan Steel Products v. Indus Steel Pipes Limited 1996 CLC 118; Munshi Muhammad v. Faizanul Haq 1971 SCMR 533; Pervez Qureshi v. Settlement Commissioner, Multan and Bhawalpur and others 1974 SCMR 337; Afzal Maqsood Butt v. Banking Court No.1 PLD 2005 SC 470; Petrosin Products (Pvt.) Ltd. v. Federation of Pakistan 2001 CLC 1412; Bagh Construction Company v. Federation of Pakistan 2001 YLR 2791 and City School (Pvt.) Ltd. v. Privatization Commission of Pakistan 2002 CLC 1158 ref.

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

----Art.199---Constitutional jurisdiction of High Court---Scope---Executive and administrative action and decision tainted with mala fide, arbitrariness, and lacking transparency and fair play, in appropriate cases could be subjected to judicial review.

Ittehad Cargo Services v. Syed Tasneem Hussain Naqvi PLD 2001 SC 121 and Messrs Airport Support Service v. Airport Manager 1998 SCMR 2268 ref.

Abrar Hassan for Petitioner (in C.P. No.D-609 of 2006).

Abid S. Zuberi for Petitioner (in C.P. No.D-902 of 2006).

Sarwar Khan A.A.-G. for Respondent (in C.Ps. Nos.D-609 and 902 of 2006).

Zafar Ahmed Khan for the Commission (in C.Ps. Nos.D-609 and 902 of 2006).

Date of hearing: 13th October, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 1238 #

2007 M L D 1238

[Karachi]

Before Azizullah M. Memon, J

AMROZ MASIH alias GULOO and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 166 of 2006, heard on 27th March, 2007.

Penal Code (XLV of 1860)---

----S.302---Appreciation of evidence---Benefit of doubt---Prosecution witness in her statement which was recorded by Investigating Officer, had specifically stated that accused allegedly put pillow on the face of deceased which caused his death; that whereafter his body was made to hang, so as to give an impression that deceased had committed suicide---Basic cause of death of deceased, in circumstances, should have been suffocation, which had not been certified by Medical Officer to be cause of death of deceased---Case of prosecution was not free from reasonable doubt, cause of death of deceased was not clear and deposition of only material witness, was contradictory with other material available on record---Settled principle of law was that even if a single dent was found in the case of prosecution giving rise to a reasonable doubt, accused were to be awarded benefit thereof---Impugned judgment was set aside and accused were acquitted of the charge and were released.

Shahadat Awan for Appellant.

Arshad Lodhi for the State.

Date of hearing; 27th March, 2007.

MLD 2007 KARACHI HIGH COURT SINDH 1247 #

2007 M L D 1247

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

MUHAMMAD ASLAM KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. 259 of 2006, decided on 11th April, 2007.

Criminal Procedure Code (V of 1898)---

----S.561-A---Police Order (22 of 2002), Art.18---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Quashing of order, application for---Investigation conducted by two Inspectors, was not taken into consideration by third Inspector---Magistrate while disposing the report had not taken into consideration evidence already recorded by first two Inspectors and investigation was transferred to third Inspector in violation of Art.18 of Police Order, 2002---Impugned order passed by the Magistrate and summary floated by the prosecution for disposing of the case under B class were set aside---Proceedings initiated against applicant should also be dropped---High Court directed that reinvestigation be carried out by A.D.I.G., who would constitute team of independent Officers to reinvestigate the crime; accordingly.

Amir Mansoob Qureshi for Applicant.

Sabir Hyder, A.A.-G. with I.O. S.-I. Raja Tariq for the State.

MLD 2007 KARACHI HIGH COURT SINDH 1264 #

2007 M L D 1264

[Karachi]

Before Azizullah M. Memon, J

Mst. MAQSOODA MAI---Applicant

Versus

BUKHAT ALI and another---Respondents

Criminal Revision Application No.137 of 2006, decided on 13th December, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 514 & 439---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Discharge ,of surety---Prayer of the surety to discharge her as surety for the accused in the case was refused by the Sessions Court on the ground that accused had disappeared after marking his presence in the Court in the morning---Surety had already discharged her duty as cast on her, when the accused had appeared in the Court and she could not be imposed any penalty in case he absconded thereafter---Prayer of the surety for her discharge in circumstances, was necessarily to be allowed and she could not be dragged any further or asked to continue to act as surety for such an accused against her wishes---Impugned order was consequently set aside and the applicant was discharged as surety of the accused, with the direction to return the surety documents or security amount to her---Criminal Revision was accepted accordingly.

Ch. Abdul Sattar Abid for Applicant.

Ms. Cookie Rawat for the State.

MLD 2007 KARACHI HIGH COURT SINDH 1269 #

2007 M L D 1269

[Karachi]

Before Mushir Alam, J

THE STATE---Applicant

Versus

IRFANULLAH QAZI---Respondent

Criminal Suo Motu Revision No.136 of 2005, decided on 4th May, 2007.

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

---Ss.345 & 439---Penal Code (XLV of 1860), S.452---Compounding of offence---Suo motu revision---Offence under the F.I.R. had since been compounded and the matter had been disposed of by the Trial Court---Considering that offence under S.452, P.P.C. was not compoundable, show-cause notice was issued to complainant and to accused as to why order to the extent of allowing compounding of the offence under S.452, P.P.C. should not be recalled---Parties being neighbours, were living harmoniously and behaving properly, good sense prevailed and they had patched up their differences and decided to live in peace and harmony---When heinous crimes like murder were allowed to be compounded, present crime under S.452, P.P.C. i.e. trespass to cause hurt and assault, was rendered secondary---If Court would remand the matter for decision on merits, there was no likelihood to record conviction or otherwise---Acceptance of compromise was in the larger interest of two neighbours for the benefit of congenial neighbour-hood environment--Notice issued was discharged in circumstances.

Hussain Bux v. State PLD 2003 Kar. 127 rel.

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

Shahadat Awan for Respondent.

MLD 2007 KARACHI HIGH COURT SINDH 1278 #

2007 M L D 1278

[Karachi]

Before Munib Ahmed Khan, J

ANWAR and another---Applicants

Versus

THE STATE---Respondent

M.A. No. 375 of 2007 in Criminal Appeal No. 26 of 2007, decided on 12th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 426---Suspension of sentence---Accused remained on bail during trial and allegation against him was of aerial firing---Sentence of accused was suspended with the consent of State counsel---Co-accused was suffering from T.B. and was bleeding from mouth with cough, which was not only serious for him, but also dangerous for other inmates of the jail---Sentence of co-accused was also suspended in view his condition and there being no objection from the prosecution.

Pir Mazhar-ul-Haq and Shafi Muhammad Memon for Applicants.

Mushtaque Ahmed Abbasi, Asstt. A.G. for the State.

MLD 2007 KARACHI HIGH COURT SINDH 1286 #

2007 M L D 1286

[Karachi]

Before Azizullah M. Memon and Ghulam Rabbani, JJ

SHER AFZAL KHAN---Petitioner

Versus

SARWAR IQBAL and 2 others---Respondents

Constitutional Petition No.D-873 of 2005, decided on 10th August, 2005.

Sindh Local Government Elections Rules, 2005---

----Rr.2(xxii) & 12---Election Commission Order (CEO's) (1 of 2002), Art.9-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer of nomination papers from one constituency to another constituency---Rejection of nomination papers---Petitioner filed nomination papers as a joint candidate for Nazim with Naib Nazim before the Returning Officer town---Said nomination papers were transferred to Returning Officer G' Town, since said Returning Officer was appointed as Returning Officer for relevant Union Council---Requisite fee was also ordered to be deposited with Returning OfficerG' ---Said nomination papers, so received on transfer, were accepted by Returning Officer G' ---Respondent/rival candidate filed appeal against said transfer of nomination papers and same was accepted by Returning OfficerG' on ground that no powers were vested in Returning Officer 'L' to transfer nomination papers of petitioner---Validity---Contention of rival candidate that nomination papers could not be transferred by Returning Officer to other constituency as no specific power vested in him in that respect, was not controverted by petitioner, but he placing reliance on Art.9-B of Election Commission Order (CEO's), 2002 had contended that nomination papers could be transferred---Nothing had been brought on record that for the purpose of transfer of nomination papers from one constituency to another constituency any directions had been issued by the Election Commission---Provisions of Art.9-B of Election Commission Order (CEO's) 2002, in circumstances, were of no assistance to petitioner---Nomination papers were to be filed before Returning Officer who had been appointed vide notification, but petitioner did not file nomination papers before Returning Officer who was so appointed for said purpose--Petitioner could have filed other nomination papers before concerned Returning Officer as according to sub rule (6) of R. 12 of Sindh Local Government Elections Rules, 2005 a person could be nominated in the same Union by more than one nomination papers---Impugned order, whereby nomination papers of petitioner, were rejected, did not suffer from any illegality or infirmity in circumstances.

Ms. Raana Khan for Petitioner.

Zafar Ahmed Khan for Respondent No. 1.

M. Sarwar Khan A.A.-G., Sindh.

MLD 2007 KARACHI HIGH COURT SINDH 1295 #

2007 M L D 1295

[Karachi]

Before Mrs. Yasmin Abbasey, J

MOHSIN RAZA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 226 of 2007, decided on 7th May, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.392---Bail, grant of---Further inquiry---No direct evidence at the moment was coming on record, no recovery was shown from the possession of accused---Vehicle from which case property was shown to have been recovered, neither was taken in custody nor was shown in challan as case property---Case being of further inquiry, accused was released on bail.

Amir Mansoob Qureshi for Applicant.

Asmatullah Niazi for the State.

2007 M L D 1357

[Karachi]

Before Sajjad Ali Shah, J

Dr. Syed TARIQ SOHAIL and another---Plaintiff's

Versus

PAKISTAN DFFENCE OFFICERS HOUSING AUTHORITY (D.H.A.) through Administrator---Defendant

Suit No. 1830 of 1999, decided on 15h August, 2006.

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

----S.54---West Pakistan Land Revenue Act (XVII of 1967), S.42---Transfer of title---Mutation---Scope---Only requirement for acquiring title to au immovable property of value of Rs.100 or above as envisaged under S.54 of Transfer of Property Act, 1882, is a registered instrument---Mutation neither creates title nor extinguishes it but in fact is a record and evidence of transaction which has already taken place---Failure to take effect the mutation by itself cannot undo the registered sale.

Muhammad Munir v. Muhammad Saleem and others 2004 SCMR 1530 rel.

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

----S.42---Declaration of title---Property described by mets and bounds---Excess land in possession of plaintiff---Effect---Suit property was leased out to predecessor-in-interest of plaintiffs in year, 1963---All four sides of the suit property were bound by roads and streets---Plaintiffs purchased the property in year, 1995 and prior to purchase, three site plans were approved for building, in the first plan the area of suit property was 2000 sq yards, while in subsequent plans the area was 2600 sq yards---After purchase of the suit .property, the plaintiffs applied for mutation, but authorities declined to mutate the property in their names an the ground that laud of suit property was found to be 3728 sq yards instead of 2600 sq yards---Authorities demanded present price of excess land in the possession of plaintiffs---Plea raised by plaintiffs was that as the suit property was situated within the boundaries described in lease deed and site plans, therefore, dispute regarding size or area had become immaterial---Validity---Entire land was sold within the boundaries described in site plan as well in lease deed---Authorities failed to prove that plaintiffs or their predecessor-in-interest trespassed over extra land---Authorities were also not able to show the existence of any extra within the described area---Plaintiffs had all the rights to retain all that piece and parcel of land within the boundaries described in lease, might it be 2600 sq yards or 3728 sq yards---Record established that authorities either deliberately, to extend favour or through a mistake calculated the area of land as 2600 sq yards instead of its actual area of 3728 sq yards at the time of leasing out to predecessor-in-interest of plaintiffs---Authorities were at the best entitled to the premium for extra land at the same rate as was charged at the time when sub-lease by way of Form A was granted along with all other proportionate development charges as were charged by the authorities in respect of 2600 sq yards---Authorities had handed over and parted with the possession of the entire plot on 12-3-1963, therefore, they had no legal or moral justification to charge for extra land at the present market value---High Court directed the plaintiffs to pay the authorities proportionate premium and development charges for extra area of 1128 sq yards at the same rate which was charged at the time of granting lease in respect of 2600 sq yards---Suit was decreed accordingly.

Rasheedur Rehman v. Akram Khan 1989 SCMR 1982 ref.

Miss Sana Minhas for Plaintiff.

Nazar Hussain Dhoon for Defendant.

Date of hearing: 11th May, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 1385 #

2007 M L D 1385

[Karachi]

Before Munib Ahmad Khan, J

Mst. ANISA BEGUM---Applicant

Versus

ATIQ-UR-REHMAN---Respondent

Civil Revision Application No. 50 of 2007, decided on 30th April, 2007.

Limitation Act (IX of 1908)---

----S.12---Civil Procedure Code (V of 1908), S.96---Appeal---Period of limitation---Computation---Non-issuance of notice by copying branch for collection of certified copy---Judgment and decree was passed by Trial Court on 29-3-2004, application for certified copy was made on 31-3-2004, cost was deposited on 12-4-2004 and copy was delivered on 24-4-2004---Appellate Court dismissed the appeal being barred by limitation---Plea raised by petitioner was that copying branch did not issue any notice for receipt of certified copy, therefore, time would be computed from the date of delivery of copy---Validity---Section 12 (5) of Limitation Act, 1908, provided that only that time was excluded from limitation period provided under law, which was requisite for obtaining the copies---Petitioner did not file any receipt of copyist to show as to whether any date for collection of copy was given to him or not, therefore, date which had been mentioned in the judgment by the copyist was correct---If period would be calculated, then appeal filed . on 22-5-2004, before Appellate Court was barred by 20 days as the delay on the part of petitioner towards deposit of copying cost and further delay in collection, of certified copy, could not be condoned---Such period could not be excluded from limitation time provided under 5.12 of Limitation Act, 1908---Appellate Court had rightly dismissed the appeal and High Court, in exercise of revisional jurisdiction, declined to interfere with the judgment---Revision was dismissed in circumstances.

2003 SCMR 176 rel.

1975 SCMR 157 and 2003 SCMR 1560 ref.

Muhammad Shahid Qadeer for Applicant.

MLD 2007 KARACHI HIGH COURT SINDH 1393 #

2007 M L D 1393

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

MUHAMMAD AZEEM and another---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Applications Nos. 237 to 249 and M.A. No.4405 of 2006, decided on 8th January, 2007.

Criminal Procedure Code (V of 1898)---

----S.561-A---Foreigners Act (XXXI of 1946), Ss.3(2)(a)(b), 13 & 14---Quashing of F.I.R.---Application for---Applicants being Pakistan National, had not contravened airy provision of Foreigners Act, 1946 as they had neither .abetted nor attempted to abet any person in contravention of any provision of any law and had not provided any assistance to the Passengers in any manner either to enter Pakistan or to exist Pakistan in contravention of any Law for the time being in force---F.I.Rs. against applicants/accused were registered without lawful authority, which fell within the abuse of process of the court---Allowing the applications, applicants were released.

Mehmood A. Qureshi for Applicants.

S. Mehmood Alam Rizvi for Respondent.

ORDEK

SYED ZAWWAR HUSSAIN JAFFERY, J.---I intend to dispose of Criminal Miscellaneous Applications No. 237 of 2006 to 249 of 2006 by common order as the applicants/accused have been falsely involved in the F.I.R. No. 619 of 2005 to 632 of 2006 except. F.T.R. No. 631 of 2006 under sections 3(2)(a)(b), 13/14 of the Foreigner Act, registered at Police Station FIA Passport Cell Karachi.

The brief facts of the case disclosed in the F.I.R. are that the applicants are the driver and conductor respectively of Bus CH-12710 of Mullah Jan Coach Service, being .plied on the route Karachi to Mand Bilo. The FIA party headed by S.-I. Syed Zahid Ali along with other staff intercepted the Bus and arrested the applicants and the passengers and seized the bus. The applicants and other passengers were brought at FIA center Karachi and 17 F.I.Rs. were registered at the Police Station FIA Passport Cell Karachi. After usual investigation the prosecution has submitted charge sheets/challans in the Court of 4th Judicial Magistrate West Karachi. The said cases were transferred in the Court of learned Sessions Judge Karachi West and at present the cases are pending trial in the Court of learned 1st Additional Sessions Judge West Karachi against the applicants.

It is, inter alia, contended by Mr. Mehmood A. Qureshi learned counsel for applicants that applicants are Pakistani National and they have not contravened any provision of Foreigner Act as they have neither abetted nor attempted to abet any person in contravention of any provision of any law -and have not provided any assistance to the passengers in any manners either to enter Pakistan or to exit the Pakistan in contravention of any law for the time being force. The applicants are plying the bus from Karachi to Mand Billo, therefore, the applicants are not required to ask any person to show them any travelling documentation. The applicants had not committed any offence and the F.I.Rs. registered against them is illegal and without jurisdiction. The FIA personnel has wrongly seized the said bus from the lawful custody of the applicants and arrested them in 17 F.I.Rs. with mala fide intention and 'ulterior motive, It is further urged that there is no evidence brought on record against the applicants except the statement of co-accused before FIA authority, which is inadmissible in law. It is further urged that no useful purpose will be served in framing the charge against the applicants as there is no evidence at all against them.

Mr. S. Mehmood Alam Kizvi learned Standing Counsel for the Federation has rightly conceded that there is no evidence against applicants as all other F.I.Rs. have been registered against applicants under the Immigration Ordinance of the same incident.

Admittedly, the applicants being Pakistani National have not contravened any provision of the Foreigner Act in their evidence not abetted nor attempted to abet any person in contravention of any provision of any law and have not provided any assistance to the passengers in any manners either to enter Pakistan or to exit the Pakistan in contravention of any law. .

MLD 2007 KARACHI HIGH COURT SINDH 1405 #

2007 M L D 1405

[Karachi]

Before Sarmad Jalal Osmany, J

HUMAYUN MUHAMMAD KHAN and 4 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 933 of 2006, decided on 26th March, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 506---Interim pre-arrest bail, confirmation of--F.I.R. was filed after five days of the occurrence---Parties being on inimical terms with each other, prima facie false allegations could not be ruled out---Interim pre-arrest bail granted to accused, was confirmed, in circumstances.

Mehmood A. Qureshi along with Ziul Haq Makhdoom for Applicants.

Sardaruddin Qureshsi State Counsel.

MLD 2007 KARACHI HIGH COURT SINDH 1418 #

2007 M L D 1418

[Karachi]

Before Munib Ahmad Khan, J

MUHAMMAD KHAN---Applicant

Versus

THE STATE---Respondent

Bail Application No.174 of 2007, decided on 30th April, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.225, 324, 337-A(i), 353, 147, 148 & 149---Bail, grant of---Further inquiry---Punishment provided under the relevant law and discrepancy in the mashirnamas, as well as absence of independent witnesses, case of further inquiry had been made out---Accused was admitted to bail, in circumstances.

Mehmood A. Qureshi far Applicant.

Muhammad Sabir Haider, A.A.-G for the State.

MLD 2007 KARACHI HIGH COURT SINDH 1424 #

2007 M L D 1424

[Karachi]

Before Mushir Alam, J

Messrs SHELL PAKISTAN LTD.---Plaintiff

Versus

Messrs BHOJA AIR (PVT.) LTD.---Respondent

Suit No. 429 of 2001, decided on 24th May, 2006.

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

----S.34---Civil Procedure Code (V of 1908), O.XXXVII, R.2---Stay of proceedings---Arbitration clause, invoking of---Suit for recovery of money on the basis of negotiable instruments was pending---Defendant filed application under S.34 of Arbitration Act, 1940, for stay of proceedings---Validity---Suit was simply founded on dishonoured cheques, therefore, application under S.34 of Arbitration Act, 1940, was dismissed---Validity---Held, for deciding application under S.34 of Arbitration Act, 1940, one of the important considerations that weighed with the court was the conduct of defendant as well and it was incumbent upon defendant to press into service the application under S.34 of Arbitration Act, 1940, to show that defendant before and after filing of the suit was ready and willing to arbitrate.

Cotton Export Corporation v. Asif Cotton Jinners 1995 CLC 1024 and Pioneer Cables Ltd. v. Sandi Cement Ltd. 1999 CLC 1841 fol.

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

----O.XXXVII, Rr.2 & 3---Recovery of money---Dishonoured cheques---Unconditional leave to defend the suit---Reconciliation of accounts---Plaintiff company supplied fuel to defendant company against 7 days credit, secured through guarantees---Defendant made payments through cheques which were dishonoured---Defendant sought unconditional leave to defend the suit on the ground that payments were stopped as the accounts needed reconciliation---Validity---Once the parties agreed to particular mode and manner of payment, then there was no justification to object to such mode and manner of payment---Objections of defendant on such count were, therefore, not tenable---Defendant failed to point out any discrepancy in the accounts and details of cheques issued by or on its order as detailed in the plaint---Just a bald and sweeping statement that accounts needed reconciliation alone would not be sufficient to earn unconditional leave to defend on such count---Defendant had neither disputed any invoice nor any dishonoured cheque, nor showed that any amount of dishonoured cheque was paid subsequently---Defendant was granted conditional leave to defend the suit subject to furnishing solvent surety to the extent of 25% of the amount claimed in the suit---Leave was granted accordingly.

Messrs Cepcon (Pvt.) v. Messrs Rizwan Builders Ltd. 1990 MLD 2027 and Mst. Suriya Waeem Usmani v. L & M International (Pvt.) Ltd. 2002 CLC 624 ref.

Ms. Sana Minhas for Plaintiff.

Yawar N. Farooqui for Defendant.

MLD 2007 KARACHI HIGH COURT SINDH 1434 #

2007 M L D 1434

[Karachi]

Before Sabihuddin Ahmed, C.J.

MASOOD AHMED BUGHIO and another---Applicants

Versus

THE STATE---Respondent

Criminal hail Applications Nos.926 & 949 of 2006, decided on 16th April, 2007.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.467, 468, 477-A & 34---Prevention of Corruption Act (II of 1947), S.5(2)---Pre-arrest bail, confirmation of---Accused who was the concerned officer, charged with the duty to pass orders for making entry in revenue record, if did so wrongly, for which he could be liable for criminal misconduct, but as long as he did not rely on some order purportedly made by any other authority which was in fact non-existent, it might be difficult to establish forgery---Pre-arrest bail already granted to accused was confirmed---Bail application on behalf of co-accused having not been pressed, was dismissed.

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

Muhammad Waseem Samo for Applicants.

Mahmood A. Qureshi, Advocate for aggrieved person.

Arshad Lodhi, Assistant Advocate General for the State.

MLD 2007 KARACHI HIGH COURT SINDH 1458 #

2007 M L D 1458

[Karachi]

Before Faiz Muhammad Qureshi, J

QUTUBUDDIN---Applicant

Versus

THE STATE---Respondent

Criminal Revision No. 81 of 2000, decided on 29th March, 2001.

Criminal Procedure Code (V of 1898)---

----Ss. 265-A & 540---Penal Code (XLV of 1860), S.302---Examination of witnesses without procuring attendance of Public Prosecutor---Reexamination of witnesses---Application for---Main contention of counsel for applicant was that two Doctors had been examined by the Trial Court without procuring attendance of Public Prosecutor .and that the Trial Court had itself acted as Public Prosecutor---Matter being a murder case, presence of the Public Prosecutor was very necessary while recording statements of witnesses and if Public Prosecutor was not available with the Court it was the duty of the Presiding Officer to borrow other Public Prosecutor of Sessions Court, but that had not been done---Assistant Advocate General appearing for the State, had conceded with the contentions raised by the counsel for applicant and had given no objection, if revision was allowed and the Trial Court was directed to summon said Doctors for examination/re-examination---Trial Court had not taken into consideration the ingredients of S.265-A, Cr, P. C. , particularly when it was a murder case---Impugned order was set aside, Trial Court was directed to summon both said Doctors and they would be recalled and. re-examined with the assistance of Public Prosecutor.

1997 PCr.LJ 1553 rel.

Nawaz Mirza for Applicant.

Mehmood A. Qureshi for the Accused.

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

MLD 2007 KARACHI HIGH COURT SINDH 1475 #

2007 M L D 1475

[Karachi]

Before Muhammad Moosa K Leghari, J

Syed UBAID AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 398 of 2006, decided on 17th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324, 447, 506(2), 511, 101, 147, 148 & 149---Pre-arrest bail, refusal of---Accused had misused concession of interim pre-arrest bail granted to him by avoiding to appear before the Trial Court---Strong presumption was that accused had absconded---Accused, by his own conduct, had disentitled himself to the discretionary relief of pre-arrest bail---Neither F.I.R, had shown that case against accused was based on ulterior motive,. nor the prosecution had been initiated to disgrace or humiliate him for mala fide reasons, nor any material had been placed on record to presume enmity or even hostility with complainant---Contents of F.I.R. revealed that accused was even not known previously to the complainant---Ingredients for grant of pre-arrest bail, otherwise were conspicuously missing---Order whereby accused was granted interim pre-arrest bail, was recalled.

Fareed Ahmed Dayo for Applicant.

Shahida Jatoi for the State.

Shaif Rajput for the Complainant.

Applicant is not present.

MLD 2007 KARACHI HIGH COURT SINDH 1486 #

2007 M L D 1486

[Karachi]

Before Aziz Ullah M. Memon, J

KAMRAN ALI SIKANDAR and 2others---Applicants

Versus

THE STATE through III-Additional District Sessions Judge Malir, Karachi 2 and others---Respondents

Criminal Revision Application No. 92 of 2006, decided on 8th March, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 195, & 476---Commission of forgery during judicial proceedings of case---Proof---Applicants had alleged that affidavit was meant to be sworn by respondent, but signature of her husband had been made on said affidavit---Applicants had gathered impression from said aspect of the case that the purpose of filing of such affidavit was to get undue benefit by misguiding the court---Contention of counsel for respondents was that due to bona fide mistake husband of respondent had put his signature on affidavit, otherwise page No.2 of the said affidavit was clearly indicative of the fact that respondent herself. appeared before competent officer of the court to verify the contents of the said affidavit who recorded his satisfaction that it was actually meant to be sworn by respondent---No indication existed on the record that Commissioner for taking affidavits had acted in connivance with either respondent or her husband for the purpose of certifying false affirmation of contents of said affidavit---Allegation that respondents had committed any forgery during the judicial proceedings of a case before the Trial Court, in circumstances, was not apparent on the face of the record---Trial Court however, had discretion to proceed against the respondents either under S.195, Cr.P.C. or under S.476, Cr.P.C.

AIR 1923 Nagpur 258; 1991, PCr.LJ 1879 ; 1994 SCMR 1103; 1984 PCr.LJ 1340 and 1997 PCr.LJ 59 rel.

Naila Junaid v. Additional District Judge and 2 others 2005 MLD 834; Khuda Bakhsh v. Muhammad Sharif 1974 SCMR 279; Muhammad Sharif v. Muhammad Afzal Sohail and others PLD 1981 SC 246; Abdul Rehman Bajwa v. Sultan and others PLD 1981 SC 522; Mussadaq's case PLD 1973 Lah. 600; Arif Manzoor Qureshi's case 2003 YLR 249; Nazar Ahmed Chaudhry's case PLD 1987 Lah. 214; Hira Lal Sarda's case AIR 1932 Patna 243; Mian Fazal Ellahi's case PLD 1970 Lah. 383; Abdul Rehman's case PLD 1951 Baghdad-ul-Jadid 85; Lalanand Lal's case AIR 1937 Lah. 867; Ramnandan Prasad Narayan Singh's case Criminal Law Journal Reporter 1921 page 467 equivalent 61 Indian cases 955; Mst. Zohra's case. 1992 MLD 1827; Gangoo Mal's case AIR 1925 Sindh 263; Ghanshamdas Gianchand's case AIR 1934 Sindh 114; Kalumal Gelomal's case AIR 1935 Sindh 81; M. Liaqat Hussain's case AIR 1946 Allahabad 156 and Jairain Singh's case AIR 1932 Lahore 307 ref.

Abbadul Hassnain for Applicants.

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

Mahmood A. Qureshi for Respondent No.2.

Nemo for Respondent No.3:

MLD 2007 KARACHI HIGH COURT SINDH 1520 #

2007 M L D 1520

[Karachi]

Before Atta-ur-Rehman, J

ACB (PVT.) LTD.---Plaintiff

Versus

UPS WORLDWIDE FORWARDING INC.---Defendant

C. M. As. Nos. 5274 and 5533 of 2003 in Suit No.1033 of 2003, decided on 27th April, 2004.

Arbitration Act (X of 1940)---

---Ss. 20 & 34---Application to file arbitration .agreement in Court---Stay of legal proceedings where there is an arbitration agreement---Scope---Sections 20 and 34, Arbitration Act, 1940 are independent of each other; findings on section 20 of the Act, will not bar the application under S.34, Arbitration Act, 1940---Application under S.34 of the Act is not subject to the findings, if any, on S.20 of the Act---All the facts and circumstances of each case have to be examined---Parties should not lightly be released from their bargain that follows from the sanctity which the Court affixes to the contracts---Court before refusing to stay the proceedings should conclude that enforcement of such arbitration clause would amount to forcing the plaintiff to honour a different contract---If the plaintiff' appears to have been seeking procedural advantages and avoiding a trial as per agreement, a judicious and reasonable exercise of jurisdiction would be to allow the application of defendant and stay such proceedings---Principles.

Manzoor Textile v. Nichimen Corporation 2000 MLD 641; Eckhardt & Co. v. Muhammad Hanif PLD 1993 SC 42 and Messrs Dhanrajamal Gobindram v. Messrs Shamji Kalidas and Co. AIR .1961 SC 1285; 1293 and 1294 distinguished.

Uzin Export Foreign Trade Co. v. Mcdonald Layton & Co. 1996 SCMR 690; The Echhardt (1969) 2 All E.R. 641; Michael Golodetz v. Serjauddin & Co. AIR 1963 SC 1044-1046; Aratra Potato Co. Ltd. and another v. Egyptian Navigation Co. (EL Amria) Lloyd's Law Reports 1981 Vol. 2 at page 119 and The Fehmarn Ali England Law Reports (1958) 1 at Page 333 ref.

Qazi Faez Isa for Plaintiff.

Mahmood Mandviwala for Defendant.

MLD 2007 KARACHI HIGH COURT SINDH 1653 #

2007 M L D 1653

[Karachi]

Before Amir Hani Muslim and Mrs. Yasmin Abbasey, JJ

Ltd. Col (Retd.) M. AKRAM ABBASI and another---Appellants

Versus

PAKISTAN DEFENCE OFFICERS---Respondents

H.C.A. No. 249 of 1999, decided on 19th April, 2007.

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

----S.1---Fatal accident---Entitlement and determination of amount of compensation---Minor son of plaintiff aged about two years while playing fell in one of the pits/tanks dug by department to hold water for construction work---After completion of project those pits/tanks had to be removed or filled for the safety and security of inhabitants but those pits/tanks remained uncovered .and due to such negligence and careless act of the department accident took place---Department had utterly failed to prove alleged act of contributory negligence on the part of the minor and her parents/plaintiff---Court was not justified to dismiss suit for damages filed by plaintiff against the department---Impugned judgment was set aside and suit filed was decreed after determining amount of compensation taking into consideration expected remaining life of minor and other factors like expected earning capacity of minor.

Muhammad Mossa v. Karachi Water and Sewerage Board and another 1997 CLC 925; Javed Iqbal v. Province of West Pakistan and others 1992 CLC 2369; Pakistan Railways through General Manager v. Javed Iqbal 1995 SCMR 446; Federation of Pakistan through Secretary Railways and another v. Hafiza Malika Khatoon Begum and others 1996 SCMR 406; .Karachi Water and Sewerage Board through Managing Director and another v. Muhammad Moosa 2001 CLC 221 and Ehteshmauddin Qureshi v. Pakistan Steel Mills Corporation Ltd. and another 2004 MLD 361 ref.

(b) Maxim---

----"Res ipsa loquitor"---Applicability.

Ehteshmauddin Qureshi v. Pakistan Steel Mills Corporation Ltd. and another 2004 MLD 361 ref.

Nasir Maqsood for Appellants.

Raja Sikandar Khan Yasir for Respondents.

MLD 2007 KARACHI HIGH COURT SINDH 1669 #

2007 M L D 1669

[Karachi]

Before Sarmad Jalal Osmany and Amir Hani Muslim, JJ

QASIM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 58 of 1999 and Confirmation Case No. 4 of 1998, decided on 16th March, 2006.

Criminal Procedure Code (V of 1898)---

----S.164---Penal Code (XLV of 1860), S.302(b)---Appreciation of .evidence---Confession of accused before the Magistrate and the Trial Court had been made an integral and substantial part of the prosecution case---Confessional statement made by accused before Magistrate, however, was contradictory to the statement made by him before the Trial Court---Accused, in the statement made before .the Magistrate, had. admitted that the co-accused had committed sodomy with the deceased, but in his statement recorded under Section 342, Cr.P.C. before the Trial Court he had stated that "we also committed sodomy upon the deceased" while in the same statement recorded under S. 342 Cr.P.C., accused had stated that "no act of sodomy was committed by . me with deceased"---Failure on the part of the Trial Court to frame the question seeking explanation of accused about material contradiction pertaining to sodomy, had destroyed entire prosecution story; and the confession in the given circumstances ought to have been discarded by the Trial Court---Where a confession or admission was the sole basis of the judgment convicting accused, failure to question him about its voluntariness, would be presumed to have prejudiced the case of accused---Trial Court, in the face of that material, was duty bound to disbelieve the confessional statement and statement under S.342 Cr.P.C. by which accused had admitted his guilt for two reasons; firstly that as per medical evidence no sodomy was committed upon deceased, and secondly accused under S.342 Cr.P.C. had exonerated the co-accused---Legality of the confessional statement became doubtful when accused was neither given warning or notice before such statement was recorded by the Magistrate---Story narrated by accused in the confessional statement, did not correspond to the medical evidence---Further material contradiction existed in the deposition of prosecution witnesses regarding post-mortem report---Such material contradictions belied prosecution story that -the dead body was recovered in presence of the Mashirs---Material brought on record by the prosecution, was neither confidence inspiring nor sufficient to convict accused---Impugned judgment passed by the Trial Court, was set aside and accused was released.

Rahim Bakhsh v. Crown PLD 1952 FC 1 and Haq Nawaz v. State 2000 SCMR 785 rel.

Zubair Ahmed Rajput for Appellant.

Muhammad Mahmood Khan Yousifi, A.A.-G. for the State.

Dates of hearing: 9th and 16th, March, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 1687 #

2007 M L D 1687

[Karachi]

Before Mrs. Qaiser Iqbal, J

HABIB BANK LIMITED---Plaintiff

Versus

AIZAD HASSAN and another---Defendants

Suit No.565 of 2000, decided 13th January, 2006.

Civil Procedure Code (V of 1908)---

----O. VII, R.11---Limitation Act (IX of 1908), S.5---Suit for recovery of loan---Limitation---Rejection of plaint---Application for---Suit for recovery of amount of loan filed by plaintiff Bank under Banking Tribunals Ordinance, 1984 before Banking Tribunal having been dismissed for non-prosecution, plaintiff Bank filed application for restoration of suit; in the meanwhile Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, having been promulgated, suit was transferred from Banking Tribunal to High Court---Plaintiff filed an application for restoration of suit along with an application under S.5 of Limitation Act, 1908, which was dismissed and no appeal was filed against said order, which attained finality---Point of limitation was a mixed question of law and facts, which could be determined on the basis of evidence led by the parties at the trial---Issues in the case, had been framed, including question of limitation---Plaint, in circumstances could not be summarily rejected without recording the evidence of the parties---Application filed under O.VII, R.11, C.P.C. for rejection of plaint was dismissed, in circumstances.

Aziz Ahmad and others v. Mst. Hajira Bibi and another 1987 SCMR 527; Bashir Ahmad and 13 others v. Maula Bux and others 1999 CLC 1243; Sikandar Ali v. Abdul Rehman 1996 CLC 1273(sic); Khalid Qureshi and 5 others v. United Bank Limited, I.I, Chundrigar Road, Karachi 2001 SCMR 110; NDFC v. Anwar Zaib White Cement 1999 MLD 1899; Allah Ditta and another v. Rehmat Ali PLD 1991 SC 540; 2003 SCMR 1284 and 1999 SCMR 2396 rel.

A.R. Akhtar for Plaintiff.

Kashif Paracha for Defendants.

Date of hearing: 13th January, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 1696 #

2007 M L D 1696

[Karachi]

Before Muhammad Moosa K. Leghari and Muhammad Afzal Soomro, JJ

PIR BUX and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 330 of 2007, decided on 24th July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497, (2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 25---Bail, grant of---Further inquiry---Notwithstanding the bar contained under S.25 of Control of Narcotic Substances Act, 1997 thereby excluding the applicability of S.103, Cr. P. C. to Narcotic cases, officials making searches, recoveries and arrests, were reasonably required to associate private persons; more particularly in those cases in which presence of private persons was admitted so as to lend credence to such actions, and to restore public confidence---Such aspect of the matter must not be lost sight of---In the present case, without making any observations on the language of statement of prosecution witness recorded under S.161, Cr.P.C. it could be said with certainty that a case for further inquiry had been made out---Bail was granted to accused, in circumstances.

Nizamuddin A. Memon for Applicants.

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

MLD 2007 KARACHI HIGH COURT SINDH 1700 #

2007 M L D 1700

[Karachi]

Before Nadeem Azhar Siddiqi, J

Dr. NAZAR ALI---Petitioner

Versus

QUTABUDDIN and 2 other---Respondents

Constitutions Petition No. S-79 of 2007, decided on 1st August, 2007.

(a) Words and phrases---

----"Impair", defined and explained.

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

----S. 15(2)(iv)---Expression "impairing material value or utility of the premises"---Connotation---Only alteration or addition, could not be considered such an act which would make the tenant liable to be ejected, unless, same impaired materially the value or utility of the rented premises and it could not be laid as a male of law that every alteration and addition ,would amount to impairing the value and utility of the rented premises---Landlord by convincing evidence, had to prove the actual loss caused to the tenement by way of addition or alteration made by the tenant.

----S. 15(2)(iv)---Ejectment of tenant on ground of impairing material value or utility of the premises---Tenant though had admitted in his written statement that shop in question was expanded to the level of other shops of the market, but that admission alone was not .enough to rule that by expanding the area of shop, tenant had .impaired the value and utility of the premises---Evidence of the landlord was silent with regard to the. actual loss caused to the tenement---To prove the allegation of impairing the value and utility, onus was on the landlord for which, oral evidence of the landlord was not sufficient, unless some engineer or expert was examined---Mere unauthorized construction of wall and extending the area of shop by the tenant, would carry no consequence unless it was proved that due to unauthorized construction of wall and extending the area of shop, the value of the tenement was decreased---Raising of wall and extending the area of shop had increased value of the shop, rather than reducing its value---Landlord, in such a case, could not seek ejectment of the tenant on that ground, unless landlord had proved the actual loss caused to the tenement and its value and utility.

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

---Ss.15(2)(iv) & 21---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction of High Court---Scope---Ejectment of tenant on ground of impairing material value or utility of premises---High Court in constitutional jurisdiction, could not interfere in judgment of the courts below, unless impugned order was found to be wholly perverse, arbitrary, based on misreading of evidence, having resulted in absolute miscarriage of justice---High Court in constitutional jurisdiction could not interfere merely on the ground that on basis of evidence adduced before Rent Controller, another view of the matter, contrary to one taken by him was also possible---In the present case, no evidence had been produced by landlord to show that in what manner the value of shop in question was decreased---Rent Controller had not given any findings in that regard and the judgment of Appellate Court was also silent in that behalf---Judgment of Appellate Court was based on the observations which were not the part of the evidence, said judgment thus was against the evidence on the record---Rent Controller had wrongly shifted the burden upon the tenant and found that for want of documentary proof and independent evidence he had failed to rebut the allegations of the landlord---Unless landlord proved that by extending the area of shop in question, value and utility of said shop was impaired, no burden could be shifted upon the tenant---Rent Controller by shifting the burden, had acted in excess of jurisdiction vesting in him---Both the courts having not exercised their jurisdiction properly, in accordance with law, concurrent judgments of the Court below, were set aside by the High Court in exercise of its constitutional jurisdiction.

Waqas v. Ist Additional District Judge (South} 2004 YLR 3278 and Muhammad Hassan Khan v. Muhammad Azam Khan 1979 SCMR 617 ref.

Badar Munir for Petitioner.

Faishullah Qureshi for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

2007 M L D 1750

[Karachi]

Before S. Ali Aslam Jaffri and Sabihuddin Ahmed, JJ

MUHAMMAD AMANULLAH KHAN and 346 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary, Local Government and Rural Development Department, and 8others---Respondents

Constitutional Petition No. D-221, of 2002 decided on 18th November, 2002.

Constitution of Pakistan (1973)---

----Arts. 4, 24 & 199---Constitutional petition---Encroachment---Dispossession---Petitioners claimed to be inhabitants of various pieces of land where they had constructed katcha and pacca houses and were living with their families and children for the last 55 years---Petitioners apprehending demolition of their valuable properties in violation of provisions of Articles 4 & 24 of the Constitution, had invoked constitutional jurisdiction of High Court and prayed that proposed action of authorities to demolish the valuable properties of the petitioners, be declared without lawful authority and of no legal effect---Validity---Petitioners had not been able to establish any legal right. or title to the property in their possession; they were encroachers and had already enjoyed undue benefits of their illegal and unauthorized possession---Even the construction raised by petitioners, was without any .approved plan and appeared to have been raised without conforming to law---Property in occupation of petitioners was being taken by the authorities not to benefit anyone, but for the public purpose---Petition being without merit was dismissed, in circumstances.

Fazle Ghani Khan for Petitioners.

Raja Qureshi for Respondent No.1.

Manzoor Ahmad for Respondents Nos. 2, 4, 6 and 7.

S. Jamil Ahmad for Respondents Nos. 8.

Date of hearing: 20th March, 16th, April, 18th June, 13th August, 20th August and 23rd August, 2002.

MLD 2007 KARACHI HIGH COURT SINDH 1760 #

2007 M L D 1760

[Karachi]

Before Mrs. Qaiser Iqbal, J

ABDUL GHAFOOR---Appellant

Versus

THS STATE---Respondent

Criminal .Appeals Nos. 338 and 359 of 2006, decided on 7th August, 2007.

Penal Code (XLV of 1860)---

----Ss.399 & 402---Appreciation of evidence---Material ambiguity appeared to be about the registration of the case and the involvement of accused in the charged offence---Reliable evidence was not available and mere assembly of five or more persons duly armed with weapons, would not raise presumption that they had assembled to commit dacoity---Mere allegation in the F.I.R., and recovery of weapons from the possession of accused, were not enough to presume that accused were likely to commit offence of dacoity, but there must be some other material showing the conceivable designs on the part of accused---Such material was absent in the prosecution case---Charges against accused being baseless and conviction of accused having not been based upon reasoning, same was not sustainable under the law---Impugned judgments were set aside and accused were ordered to be released.

Muhammad Sohail v. The State PLD. 1994 (Lah.) 383; Khawar and others v. The State PLD 1995 Kar. 105; Siraj-ul-Haq and 2 others v. The State 1994 PCr.LJ Kar. 685 and Asif v. The State 1998 PCr.LJ (Kar.) 1004 ref.

Hussain Baksh Saryo for Appellant.

Ghulam Mustafa Lakho for Respondent.

Date of hearing: 7th August, 2007.

MLD 2007 KARACHI HIGH COURT SINDH 1765 #

2007 M L D 1765

[Karachi]

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

ABDUL KHALIL KHAN---Petitioner

Versus

CITY DISTRICT GOVERNMENT (DEFUNCT K.M.C.) and 3 others---Respondents

Constitution Petition No. D-2620 of 1993, decided on 1st January, 2004.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Auction of goods stored at bonded warehouses---Demand of payment of octroi---Petitioner had purchased .certain goods in open auction stored in bonded warehouses---At the time of purchase of goods, officers of the City District Government demanded payment of octroi---Petitioner apparently made payment under protest and moved High Court for direction for refund of amount so paid---Contention of petitioner was that goods in question were purchased from within the local limits of the City District Government and had not been imported by petitioner for consumption, use or sale inter se---Question whether a wharf' fell within theMunicipal .limits', was an intricate question of fact which should not ordinarily be undertaken in constitutional jurisdiction---Mere fact that goods were stored in bonded warehouses, would show that to taxes and duties had been paid thereon at the time of their auction---Octroi was payable on such goods irrespective of the question whether they had been imported into the municipal limits, whether from abroad or from place outside such limits within Pakistan; under no circumstances could the liability to pay octroi be avoided.

Karachi Municipal Corporation v. Harjina State Chemical (Pak) Ltd. and others 1998 SCMR 1259 ref.

Abdul Qadir Khan for Petitioner.

Manzoor Ahmed for Respondents Nos. 1 to 3.

Ch. Muhammad Rafique Rajori Addl. A.-G. for Respondents.

S. Ziauddin Nasir for Respondents Nos. 5, 6 and 8.

Nemo for Respondent No. 7.

MLD 2007 KARACHI HIGH COURT SINDH 1767 #

2007 M L D 1767

[Karachi]

Before Sabihuddin Ahmed and Zia Perwez, JJ

Mst. MALKA BIBI---Petitioner

Versus

CITY DISTRICT GOVERNMENT through Nazim-e-Ala, Karachi and 2others---Respondents

Constitutional Petition No.1425-D of 2003, decided on 19th November, 2003.

Police Order (22 of 2002)----

---Arts.119 & 139---Constitution of Pakistan (1973), Art.199---Constitutional petition---Authorities had alleged that petitioner was only granted licence for operating sugarcane crushing machine on a particular place, but -she moved on to footpath close to the residential area---Authorities had not merely questioned the authority of another department to grant the licence, but had gone to .comment that the activity. carried on by the petitioner was injurious to health, and that Electricity company should .not have provided electricity to the petitioner---Validity---Authorities had travelled far beyond the domain of his lawful powers and an inference of that the action was mala fide, could not be ruled out---While initiating appropriate action was a matter to be dealt with by the concerned authorities, impugned action, against petitioner was declared to be without lawful authority and Authorities were restrained from acting upon it---Counsel for petitioner guaranteed that activity carried on by the petitioner would not violate the requirements of Articles 119 & 139 of the. Police Order; 2002; in any case, if such violation or other unlawful conduct would come to the notice of Authorities, they would be free to take appropriate action strictly in accordance with law after hearing the petitioner.

Muhammad Yaqoob for Petitioner.

Manzoor Ahmed for Respondent No.1.

Respondent No.2 in person.

Abbas Ali, Addl. A.G., Sindh for Respondent No.3.

Date of hearing: 28th January, 2004.

MLD 2007 KARACHI HIGH COURT SINDH 1771 #

2007 M L D 1771

[Karachi]

Before Mrs. Yasmeen Abbasey, J

MAJID ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.86 of 2000, decided on 4th August, 2006.

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

----S.221---Charge---Purpose of---Very propose of charge was to enable accused to know the precise accusation against him which he was required to defend during the trial and to give him sufficient time to .prepare himself to defend.

Mumtaz Ali and another v. The State 2000 PCr.LJ 367; Ch. Khadim, Hussain v. The State PLD 1985 SC (AJK) 125; and Dur Muhammad alias Durt and others v. The State 1994 MLD Lah. 1493 ref.

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

----Art.119---Burden of proof---Initial burden was always on a person, who, upon existence of certain facts, would seek a favourable judgment in his favour.

Raza Hashmi for Appellant.

Raana Khan for the State.

Date of hearing: 4th August, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 1780 #

2007 M L D 1780

[Karachi]

Before Anwar Zaheer Jamali and Maqbool Baqar, JJ

AL-HIJAZ EDUCATIONAL SOCIETY through President, Karachi---Petitioner

Versus

CITY DISTRICT GOVERNMENT through Nazim, Karachi and 2 others---Respondents

Constitutional Petition No. 1631-D of 2003, decided on 28th September, 2004.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Allotment of amenity plots---Entitlement---Petitioner Society, claimed that it being an Educational Society, was entitled to allotment of amenity plots in question for establishment of School as had been done in the case of other organizations---No documents had been brought on record to show that at any point of time authorities had ever acceded to such request of the petitioners---Petitioners had. failed to show anything from the record which conferred vested right in their favour for allotment/grant of amenity plots to them in violation of general policy, of disposal of amenity plots through open public auction---Plea of discrimination raised by the petitioners was also vague and not supported with any material on record---Petitioners without any legal entitlement over amenity plots in question, had unauthorisedly occupied the same and raised construction of boundary walls, which had already been demolished by, the Development Authority---Petitioners having no lawful title in the said two amenity plots, same as per existing policy, were to be disposed of only through open public auction.

Rashiuddin Ahmed for Petitioner.

Manzoor Ahmed and Ahmed Prizada, A.A.-G. for Respondents.

MLD 2007 KARACHI HIGH COURT SINDH 1788 #

2007 M L D 1788

[Karachi]

Before Sarmad Jalal Osmany, J

ZAMIN DAD SHAH---Applicant

Versus

RAZIK SHAH and 2 others ---Respondents

Criminal Application No. 33 of 2006, decided on 12th February, 2007.

Criminal Procedure Code (V of 1898)---

----S.526---Transfer of case---Counsel for applicant/complainant had alleged that the Trial Court seemed to be in a rush for concluding the matter---Father of applicant was murdered and according to counsel for applicant, apprehension in the mind of the applicant was that due to said keenness of the Trial Court to conclude the matter, court was inclined in favour of respondent/accused and that applicant/complainant was present on relevant date before the Trial Court, but he was marked absent for which he moved the necessary application for correction of the diary, which had not been decided by the Trial Court so far---Counsel for applicant/complainant had submitted that reasonable apprehension existed in the mind of applicant that he would not get justice at the hands of the Trial Court which apprehension of applicant could not be ruled out---Application by complainant for transfer of case to the other Trial Court, was allowed and case was transferred accordingly.

Abdul Sattar v. The State 1990 MLD 1102 ref.

Jawaid Haider Kazmi for Applicant.

Attaullah Khan for Respondents Nos. 1 and 2.

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

MLD 2007 KARACHI HIGH COURT SINDH 1794 #

2007 M L D 1794

[Karachi]

Before Muhammad Athar Saeed, J

SAAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1006 of 2006, decided on 16th October, 2006.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.378 & 382---Bail, grant of---Allegation against accused was that he snatched mobile phone from complainant which he was holding in his hand and ran away---Accused was not alleged to be armed and no recovery of arm had been shown against him---Case of accused did not fall under Section 382, P.P.C., which had been registered against him, but it was a case of an ordinary theft which attracted S.378, P.P.C. for which maximum punishment was three years---Accused being entitled to bail, 'was admitted to bail.

Ms. Rana Khan for Applicant.

Asmatullah Niazi for the State.

MLD 2007 KARACHI HIGH COURT SINDH 1798 #

2007 M L D 1798

[Karachi]

Before Munib Ahmed Khan, J

MUHAMMAD RAUF---Plaintiff

Versus

SIDDIQUE ALI and others---Respondents

Suit No. 730 of 1997.

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

----Ss.5 & 7---Muslim Family Laws Ordinance (VIII of 1961), S.4---Succession---Suit for inheritance by grandson through his deceased father---Plaintiff's father died in 1958, while father of his deceased father and his grandfather died in 1975---Predeceased son was not entitled to inheritance under Islamic Sheria---Case had been based by the plaintiff on S.4 of Muslim Family Laws Ordinance, 1961, whereby in the event of the death of son or daughter of the "Propositus" before the opening of succession, the children of such son or daughter, if any living at the time when succession opened, would receive per stripes a share equivalent to the share which such son or daughter, would have received if alive---Provisions of S.4 of Muslim Family Laws Ordinance, 1961, had been declared as repugnant to the injunctions of Islam by the Federal Shariat Court with direction to the President of Pakistan to amend same so as to bring said provision in conformity with the Injunctions of Islam and that said provisions would cease to have effect from 31-3-2000---Said decision of the Federal Shariat Court was Bending before the Supreme Court in appeal---Muslim Family Laws Ordinance, 1961, family had been given protection from. any amendment in terms of Article 8(3)(b)(i) of the Constitution---Even if judgment of Federal Shariat Court was taken into consideration, then, according to it S.4 of Muslim Family laws Ordinance, 1961 had been made ineffective from 31-3-2000, while succession was opened in 1975 after death of grandfather of the plaintiff---Plaintiff was thus entitled to inherit in terms of S.4 of Muslim Family Laws Ordinance, 1961---Suit of the plaintiff was decreed declaring that the plaintiff was entitled to inherit from the estate of his grandfather in lieu of his deceased father.

PLD 1961 Central Statutes page 337; 2005 SCMR 1534; 2005 SCMR 1995; 2005 SCMR 1271; CLC 1240 and 2005 CLC 1160 ref.

Sikandar Khan for Plaintiff.

Hashim Padhiar for Defendant.

MLD 2007 KARACHI HIGH COURT SINDH 1828 #

2007 M L D 1828

[Karachi]

Before Azizullah M. Memon, J

ZULFIQAR ALI---Applicant

Versus

MUHAMMAD MOOSA and 3 others---Respondents

Criminal Transfer Application No. 24, 25, M.A. Nos. 1162 and 1163 of 2006, decided on 31st August, 2007.

Criminal Procedure Code (V of 1898)---

----S.526---Transfer of case---Transfer of case could not be allowed barely on the whims of the other party---Judicial Magistrate in the present case having been provided with only one room to house the court room as well as his chamber therein, applicant who sought transfer of case, appeared to have unnecessarily gathered adverse impression against the integrity of the Presiding Officer---No ground was available for transfer of the counter cases from the said court---High Court, in order to see that applicant should not continue to have the same impression as unnecessarily nursed by him, directed the Sessions Judge to transfer the said counter cases from the said Judicial Magistrate to any other competent court of law, with direction to transferee court to hear the parties and to decide the cases within specified period.

2005 YLR 1848 ref.

Noor Hassan Malik for Applicant.

Ghulam Shabir Dayo for Respondent No. 1.

Habib-ur-Rehman Shaikh, Asstt., A.-G.

MLD 2007 KARACHI HIGH COURT SINDH 1830 #

2007 M L D 1830

[Karachi]

Before Muhammad Mujeebullah Siddique, J

KARACHI METROPOLITAN CORPORATION, KARACHI---Appellant

Versus

A.H. FAREED, MANAGER ADMINISTRATION and another---Respondents

Criminal Acquittal Appeals Nos. 7, 8 and 10 of 1996 decided on 31st August, 2005.

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

----S.100(2), Sched. VI, Part-II---Criminal Procedure Code (V of 1898); S.417---Appeal against acquittal---Allegation against accused persons, who were running textile factory on 3020-KW Electric Motor with 4048 H.P. capacity, was that, they had not obtained licence for running factory as required by Bye-law No.40 of Metropolitan Corporation---Allegation was that each one of the accused was liable to pay maximum of Rs.10,000 per annum as licence fee prescribed by Government---Plea of accused was that they had never refused to obtain licnece nor had avoided payment of licence fee and contended that they requested the Metropolitan Corporation to issue the licence. in their favour on receipt of licence fee prescribed by Notification dated 30-11-1980---Trial Court was of the opinion that Corporation Authorities, had wrongly placed upon accused liability to pay licence fee at the rate of Rs.10,000 per annum and that on that pretext had wrongly refused to issue licence to accused for running the factory---No mens rea, circumstances, existed on the part of the accused in not holding licence and they had not violated any Rules or Bye-laws of the Corporation---All accused .were acquitted accordingly by the Trial Court observing that accused would be absolved of the liability if they obtained licence on payment of licence fee at the rate of Rs.50 per month; and if said licence fee was paid accused would stand exonerated---Validity--Held, it was not appropriate to award conviction and sentences to accused for the reasons that officials of the Corporation themselves were not clear about the position of law and had wrongly claimed the licence tee as at Rs.10,000 per annum---Conviction and sentences, in view of confusion prevailing on both the sides, could not be awarded to accused---Acquittal of accused, was not interfered with .and appeals against same stood dismissed.

Manzoor Ahmed for Appellant.

A. Hafeez Lakho for Respondents.

Date of hearing: 7th March, 2005.

MLD 2007 KARACHI HIGH COURT SINDH 1840 #

2007 M L D 1840

[Karachi]

Before Munib Ahmad Khan, J

Messrs UNION NATIONAL BANK through Attorney---Applicant

Versus

IQBAL AHMED MALIK---Respondent

Execution Application No. 20 of 2004, in Suit No. 80 of 2003, and C.M.A No. 414 of 2006, decided on 7th August, 2007.

Civil Procedure Code (V of 1908)---

----S.51 & O.XXI, Rr.37, 38, 39, 40---Execution of decree---Application for arrest and detention of judgment-debtor---Application had been filed by decree-holder for arrest and detention of judgment-debtor for the reason that judgment-debtor was not satisfying the decree despite the fact that High Court appeal against decree had been dismissed---Simple detention of judgment-debtor would not serve the purpose towards realization of the decretal amount as no allegation existed which would come within the ambit of S.51, C.P.C., while judgment-debtor was representing himself through an Advocate and appeal was pending before the Supreme Court---No purpose would be served by application made by applicant/decree-holder in such a situation, nor it was maintainable in the circumstances of the case---Application filed by decree-holder was dismissed---Counsel for decree-holder could search for the property of judgment-debtor through other sources towards satisfaction of the decree.

PLD 2000 Kar. (sic) and PLD 2000 Lah. 290 rel.

Salim Salam Ansari for Applicant/decree.

Afaq Ahmed for Respondent.

MLD 2007 KARACHI HIGH COURT SINDH 1846 #

2007 M L D 1846

[Karachi]

Before Sarmad Jalal Osmany, Muhammad Athar Saeed and Nadeem Azhar Siddiqi, JJ

MUHAMMAD NAWAZ---Applicant

Versus

THE STATE---Respondent

Bail Application No. D-397 of 2007, decided, on 18th May, 2007.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9---Bail, grant of---Out of 10 Kgs. of Charas contained in 10 bags of 1 Kg each, which were allegedly recovered from accused, only one Kg. Charas was sent for chemical examination and no samples were taken out from the remaining nine bags---No document was found, which could conclusively prove that motorcycle which allegedly was used for commission of offence, was owned by the accused or was in any way connected with him---Police officers of the same police station, who had registered the F.I.R. against accused, had conducted investigation of the case instead of transferring the investigation to the Investigation Department of the District---Accused in view of facts of the ease, at the most could be convicted under S.9(b) of Control of Narcotic Substances Act, 1997 which had provided punishment upto 7 years' R.I., not falling under the prohibitory clause of S. 497, Cr.P.C.---Accused was entitled to bail, in circumstances.

Muhammad Hashim v. The State PLD 2004 SC 856; Waris Khan v. The State 2006 SCMR 1051; State v. Bashir and others PLD 1997 SC 408; Abdul Lateef v. The State 2006 MLD 639; Muhammad Farooq Khan v. The State 2007 PCr.LJ 89 and Zahid Mushtaq v. The State 1998 PCr.LJ 1516 rel.

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

---Art.189---Decision of Supreme Court---Where conflicting views had been given by the Supreme Court, then the one beneficial to accused should be followed.

Shaukat Hayat for Applicant.

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

MLD 2007 KARACHI HIGH COURT SINDH 1858 #

2007 M L D 1858

[Karachi]

Before Rehmat Hussain Jufferi, J

MURTAZA CONSTRUCTION CORPORATION (PVT.) LTD.---Plaintiff

Versus

THE CITY DISTT: GOVERNMENT through City Nazim and another---Defendants

Suit No. 29 of 1984, decided on 26th August, 2005.

(a) Sindh Local Councils (Land) Rules, 1975---

----Rr. 15, 24 & 27---Qanun-e-Shahadat (10 of 1984), Art. 129(e)---Management of Waste Land within Municipal Limits of Karachi Rules, 1929, R. 31(2)---Renewal of lease for 99 years---Scope---Lessor for renewal of lease would be entitled to claim and recover from lessee premium, revised land rent and mutation fee at 2 % of initial sale price---Lease could not be renewed with payment of premium---band rent revised by Authority would be prescribed to have been regularly revised in accordance with law, unless contrary was proved by lessee---Principles.

(b) Rules of Business (Sindh Government)---

----Opinion of Law Department on a point given to a Department at its request---Binding effect---Department concerned would not be bound to follow such opinion, if same was found to be erroneous or against the law or rules---Department concerned, if gave its decision on basis of erroneous opinion of Law Department, it would not be bound to follow such decision as precedent---Principles.

----Rr. 15, 24, & 27---Management of Waste Land within Municipal Limits of Karachi Rules, 1929, R. 31(2)---West Pakistan General Clauses, Act (VI of 1956), S.20---Renewal of lease for 99 years---Demand of premium, land rent and mutation fee from lessee---Deposit of land rent and mutation fee by lessee after withdrawal of demand of premium by Authority on basis of opinion of Law Department---Demand of premium from lessee again after Authority found opinion of law Department to be against Rr. 24 & 27 of Sindh Local Council (Land) Rules, 1975---Plea of lessee that after withdrawal of demand of premium and thereafter deposit of Land rent and mutation fee at asking of Authority, vested right had accrued in his favour for renewal of lease, thus, raising demand of premium again was illegal---Validity --Where order had taken legal effect and certain rights had been created in favour of a party, then principle of locus poenitentiae would be availably to such party---In between withdrawal of demand of premium and raising again its demand, Authority had not taken decisive action as lease was not renewed---No vested right was creased in favour of lessee during such period--Authority under R. 24 of Sindh Local Councils (Land) Rules, 1975 was authorized to demand premium, thus, withdrawal of its demand was illegal and void---No vested right had been created in favour of lessee by withdrawal of such demand---Right could be created through a valid and legal order, but not through an invalid, illegal and void order---Lease could rot be renewed without payment of premium---Authority was entitled to revise withdrawal order and raise again demand of premium---Principle of locus poenitentiae would not be attracted to such case---Principle.

1992 SCMR 1652; 1988 SCMR 1745; 1981 SCMR 604; 1991 SCMR 2293; Sharif Ahmed Hashmi v. Chairman, Screening Committee, Lahore 1980 SCMR 711; Abdul Qadir v. Government of Pakistan PLD 1967 SC 506; Chief Settlement Commissioner v. Raja Fazal Khan PLD 1975 SC 331; Atta Muhammad Qureshi v. Settlement Commissioner, Lahore PLD 1971 SC 61 and Ardeshire Coowasjee v. Karachi Building Control Authority KMC 1999 SCMR 2883 rel.

(d) Locus Ponitentiae principle of---

----Order taking legal effect and creating certain rights in favour of a party---Effect---Principle of locus poenitentaie would be available to such party.

1992 SCMR 1652; 1988 SCMR 1745; 1981 SCMR 604 and 1991 SCMR 2293 ref.

(e) Vested right---

----Right can be created through a valid and legal order, but not through an invalid, illegal and void order---Principles.

A right can be created through a valid and legal order, but if the order is invalid, illegal or void, no right whatsoever can be created through the said order as the void order is one, which was passed by an authority either lacking jurisdiction or was made in complete disregard of the mandatory provisions of law, which is an illegal order non-existent in the eyes of law.

Sharif Ahmed Hashmi v. Chairman, Screening Committee, Lahore 1980 SCMR 711; Abdul Qadir v. Government of Pakistan PLD 1967 SC 506; Chief Settlement Commissioner v. Raja Fazal Khan PLD 1975 SC 331; Atta Muhammad Qureshi Settlement Commissioner, Lahore PLD 1971 SC 61 and Ardeshire Cowasjce v. Karachi Building Control Authority KMC 1999 SCMR 2883 rel.

(f) Karachi Building and Town Planning Regulations, 1979---

----Sindh Local Councils (Land) Rules, 1975, Rr. 24, & 27---Leased land---Building plan, provisional approval of---Non-renewal of lease by Local Council for non-payment of premium by lessee---Effect---Karachi Building Control Authority could not approve building plan without renewal of lease.

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

----O. I, R.1---Relief not claimed against a party---Effect---Such party would not be a necessary party in suit.

Ejaz Ahmed Khan for Plaintiff.

Fazeel Ahmed for Defendants.

Date of hearing: 17th August; 2005.

MLD 2007 KARACHI HIGH COURT SINDH 1872 #

2007 M L D 1872

[Karachi]

Before Mushir Alam, J

BAHSIR AHMED alias BASHIR---Applicant

Versus

THE STATE---Respondent

Bail Application No. S-766 of 2006, decided on 17th April, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 114, 147, 148 & 149---Bail, grant of---Bail was pressed by accused only on the ground of delay---Accused was taken into custody on 15-7-2001, and charge was framed in the case on 26-1-2002, but matter did not proceed any further since then---On the first date, case was adjourned as the prosecution witnesses were absent and the case property was also not produced while on the subsequent date also the matter could not proceed for want of the Police papers and on further two occasions adjournment had been required by the counsel for accused, but on said dates also entire formalities were not completed as it did not show that case property was produced---Accused was behind the bars since 15-7-2000---When overt act was attributed to other accused, accused for his alleged presence at the scene of occurrence could not be held indefinitely---Accused was admitted to bail, in circumstances.

Muhammad Ali Rind for Applicant.

Anwar H. Ansari for the State.

MLD 2007 KARACHI HIGH COURT SINDH 1880 #

2007 M L D 1880

[Karachi]

Before Sabihuddin Ahmed, C.J. and Khilji Arif Hussain, JJ

NASEEM ALI KHAN---Petitioner

Versus

K.D.A. and others---Respondents

C.P. No. D-1142 of 1999, decided on 11th April, 2005.

Karachi Development Authority Order (V of 1957)---

----Art. 52-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cancellation of allotment of plot---Plot in question was allotted' by Development Authority to original allottee under orders of the Chief Minister---Original allottee transferred said plot in favour of the petitioner through agreement of sale---Allotment of said plot, however, was cancelled by impugned order on the ground that the plot had been carved out from amenity land meant for .nursery and such conversion of amenity land into residential plots was itself. illegal---Article 52-A of Karachi Development Authority Order, 1957, explicitly required that an amenity plot could not be converted into any other purpose without inviting public objections---Chief Minister had no authority whatsoever to allot plots under different schemes of the Authority---Initial allotment order and conversion of an amenity plot into residential plot was without jurisdiction and petitioner could not be assumed to have acquired any legal rights---Discretionary jurisdiction under Art.199 of the Constitution could not be allowed to be exercised to promote unjust enrichment.

Al-Shafiq Housing Society v. Pakistan Medical Association PLD 1992 SC 113 ref.

Shaukat Hayat for Petitioner.

S. Jamil Ahmed for Respondents.

Date of hearing: 16th March, 2005.

MLD 2007 KARACHI HIGH COURT SINDH 1884 #

2007 M L D 1884

[Karachi]

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

Qazi ALI ATHAR, ADVOCATE---Petitioner

Versus

ZAWAR AHMED KHAN SHERWANI and 3others---Respondents

Constitutional Petition No. 543-D of 2004, decided oil 24th August, 2004.

Constitution of Pakistan (1973)---

----Arts. 199 & 184(3)---Constitutional petition---Maintainability---Environmental degradation---Memo of petition and prayer therein had shown, that it was a public interest constitutional petition, which could only Abe initiated before the Supreme Court under Art.184(3) of the Constitution and that it was the duty of Environmental Tribunal to protect the environmental degradation and improve the conditions---Petitioner ought to have approached the proper forum for redress of his grievance---Constitutional petition being not maintainable, was dismissed.

Kazi Abdul Hameed for Petitioner along with Qazi Ali Athar in person.

Manzoor Ahmed for Respondent No.3.

M. Sarwar Khan A.A.-G. for Respondent No.4.

MLD 2007 KARACHI HIGH COURT SINDH 1888 #

2007 M L D 1888

[Karachi]

Before Amir Hani Muslim, J

NADEEM AFZAL---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No. 82 of 2006, decided on 14th July, 2006.

Penal Code (XLV of 1860)---

----Ss.320, 337-G & 427---Payment of Diyat amount---Accused was convicted and sentenced besides being ordered for payment of Diyat amount---Accused who had served out substantial sentence, was not released for want of payment of Diyat amount to the legal heirs of deceased---Accused had sought exemption from payment of Diyat amount stating the he was the lone bread-earner of his family and stated that he had three daughters; one son besides his wife and that there was no other bread-earner in his family and he could not pay Diyat amount in terms of judgment passed by the Trial Court---Validity---Detention of accused for want of payment of Diyat amount would not meet the ends of justice as accused had already served out the substantive sentence---If accused was released, perhaps he might be able to start making payment towards the Diyat amount in instalments---State Council also did not object to such proposition in circumstances---Accused was ordered to be released subject to his furnishing .personal bond equivalent to the Diyat amount before the Nazir of the court.

Ms. Rana Khan for the State.

MLD 2007 KARACHI HIGH COURT SINDH 1895 #

2007 M L D 1895

[Karachi]

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

JAVED KIYANI---Appellant

Versus

CITY DISTRICT GOVERNMENT through District Coordination Officer, Karachi---Respondent

High Court Appeal No. 65 of 2004, decided on 4th November, 2004.

Law Reforms .Ordinance (XII of 1972)---

----S. 3---High Court appeal---High Court had suo motu ordered production of certain documents including the original layout plan of area concerned---No infirmity existed in the order of the High Court, though same was made at the stage of final hearing---Court could pass any order at any stage to do complete justice.

Akhtar Hussain for Appellant.

Manzoor Ahmed for Respondent.

MLD 2007 KARACHI HIGH COURT SINDH 1899 #

2007 M L D 1899

[Karachi]

Before Sabihuddin Ahmed and Amir Hani Muslim; JJ

MUHAMMAD JAWAD KHASHKELI---Petitioner

Versus

DISTRICT COORDINATION OFFICER and 4 others---Respondents

Constitutional Petition No.1724 of 2002, decided on 17th October, 2003.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Claim for ownership of plots---Petitioner had sought relief against demolition of structure raised on plots in question and had claimed ownership of said plots on basis of a letter from Authority addressed to the then Deputy Commissioner---Ownership rights could not be claimed merely on the basis of such letter---Decision to regularize the area in occupation of certain persons could only be given effect by granting leasehold rights to said persons---No such bases had been executed in the case---Authorities had contended that petitioner had encroached upon public property and had claimed a right to demolish the same and take possession accordingly---Validity---

Petitioner, in order to attain such object, should have proved his title in respect of said plots and structure thereon---Constitutional petition was dismissed in circumstances.

Shaikh Liaquat Hussain for Petitioner.

Manzoor Ahmed and Ahmad Pirzada, A.A.-G. for Respondents.

Date of hearing: 17th October, 2003.

MLD 2007 KARACHI HIGH COURT SINDH 1907 #

2007 M L D 1907

[Karachi]

Before Zahid Kurban Alvi and Zia Perwaz, JJ

ABDUL KHALIL---Petitioner

Versus

FURQAN ANSARI and 4 others---Respondents

Constitutional Petition No. 975-D of 2003, decided on 19th November, 2003.

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

----S.156(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bye-elections holding of---Post of Union Council Nazim fell vacant and more than 120-days had passed, but bye-election for said vacancy had not been held---Section. 156(4) of Sindh Local Government Ordinance, 2001, provided that .vacancy of Union Nazim or Union Naib Nazim had to be filled in by holding a bye-election within 120-days of the occurrence of the vacancy---Provincial Election Commissioner was directed to hold bye-election for Union Council Nazim within specified period---Mandatory provision of law had to be strictly adhered to.

Present in person.

Abdul Wahab, Advocate, Abbas Ali., A.A.-G., Nadeem Azhar, D.A.G., Manzoor Ahmed, Advocate for City District Government for Respondent No. 1.

MLD 2007 KARACHI HIGH COURT SINDH 1926 #

2007 M L D 1926

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

THE STATE---Appellant

Versus

Ch. AHMED MUKTHAR and another---Respondents

Criminal Accountability Acquittal Appeal No. 27 of 2002, decided on 20th August, 2007.

National Accountability Ordinance (XVIII of 1999)---

----S.32---Appeal against acquittal---Criteria---Criteria for examining appeal against acquittal were different from appeal against conviction---Accused under appeal against acquittal had double presumption of innocence to his credit---Court was very slow to interfere in such order, unless it was shown that the judgment was perverse or the. Court while recording the acquittal order had not taken into consideration important incriminating evidence,' etc.---Trial Court in the present case, had considered the evidence in accordance with law---No misreading or non-reading of evidence was found in the case and impugned judgment did not suffer from any illegality or irregularity---Said judgment thus did not require any interference.

Rasheed Ahmed v. Muhammad Nawaz 2006 SCMR 1152 and Ghulam Sikandar v. Mamrez Khan PLD 1985 SC 11 ref.

Ainuddin, ADPGA NAB for the State.

Shahadat Awan for Respondent No.1.

M Iqbal Khan for Respondent No. 2.

Date of hearing: 7th August, 2007.

MLD 2007 KARACHI HIGH COURT SINDH 1944 #

2007 M L D 1944

[Karachi]

Before Muhammad Moosa K. Leghari, J

AFTAB---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-324 of 2007, decided on 17th September, 2007.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.302, 201, 109 & 34---Pre-arrest bail, confirmation of---Initially F.I.R. was registered by co-accused regarding murder of his daughters---Subsequently the initial F.I.R. was registered on behalf of the State in which accused was shown as accused along with his father and one other---Validity---Prosecution did not have any evidence against accused, except confessional statement of co-accused---Evidence was a weak type, requiring further corroboration---Accused was accordingly entitled to grant of bail---Pre-arrest bail granted to accused, was confirmed.

Khadim Hussain D. Solangi for Applicant.

Mashooq A. Samoo, Asstt. A.-G. for the State.

MLD 2007 KARACHI HIGH COURT SINDH 1949 #

2007 M L D 1949

[Karachi]

Before Zafar Ahmed Khan Sherwani, J

MUHAMMAD YOUSAF RANGOONWALA---Plaintiff

Versus

Mst. RAZIA FATIMA A. KARIM through her Attorney---Defendant

Suit No. 192 of 2005, decided on 11th October, 2007.

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

----Ss.12 & 22---Suit for specific performance of Contract of sale---Defendant had agreed that plot in question owned by her deceased mother was agreed to be sold to the plaintiff by her as her General Attorney---Defendant, though was not bound to provide surrender deed of `A' license, but the plaintiff asked him to do so through notice---While defendant was not required to provide the said document before the execution of the sale-deed and receiving the balance sale consideration, yet the plaintiff tried to enforce his will and on account of resistance by the defendant, the plaintiff did not pay the balance sale consideration to him---Plaintiff had not obtained any date from the Sub-Registrar with regard to the registration of the sale-deed in question---No stamp paper was purchased by the plaintiff for execution of the sale-deed to show his bona fide interest in the agreement---Plaintiff had defaulted and failed to produce tangible evidence to prove that defendant wilfully and deliberately avoided to execute conveyance deed in favour of plaintiff in terms of the agreement---When the vendee was not ready and

willing to perform the contract it had no equity in his favour and the specific performance had to be refused---Defendant in circumstances, could not be held responsible for the breach of the contract.

Mst. Batool v. Mst. Razia 1998 MLD 1933 distinguished.

1990 CLC Page 1649; AIR (37) 1950, Nagpur 238, AIR 1921 Cal. 179 and Sarfraz Haider v. Khadija Bibi 1994 SCMR 2189 ref.

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

----S.12---Suit for specific performance of agreement to sell plot---Plaintiff, as agreed himself failed to execute his part of performance and did not appear on or before the fixed date as per agreement in the office of the Housing Society where the plot in question was situated therefore, it amounted to refusal of payment of the balance sale consideration to the defendant by the fixed date in the agreement.

----Ss. 12 & 22---Suit for specific performance of agreement to sell property---Plaintiff who had failed to pay the balance of .the sale consideration by the fixed date without any plausible reason, could not claim the specific performance of contract by the defendant.

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

----S.22---Discretion as to decreeing specific performance of contract---Scope---Principles.

Specific performance of contract is discretionary in nature to be exercised judiciously, equitably and on well-recognized judicial considerations as required by section 22 of the Specific Relief Act---To grant specific performance of the contract is absolutely within the discretion of the Court and no hard and fast rigid rule can be laid down when and where this discretion was to be exercised by the Court. The discretion that shall have to be exercised by the Court will depend upon the circumstances of the case, but that discretion must be judicial one.

PLD 1962, Dacca, 655 rel.

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

---Ss.12 & 22---Suit for specific performance of agreement to sell property---If the plaintiff had failed to show that he had performed his part of contract and it was proved that he did; not pay the sale consideration to the defendant on or by the fixed date without any plausible reason, he cannot claim the specific performance of the contract and Court cannot use its discretion in his favour judiciously.

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

----Ss.12 & 22---Suit for specific performance of .agreement to self property---Plaintiff had failed to show any ground to grant decree for specific performance in his favour and against the defendant therefore, the suit was dismissed with costs with the observation that plaintiff would be entitled to receive -back .the amount which he had deposited in the Court.

S. Zaki Muhammad for Plaintiff.

Mazhar Imtiaz Lari for Defendant.

Date of hearing: 3rd October, 2007.

MLD 2007 KARACHI HIGH COURT SINDH 1957 #

2007 M L D 1957

[Karachi]

Before Munib Ahmad Khan, J

GLOBAL SECURITIES PAKISTAN LTD.---Petitioner

Versus

MUSLIM COMMERCIAL BANK---Respondent

Judicial Miscellaneous 14 of 2001; decided on 11th January, 2007.

Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)---

----S. 7---Transfer of property by accused not having knowledge of F.I. R, and notice of .case pending against him before Special Court---Validity---Section 7 of Offences in Respect of Banks (Special Courts) Ordinance, 1984 neither required sending of notice of case to each and every authority having custody of record of property of accused nor did provide that same would be effective after service of notice upon accused---Section 7 of the Ordinance placed restriction on property not known to prosecution and which might come to its knowledge later on---. Aim of S.7 would be to forestall alienation of property of accused, so that finding of Court might not be redundant, which could be a situation when property of accused was allowed to be transacted after registration of case---Provisions of S.7 being prohibitory in nature were mandatory, which would come into operation on taking cognizance of offence by Special Court, but not after notice of pendency of case to accused---Principles.

Mst. Imam Bibi v. Allah Ditta and others PLD. 1989 SC 384; Khan Asfandyar Wali v. Federation of Pakistan, PLD 2001 SC 607; 2005 CLD 30; Rauf Bakhsh Kadri and others v. Messrs National Technology Development Corporation Ltd. and others 2005 CLD 747 and Mian Javaid Amir and others v. United Foam and others 2005 CLD 1291 ref.

Naya Daur Motors (Pvt) Ltd. v. Federal Investigation Agency, CBC, 2000 MLD 1384 rel.

Sahnan Talibuddin for Petitioner.

Rizwan Ahmed Siddiqui for Respondent.

Date of hearing: 12th December, 2006.

MLD 2007 KARACHI HIGH COURT SINDH 1966 #

2007 M L D 1966

[Karachi]

Before Amir Hani Muslim and Sarmad Jalal Osmany, JJ

MUHAMMAD ASLAM alias JAN and another---Petitioners

Versus

CITY DISTRICT GOVERNMENT, KARACHI and 4 others---Respondents

C.Ps. Nos. D-265, 266, 365, 366 and '367 of 2004, decided on 23rd December, 2004.

West Pakistan Land Revenue Rules, 1968---

----Preamble---Original Revenue Record, .custody of---Tapedar or Supervising Tapedar not custodian of such record under law, thus, not accountable for its entries forged by him---High Court in order to minimize tampering with .such record directed Provincial Board of Revenue, to order for its keeping with Mukhtiarkar concerned and not to allow in future its handing over to Tapedar and/or Supervising Tapedar---Principles.

Under the rules, a "Tapedar" or "supervising Tapedar", which is a non-Gazetted post; has been given custody of the original Revenue Record, which he keeps iii his custody, which can be easily tampered with, by him by keeping false and fictitious entries which is signed by the Mukhtiarkar. The law does not make accountable such Tapedar as he is not shown as a custodian of the record. As a result, owing to the lacuna in the Rules, the Tapedars, in connivance with the Supervising Tapedarsand Mukhtiarkar, have played havoc with the Revenue Record and its sanctity has been completely eroded.

High Court under these circumstances directed the Senior Member, Board of Revenue to order the concerned officials that the original Revenue Record shall be kept with the concerned Mukhtiarkar in future, and shall not be removed from his office by any of his subordinates. The Tapedar and for Supervising Tapedars shall not be handed over the original record. The entries in the record shall be kept and signed by the Supervising Tapedar along with the concerned Mukhtiarkar. The concerned Mukhtiarkar shall be made custodian of the record and the Tapedars of the beat shall have no access to the original record in future. High Court issued these directives in order to minimize tampering with the Revenue Record, which has become a common feature of the day and high-ups in the Revenue Department have failed to take the required steps to check the forgeries in the record of rights resulting in usurpation of thousands of acres of Government lands by land grabbers through the blessings of the subordinate Revenue Staff besides depriving the private owners from enjoying their own properties. High Court directed Member, Board of Revenue to circulate .forthwith such directions to all concerned for compliance under intimation to the MIT of the High Court; and that non-compliance of any of such directives contained in .such order would expose the concerned officials to contempt proceedings.

Raza Muhammad Raza for Petitioners.

Abbas Ali, Additional A.G. for the State.

Munawar Malik for Malir Development Project and Manzoor Ahmed, for CDGK.

Date of hearing: 23rd December, 2004.

MLD 2007 KARACHI HIGH COURT SINDH 1978 #

2007 M L D 1978

[Karachi]

Before Mrs. Qaiser Iqbal, J

Mirza MUHAMMAD MOIN BAIG---Plaintiff

Versus

Mst. AMTUL RAUF and others---Defendants

Suit No. 181 of 2004, decided on 22nd March, 2007.

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

----Ss. 12 & 22---Contract- Act (IX of 1872), S.73---Suit for specific performance of agreement of sale---Payment of earnest money by plaintiff---Agreement not capable of performance---Non-claiming of specific compensation and mesne profits by plaintiff---Non-production of evidence by plaintiff. regarding market price of property on date of breach of agreement---Plaintiff claiming compensation for loss or damage caused due to breach of agreement---Validity---Such compensation could be assessed by providing relief when contract was not completed---Party claiming damages due to breach of agreement must establish agreement and extent of damages---Such compensation could not be awarded for any remote and indirect loss or damage sustained by breach of agreement---No yardstick or definite principle existed for assessing damages---No decree for damages against defendant could be assessed in absence of specific allegation .regarding market rate of .property on date of breach of agreement---High Court decreed suit by ordering defendant to refund earnest money to plaintiff along with interest @ 14% per annum from date of agreement till its realization.

Alamdar Hussain v. Nazir Hussain 2004 SCMR 595 and Sinaullah and others v. Muhammad Rafiq 2005 SCMR 1408 ref.

PLD 1983 Kar. 63 rel.

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

----S. 12---Contract Act (IX of 1872), S. 73--Suit for, specific performance of agreement of sale---Execution of agreement by first defendant for self and as attorney for remaining defendants---Denial of remaining defendants to have authorized first defendant to enter into agreement---Plaintiff's claim for compensation for non-performance of agreement by defendants---Validity---Remaining defendants would not be liable to compensate plaintiff as claimed---Suit against remaining defendants was dismissed in circumstances.

----S. 73---Award. of compensation for loss or damage caused by breach of contract---Scope---Such compensation could not be given for any remote and indirect loss or damage sustained by breach---Principles.

Compensation for any loss or damage can be assessed by providing relief when a contract was not completed. Compensation flows in consequence of breach.

There is no yardstick or definite principle .for assessing damages. Party claiming damages due to breach of contract must establish contract and extent of damages. Section 73 of the Contract Act, 1872 pertains to compensation for loss or damage caused by breach of contract, which cannot be given for any remote and indirect loss or damage sustained by reason of the breach.

PLD 1983 Kar. 63 rel.

Khalil Javed Khali and Syed Arif Ali for Plaintiff.

Arif Khan for Defendant No. 1.

Date of hearing: 20th February, 2007.

MLD 2007 KARACHI HIGH COURT SINDH 1987 #

2007 M L D 1987

[Karachi]

Before Azizullah M. Memon, J

PERVAIZ KHAN---Appellant

Versus

SHAIKH RAIS and 3 others---Respondents

Criminal Acquittal Appeal No. 322 of 2006, decided on 26th July, 2007.

Criminal Procedure Code (V of 1898)---

----S.417(2-A)---Penal Code (XLV of 1860), Ss.337-A(iii), 504/34---Appeal against acquittal---Magistrate had not discussed the evidence of the witnesses examined by the prosecution in support of its case---Medical evidence---Evidentiary value---Magistrate had failed to discharge his duties- cast on him under S.367, Cr.P.C.---Trial Court, after recording the evidence of the parties and after hearing them, had to appraise the entire evidence and then either to convict accused or to acquit them---Medical evidence was only confirmatory in nature---If medical evidence suffered from any defect, in face of the other confidence-inspiring evidence on record then conviction could safely be recorded on such other confidence-inspiring evidence---Merely because medical evidence was not sufficient to prove the injuries on the person of the injured, the Magistrate would not stand absolved from discussing the entire evidence of the prosecution available on record of the case---If defence evidence was relied upon, then also detailed reasons were to be recorded to discard the evidence produced by the prosecution---Impugned judgment suffered from impropriety, non-application of mind and arbitrariness---Acquittal appeal was admitted and was allowed---Impugned judgment was set aside and case remanded to the Trial Court with direction to re-hear the parties on merits of the case by appraising entire evidence together with the medical evidence and to decide the case afresh, particularly keeping in view the case-law to the effect that medical evidence would be only confirmatory in nature and if ocular evidence, produced ,on the record of-the case, inspired confidence, the medical evidence whatsoever could not be allowed to destroy such a case.

Arshad Mehmood for Appellant.

Mehmood A. Qureshi for Respondents.

Afsheen Amin for the State.

Date of hearing: 24th July, 2007.

MLD 2007 KARACHI HIGH COURT SINDH 1998 #

2007 M L D 1998

[Karachi]

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

KADIR BAKHSH---Petitioner

Versus

CHAIRMAN, WAPDA, LAHORE and 2 others---Respondents

Constitutional Petition No. D-663 of 2003, decided on 2nd February, 2005.

Pakistan Water and Power Development Authority Act (XXXI of 1958)---

---S. 14---Constitution of Pakistan (1973), Arts. 9 & 199--- Constitutional petition---Removal of High Tension electric wires from the petitioner's land---Petitioner had sought declaration that installation of High Tension electric wires through his land without getting his permission was illegal, unauthorised and mala fide---Petitioner had prayed that said High Tension electric. wires be removed from his land as its installation amounted to infringement of his legal right---Counsel for petitioner for amicably settling the dispute had offered that he was ready and willing to bear 50% of the cost estimated for removal of said installation, but said offer having not been accepted by the Authorities, petitioner withdrew same and requested that petition be .decided on merits---Validity---Authorities were: required. to obtain permission/no objection from the petitioner before installing High Tension electric wires over his land, which was the requirement of S.14 of Pakistan Water and Power Development Authority Act, 1958---Proviso to subsection (1) of S.14 of Pakistan Water and Power Development. Authority Act, 1958, had cast an obligation on the Authorities that for entering upon for surveying any land, erecting pillars for the determination of intended lines of works, making borings and executing and doing all other. acts which were necessary for the preparation of any scheme which did not vest in WAPDA, power conferred by subsection (1) of S.14 of the Act was to be exercised in such a manner as to cause the least interference with and the least damage to the rights of the owner thereof---That having not been done in the .present case, impugned action of the Authorities not only had violated the fundamental rights of the petitioner over his property as propounded in Art. 9 of the Constitution, but was also in violation of S.14 of Pakistan Water and Power Development Authority Act, 1958---Act of Authorities could not, by any stretch of imagination, be said to be proper and valid---Constitutional petifion was allowed in terms of the prayers sought by the petitioner.

Khuda Bux v. Superintendent of Police, Badin and others PLD 1976 Karachi, 1005; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority 1999 SCMR 2883 and Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 rel.

Aziz A. Munshi for Petitioner.

Nasir Rizwan Khan for WAPDA along with Abdul Manan Legal Clerk.

Date of hearing: 2nd February, 2005.

MLD 2007 KARACHI HIGH COURT SINDH 2003 #

2007 M L D 2003

[Karachi]

Before Muhammad Sadiq Leghari, J

PICIC---Plaintiff

Versus

KARACHI DEVELOPMENT AUTHORITY---Defendant

Suit No. 1231 of 2000, decided on 24th January, 2005.

(a) Administrative decision---

----Policy decision---Every policy must be just, bona tide and in the public interest.

(b) Karachi Development Authority Order (V of 1957)---

----Art.29---Cancellation of allotment of plot---Non-issuance of notice to allottee by Karachi Development Authority---Effect---Such cancellation being, violative of principles of natural justice was declared to be without lawful authority and of no legal effect.

Mushtaq A. Memos for Plaintiff.

S. Muzaffar Imam for Respondent.

Date of hearing: 26th November, 2004.

MLD 2007 KARACHI HIGH COURT SINDH 2019 #

2007 M L D 2019

[Karachi]

Before Sabihuddin Ahmed and Zia Perwez, JJ

Messrs MAXIM ADVERTISING COMPANY (PVT.) .LTD.---Appellant

Versus

PROVINCE OF SINDH and 4 others---Respondents

F.C.A. No. 175 of 2005, decided on 6th August, 2005.

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

----O.XXXIX, Rr. 1 & 2---Temporary injunction, grant or refusal of---Monetary benefits, contract for---Irreparable loss, consideration of---.Irreparable loss would mean-and imply such loss which is incapable of being calculated on yardstick of money---Contracts involving collection of monetary benefits having been obtained on specific monetary considerations, could not involve irreparable loss.

Rasbihari Panda and others v State of Orissa AIR 1969 SC 1081; Gorakhnath Upadhaya v. State of U.P. AIR 1994 Allahabad 283; Integrated Databases India Ltd., v. Union of India and another AIR 1996 Delhi 343; Tinkari Modal v. Block Development Officer AIR 1980 Calcutta 7; Balochistan Construction Company v. Port Qasim Authority 2001 YLR 2716; Haji Khan v. Government of Sindh 1990 MLD 155; Shaukat Ali Fancy v. Federation of Pakistan 2004 CLC 249; Pratap Narain v. District Judge Azamgarh AIR 1996 SC 111; Premier Paper Mills Ltd. v. N.-W.F.P. Textbook. Board 1997 CLC 1288; Haji, Punhoon v. Province of Sindh and others 1986 SCMR 349 and City Schools (Pvt.) Ltd. v. Privatization Commission 2002 SCMR 1150 ref.

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

---O.XXXIX, Rr. 1 & 2---Temporary injunction, grant of---Scope---No injunction could be issued, unless all required ingredients namely prima facie case, balance of convenience and irreparable loss to aggrieved party, were found to subsist.

----Bid in---Participation to bid in public contracts could not be denied to a participant on account of his mere filing of a suit of pending litigation involving a reasonable cause---Participant could not withhold information as to pending litigations or his blacklisting by any government agency---Principles.

While reasonableness and transparency is required in acts of public actions, the same yardstick can always be extended to the consultants attached to such functionaries. Though mere filing of a suit or pending .litigation involving a reasonable cause, which arises frequently in such cases involving payments claimed on account of extra work, modifications in schemes, extra items cannot be made a basis to deny participation to bid for the contract. The tendency for frivolous litigation and conditions involved blacklisting, if any, are required to be examined in a rational manner on merits of each case.

The information as to pending litigations or the event of blacklisting by any other Government agency cannot be withheld by a participant, rather the public functionary would be failing in his duty to function in an honest, transparent and reasonable manner, if requisite information is not collected in a prudent manner before awarding the work at public importance.

Rashihari Panda and others v. State of Orissa AIR 1969 SC 1081; Gorakhnath Upadhaya v. State of U.P. AIR 1994 Allahabad 283; Integrated Databases India Ltd,, v. Union of India and another AIR 1996 Delhi 343; Tinkari Modal v. Block Development Officer AIR 1980 Calcutta 7 and Balochistan Construction Company v. Port Qasim Authority 2001 YLR 2716 ref.

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

----Ss. 2(e) & 10---Invitation to tender---Effect---Such invitation would be merely an invitation to offer and would not amount to a contract.

City Schools (Pvt.) Ltd. v. Privatization Commission 2002 SCMR 1150 ref.

Muhammad Farough Naseem for Appellant.

Ahmed Pirzada Addl. A.G. Sindh for Respondent No.1.

Manzoor Ahmed for Respondent No.2.

Muhammad Akhtar for Respondent No.3.

Malik Muhammad Qayyum for Respondent No.4.

Nemo for Respondents Nos.5 and 6.

Date of hearing: 2nd August, 2005.

Lahore High Court Lahore

MLD 2007 LAHORE HIGH COURT LAHORE 1 #

2007 M L D 1

[Lahore]

Before Mian Saqib Nisar and Syed Asghar Haider, JJ

ABID HUSSAIN---Appellant

Versus

ABDUL ABBAS---Respondent

Regular First Appeal No. 531 of 2005, heard on 19th September, 2006.

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

----O. XXXVII, Rr. 1 & 2---Limitation Act (IX of 1908), Art. 73---Suit for recovery on the basis of pro note---Suit was decreed by Trial Court---Objection about non-cancellation of adhesive stamp on the pro note having not been tendered in evidence, such plea could not be raised in appeal.

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

----S. 100---Second appeal---Objection abandoned in trial Court cannot be raised in appeal.

---O. XXXVII, Rr. 1 & 2---Limitation Act (IX of 1908), Art. 79---Suit for recovery on basis of pro note---Limitation---Suit based upon the pro note is governed by Art. 73 of Limitation Act, 1908 which provides a period of three years.

Zaheer Zulfiqar for Appellant.

Sh. Masood Akhtar for Respondent.

Date of hearing: 19th September, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 3 #

2007 M L D 3

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD HUSSAIN and another---Petitioners

Versus

MUHAMMAD IQBAL alias MAHMOOD IQBAL and others---Respondents

Civil Revision No. 672 of 2002, heard on 12th September, 2006.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 84---Registered document, execution of---Proof---Plaintiffs challenged the authenticity of registered sale-deeds pleading that suit-land was given to defendants on lease and sale deeds allegedly executed by their predecessor were result of fraud---Documents in question were all registered instruments and a presumption of correctness attached to the authenticity of said documents was not denied by counsel of plaintiffs---Plaintiffs were duty bound to lead evidence for disproving the execution of registered sale-deeds by their predecessor but they failed to do so, instead one of plaintiffs acknowledged that defendant had never paid any lease money or batai to plaintiffs after death of the predecessor---Defendant's nine years possession over the suit-land was proved on record and no explanation was given as to why for such a long period plaintiffs remained silent and did not assert their alleged right in suit property, even plea of minority taken by plaintiffs was not proved by birth certificate---Defendant, however, successfully proved the documents in question by producing marginal witnesses thereof and person identifying the seller---Plaintiffs' suit being frivolous was rightly dismissed by Trial Court and there was no justification for Appellate Court to remand the case for decision afresh holding that signatures in questions on registered sale-deeds be got compared with some admitted signature of deceased predecessor.

Muhammad Nasir Arshad Kotla for Petitioners.

Imtiaz Hussain Baloch Respondents Nos. 1 to 3 and Muhammad Nawaz Bajwa A.A.-G. for respondents Nos. 4 to 12 others respondents ex parte.

Date of hearing: 12th September, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 8 #

2007 M L D 8

[Lahore]

Before Muhammad Muzammal Khan and Syed Hamid Ali Shah, JJ

SHUMAILA SHAHNAWAZ and 9 others---Petitioners

Versus

UNIVERSITY OF HEALTH SCIENCES and 4 others---Respondents

Writ Petitions Nos.15885 of 2005 and 5215, 2326 and 5227 of 2006, decided on 7th July, 2006.

(a) University of Health Sciences Lahore Ordinance (LVIII of 2002)---

----Ss. 35 & 37(1)---University of Health Sciences Lahore Regulations (For M.B.B.S.), Regulations 3 & 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Educational Institution---"Carry on system"---Meaning and effect---Calendar of University not to be changed by verdict of Court---University's power to interpret its own rules and regulations---Scope---Principle of equality between citizens---Applicability---Provisions of University statutes, Ordinances and Regulations and right of students---Extent---Petitioners who were students of various medical colleges, studying in different classes, did not succeed in their respective examinations, in qualifying all subjects; and some of them failed in one subject while others failed in two or three subjects---Petitioners claimed promotion to next higher classes and to attend classes and practicals besides the permission to take examination for papers in which they failed in their existing classes on the basis of "carry on system" as the afore-said practice was so called---Petitioners made claim on the basis of provisions subsisting in prospectuses of their colleges and also in Calendar of Punjab University and in Calendar of Engineering University---University of Health Sciences/respondent did not allow petitioners to attend next classes before passing their all subjects of previous classes---University contended; that rules and regulations framed under S.35 of University of Health Sciences Lahore Ordinance, 2002, did not permit promotion in next higher classes unless a candidate qualified or passed all subjects in existing classes; that it was provided in prospectus of concerned Medical Colleges that on failure of students to qualify professional examination in second annual examination, the provisional promotion to next higher class was to stand cancelled and that relevant Regulations of Punjab University and also of University of Health Sciences also prohibited "carry on system", therefore, petitioners had no right to claim their promotion without passing existing examination---Validity---"Carry on system" in education field was to eclipse and vanish for it was a source of indiscipline in educational institutions which were placed to inculcate and breed discipline-"Carry on system" in field of education was not to be blessed by Courts, for the same not only offended law but was against ethics---Calendar of University could not be changed through verdict of Court and that existence of rule of law was to have paramount consideration---Students were bound to follow changes issued by Government from time to time and Government reserved right of addition or alterations of any rules in prospectus at any stage and it was the domain of government to consider a particular qualification sufficient for promotion from any particular grade to a higher grade and government was vested with power to change such policy from time to time---Rules and regulations framed by University authorities for the purpose of conducting and regularizing its examinations were required to be interpreted by University authorities themselves and not by Courts, for otherwise it was difficult for University administration to run its internal affairs relating to examinations---Candidates had no vested right to claim that they were to be examined necessarily in accordance with provisions of statute, Ordinance or Regulation which were prevalent at the time of their embarking upon studies of their respective courses---Regulations take effect from the date of their approval by syndicate and were applicable to examinations subsequent to such approval---Prospectus of Medical Colleges and Regulations of University Health Sciences both prohibited "carry on system"---Permitting study to next higher class, without passing the current examination was to result into indiscipline in the institutions---Petitioners relied on interim orders of High Court passed in civil miscellaneous applications where permission was granted subject to final decision of the constitutional petitions but when Supreme Court refused to allow promotion to next higher class to failed candidates then interim orders passed in pending petitions were not to be given precedence against judgment of Supreme Court---Petitioner's case on touchstone of principle of equality between citizens was not sustainable---Petitions were dismissed.

Miss Khalida Zafar v. Controller, Nursing Examination and others 1996 CLC 1750; Mrs. Sara Malik v. Federation of Pakistan 2001 MLD 1026, Shafique Ahmad and others v. Government of Punjab and others PLD 2004 SC 168, Muhammad Sadiq and others v. University of Sindh and others PLD 1996 SC 182, Muhammad Ilyas v. Bahauddin Zakriya University Multan and another 2005 SCMR 961; Adnan Tariq v. Vice-Chancellor of the University of Punjab PLD 1993 Lahore 341 and Miss Sultana Khokhar and 2 others v. The University of Punjab through the Registrar PLD 1962 SC 35 rel.

Writ Petitions Nos. 5642/2005, 4869/2005, 2687/2005 1764/2005 and 4/2004; Principal Arub Medical College Abbotabad v. Miss Huda Waris Khan and others Civil Petition No.1992 of 2004; Ahmad Abdullah's PLD 2003 Lah. 752; Amina Farrukh and others v. University of Health Sciences Lahore and others Writ Petition No.19217 of 2005; Sahab Ameen and others v. University of Health Sciences Lahore and others Writ Petition No.1742 of 2006; Iftikhar Ali v. Principal, Ayub Medical College Abbottabad and 4 others 1994 MLD 2472; Ghulam Akbar Ansari v. Pakistan Medical Council and others 1996 CLC 1729; Tahir Husnain Aziz and another v. .University of Punjab through Vice-Chairman and 2 others 2005 CLC 1389; Mst. Shama Roshan and others v. The Vice-Chancellor, University of the Punjab and others 1988 CLC 1137; University of Health Sciences Lahore and others v. Sh. Nazir Subhani and others PLD 2006 SC 243; Khurram Nazir v. University of Health Sciences Lahore and others PLD 2006 SC 354); Zahoor Ahmed Azhar v. Islamia University, Bahawalpur through Vice-Chancellor and 4 others PLD 1998 Lahore 324; Zahid Iqbal v. Secretary Health and 2 others 2003 CLR 209 and Chandighar Administration v. Jagjit Singh AIR 1995 SC 705 ref.

Principal Ayub Medical College Abbotabad v. Miss Huda Waris Khan and others Civil Petition No.1992 of 2004 distinguished.

(b) University of Health Sciences Lahore Regulations, 2004---

----Regns. 9 & 3---Pakistan Medical and Dental Council Regulations 1998, Regulation (IV) Clauses (2) & (3)---Promotion to next higher class without passing previous class examination---Candidate who passed in one or more subjects but failed in examination was to be provisionally allowed to join third year M.B.B.S. Class till the commencement of supplementary examination---Candidate, however, was to pass the failed subjects in his supplementary examination failing which he was to be detained---Under no circumstances a candidate was to be promoted to third year M.B.B.S. till he had previously passed all subjects in First Professional Part-II Examination---Under Regulation No.3 of Regulation of University of Health Sciences, no student was to be promoted to higher classes unless he passed all subjects of previous classes.

Muhammad Umar Wahid and others v. University of Health Sciences Lahore and others PLD 2006 SC 300 rel.

Dr. Khalid Ranjha for Petitioners.

Rassal Hasan Syed for Respondents.

MLD 2007 LAHORE HIGH COURT LAHORE 17 #

2007 M L D 17

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD WARYAM---Petitioner

Versus

REHMAT ALI---Respondent

Civil Revision No.440 of 2006, decided on 3rd May, 2006.

Specific Relief Act (I of 1877)---

----S. 12---Limitation Act (IX of 1908), Art.113---Civil Procedure Code (V of 1908), O.VI, R.2---Suit for specific performance of oral agreement---Limitation---Trial Court dismissed suit, but Appellate Court setting aside judgment and decree of the Trial Court had decreed the suit---Contention of defendant was that plaintiff did not set out any particulars as to when the alleged oral agreement was entered into; for what consideration; and in respect of which property---Said material omissions in the pleadings, had been brushed aside by Appellate Court on the short ground that such particulars were not required to be pleaded---Counsel for defendant had stated that material facts, setting out details of an agreement required to be enforced specifically; and were also required by provisions of O.VI, R.2, C.P.C. to be specifically set out in the plaint and on that score it was urged that appellate decree was not legally sustainable---Counsel for plaintiff could not controvert said submissions of defendant---Plaintiff while appearing as his own witness had deposed that alleged oral agreement was entered in 1994, but his witness had stated that bargain was struck in 1992---Said agreement was to be enforced within three years, but suit for specific performance of the agreement was filed by the plaintiff on 28-10-1998, beyond prescribed period of three years---Appellate Court below had not taken said circumstances into account while setting aside decree of the Trial Court and decreeing suit of plaintiff---Impugned appellate decree was set aside as it was based on illegality and material irregularity in exercise of jurisdiction of the Appellate Court.

M. Ashraf Shagufta and Azhar Majeed Bhatti for Petitioners.

Sardar Muhammad Tariq Khan Dreshak for Respondent.

Date of hearing: 3rd May, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 21 #

2007 M L D 21

[Lahore]

Before Tariq Shamim, J

MUHAMMAD NAWAZ and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous 5465-B of 2006, decided on 19th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Bail, grant of---Further inquiry---Accused though were named in F.I.R. and specific role of indiscriminate firing was attributed to them, but no injury qua deceased or injured prosecution witnesses had been ascribed to them---Weapons of offence allegedly recovered from accused were of no consequence as only two empties of rifle 8 mm were recovered from the spot, and it was not the case of prosecution that any of accused was carrying rifle 8 mm---Motive of alleged occurrence was also not assigned to accused who were behind the bars for the last about 11 months---Challan though had been submitted, but apparently, no further progress was made in the same---Whether accused shared common intention with co-accused, who had caused death of deceased, could be determined at the trial after recording of evidence---Accused having not inflicted any injury on deceased or prosecution witnesses their case was one of further inquiry---Two co-accused who were also armed with fire-arms and similar allegations levelled against them, having already been granted bail, accused were also entitled to concession of bail.

Khushi Muhammad and another v. The State PLJ 1999 Cr.C Lah. 262 and Khadim Hussain v. The State and another 1981 SCMR 1115 ref.

Rao Javed Khurshid for Petitioner.

Huria Zulfiqar for State along with Muhammad Yousaf Virk, S.-I. with record.

2007 M L D 33

[Lahore]

Before Jawwad S. Khawaja, J

RASOOLAN BIBI---Petitioner

Versus

WARIS ALI and others---Respondents

Civil Revision No.500 of 2006, heard on 14th September, 2006.

(a) Islamic Law---

----Inheritance---Inheritance of deceased Muslim lady who died unmarried---Mutation whereby one half of the suit property was sanctioned in favour of defendant who was a son of predeceased brother of the lady and remaining one half had been mutated in the name of two sisters of the lady, was challenged to the extent of defendant (son of predeceased brother)---Validity---In presence of two surviving sisters of deceased lady defendant being the son of predeceased brother of deceased lady was not a legal heirs, thus had not right whatsoever in the estate of the deceased lady.

(b) Islamic Law---

----Inheritance---Unmarried deceased lady---Representation, right of---Not recognized by Suni Law---In presence of legal heirs of unmarried deceased lady son of her predeceased brother was not an heir.

Iqbal Mehmood Awan for Petitioner.

Muhammad Nasir Sheikh for Respondent No. 3.

Respondents No.1 and 2 ex parte.

Date of hearing: 14th September, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 36 #

2007 M L D 36

[Lahore]

Before Syed Hamid Ali Shah, J

Qari ABDUL KARIM and 8 others---Petitioners

Versus

Mst. FARRUKH SULTANA and others---Respondents

Civil Revisions Nos.519 to 524 of 2005, decided on 20th July, 2005.

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

----S.13---Civil Procedure Code (V of 1908), O.IX, R.13 & O.I, R.10---Ejectment petition---Landlord and tenant relationship---Denial of---Effect---Petitioners/respondents filed ejectment petition against tenant/ respondent before Rent Controller and the latter denied relationship of landlord and tenant with the former---Respondents actually claimed ownership of property in question on the basis of ex parte decree---Petitioners assailed the decree subsequently by filing application under O.IX, R.13, C.P.C.---Application was dismissed by Trial Court---Lower Appellate Court on appeal thereagainst remanded the case to Trial Court---Trial Court dismissed application in post-remand proceedings---Petitioners filed an application under O.I, R.10 of C.P.C. to be impleaded as party in array of respondents in the proceedings, claiming therein that tenant held tenancy under them---Trial Court dismissed application and appeal filed thereagainst also met the same fate---Validity---It was yet to be ascertained between whom relationship of landlord and tenant existed---Trial Court was to frame preliminary issue for the determination of question of landlord and tenant relationship and after recording of evidence of parties decide the same---Petitions were disposed of accordingly.

Hafiz Khalil Ahmad for Petitioners.

Muhammad Ramzan Watto for Respondents Nos.1 to 5.

Ch. Muhammad Bashir for Respondent No.6.

MLD 2007 LAHORE HIGH COURT LAHORE 38 #

2007 M L D 38

[Lahore]

Before Mian Saqib Nisar, J

Haji FATEH KHAN---Appellant

Versus

ALLAH BAKHSH and others---Respondents

Regular Second Appeal No.109 of 1999, decided on 26th May, 2006.

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

----Ss.6 & 13---Suit for pre-emption---Making of Talbs---Plaintiff, in his examination-in-chief had not given exact date of knowledge of sale in question or making Talb-e-Muwathibat, but had vaguely stated it to be about nine months ago---Factum of exact date given in the plaint had not been established/proved either by plaintiff or by his witnesses---Person from whom plaintiff stated to have learnt about sale in question, had not been examined by the plaintiff---Concurrent findings of facts recorded by the two Courts below against plaintiff, when not shown to be the result of any misreading and non-reading of evidence, could not be interfered with in second appeal by High Court.

Iftikhar Ahmad Mian for Appellant.

Sh. Irfan Akram for Respondent.

Date of hearing: 26th May, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 41 #

2007 M L D 41

[Lahore]

Before Syed Hamid Ali Shah, J

MAKHDOOM ALI---Petitioner

Versus

Mst. RAZIA SULTANA and others---Respondents

Writ Petition No.17601 of 2005, decided on 24th February, 2006.

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

----Ss. 5, Sched. & 17-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for maintenance---Interim maintenance, grant of---Interim maintenance was a tentative amount which was to be fixed on careful examination of available evidence---Such amount could be either enhanced or reduced at the time of final adjudication of the matter---Exorbitant amount of interim maintenance allowance should not be fixed as non-compliance of payment of interim maintenance, would entail penal consequences---Amount of Rs.10,000 per month which Judge Family Court had fixed seemed to be exorbitant as it was yet to be proved through cogent evidence that petitioner had other source of income through which he could pay easily said amount---Allowing constitutional petition impugned order was modified and amount of interim, maintenance, was reduced from Rs.10,000 to Rs.5,000 per month.

Syed Naveed Abbas for Petitioner.

Syed Asad Ali Bokhari for Respondents.

Date of hearing: 24th February, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 44 #

2007 M L D 44

[Lahore]

Before Tariq Shamim, J

MUHAMMAD IDREES---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6710-B of 2006, decided on 18th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Emigration Ordinance (XVIII of 1979), S.17---Passports Act (XX of 1974), S.6---Bail, grant of---Further inquiry---Accused was alleged to have travelled on passport under the name different to his actual name---Affidavit referred by counsel for accused had revealed that accused was adopted by his uncle in 1983 who changed his name---Accused at that time was a minor of about 15 years of age---Prima facie, allegations levelled in F.I.R. were belied by affidavit---Standing counsel in view of said affidavit had admitted that case of accused had become one of further inquiry---In First Information Report incorporated S.17 of Emigration Ordinance, 1979 as well as S.6 of Passports Act, 1974---Offence punishable with lesser sentence, ought to be taken into consideration---Offences alleged to have been committed by accused were not covered by prohibitory clause of S.497, Cr.P.C.--Grant of bail, in such like cases, was a rule and refusal was an exception---Prime facie no offence appearing to have been committed by accused, he was admitted to bail.

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

Ch. Fawad Hussain for Petitioner.

Ch. Muhammad Hussain Chhachhar, Standing counsel with Fakhar Islam S.-I. FIA.

MLD 2007 LAHORE HIGH COURT LAHORE 46 #

2007 M L D 46

[Lahore]

Before Abdul Shakoor Paracha and Syed Sajjad Hussain Shah, JJ

FAZAL NABI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 421-A of 2004, heard on 19th September, 2006.

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

----Ss. 9(b) & 25---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Sentence, reduction in---Violation of S.103, Cr.P.C.---Effect---Police witnesses---Competence of---Accused a first offender and previous non-convict---Allegation against accused was that 5 Kgs of Charas was recovered from his possession---Trial Court convicted and sentenced accused to imprisonment for life---Validity---Recovery of narcotic substance had been made in view of provision of S.25 of Control of Narcotic Substances Act, 1997 which being provision of special statute specifically excluded application of S.103, Cr.P.C.---Accused failed to produce confidence-inspiring evidence in his defence which could displace and diminish effect of prosecution evidence brought on record---Police officials were competent witnesses and their testimony could not be discarded merely for the reason that they were police employees---Evidence of recovery in respect of quantity of narcotic substance recovered and sending same for chemical analysis was consistently established by prosecution witnesses---Report of Chemical Analyst regarding the recovered substance was positive---Accused being first offender, and previous nonconvict, his sentence of life imprisonment was reduced to seven years.

Muhammad Azam v. The State PLD 1996 SC 67 rel.

Noor Alam Qureshi for Appellant.

M.D. Qureshi for the State.

Date of hearing: 19th September, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 49 #

2007 M L D 49

[Lahore]

Before Khawaja Muhammad Sharif, J

MIAN KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6786-B of 2006, decided on 18th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 392/34---Bail, grant of---Further inquiry---No evidence was on record, except statements of an Arms Dealer and another person---Case against accused being of further inquiry falling under S.497(2), Cr.P.C., accused was admitted to bail.

Muhammad Ramzan Wattoo for Petitioner.

Tariq Waheed Khan for State along with Asghar Ali A.S.-I.

MLD 2007 LAHORE HIGH COURT LAHORE 50 #

2007 M L D 50

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD ASHRAF---Appellant

Versus

IMAM BAKHSH and 6 others---Respondents

Regular Second Appeal No.28 of 2006, decided on 27th September, 2006.

Islamic Law---

----Gift---Validity---Gift of entire property in favour of plaintiff by his deceased brother--Gift was challenged by three minor sons left behind by the deceased---Neither one of the marginal witnesses nor scribe of the gift deed was examined by plaintiff---Later on plaintiff produced his brother but his name as a witness appeared to have been interpolated subsequently---Courts below had, for good reason, disbelieved the factum of gift---None of grounds mentioned in S.100, C.P.C. which could have justified interference in impugned decree in second appeal, was pointed out.

Khalid Ikram Khatana for Appellant.

Shahzad Nasir for Respondent.

Respondent No.4 ex parte.

Date of hearing: 27th September, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 51 #

2007 M L D 51

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD NAWAZ---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, OKARA and 2 others---Respondents

Criminal Revision No.485 and Criminal Miscellaneous No.1 of 2006, decided on 23rd June, 2006.

Penal Code (XLV of 1860)---

----Ss. 324 & 337-F(v)---Appreciation of evidence---Accused had specifically been nominated in F.I.R. as the sole perpetrator of alleged offence---Accused was stated to have caused a fire-arm injury below the right knee of prosecution witness---Said injured victim had appeared before the Trial Court and had categorically pointed his accusing finger towards accused---Injured victim was corroborated before the Trial Court by an eye-witness and recovery of a fire-arm from accused and also from medical evidence---Both Courts below, after assessing and evaluating evidence available on record, had concurred in their conclusions that prosecution had succeeded in establishing guilt of accused beyond reasonable doubt---No particular or specific misreading or non-reading of evidence on part of Courts below, had been pointed out---No jurisdictional infirmity, illegality, irregularity of procedure or perversity of reasoning on the part of Courts below, had been pointed out by counsel for accused so as to warrant interference in the matter-'by High Court through exercise of its revisional jurisdiction---Sentences passed by the Trial Court against accused had not been found either excessive or oppressive---Matter, in circumstances could not be interfered with in revisional jurisdiction of High Court.

Muhammad Ramzan Wattoo for Petitioner.

MLD 2007 LAHORE HIGH COURT LAHORE 71 #

2007 M L D 71

[Lahore]

Before Muhammad Muzammal Khan, J

IMDAD HUSSAIN---Petitioner

Versus

MUHAMMAD SIDDIQUE---Respondent

Civil Revision 435 of 2001, decided on 23rd May, 2006.

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

----Ss. 6 & 13---Suit for pre-emption---Compromise---Suit filed by plaintiff claiming superior pre-emption right qua defendant/vendee having common passage to suit-land, was dismissed by the Trial Court, but Appellate Court accepting appeal filed against judgment of the Trial Court, set aside the judgment and decree passed by the Trial Court---Compromise was arrived at between parties during pendency of revision and said written compromise deed had been placed on record---Revision was accepted and judgment/decree passed by Appellate Court was modified according to the terms of compromise, arrived at between the parties.

Ahmad Waheed Khan for Petitioner.

MLD 2007 LAHORE HIGH COURT LAHORE 73 #

2007 M L D 73

[Lahore]

Before Tariq Shamim, J

ATIF WAHLA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 7371-B of 2006, decided on 19th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.406---Pre-arrest bail, refusal of---Order of Trial Court whereby bail application of accused was refused, had revealed that on two previous occasions, bail application of accused was dismissed for non-prosecution as he had deliberately failed to appear before the Court when same was fixed for confirmation---Accused in circumstances had misused the concession of ad interim pre-arrest bail granted to him by the Court below---Even on merits, accused was nominated in the F.I.R. and specific role of obtaining the car on rent from the complainant; and usurping same, had been attributed to him---Accused had not been able to point out any mala fide of complainant or the police for his alleged false implication in the case---Bail application of accused was dismissed, in circumstances.

Muhammad Asif Kainth for Petitioner.

MLD 2007 LAHORE HIGH COURT LAHORE 74 #

2007 M L D 74

[Lahore]

Before Jawwad S. Khawaja, J

IJAZ AHMAD alias JAHAZ KHAN---Petitioner

Versus

SUBHAN KHAN and another-Respondents

Civil Revision No.424 of 2006, heard on 5th October, 2006.

(a) Specific Relief Act (1 of 1877)---

----Ss. 12 & 16---Suit for part performance of agreement---Agreement to sell in favour of two vandees---One of the vendees/plaintiffs who had paid half of earnest money filed suit seeking partial specific performance of agreement---Suit was decreed and decree affirmed in appeal---Validity---Defendant/vendor had raised a number of preliminary objections in written statement but suit was not objected to on the basis that it sought partial enforcement of agreement instead written statement showed that vendor would have been willing to execute a separate conveyance in favour of plaintiff---No issue in this respect was framed by trial Court nor was such issue claimed by vendor before trial Court or appellate Court therefore---Subsequent submission of vendor that part performance of agreement could not have been decreed because he had entered into agreement on clear understanding that total consideration would be paid to him jointly was contrary to record---Even not a single word to this effect was uttered by vendor in the evidence---Held, vendor had failed to prove the want of severability, a possible defence against plaintiff's suit for specific performance.

(1) Wali and 2 others v. Manak Ali and 2 others PLD 1965 SC 651 distinguishing.

(b) Question of fact---

----Question whether an agreement is severable or not for purpose of enforcing partial specific performance depends on the facts and circumstances of each particular case and the question is essentially a question of fact.

Ch. Manzoor Hussain Basra for Petitioner.

Ch. Muhammad Yaqoob Sabir for Respondent.

Date of hearing: 5th October, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 77 #

2007 M L D 77

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. AYESHA SIDDIQUA---Petitioner

Versus

STATION HOUSE OFFICER and 2 others---Respondents

Criminal Miscellaneous No. 1007-H of 2005, decided on 26th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Petitioner had prayed recovery of two minors from the custody of respondent, who was paternal uncle of minors---Maternal grandmother of minors who appeared and produced minors in the Court, had alleged that petitioner/mother of minors, was divorced by her son as petitioner was leading immoral life---Petitioner could not satisfy as to how and under what process of law, she got custody of minors from paternal relations of which she claimed to have been deprived---Without going into the allegations levelled by ex-mother-in-law of petitioner, High Court refrained to invoke jurisdiction under S.491, Cr.P.C. so that petitioner could approach Guardian Judge for execution of its order.

Rai Haider Ali Khan Kharal for Petitioner.

Muhammad Ramzan Wattoo for Respondent-2.

2007 M L D 85

[Lahore]

Before Tariq Shamim, J

KHALID IQBAL---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 7186-C-B of 2006, decided on 15h September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.379---Application for cancellation of bail---Bail was granted to respondent/accused on grounds that there was a delay of 7/8 months in lodging F.I.R.; that name of father of main accused whose bail was declined by same order, was not mentioned in the application submitted by petitioner/complainant for registration of the case and that he could have been involved by complainant due to ulterior motives---Main thrust of allegation in F.I.R. was against son of respondent/accused---Court below had not committed any illegality as conclusions drawn by it could not be termed as unrealistic---Even otherwise considerations for grant and cancellation of bail, were quite distinct and counsel for petitioner, (complainant) could not point out any illegality, irregularity, perversity or arbitrariness in the orders of the Court requiring interference by High Court---Case of petitioner was not that the respondent/accused after the grant of bail had misused the concession in any manner---Application for cancellation of bail was dismissed in circumstances.

Sardar Roshan Ali Sindhu for Petitioner.

MLD 2007 LAHORE HIGH COURT LAHORE 87 #

2007 M L D 87

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD YAQOOB---Petitioner

Versus

MUHAMMAD BASHIR and others---Respondents

Civil Revision No.419 of 2002, decided on 4th May, 2006.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement---Agreement in question had not been proved by plaintiffs because none of the marginal witnesses to the same was examined by the plaintiff---No attempt was made to prove the attestation by one of marginal witness who statedly had died---Even other marginal witness who was alive was not produced---If the said witness had allegedly become inimical to plaintiffs on account of litigation between them, that would not preclude plaintiffs from having him produced as Court witness and in the event of his failure to own his signatures, as witness, plaintiffs could have resorted to other means for proving the same---In absence of any marginal witness and failure of plaintiffs to prove attestation of agreement to sell through other evidence, plaintiffs had failed to discharge the onus of proof placed on them---No evidence to prove execution of agreement to sell having been produced, suit could not have been decreed---Reason, prevailing with the Courts below for passing impugned decree against defendant, was wholly untenable---Suit filed by the plaintiffs stood dismissed in its entirety.

Sajid Aman Barki and Ch. Muhammad Akram Sindhu for Petitioners.

Sh. Abdul Aziz for Respondents.

Date of hearing: 4th May, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 89 #

2007 M L D 89

[Lahore]

Before Syed Hamid Ali Shah, J

PROVINCE OF THE PUNJAB through Secretary, Sports Government of the Punjab

and another---Petitioners

Versus

Messrs QAVI ENGINEERS PVT. LTD. through Director and 2 others---Respondents

Criminal Miscellaneous 56 of 1999, heard on 31st May 2006.

Civil Procedure Code (V of 1908)---

----O. I, R. 10---Contract Act (IX of 1972), S.73---Specific Relief Act (1 of 1877), S. 10---Breach of contract---Suit for damages---Necessary or proper party---Person, not a party to a contract, is neither necessary nor proper party in a suit for damages---Project of construction---Authorities awarded the contract to a company---Breach of contract---Beneficiary of project, a Cooperative Society, was also impleaded as defendant along with the contractor---Application filed by Society for deletion of its name from the array of defendants was accepted---Validity---Perusal of agreement revealed that there was no privy of contract between the Cooperative Society and the Authorities awarding the contract---Terms of the contract, performance thereof and liabilities arising thereunder, were restricted to the parties to the contract---Compensation for breach of contract could be claimed from a party to a contract, who had breached the terms of agreement---Person who was not a party to the contract was neither necessary nor proper party in a suit for damages.

Ch. Muhammad Haneef Khatana, Addl. A.G. and Irfan Masood Sheikh for Petitioners.

Ch. Muhammad Akram for Respondent No. 1 and Ch. Muhammad Rasheed Vehra for Respondent No.3.

Date of hearing: 31st May, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 91 #

2007 M L D 91

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD ANWAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 323-J and Murder Reference N. 708 of 2001, heard on 14th September, 2006.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Both complainant and prosecution witness had given consistent account of occurrence and despite lengthy cross-examination, they corroborated each other on almost all material points---Both said prosecution witnesses had stuck to the version narrated in the F.I.R.---Complainant though was husband of deceased and other prosecution witness was cousin of complainant, but their testimony could not be discarded merely on the basis of their relationship with deceased---Presence of said prosecution witnesses at the spot, stood established---Counsel for accused could not point out any discrepancy between statements of said prosecution witnesses---Incident was a broad daylight occurrence and there was no question of non-identification of accused as he was son-in-law of complainant and was also known to prosecution witness who was cousin of complainant---No reason, in circumstances, existed to substitute accused for the real killer---Statements of both eye-witnesses were fully supported by medical evidence---Post-mortem was conducted on the date of occurrence within 4/5 hours of death---Prosecution had proved its case against accused beyond doubt through ocular account, which was supported by medical evidence and corroborated by circumstantial evidence like post-mortem without delay and motive---No mitigating circumstances existed in favour of accused who had caused 11 injuries on the person of deceased who was his mother-in-law and an old lady---Conviction and sentence awarded to accused by the Trial Court were maintained---Trial Court had wrongly convicted accused for offence under S.302(a), P.P.C. as the Trial Court had failed to notice provisions of S.304, P.P.C.---Present case was that of Tazir, attracting provisions of S.302(b), P.P.C.---Conviction of accused was altered for offence under S.302(b), P.P.C., however, death sentence passed by the Trial Court was maintained and Murder Reference was answered in the affirmative---Death sentence was confirmed.

Imtiaz Ahmad Chaudhry, Defence counsel appointed by the Court for Appellant.

Shoaib Zafar (in Criminal Appeal No. 323-J) and M. Aslam Malik (in Murder Reference No.708 of 2001) for the State.

Date of hearing: 14th September, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 96 #

2007 M L D 96

[Lahore]

Before Jawwad S. Khawaja, J

ALLAH YAR and others---Petitioners

Versus

PROVINCE OF PUNJAB through Collector, Faisalabad and others---Respondents

Civil Revision No.2086 of 1999, decided on 31st May, 2005.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr. 1 & 2---Temporary injunction, grant of---Controversy in the case related to a water channel and according to petitioners, Canal Authorities had passed orders without notice to petitioners---Trial Court granted temporary injunction, but Appellate Court had reversed the findings of the Trial Court on the premises that order passed by Authority had mentioned that petitioners had been served---Validity---That alone could not constitute, prima facie, evidence of service, particularly in view of the fact that Authorities did not file any document to establish service of petitioners when they filed their written statement and their reply to the said application---If, petitioners had been served, it was incumbent on the Authorities to bring on record the service report and the part of the notice showing that petitioners had been served---Impugned appellate order was set aside and that of Trial Court was restored.

Zafar Iqbal Chohan for Petitioners.

Kb. Muhammad Saeed with Haq Nawaz Zaildar for Respondents.

Date of hearing: 31st May, 2005.

MLD 2007 LAHORE HIGH COURT LAHORE 100 #

2007 M L D 100

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD YAQOOB---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 371-J and Murder Reference No.650 of 2001, heard on 13th September, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Both prosecution witnesses reached the spot per chance and they could not explain as to why they felt necessary to go to the house of deceased---Weapon carried by accused was not described in F.I.R., but during the trial, witnesses had specifically stated that he was carrying .7 mm gun---Inquest report did not contain F.I.R. number; in one of its columns, weapon had not been specified; in another column of the Inquest report time of death had not been mentioned and in other two columns, it had not been mentioned that any empty was lying near the dead body---Injury report had also revealed that F.I.R. number was left blank---Circumstances had established that occurrence was not witnessed by any of the prosecution witnesses---Motive as set down by the prosecution did not enhance its case in any manner---No evidence was on record that any quarrel took place between deceased and accused over denial of alleged proposal---Accused and deceased remained living in the same house and where on good terms---No other witness, except eye-witnesses, had been produced to support motive---Real motive, in circumstances remained in mystery---Medical evidence had supported case to the extent that deceased lost her life due to fire-arm injuries, but no further---Police Officer, had stated that he arrested accused after 11 days of occurrence, while according to prosecution witness, accused was arrested just after 2/3 days of the occurrence---Rifle allegedly recovered from residential room of accused, was kept in Malkhana for more than a month, and said delay in sending rifle to Forensic Science Laboratory, was not explained---Empties were also sent to Forensic Science Laboratory after about three weeks and delay was not explained---Such facts had cast heavy doubts on the credence of evidence of tallying empties with recovered weapon---Proceedings were shady and not free from doubt---Possibility could not be excluded that empties were secured after recovery of rifle---Prosecution having failed to prove its case against accused beyond doubt, judgment passed by the Trial Court, was set aside and accused were acquitted of the charges and were released from jail.

Ch. Imtiaz Ahmad for Appellant (on State Expense).

Badar Munir Malik (in Criminal Appeal No.371-J of 2001) and Ashafq Ahmad Chaudhry (in Murder Reference No.650 of 2001) for the State.

Date of hearing: 13th September, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 106 #

2007 M L D 106

[Lahore]

Before Syed Zahid Hussain, J

TARIQ MASOOD and 11 others---Petitioners

Versus

S. M. RASHID and 9 others---Respondents

Civil Revision No.2287 of 2000, heard on 3rd October, 2006.

Specific Relief Act (I of 1877)---

----S. 9---High Court (Lahore) Rules and Orders Vol. 1, Chap. 1-M---Suit for possession---Allegation of encroachment by defendants upon the property in excess of their entitlement---Sale-deed which was the basis for the title of plaintiff gave no exact description of property in question---Effect---Since the title and ownership of plaintiff was not in dispute, a suit for possession without seeking any declaration was maintainable---Merely a recital in sale-deed that suit-land was situated in southern side of a certain property, was not enough for decreeing the suit---In order to resolve the controversy that defendants had encroached upon the property in excess of their entitlement, correct and real identification and demarcation of property in dispute was required for which proper course was the appointment of a licensed Architect/Engineer to visit the site and demarcate the plaintiff's property, together with appurtenances, if any, with necessary aid and assistance of the City Survey Staff---Courts below failed to adopt the due course---Case was remanded for decision afresh.

Nooruddin and 11 others v. Abdul Wahid 2000 SCMR 91 ref.

Qazi Zia Zahid for Petitioners.

Nayyar Iqbal Ghauri for Respondents.

Date of hearing: 3rd October, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 108 #

2007 M L D 108

[Lahore]

Before Muhammad Muzammal Khan, J

LAHORE DEVELOPMENT AUTHORITY and others---Petitioners

Versus

MUHAMMAD SAIFULLAH and others---Respondents

Civil Revision No.2289 of 2004, decided on 20th April, 2005.

Specific Relief Act (I of 1877)---

----S. 54---Civil Procedure Code (V of 1908), Ss.96 & 115---Limitation Act (IX of 1908), S.5---Suit for permanent injunction---Delay in filing appeal, condonation of---Trial Court decreed suit and Appellate Court dismissed appeal being barred by limitation---Petitioners also filed revision beyond period of limitation---Effect---Delay in filing appeal before Appellate Court could not be condoned solely on the ground that petitioners were State functionaries and that they needed some time in soliciting the permission for filing appeal---Each day's delay in filing appeal before first appellate Court, having not been explained in their application under S.5 of Limitation Act, 1908, Appellate Court had rightly non-suited petitioners on the point of limitation and revision petition having been filed beyond time prescribed by law was not maintainable.

Chairman/Secretary, Pakistan Railways, Ministry of Railways Government of Pakistan, Islamabad and others v. Muhammad Sharif Javaid Waris PLD 2003 SC 6; Sheikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628; Said Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286; Muhammad v. Sher Muhammad and 2 others 2001 MLD 1546; Sultan Khan and 3 others v. Sultan Khan 2004 MLD 918 and Islamic Republic of Pakistan through Secretary Ministry of Defence and others v. Masood Enterprises PLJ 2001 Lahore 944 ref.

Muhammad Rashid Ahmad for Petitioners.

Zafar Iqbal Chohan for Respondent No.1.

MLD 2007 LAHORE HIGH COURT LAHORE 111 #

2007 M L D 111

[Lahore]

Before Sh. Javaid Sarfraz, J

ABDUL RAZZAQ and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3098-B of 2006, decided on 27th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.310-A [As added vide Criminal Law (Amendment) Act (I of 2005)]---Bail, grant of---Further inquiry---When alleged offence took 'place, same was not punishable by any law---Any amendment in the Penal Code would not be retrospective in its effect---Accused could not be charged against alleged offence Rukhsati of girls, allegedly to be made pursuant to a compromise, had not yet taken place and they were still with their parents---Case of further inquiry having been made out, accused were entitled to grant of bail---Challan had been submitted in the Court, but it would take a long time before the case was concluded---Accused were admitted to bail, in circumstances.

M.A. Zafar for Petitioners.

Wajeeh-ud-Din for the State with Hameed Ullah A.S.-I.

MLD 2007 LAHORE HIGH COURT LAHORE 116 #

2007 M L D 116

[Lahore]

Before Sh. Azmat Saeed, J

NASIR HASSAN KHAN---Appellant

Versus

MUHAMMAD KHALID RAFIQUE---Respondent

F.A.O. No.253 of 2005, decided on 5th October, 2006.

Specific Relief Act (I of 1877)---

----Ss. 12 & 52---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for injunction and specific performance---Balance consideration---Temporary injunction, grant of---Scope----Temporary injunction in a suit for specific performance restraining alienation pendente lite must be subjected to deposit of balance admitted consideration---Plaintiff was directed to deposit the balance sale price within the time specified and in case of default temporary injunction would automatically stood vacated---Defendant's plea that agreement was rescinded was a matter of evidence.

Wiqar Avais v. Raja Muhammad Shafi Janjua and 4 others 1992 CLC 8 and Muhammad Nazir v. Yaqoob Khan and others 1994 CLC 12 ref.

S.M. Mohsin Zaidi for Appellant.

Syed Nasir Hussain Rizvi for Respondent.

MLD 2007 LAHORE HIGH COURT LAHORE 118 #

2007 M L D 118

[Lahore]

Before Ch. Ejaz Ahmed, J

MUHAMMAD QASIM---Appellant

Versus

TAHIR SALEEM and others---Respondents

F.A.O. No.108 of 2005, decided on 29th June, 2006.

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

----O.XXXIX, R.4---Discharge or setting aside of injunctive order---Powers of the Trial Court---Scope---Trial Court had ample powers under O.XXXIX, R.4, C.P.C. to discharge, vary or set aside injunctive order which was not confined only to case of ex parte injunctive order passed before issuance of notice to opposite party---Such however could be exercised keeping in view the circumstances of each case, which made injunctive order harsh or unworkable.

Pakistan Engineering Consultant's case 1993 CLC 882; Abrar Ahmad Khan Tareen's case 1994 SCMR 1764 and Muhammad Yousuf v. Mst. Sabira A. Muhammad and others 1990 CLC 1127 ref.

(b) Administration of justice---

----Once a Court had decided a matter after giving to each side an opportunity of being heard, its order was final and could not be re-opened except on presentation of some new material not available when original order was passed---It was the duty and obligation of even public functionaries to decide controversy between the parties after application of mind with reasons---No body should be penalized by the act of Court---Each and every case was to be decided on its own peculiar circumstances and facts.

Sind Madrasatul Islam Board Society v. Shamim 1982 CLC 2242; Muhammad Inam v. Dr. Muhammad Safdar 1988 CLC' 230; Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173; Messrs Airport Support Service's case 1998 SCMR 2268; Mian Irshad Ali v. Government of Pakistan and others PLD 1975 Lah. 7 and Trustee Board's case's 1994 SCMR 2213 ref.

---Later provision of law would hold the field.

District Council Haripur v. Zaheer ullah Khan. PLD 1994 Pesh. 228; Pioneer Pakistan Seed Ltd. v. United Distributors 1998 CLC 61; Shah Jehan Khan v. Fazal-ur-Rehman Khan and others 2001 CLC 1695 and Haji Abdul Ghafoor Akhtar, v. Malik Tahir Mukhtar. 2001 CLC 1721 ref.

Abdul Razaq Mirza for Appellant.

2007 M L D 146

[Lahore]

Before Muhammad Muzammal Khan, J

M. HUSSAIN CHAUDHRY---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Home Secretary and 4 others---Respondents

Writ Petition No.6903 of 1998, decided on 12th October, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction---Scope---Stance canvassed by petitioner in constitutional petition, rested on disputed factual controversy, requiring determination through detailed inquiry/recording of evidence---Such exercise could not be undertaken while discharging jurisdiction under Art.199 of the Constitution---Constitutional petition was disposed of, leaving petitioner to approach Civil Court for redressal of his grievance of getting compensation, where it would be determined that who out of the respondents, was liable to pay compensation.

The Province of East Pakistan v. Kshiti Dhar Roy and others PLD 1964 SC 636 and Muhammad Younas Khan and 12 others v. Government of N.-W.F.P. through Secretary Forest and Agriculture, Peshawar and others 1993 SCMR 618 ref.

Sajid Mehmood Sheikh for Petitioner.

Ch. Muhammad Rashid Ahmed for Respondent No.2.

Kh. Muhammad Afzal for Respondent No.3.

MLD 2007 LAHORE HIGH COURT LAHORE 148 #

2007 M L D 148

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD NASIR-Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.116 of 2006, decided on 18th September, 2006.

Juvenile Justice System Ordinance, (XXII of 2000)---

----S. 7---Penal Code (XLV of 1860), S.302---Trial by Juvenile Court---Determination of age of accused---Opinion of Medical Board to be preferred to School Leaving Certificate or Birth Certificate---Scope---Accused/petitioner was booked under S.302, P.P.C. and his challan was submitted to Sessions Judge who while taking the cognizance of matter determined age of accused as 19 years---Accused contended that Sessions Judge did not determine the age of accused in accordance with provision of S.7 of Juvenile Justice System Ordinance, 2000 and that his age according to School Leaving Certificate and Birth Certificate was below 18 years, therefore, he was a minor---Complainant urged that Sessions Judge had based his opinion on the report of Medical Board and material available on file---Validity---Age of accused could only be determined after obtaining report from Medical Board---Under S.7 of Juvenile Justice System Ordinance, 2000, intention of Legislature was very clear that determination of age of an accused person on basis of School Leaving Certificate or Birth Certificate was not safe, hence, report from Medical Board was to be obtained for said purpose due to reason that Birth Certificates or School Leaving Certificates were easily available---Juvenile Court could alone decide whether accused was a child or not on basis of unimpeachable documentary evidence and after obtaining medical opinion---Even entries in Birth Certificate of accused in the present case, showed age of accused as 19 years and 3 months---Accused contended that he had challenged entries in Birth Certificate but he failed to establish that these entries were changed or declared bogus by competent authority---Sessions Judge had determined age of accused on basis of opinion of Dentist and Consultant Surgeon of the Hospital and Birth Certificate---In matter of conflict between Birth Certificate and Medical Board, opinion of Medical experts was to prevail---Sessions Judge had rightly determined age of accused as more than 18 years in circumstances.

Hassan Zafar v. The State 2001 PCr.LJ 1939; Javed Iqbal v. The State PLJ 2003 SC 54 and Ahmad Khan v. The State 2003 YLR 315 ref.

Muhammad Arif Alvi for Petitioner.

Muhammad Qasim Khan, A.A.-G for the State.

Ch. Faqir Muhammad and Sardar Ashiq Hussain Khan Baloch for the Complainant.

MLD 2007 LAHORE HIGH COURT LAHORE 153 #

2007 M L D 153

[Lahore]

Before Muhammad Muzammal Khan, J

M. AKHTAR CHEEMA---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.19020 of 2005, decided on 18th April, 2006.

Punjab Local Government Elections Rules, 2005---

----Rr. 65, 67 & 72---Constitution of Pakistan (1973), Art.199---Constitutional petition---Respondents were declared successful in election and their result was accordingly notified---Petitioner filed Election Petition against returned candidates/respondents alleging that one respondent had attached a bogus matriculation certificate along with his nomination papers---Election petition was rejected on the ground that same was not verified in the manner laid down in the Civil Procedure Code, 1908 and Rr.65 & 67 of Punjab Local Government Elections Rules, 2005---Validity---Petitioner had filed constitutional petition against rejection of his election petition---Election petition had been verified by petitioner on oath, but same had not been inscribed by reference to paragraph numbers and instead all the paragraphs thereof were attested on oath on knowledge and belief---Election petition underwent scrutiny by staff of Election Tribunal, whereby same was admitted to regular hearing after hearing preliminary arguments by Presiding Officer, but no objection regarding incorrect verification of the same was ever raised by respondents---Objection of counsel for respondents that verification on election petition was subsequently inscribed by petitioner, had no value---Counsel for respondents could not demonstrate as to which paragraph of Election Petition should have been verified by petitioner on his own knowledge and which of those should have been verified on information received and believed to be true---Order rejecting Election Petition passed by Election Tribunal being tainted with patent illegalities, was declared to be void and non-existent in the eyes of law---Election Petition would be deemed to be pending and would be decided on merits in accordance, with law.

Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600 ref.

Mian Muhammad Sikandar Hayat for Petitioner.

Ch. Sadaqat Ali for Respondents Nos. 3 and 4.

Date of hearing: 18th April, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 159 #

2007 M L D 159

[Lahore]

Before Jawwad S. Khawaja, J

BASHIR AHMED and others---Petitioners

Versus

GHULAM RASOOL and others---Respondents

Civil Revision No. 500 of 2002, decided on 15th May, 2006.

Specific Relief Act (I of 1877)---

---Ss. 42 & 54---Suit for declaration and permanent injunction---Mesne profits, grant of--Claim of plaintiff was that she and her sisters were daughters of deceased owner of suit-land and had been wrongly excluded from inheritance by their two brothers/defendants---Witnesses produced by plaintiff had fully proved that plaintiff was daughter of deceased--Trial Court decreed suit, but Appellate Court set aside the same---Validity---Defendant in their written statement had categorically stated that plaintiff had no connection with them or with their deceased father, but in their evidence, they had set up a different plea altogether---Defendants attempted to show that plaintiff and her sisters were the daughters of their mother, but from a previous marriage to person other than their father thus defendants had acknowledged plaintiff and her sisters to be their uterine sisters contradicting their version in given written statement---Defendant had not at all mentioned the previous marriage of their mother with other person---Pleas raised by defendants in defence, were false, in circumstances---Plaintiff, who had fully proved to be one of the daughters of deceased and sister of defendants, was entitled to a declaration that she was entitled to inherit suit property as one of the legal heirs of deceased---Defendants having enjoyed the benefits of suit property to the exclusion of plaintiff and her sisters, she (plaintiff) along with her sisters were entitled to joint possession of the suit-land along with defendants---Preliminary decree for mesne profits in favour of plaintiff was passed for the period starting from the date of filing the suit.

Ijaz Feroze for Petitioner.

Ch. Amanat Ullah for Respondents.

Date of hearing: 15th May, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 169 #

2007 M L D 169

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

BABAR ALI alias SAJOO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1031 of 2003, heard on 5th October, 2006.

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

----S. 9(c)---Appreciation of evidence---Witnesses being unanimous in respect of all aspects of prosecution case, their statements could be termed as true and confidence inspiring---Despite lengthy cross-examination by defence, testimony of witnesses could not be shaken on any material point---No reason was available for rejection of their testimony---Mere fact that said witnesses were official witnesses, would not deprive their testimony of its due evidentiary value---Members of police were competent witnesses in the eyes of law and their testimony was worth reliance, unless it could be shown that they were false witnesses and had out of malice and for ulterior motives involved an innocent person---Counsel for accused had failed to point out any ill-will or mala fide on the part of recovery witnesses on account of which accused was implicated in the case---Large quantity of Charas recovered from accused, could not have been falsely planted upon him---Positive report of Chemical Examiner, had further proved prosecution case against the accused---Discrepancies highlighted by accused were minor in nature and insignificant---Provisions of S.25 of Control of Narcotic Substances Act, 1997 having specifically excluded provisions of S.103, Cr.P.C., non-association of members of public in recovery proceedings, was neither a requirement of law nor an absolute rule---Accused had pleaded that he had been falsely implicated in the case due to some criminal litigation between the parties---Nothing was on record to even remotely suggest that accused in said earlier case had any connection with members of raiding party---Accused neither produced any evidence in support of said plea at the trial nor any such attending circumstance was brought on record by accused---Case against accused having been fully proved, conviction and sentence awarded to accused by the Trial Court, were maintained.

Ahmed Hassan Anwari for Appellant.

Ehtisham Qadir Shah for the State.

Date of hearing: 5th October, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 173 #

2007 M L D 173

[Lahore]

Before Muhammad Muzammal Khan, J

NAWAZ---Appellant

Versus

MATEEN AHMAD QURESHI---Respondent

S.A.O. No.37 of 2006, decided on 6th October, 2006.

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

----Ss.13(2)(i), 6 & 15---Ejectment of tenant on ground of default in payment of rent---Rent Controller proceeded ex parte against tenant and passed ex parte ejectment order against him as he failed to appear before Rent Controller---Tenant, instead of filing application for setting aside ex parte proceedings or ex parte order, filed appeal before Appellate Authority, which was dismissed and tenant had filed second appeal---Validity---Tenant was rightly proceeded ex parte as his absence from the Court of Rent Controller was not justified even on medical ground---Rate of rent was not denied by tenant---Tenant claimed that after refusal of landlord to accept rent, he remitted rent in dispute through money order---Tenant, after alleged refusal of landlord to accept money order, did not deposit rent with Rent Controller and went on committing default in payment of rent till the time ejectment petition was filed against him---Tenant had no explanation for the default committed by him for the period intervening the money order and filing of ejectment petition, which had made his defaulting attitude deliberate---Tenant could not point out, even one stance in support of his claim that he was not a wilful defaulter in payment of rent, because he had not deposited any rent even after filing of ejectment petition till passing of order under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 by Rent Controller---No case for interference in second appeal having been made out, same was dismissed.

Shahid Mehmood Khan Khilji for Appellant.

Ch. Inayat Ullah for Respondent.

MLD 2007 LAHORE HIGH COURT LAHORE 177 #

2007 M L D 177

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD RASHID and 10 others---Petitioners

Versus

REHMAT ALI and another---Respondents

Writ Petition No.18910 of 2005, decided on 16th October, 2006.

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

----S. 115---Revision-"Case decided", meaning and scope---Words "case decided", occurring in S.115, C.P.C., were to be understood in the broadest and most ordinary sense so as to include a party of a case or an issue or an interlocutory order when judicially considered by the Trial Court; which would ultimately affect the rights of the parties, even though the order could be passed in the course of the trial of the suit; and would include a step in aid of the determination of the controversy; and an interlocutory order which dealt with a substantial question in controversy between the parties; and affected their rights would be a "case decided".

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

----O. IX, R.13 & S.115---Constitution of Pakistan (1973), Art. 199---Constitutional petition-"Case decided"---Application by petitioners for restoration of application and for setting aside ex parte order and decree dismissed for non-prosecution, had not been decided by the Trial Court---Impugned order of the Trial Court had not affected the rights of any party---Rights of the parties, would be `prejudiced', if application either accepted or rejected by the Court finally---Court had not adjudicated upon the matter and had not applied its judicial mind---Court framed issues only to decide application---Issue of time barred was an issue of fact, which required the recording of evidence---Case was not covered within the purview of "case decided"---Legal aspect of the case had not been adverted to by revisional Court and it had set aside order of framing issues on the application of the petitioner on the sole ground that application filed by petitioners was hopelessly time-barred---Issue of time-barred pertained to the question of facts which required examination of record and recording of evidence and it was a vested right of petitioners to establish their case for condonation of delay showing "sufficient"/goad cause---Revisional Court had also not taken into consideration legal questions and accepted revision; and dismissed application of petitioners without providing opportunity to the petitioners of establishing their case through sufficient and convincing evidence---Revisional Court had passed order on mere presumption---Trial Court was to give its verdict with regard to question of limitation---Revisional Court, in circumstances had exercised its jurisdiction vested in it illegally and with material irregularities---High Court accepting constitutional petition set aside impugned order passed by revisional Court declaring same to have been passed without lawful authority and quashed same.

S. Zafar Ahmad v. Abdul Khaliq PLD 1964 (W.P.) Kar. 149; Bashir Ahmad Khan v. Qaiser Ali Khan and 2 others PLD 1973 SC 507; Messrs National Security Insurance Company Limited and others v. Messrs Hoechst Pakistan Limited and others 1992 SCMR 718; Hassan Ali and others v. Ch. Bashir Ahmad and others 1985 CLC 605 and Pakistan Fisheries Ltd., Karachi and others v. United Bank Ltd. PLD 1993 SC 109 rel.

Aaliya Neelum for Petitioners.

Ch. Nasrullah Nasir Bhangoo for Respondent No.1.

MLD 2007 LAHORE HIGH COURT LAHORE 188 #

2007 M L D 188

[Lahore]

Before Hasnat Ahmad Khan, J

DILMEER and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3177-B of 2006, decided on 7th November, 2006.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 337-A(i), (ii), 337-F(i) 337-L(ii), 148 & 149---Bail, grant of---Further inquiry---Role attributed to accused persons was not supported by Medico-legal Certificate---Question as to which of the parties was aggressor, would be determined by the Trial Court after recording of evidence---If the case was found to be of further inquiry, accused would become entitled to bail as a matter of right and when question of right was confronted with the question of propriety, latter must give way to the former---Role attributed to co-accused, was not supported by Medico-legal Certificate and according to complainant he had caused no injury to deceased---No recovery had been effected from co-accused---Incident was night occurrence and net, prima facie, had been thrown much wider by prosecution---Prosecution case to the extent of co-accused required further inquiry and question of his participation was open to doubt---Co-accused was entitled to bail as a matter of right, even on the rule of consistency, he was entitled to bail as his role was almost at par with that of co-accused, who had been granted bail.

Gulzar Ahmad v. State 1995 PCr.LJ 1494; Muhammad Sadiq v. State 1980 SCMR 203 and Muhammad Jamil v. Muhammad Rafique and another PLD 1989 SC 585 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 337-A(i), (ii), 337-F(i) 337-L(ii), 148 & 149---Bail, refusal of---Role to the extent of accused, though was also negated by the fact of non-production of medico-legal report of prosecution witness who allegedly was injured by the accused, but his case would become distinguishable from the case of co-accused as according to accused himself he was injured during the occurrence---Presence of prosecution witness at the time of occurrence could not be doubted, in circumstances--Recovery of Sota allegedly used by accused in occurrence, had also been effected from him---Accused had not been able to make out a case of further inquiry---Bail petition to the extent of the accused was dismissed.

Javed v. State 2000 PCr.LJ 262 rel.

Allah Bakhsh Haraj for Petitioners.

Aziz Khan Punian for the Complainant.

Pervaiz Qamar Butt for the State with Shaukat Hussain S.-I.

MLD 2007 LAHORE HIGH COURT LAHORE 192 #

2007 M L D 192

[Lahore]

Before Muhammad Akhtar Shabbir, J

IMRAN SHAFIQUE---Petitioner

Versus

Dr. ZULFIQAR AHMED and 2 others---Respondents

Writ Petition No. 10603 to 10605 of 2006, decided on 11th October, 2006.

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

----O.XIII, Rr.1 & 2---Constitution of Pakistan (1973)---Art. 199---Constitutional petition---Production of documentary evidence---Non-production of documents at first hearing---Effect---Petitioner, during trial of suits filed by him against respondent, filed application for production of registered envelope under O.XIII, Rr. 1 & 2, C.P.C. which application concurrently was dismissed by the Trial Court and Appellate Court in revision filed by petitioner---Registered envelope sought to be produced, was not entered/mentioned by petitioner in his list of reliance---Trial Court in elaborate order had concluded that no good cause had been shown by petitioner for satisfaction of the Trial Court for non-production of said registered envelope---Said order of the Trial Court had been upheld by Appellate Court below in revision---High Court in constitutional jurisdiction, was always reluctant to interfere with the orders passed by the Courts below-Trial Court had not acted arbitrarily and no principle of law had been violated by the Trial Court---Observation of the Trial Court, having been upheld by revisional, High Court would also not interfere in the same---Concurrent findings of facts against petitioner, could not be interfered with by the High Court in exercise of its constitutional jurisdiction, when petitioner had not been able, to point out any illegality or jurisdictional defect in impugned orders.

Muhammad Umar Mirza v. Waris Iqbal and others 1990 SCMR 964; Rab Nawaz and another v. Muhammad Amir and another 1999 SCMR 951; Benediet Souza v. Karachi Building Control Authority and three 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.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Concurrent findings of facts against petitioner, could not be interfered with by the High Court in exercise of its constitutional jurisdiction, when petitioner had not been able to point out any illegality or jurisdictional defect in impugned orders.

Muhammad Farooq Qureshi Chishti for Petitioner.

MLD 2007 LAHORE HIGH COURT LAHORE 201 #

2007 M L D 201

[Lahore]

Before Muhammad Muzammal Khan, J

AHMAD HAYAT---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SARGODHA and 2 others---Respondents

Writ Petition No. 11073 of 2005, decided on 22nd July, 2005.

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

----S.5, Sched. & S.14---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for recovery of maintenance amount---Both Family Court and Appellate Court burdened petitioner with maintenance allowance of his son at the rate of Rs.10,000 per month---Petitioner in his constitutional petition had challenged concurrent judgments and decrees of Courts below contending that amount of maintenance determined by the Courts was excessive and that said Courts had no jurisdiction to grant past maintenance---Validity---Petitioner was stationed abroad where he was working for money and he also owned one square of land---Petitioner could not prove that he had gone abroad only for advance study and was not working there---Claim of petitioner that he had to maintain his second wife was the proof of the fact that he had sufficient means to pay maintenance allowance concurrently awarded by two Courts below---None of the provisions of statutory law was referred by petitioner in support of assertion that past maintenance or past allowance could not have been awarded by Family Court while exercising powers under S.488, Cr.P.C.---No case for interference in constitutional jurisdiction of High Court was made out---Even otherwise, a lawful decision within the ambit of conferred jurisdiction, could not be substituted on constitutional petition.

Ch. Shahid Tabbasum for Petitioner.

Naseem Ullah Khan Niazi for Respondent No.3.

MLD 2007 LAHORE HIGH COURT LAHORE 204 #

2007 M L D 204

[Lahore]

Before Parvez Ahmed, J

MUHAMMAD ASHIQ and 6 others---Appellants

Versus

MUHAMMAD IQBAL and 7 others---Respondents

Regular Second Appeal No. 90 of 1996, decided on 24h April, 2003.

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

----Ss. 103, 100 & O. XLI, R.23---Plea that issues with regard to material questions involved in suit were not framed---Entire evidence on such questions/issues stood recorded by Trial Court---Courts below had considered such aspect of case---High Court declined to remand case on such score only, but proceeded to dispose of appeal on merits.

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

----S. 12---Suit for specific performance of agreement to sell against lady-vendor and subsequent transferee under exchange deed---Plaintiff's plea was that lady-vendor had executed such agreement in his favour through her husband as attorney---Vendor was proceeded ex parte, while subsequent transferee alleged such agreement to be forged---Onus to prove such agreement was on plaintiff-Evidence of scribe and marginal witnesses regarding execution of agreement by vendor, payment of sale consideration and execution of power of attorney was not satisfactory---Plaintiff had not summoned vendor and her attorney as witness, though available in country---Plaintiff had not discharged such onus, which heavily lay on him in view of vendor having been proceeded ex parte---Plaintiff could not prove delivery of possession to him under agreement to sell---Plaintiff on being contacted by subsequent transferee had intimated him to be in possession of suit-land as tenant, but not under agreement to sell---Nothing on record to show existence of collusion between vendor and subsequent transferee, who had published transaction of exchange in press---Plaintiff's suit for specific performance of agreement to sell was dismissed in circumstances.

----S. 12---Limitation Act (IX of 1908), Art. 113---Suit for specific performance of agreement to sell---Limitation---Agreement, dated 18-12-1978 specified that vendor would perform' same after removal of certain legal obstacles---Matter of title of vendor was disposed of by Supreme Court on 6-8-1984---Entry in Roznamcha Waqiati was made on 20-5-1984---Mutation was attested on 29-5-1986---Plaintiff filed suit on 16-2-1988---Plaint did not show on which date, plaintiff had contacted vendor and in what manner and with what result---Nothing on record to show that even after decision of Supreme Court, plaintiff had ever contacted vendor or her attorney---No date of refusal by vendor was established on record to give benefit to plaintiff of Art. 1 13 of Limitation Act, 1908---Nothing on record to show that plaintiff had ever contacted Revenue authorities to ascertain removal of legal obstacles or not--- Plaintiff had filed suit after lapse of ten years---Suit was barred by limitation.

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

----Ss. 53-A & 118---Word "transferee" as used in S. 53-A of Transfer of Property Act, , 1882---Scope---Exchange is one of the modes of transfer of property---Such word does not confine itself to word "purchase" only, rather same does cover word "exchange"---Person in whose favour exchange had taken place, would become transferee of such property---Right of such transferee for consideration having no notice of contract or part performance thereof would be protected.

(e) Words and phrases---

----"Transferee"---Definition.

Black's Law Dictionary Fifth Edition ref.

(f) Words and phrases---

----"Transfer"----Definition.

Uniform Commercial Code ref.

(g) Words and phrases---

----"Exchange"---Definition.

Corpus juris secundum and law Terms and pharases ref.

Muhammad Ghani and Muhammad Akhtar for Appellants.

Ch. Khursheed Ahmad and Shahbaz Khursheed for Respondents.

Date of hearing: 4th April, 2003.

MLD 2007 LAHORE HIGH COURT LAHORE 215 #

2007 M L D 215

[Lahore]

Before Jawwad S. Khawaja, J

MURADAN alias DARAN BIBI and 2 others---Appellants

Versus

KAZIM ALI and others---Respondents

Regular Second Appeal No.3 of 2003, heard on 8th March, 2006.

Specific Relief Act (I of 11877)---

----S. 8---Transfer or Property Act (IV of 1882), S.41---Suit for possession---Suit-land was duly allotted to appellants through respondent who was their general attorney---Respondent on basis of power of attorney executed by plaintiffs in his favour sold suit-land to other respondents who further sold said land in favour of others and said transaction of sale was duly recorded in sanctioned mutation---Plaintiffs who, in their suit for possession, had challenged said mutation, had alleged that they had never appointed respondent as their general attorney---Both Courts below had concurrently found that plaintiffs could not deny that respondent was their general attorney---Said conclusion had been reached on the basis that it was the respondent who appeared as attorney of plaintiffs before Revenue/Settlement functionaries and had obtained allotment of the suit-land in favour of plaintiffs---Appellate Court below had observed that plaintiffs could not be allowed to approbate and reprobate at the same time by accepting allotment procured on their behalf by the attorney and in the very same breath, denying his authority in respect of sales made by said attorney in favour of vendees---Ostensible ownership of venders from whom others had purchased suit-land, had indisputably been established---Consent of plaintiffs in support of such ostensible ownership was implied through conduct of plaintiffs---Consideration, stood established from the contents of disputed mutations---Element of good faith had also been proved on record---Even otherwise suit filed by plaintiffs, almost eight years after sanctioned mutations, was barred by time---Concurrent judgments and decrees of Courts below being based on record, could not he interfered with by the High Court in second appeal.

Muhammad Sharif and 13 others v. Inayatullah and 24 others 1996 SCMR 145; Muhammad Afzal v. Matloob Hussain and others PLD 2006 SC 84 and Langar and others v. Ch. Muhammad Shafi and others 1994 MLD 2169 rel.

S.M. Zaman for Appellants.

Mahfooz-ul-Haq Khan and Muhammad Rashid Mirza for Respondents Nos. 1 to 8.

Monzoor Hussain Chaudhry for Respondents Nos. 8 to 17.

Date of hearing: 8th March, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 225 #

2007 M L D 225

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

ISHTIAQ AHMED---Petitioner

Versus

ABDUL RASHID---Respondent

C.R. No.377 of 2005/BWP, decided on 5th June, 2005.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.2, 3---Suit for recovery of amount on basis of pro note,-'Defendant filed written statement whereupon Trial Court framed issues and adjourned case for evidence of parties---Application filed by defendant for comparison of his thumb-impression on said pro note, had been accepted by the Trial Court---Case of defendant was that he had not received disputed amount from plaintiff , also that pro note was a forged document as same did not bear his signature or thumb-impression---Trial court, in circumstances, had rightly accepted application of defendant for comparison of his thumb-mark on said pro note---Well-reasoned order of the Trial Court not suffering from any illegality or infirmity, could not be interfered with by High Court in exercise of its revisional jurisdiction.

Rasheed Afzaal Cheema for Petitioner.

MLD 2007 LAHORE HIGH COURT LAHORE 233 #

2007 M L D 233

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD SADIQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.114 of 1997 and Murdered Reference No,327 of 2002 heard on 20th November, 2006.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Both eye-witnesses though were related to deceased, but they had no enmity or ill-will against accused so as to involve him in a false case---One of the witnesses was immediate neighbour of co-accused and complainant also lived nearby---Both witnesses were cross-examined, but their veracity could not be shaken---Nothing was on record to show that relationship between the prosecution witnesses and accused was strained---Occurrence took place in the broad daylight---Matter was reported to the police within one hour and post-mortem examination of deceased was also conducted on the same date promptly---Prompt reporting of the matter to the police and prompt post-mortem examination had ruled out the chance of fabrication---Statements of both the witnesses were fully supported by medical evidence and were duly corroborated---No plausible motive was available on record---Not a single reason was available on the record as to why complainant would substitute the killer of his son with an innocent person---Truthfulness of the witnesses was apparent from the fact that they did not attribute fatal shot to co-accused---Accused after registration of case against him had absconded and was declared absconder through due process of law---Said abscondence of accused provided corroboratory evidence---Co-accused were acquitted by giving them benefit of doubt as one of said co-accused was empty handed and other co-accused did not hit deceased---Defence plea taken by accused before the Trial Court was not only opposed to , common sense, but also an afterthought---Prosecution had successfully proved its case against accused through ocular version which was fully supported by the medical evidence and corroborated by circumstances of the case---Accused was rightly convicted and in absence of any mitigating circumstance, death sentence awarded to accused by the Trial Court was upheld---Death sentence was confirmed---Murder Reference was answered in affirmative.

Mr. S.M. Farhad Tirmizi for Appellant.

Amair Feroze and Malik M. Suleman Awan for the State (in Criminal Apeal No.114 of 1997 and Murder Reference No. 427 of 2002 respectively).

Sycd Zahid Hussain Bokhari for Complainant

Date of hearing: 20th November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 244 #

2007 M L D 244

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD JAMEEL and others---Petitioners

Versus

MUHAMMAD SALEEM and others---Respondents

Civil Revisions No.831 and 832 of 1998, heard on 27th March, 2006.

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

----S. 42---Suit for declaration---Property comprising of a shop and residential portion allotted to predecessor or defendants but later on Additional Settlement Commissioner vide his order set aside allotment to the extent of residential portion--Plaintiff sought declaration that roof of shop in question which included a residential portion had been transferred to his predecessors hence defendants had no right thereto---Crucial question was of possession and it was established on record that allottee and thereafter defendants as his successors were in continuous possession and beneficial enjoyment of the disputed shop and its roof; on the other hand plaintiff had failed to prove his possession over any portion of the shop or the use of its roof---Grounds of appeal set up by his predecessors against order of Additional Settlement Commissioner showed that they had pleaded that entire property consisted of one shop and a house quite independent of the shop and acknowledged that shop was in possession of predecessor of defendants---Residential portion, being distinct and separate was proved to be in occupation of predecessor of plaintiff while the shop was in exclusive possession of allottee, predecessor of defendants---Courts below failed to take note of such material aspects of the case which were conclusive for purpose of determining the controversy between the parties---Possession of the shop and construction on its roof by predecessor of defendants having been conclusively established, plaintiff could assert no claim over the roof of shop.

S.M. Masud for Petitioners.

Hassan Ahmad Khan Kanwar, for Respondent No. 1 Muhammad Nawaz Bajwa A.A.-G., with Allah Rakha, Settlement Officer and Muhammad Siddiqui for Respondents.

Date of hearing: 27th March, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 248 #

2007 M L D 248

[Lahore]

Before Muhammad Sair Ali, J

Mian MAROOF ASHRAF---Petitioner

Versus

SHAGUFTA PARVEEN and others---Respondents

Crl. Org. No.68-W of 2006, decided on 5th May, 2006.

Constitution of Pakistan (1973)---

----Art. 204---Contempt of Court Act (LXIV of 1976), Ss. 3 & 4---Institution of contempt proceedings---Scope---Contempt proceedings could neither be initiated at the desire or whim of a litigating party nor for any consideration that did not weigh with the Judge---Court had to be satisfied as to whether the act of respondents would come within the mischief of the law of contempt or otherwise amounting to interference with administration of justice---Contempt in its legal connotation signified disrespect to that which was entitled to a high legal regard---Very purpose of initialing contempt proceedings was the vindication of dignity and honour of the Court or that of the justice administration---Petitioner, in the present case, had not been able to show that any judgment, order or direction of the Court was flouted, disregarded or disobeyed by respondents---No valid justification existing for High Court to initiate action in contempt against respondents or to grant any of the prayers made in petition---Petition was dismissed, in circumstances.

Tahir Munir Malik for Petitioner.

S.M. Masud for Respondents Nos. 1 to 4.

Muhammad Saleem Dogar for Respondents Nos. 5 to 8.

MLD 2007 LAHORE HIGH COURT LAHORE 258 #

2007 M L D 258

[Lahore]

Before Sh. Azmat Saeed, J

Mst. IRSHAD BEGUM---Petitioner

Versus

SESSIONS JUDGE and 5 others---Respondents

Writ Petition No.9423 of 2006, decided on 16th October, 2006.

Police Order (22 of 2002)---

----Art. 18(6)---Criminal Procedure Code (V of 1898), Ss. 87 & 88---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Transfer of investigation---Court would not act in aid of fugitive from justice---Respondent was accused of abduction, his pre-arrest bail application had been dismissed by Sessions Judge but he did not surrender himself to the authorities---Held, admittedly respondent was fugitive from justice upon dismissal of his pre-arrest bail application therefore his plea for transfer of investigation could not have been entertained unless he first surrendered himself before the authorities.

PLD 1956 FC 43;Chan Shah v. The Crown PLD 1985 SC 157(sic); 1982 SCMR 911 and PLD 1985 SC 402 ref.

Mian Muhammad Hussain Chotia for Petitioner.

Malik Zafar Iqbal Awan Addl. A.G. and S.M. Ferhad Tirmzi for Respondents No.4.

Rizwan Ahmed Inspector.

MLD 2007 LAHORE HIGH COURT LAHORE 260 #

2007 M L D 260

[Lahore]

Before Nasim Sikandar, J

HAMID FAROOQ and others---Appellants

Versus

LAHORE DEVELOPMENT AUTHORITY. and others---Respondents

F.A.O. No.324 of 2005, decided on 17th February, 2006.

Specific Relief Act (I of 1877)---

----Ss. 42, 54 & 55---Suit for declaration, permanent, mandatory injunction and recovery of money as damages with apprehension of plaintiff that structure of multistoreyed building had caused damage to properties of the plaintiffs on account of digging of the earth for making basements---Case of plaintiffs was that site-plan approved by Development Authority was collusive and that construction at site was not being carried out in accordance thereof---Plea of Development Authority was that four basements having already been completed and construction being done above surface level, apprehension of plaintiffs of any damage to their property due to excavation of underground floor had withered away---Trial Court in impugned order had observed that construction at site was being raised in accordance with site-plan sanctioned by Development Authority and that no violation of any rule having been observed by the officials of the Authority, stoppage of construction would not be justified---Trial Court had rightly found that construction at site was not violative of Building Regulations or the approved plan---Plaintiffs could not be said to have a prima facie case for issuance of a restraint order to . stop construction at site---Development Authority was correct in pointing out that structure of the multistoreyed building having already sprung up above the earth level, apprehensive of damage to property of plaintiffs on account of digging of the earth for making basements, was no more there---As for alleged damage already caused to the property of plaintiffs, their claim for recovery of money as damages, was pending and would be decided by the Trial Court after admitting evidence of parties and hearing them--Balance of convenience also did not lean in favour of plaintiffs---No case for interference in the impugned order was made out.

Ms. Saima Amin Khawaja for Appellant.

Muhammad Ghani and Nawab Pcrvaiz Akhtar Thaheem for Respondents.

Date of hearing: 17th February, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 264 #

2007 M L D 264

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD GHAFOOR---Appellant

Versus

Mst. MUNAWAR SHAHZADI and another---Respondents

Regular Second Appeal No. 179 of 2004, heard on 11th October, 2006.

Specific Relief Act (I of 1877)---

----S. 12---Relief of specific performance of contract is purely a discretionary relief---Parties in the present case, had entered into agreement to sell in respect of suit property 17 years back---Certain amount of earnest money was advanced by plaintiff---Defendant on receipt of balance amount from plaintiff had to undertake another project but plaintiff who had only paid earnest money lingered the matter on one pretext or the other for insufficiency of funds---Record revealed that it was the plaintiff who had failed to perform his part of contract, as he was not in possession of balance amount and had sought extention in time, once---In long drawn litigation, plaintiff on no occasion desired to deposit the balance amount to prove his bona fides---Writing on back of sale agreement evidencing extension in time appeared to have been sought by plaintiff---Plaintiff admitted that no application signed by him was presented to Sub-Registrar calling upon the defendants to execute the sale-deed---Endorsement of Sub-Registrar on application, to approach civil Court, looked to be a forged one---Sub-Registrar was not brought in witness box to prove his endorsement---Held plaintiff, under the garb of agreement merely on payment of earnest money intended to retain his claim---Decree in a suit for specific performance is discretionary even if the agreement is proved the suit may not be decreed on ground of equitable consideration---Price of real estate had increased manifold, while value of rupee had suffered erosion in market---Defendants had received earnest amount from plaintiff but hey had not issued notice of forfeiture of this amount to plaintiff, therefore, were bound to return the same, hence defendants were directed to deposit the same within the period specified.

Muhammad Jehangir Asif for Appellant.

Tafazzal H. Rizvi for Respondents.

Date of hearing: 11th October, 2006.

2007 M L D 295

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUSHTAQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.355-J and Murder Reference No.643 of 2001, heard on 16th November, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 381 & 411---Appreciation of evidence---Unwitnesscd occurrence---Complainant was resident of other city and she went to the house of deceased after receipt of information on telephone---One of the prosecution witnesses who also came at the place of incident after receiving telephone call, had admitted that distance between his house and that of deceased was about twenty kilometers---Other prosecution witness who allegedly was accompanying said witness, did not appear before the Trial Court---Statement of witness was against the facts narrated by the complainant in her statement---Statements of witnesses who furnished alleged extra-judicial confession, were mutually destructive being replete with contradiction and these were not worthy of any credence---Independent witnesses were not associated at time of recoveries of stolen properties and alleged stolen properties were not produced before the Trial Court---Prosecution, in circumstances had failed to prove recoveries to the judicial satisfaction---Fabrication and dishonesty on the part of police officer, was brought on the record of the case---Co-accused who was implicated on same evidence, was finally acquitted and his acquittal had not been challenged---No independent reliable corroborative evidence against accused was available to distinguish his case from that of acquitted co-accused-No one could be convicted on the basis of suspicions and presumptions, however strong those might be---For conviction, proof was required, but same was lacking in the case---Allowing appeal against impugned judgment of the Trial Court, accused was acquitted of all charges against him and he was released.

Mazhar Iqbal Sindhu for Appellant.

Ch. Muhammad Arshad Bajwa and Mr. S.D. Qureshi for the State (in Criminal Appeal No.355-J/2001 and Murder Reference No.643 of 2001 respectively.).

Date of hearing: 16th November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 302 #

2007 M L D 302

[Lahore]

Before Nasim Sikandar, J

FAUJI SUGAR MILLS---Petitioner

Versus

ZILA NAZIM and others---Respondents

Writ Petition No.4282 of 2004, decided on 14th October, 2004.

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

----S.116---Constitution of Pakistan (1973)---Art. 199---Constitutional petition---Levy of professional tax etc. on Corporation---Validity---Professional tax imposed by Zila Council was illegal, and tax on Corporation could only be imposed and levied by Federal Legislature and levy of professional tax/permit fee/licence fee by Local Government on a Corporation was not constitutionally permissible.

Ejaz Ahmed Awan for Petitioner.

Najamul Hassan Gill, A.A.-G. for Respondents.

MLD 2007 LAHORE HIGH COURT LAHORE 304 #

2007 M L D 304

[Lahore]

Before Jawwad S. Khawaja, J

TAHIR UMAR---Petitioner

Versus

MODEL TOWN SOCIETY, MODEL TOWN, LAHORE through Secretary and 2 others---Respondents

Civil Revision No.469 of 2002, heard on 26th September, 2006.

(a) Islamic Law---

----Oral gift---Oral gift can validly be made in Islam.

Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3 others 1977 SCMR 154 ref.

(b) Islamic law----

---Gift---Registration---Oral Gift---Mother had orally gifted suit property to her son/plaintiff---Oral gift was confirmed through a memorandum of gift written four months after the gift---Plaintiff approached concerned Cooperative Society for giving effect to the gift in its record but Society refused to do so whereupon plaintiff filed a suit against Society seeking mandatory injunction to compel it to recognize the transfer in his name---Suit was decreed but decree reversed in appeal---Validity---Gift was, acknowledged by donor lady herself when she testified in Court as witness---Since owner of property as donor and plaintiff as donee were not in contention as to the passing of title and validity of gift in question appellate finding that plaintiff should have filed a suit seeking declaration of title was wholly misconceived---Society's submission that memorandum of gift should not have been admitted in evidence for deficiency in stamp duty must be repelled because Society had absented' itself before trial 'Court and did not raise such objection when memorandum was admitted in evidence---Purpose of memorandum was merely to record the gift earlier made whereby suit property stood conveyed to plaintiff, it did not purport or operate to create or transfer any right in immovable property so such memorandum was not required to be registered---Testimony of donor and donee had clearly and unambiguously established the factum of gift.

Faheem alias Faheema and 3 others v. The State (1990 ALD 457(1) and Shabnam Ashraf v. Muhammad M. Iqbal 2003 YLR 495 ref.

----O.XXII, R. 1---Legal representative---Legal representative of deceased cannot adopt any stance which is at variance with the position taken by deceased himself.

Amjad Pervez Chaudhry for Petitioner.

Ch. Rasheed Ahmed for Respondent No.1.

Messrs Abdul Wahid Chaudhry and Irshad Hussain Bhatti for Respondents Nos.2 and 3 ex parse.

Date of hearing: 26th September, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 308 #

2007 M L D 308

[Lahore]

Before Muhammad Khalid Alvi and Sh. Hakim Ali, JJ

ABDUL JABBAR KHAN---Appellant

Versus

JAWWAD HAFEEZ---Respondent

R.F.A. No.1 of 2005, decided on 29th March, 2006.

Civil Procedure Code (V of 1908)---

----O.XXI, R.1---Execution of money decree---Parties entered into a compromise according to which a sum of Rs.62,000 was admitted to have been paid by judgment-debtor for discharge of decree---Out of balance amount of 2,98,000, a sum of Rs.70,000 was paid on the same day before the Court and rest was to be paid in monthly instalments amounting to Rs.10,000---Appellant filed objection petition with the prayer that amount of Rs.62,000 paid by him other than under agreement be also adjusted towards the discharge of his liability which objection petition was dismissed by Additional District Judge---Validity---Settlement which was arrived at between the parties, had taken care of said amount of Rs.62,000 already paid by appellant and was to incorporate in settlement arrived at between parties and remaining amount was to be paid by appellant in terms of agreement which was Rs.2,98,000---Amount of Rs.62,000 being sought to be adjusted by appellant was an attempt to get same re-adjusted for second time which was not possible.

Syed Muhammad Ibrahim Shah Bukhari for Appellant.

Malik Imtiaz Mahmood for Respondent.

MLD 2007 LAHORE HIGH COURT LAHORE 315 #

2007 M L D 315

[Lahore]

Before Syed Asghar Haider, J

MUSHTAQ AHMAD and 6 others---Petitioners

Versus

IMAM BAKHSH and 28 others---Respondents

Civil Revision No.206 of 2002, heard on 27th September 2006.

Specific Relief Act (I of 1877)---

----S. 9---Suit for possession---Partition---Parties were relatives--Plaintiff claimed that property was privately partitioned and each share holder had a demarcated share in the property---Defendant's contention that demarcation by Revenue hierarchy was not in consonance with provisions of West Pakistan Land Revenue Act, 1967 hence plaintiff's suit for possession under S.8 of Specific Relief Act, 1877 was not maintainable, had no force because plaint did not reflect anywhere specifically that suit was filed under S.8 of the Specific Relief Act, 1877---Oral as well as documentary evidence made it clear that defendant was in occupation of land more than his entitlement---Private partition was proved on record therefore suit for partition could not be filed and the remedy was a suit for possession which was rightly filed by plaintiff---Concurrent finding, unless exceptional circumstances were made out, could not be interfered in revisional jurisdiction.

Mst. Resham Bibi and others v. Lal Din and others 1999 SCMR 2325; Muhammad Ramzan Khan (deceased) through his legal representatives and another v. Muhammad Amir Khan and another 2000 CLC 1211 and Nazar Hussain v. Additional District Judge, Chakwal and 4 others 2004 YLR 322 distinguished.

Qayyum Khan and 19 others v. Zumarad Khan and another 1999 YLR 340 ref.

Sh. Naveed Shahyar and Sofia Sethi for Petitioners.

Tassawar Hussain Qureshi for Respondents.

Date of hearing: 27th September, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 321 #

2007 M L D 321

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD HUSSAIN through Legal Heirs and others---Petitioners

Versus

SHER MUHAMMAD KHAN and others---Respondents

Civil Revision No.234 of 2001, heard on 2nd November, 2006.

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

----S.13---Suit for pre-emption---Talb-e-Muwathibat and Talb-e-Ishhad---Proof---Plaintiffs, claiming superior right of pre-emption on ground of being Shafi-e-Khaleet and Shafi-e-Jaar, contended that they had made talb-e-muwathibat and talb-e-ishad as and when they came to know about sale of land under pre-emption and that they proclaimed that they would exercise their right of pre-emption---One of the Plaintiffs when appeared as witness stated that they came to known about sale two months, after while in cross-examination he admitted that one of the plaintiffs had filed a suit against defendant with reference to particulars of mutation of sale on the very day the sale was made---Plaintiffs' own testimony proved that they had acquired knowledge of sale at a point of time earlier than the date said in the plaint---Such being so there was no evidence on record of the first talb having been made in accordance with the provisions of 8.13 of Punjab Pre-emption Act, 1991---Thumb-impression of vendee on notice was specifically refused by him even postman the only witness of talb-e-ishhad deposed that he could not say whether it was vendee to whom the notice was delivered---Valid delivery of notice of talb-e-ishhad was not established---Plaintiffs had failed to prove the performance of talbs according to provisions of law.

M.A. Ghaffar-ul-Haq for Petitioners.

Wali Muhammad Chaudhry for Respondents Nos. l to 3.

Respondent No.4 ex parte vide order, dated 14-2-2005.

Date of hearing: 2nd November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 324 #

2007 M L D 324

[Lahore]

Before Muhammad Jehangir Arshad, J

MUKHTAR AHMAD BHATTI---Petitioner

Versus

DEPUTY DIRECTOR FOOD, BAHAWALPUR and another---Respondents

Writ Petition No.594 of 2006/BWP, decided on 22nd March, 2006.

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

---Ss. 79, 80 & 81---Recovery of amount as arrears of land revenue---Tehsildar recovery straightaway proceeded with recovery of disputed amount, without obtaining original or certified copy of certificate issued by the District Collector determining the disputed amount as arrears of land revenue as well as permission from the concerned Department---Such was not only in violation of direction of the Department, but also against provisions of West Pakistan Land Revenue Act, 1967 as no amount could be recovered as arrears of land revenue unless mandatory provisions of Land Revenue Act, 1967 for realization of amount as arrears of land revenue had been adopted and the amount due was properly determined, ascertained and duly certified.

Mukhtar Ahmad Malik for Petitioner.

Abdul Khaliq Sadozai A.A.-G. and Iftikhar Ahmad Tehsildar Food Department for Respondents.

MLD 2007 LAHORE HIGH COURT LAHORE 331 #

2007 M L D 331

[Lahore]

Before Mian Saqib Nisar, J

AHMAD KHAN---Petitioner

Versus

Mst. IRSHAD BEGUM and 8 others---Respondents

Civil Revision No. 1449 of 2001, heard on 5th October, 2006.

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

----S.30---Limitation Act (IX of 1908), Art. 10---Civil Procedure Code (V of' 1908), O.VI, Rr. 2 & 4---Pre-emption suit---Limitation---Vendee's case was that he had purchased land in question from vendor through mutation sanctioned on specified date and that he was in cultivating possession under sale prior to the mutation---Preliminary objection of written statement vaguely stated that pre-emptor's suit was barred by limitation but material particulars about alleged sale and change of possession were not stated in written statement so as to attract the provision of Art.10 of Limitation Act, 1908---Validity---No one could travel beyond the scope of his pleadings and lead evidence about the facts not set out in pleadings---Vendee who had taken objection of limitation as preliminary objection without giving adequate particulars about oral sale and delivery of physical possession thereunder, could not lead evidence in this regard---Statements of witnesses were inconsistent and they did. not state that change of possession took place in their presence hence their examination-in-chief alone would have been of no help to the case of vendee---Even vendee failed to produce documentary evidence i.e. Khasra Girdawari to establish physical possession and cultivation by him---Consent decree effected between vendor and vendee was not binding upon plaintiff as he was not a party thereto---Plaintiff's suit having been filed within one year from the attestation of mutation was well within time.

Rehmat Ali v. Mst. Allah Wasai, and others PLD 1992 Lahore 228; Muhammad Malik v. Mst. Razia Begum, and others PLD 1988 Lahore 45; Muhammad v. Allah Ditta 1990 CLC 765; Jangi v. Jhanda, and others. PLD 1961 (W.P.) B.J. 34; K.S. Haji Ghulam Sarwar Khan v. Maulvi Abdul Hamid, and others. PLD 1960 (W.P.) Peshawar 32; Allah Yar and another v. Raja, and others. 1989 SCMR 802 and Khurshid Ahmad and 4 others v. Syed Akhtar Hussain Gilani and 4 others PLD 1991 SC 1070 ref.

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

----O.XXIII---Consent decree---Consent decree not binding on person not party.

Azhar Siddique Cheema for Petitioner.

Irfan Masud Sh. For Respondents.

Date of hearing: 5th October, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 336 #

2007 M L D 336

[Lahore]

Before Sh. Hakim Ali and Muhammad Jehangir Arshad, JJ

PROVINCE OF PUNJAB and others-Appellants

Versus

BASHIR AHMAD SHAH and others---Respondents

R.F.A. No.15 of 1992, decided on 13th July, 2005.

Land Acquisition Act (I of 1894)---

----Ss.4, 6, 17(4), 18, 23 & 54---Punjab Land Acquisition Rules, 1983, R. 10(i)(iii)(c)---Acquisition of land---Determination of amount of compensation---Reference to Court---Landowners being not satisfied with amount of compensation of acquired land as determined by Collector Land Acquisition, matter was referred to Senior Civil Judge, who enhanced rate of per acre of acquired land and landowners were also allowed compulsory acquisition charges at the rate of 15%o---Notification under S.4 of Land Acquisition Act, 1894, having been issued on 26-5-1984, average market price of similar kind of land similarly located on the basis of price prevalent during period of twelve months preceding the date of publication of notification in the area sold, had to be followed which in the present case was 26-6-1984 to 25-6-1985---Sale-deed relating to sale of land on 11/12-4-1987 was of no help to owners being later to said Notification---Senior Civil Judge was not right in considering document of said latter sale while determining price of acquired land---Sale taking place through agreement to sell executed prior to preceding one year of issuance of notification, was rightly taken into consideration while determining price of consideration---Impugned judgment passed by Civil Court was modified and compensation/market value of property as determined by the Court was reduced accordingly.

Hafiz Muhammad Abdul Qayyum for Appellants.

Basit Babar Chughtai for Respondents.

Date of hearing: 13th July, 2005.

MLD 2007 LAHORE HIGH COURT LAHORE 342 #

2007 M L D 342

[Lahore]

Before Syed Asghar Haider, J

GHULAM AKBAR and 4 others---Petitioners

Versus

PROVINCE OF THE PUNJAB through Collector, District Bhakar and others---Respondents

Civil Revision No.2057 of 2004, heard 4th October, 2006.

Specific Relief Act (1 of 1877)---

----Ss. 42 & 12---Qanun-e-Shahadat (10 of 1984), Arts. 72 & 79---Suit for declaration and in the alternative for specific performance of agreement to sell---Dismissal of suit and appeal---Concurrent findings of Courts below was challenged on ground that procedural requirements of Art. 79 of Qanune-Shahadat, 1984 were not fulfilled---Validity---Article 79 is to be read in conjunction with Art. 72 of Qanun-e-Shahadat Order, 1984---Law required and mandated that hest possible evidence had to be produced by parties---Best evidence, in the present case, was primary evidence but said document was not produced by plaintiffs, even no explanation was given for such omission---Evidence tendered by plaintiffs was also not confidence-inspiring instead their witnesses supported the case of defendants, moreover alleged agreement to sell through attorney was subject to first getting proprietary rights that was not done.

Sher Baz Khan and others v. Nisi. Malkani Sahibzadi Tiwana and others PLD 2003 SC 84 and Hassan and another v. Hussain 1996 CLC 650 ref.

Zia-ullah Khan Niazi for Petitioners.

Mian Abdul Qadoos for Respondents.

Date of hearing: 4th October, 2006.

2007 M L D 369

[Lahore]

Before Mian Saqib Nisar, J

Mst. RASHIDA BEGUM and 2 others---Appellants

Versus

ABDUL MALIK and 4 others---Respondents

Regular Second Appeal No.3 of 2000, heard on 19th' September, 2006.

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

----S.42---Specific Relief Act (I of 1877), S.12---Agreement to sell is not required to be incorporated in Revenue Record under S.42, West Pakistan Law Revenue Act, 1967.

(b) Specific Relief Act (1 of 1877)---

----Ss.42 & 12---Civil Procedure Code (V of 1908), O.XIV, R.1---Qanun-e-Shahadat (10 of 1984), Art. 114---Plaintiff's suit for declaration and .in the alternative for specific performance of agreement to sell---Subsequent vendee claimed that he was bona fide purchaser for consideration without prior notice of' agreement to sell in favour of plaintiff---Issue about plea of bona fide purchaser was not framed by Trial Court nor subsequent vendee did press this issue at any stage of proceedings of trial Court hence, it would be deemed to have been waived---Witness who had appeared as witness was subsequently re-examined in violation of O.XVIII, R.17, C.P.C. but defendants had been estopped by their own conduct as they did not raise such objection at the time of re-examination of said witness---Agreement to sell had been duly proved by plaintiffs---Concurrent findings of fact recorded by Courts below were not shown to be the result of any misreading or non-reading of evidence and no other factual or legal infirmity was pointed out calling for interference within the purview of 5.100, C.P.C.

Rana Farman Ali Sabir for Appellants.

Muhammad Ramzan Chaudhry for Respondents.

Date of hearing: 19th September, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 379 #

2007 M L D 379

[Lahore]

Before Muhammad Nawaz Bhatti, J

Mst. SHARMAN BIBI---Petitioner

Versus

ABDUL MAJID and 2 others---Respondents

Writ Petition No.5292 of 2004, decided on 13th October, 2005.

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

----S.5, Sched. & S.14---Constitution of Pakistan (1973)---Art. 199---Constitutional petition---Suit for dissolution of marriage, recovery of maintenance allowance and dowry articles---Family Court granted decree for dissolution of marriage in favour of petitioner, she was also declared entitled to recovery of Rs.500 per month as her maintenance allowance---Family Court further declared petitioner to recover Rs.20,000 from respondent as alternate of her used dowry articles along with admitted dowry articles---Judgment and decree passed by Family Court to the extent of Rs.20,000 as alternate of used dowry articles was held to be not maintainable by the appellate Court and petitioner had been declared entitled to get back her dowry articles---Validity---Petitioner lived with respondent as her wife for more than five years and during that period she had been using her dowry articles; it would not be fair to order respondent to pay Rs.20,000 for use of dowry articles along with dowry articles---No evidence was available on record with regard to use of dowry articles and household articles .which devalued with the passage of time---Well-reasoned order passed by Appellate Court below, did not call for any interference.

Muhammad Younas Sheikh for Petitioner.

Tariq Zulfiqar Chaudhry for Respondents.

Date of hearing: 12th September, 2005.

MLD 2007 LAHORE HIGH COURT LAHORE 382 #

2007 M L D 382

[Lahore]

Before Nasim Sikandar, J

MEHFOOZ UR REHMAN and 4 others---Appellants

Versus

Mst. RIFFAT AHAD and 2 others---Respondents

F.A.O No. 282 of 2000, decided on 6th October, 2006.

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

----S. 60---Registered document---Denial by executant to have executed such document---Effect---Registered document could not be thrown out on such simple denial, particularly when same was fully supported from attending circumstances.

(b) Registration Act (XV1 of 1908)---

----S.23---Registration of document presented after 1-1/2 years of its execution---Validity---Registered document would stand discredited by such fact---Provisions of S.23 Registration Act, 1908 were directory as no penalty was provided either for proper Officer accepting document for registration after expiry of period of four months or for person presenting such document for registration.

Syed Mazhar Haider and another v. Ali Ahmad through legal heirs 2000 MLD 1117; Rashida Begum v. Ch. Muhammad Anwar and others PLD 2003 Lahore 522; Muhammad Akhtar v. Mst. Manna and 3 others, 2001 SCMR 1700; Fida Muhammad v. Pir Muhammad Khan (Deceased) through legal heirs and others PLD 1985 SC 341; Muhammad Fazal Paracha v. Mst. Fauzia Begum PLD 2003 Pesh. 40; Sadiq Ali Khan and another v. Abdur Rehman and 4 others 1995 CLC 977; Hafiz Muhammad Din v. Allah Ditta and others PLD 1954 Baghdad-ul-Jadod 56; Guran Ditta and others v. Pokhar Ram and another AIR 1927 Lah. 362;Messrs Qamar-ud-Din and Co. v. Haji Din Muhammad and another 1970 SCMR 402; Muhammad Ibrahaim Khan and others v. Maulvi Behram (through his heirs) 1972 SCMR 608 and Sh. Saleem Ali v. Sh. Akhtar Ali and 7 others PLD 2004 Lah. 404 ref.

----S.2(a)---General Power of Attorney giving Power to Attorney to settle matter by using word " "---Effect---Import of such word was wide enough to make settlement in every sense including through arbitration.

Syed Najam-ul-Hassan Kazmi for Appellant.

Muhammad Yaqoob Sidhoo for Respondent.

Date of hearing: 20th June, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 399 #

2007 M L D 399

[Lahore]

Before Muhammad Jehangir Arshad, J

ZULFAQAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1758-B of 2006, decided on 24th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Bail, refusal of---Arguments advanced by counsel for accused required deeper examination of evidence, which was not possible at bail stage---Accused though was declared innocent by the D.S.P., but he had been summoned by the Trial Court to trial which had also commenced---Bail could not be allowed to accused at that stage.

Tanvir Ahmad Jangla for Petitioner.

Ch. Muhammad Akram for Complainant.

Ch. Muhammad Akbar with Muhammad Ramzan, A.S.-I. for the State.

MLD 2007 LAHORE HIGH COURT LAHORE 400 #

2007 M L D 400

[Lahore]

Before Jawwad S. Khawaja, J

NOOR KHAN through Legal Heirs and others---Petitioners

Versus

Haji GUL KHAN and others---Respondents

Civil Revision No.307 of 2001, heard on 23rd November 2006.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Defendants had impugned judgments and decrees of the Trial Court and Appellate Court below whereby declaratory suit was concurrently decreed---Defendants who were legal heirs of deceased owner of land in dispute, had claimed that deceased in his life time had gifted land measuring 339 Kanals and 19 Marlas to them through gift mutation duly sanctioned in their favour---Case of plaintiff was that he was owner of 6 Kanals and 10 Marlas out of said land and that to that extent gift mutation in favour of defendants was invalid---Khata of defendants after consolidation proceedings was separated and the Vandas relating to relevant land was also separated---Father of defendants was given 339 Kanals and 19 Marlas in one Khata which he gifted to defendants vide mutation---Said facts had not been controverted on behalf of plaintiff, it was, in circumstances abundantly clear that he had no claim in respect of land which comprised in the Vanda of father of defendants---Consolidation proceedings which were finalized in 1986, were never challenged by plaintiff, which had attained finality in circumstances---Plaintiff who had tailed to establish his claim to any portion of gifted land, was not entitled to declaration and other relief sought by him---Courts below having failed to consider such circumstance while decreeing suit, impugned decrees, were not sustainable.

Muhammad Hanif Niazi for Petitioners.

Rab Nawaz Niazi for Respondent 1.

Respondents Nos. 2 to 15 ex parte.

Date of hearing: 23rd November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 402 #

2007 M L D 402

[Lahore]

Before Hasnat Ahmad Khan, J

FAIZ ELAHI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.203 of 2006, heard on 21st November, 2006.

Penal Code (XLV of 1860)---

----S. 409---Appreciation of evidence---Sentence, reduction in---Broad features of the allegations given by complainant, were corroborated by other witnesses produced by her---Prosecution during the trial, had produced two pro notes which had been executed by accused in favour of complainant and for execution of said pro notes no valid reason had been put forward by accused---Had there been no case of misappropriation, there would have been no occasion for accused to execute said pro notes in favour of complainant as no business terms were going on between accused and complainant---Execution of said pro notes lent support to the case of prosecution---Defence version of accused was found to be totally devoid of any force as it did not appeal to reason and seemed to be fanciful and afterthought---As a matter of fact instead of defending himself, accused had tried to assassinate the character of lady/complainant---Accused having received embezzled amount from the complainant in his capacity of public servant/Banker, ingredients of S.409, P.P.C., were fully attracted to the facts of the case---Contention of accused that offence under S.409, P.P.C., was not made out, was devoid of force---Prosecution, in circumstances had succeeded in proving its case against accused beyond any shadow of doubt---However, in view of age of accused and that complainant had got a chance to recover the misappropriated amount from the accused on the basis of pro .notes executed by him in favour of complainant; and there being a civil suit pending disposal, sentence awarded to accused seemed to be a bit on higher side---Sentence of seven years' R.I. awarded to accused by the Trial Court was reduced to four years' R.I., with benefit of S.382-B, Cr.P.C.

Rafique Ahmad Malik for Appellant.

Nasim Rashid for the State.

Date of hearing: 21st November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 407 #

2007 M L D 407

[Lahore]

Before Muhammad Nawaz Bhatti, J

RIAZ AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2448-B of 2005, decided on 13th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420, 467 & 468---Prevention of Corruption Act (II of 1947), S.5---Bail, grant of---Accused was not nominated in the F.I.R.---Offence against accused did not fall within the prohibitory clause of S.497, Cr.P.C.---Even the beneficiaries of the disputed mutation had already been granted bail and under the rule of consistency accused was also entitled for the concession of bail--Accused was allowed bail, in circumstances.

Ch. Muhammad Akram for Petitioner.

Muhammad Ayub and Mehr Khalid Ahmad, ADI, ACE for the State.

MLD 2007 LAHORE HIGH COURT LAHORE 412 #

2007 M L D 412

[Lahore]

Before Jawwad S. Khawaja, J

GHULAM MUHAMMAD and 4 others---Petitioners

Versus

ABDUL GHAFFAR and 7 others---Respondents

Writ Petition No.5176 of 2006, heard on 13th December, 2006.

Civil Procedure Code (V of 1908)---

----S. 152---Specific Relief Act (I of 1877), S.12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for specific performance of agreement to sell---Rectification of clerical error in the decree---Suit was decreed, but there being clerical error decree regarding Khasra number, petitioner filed application under S.152, C.P.C. for rectification of decree---Said application was dismissed by the Trial Court and revision petition filed by petitioner against judgment of the Trial Court was also dismissed---Application filed by petitioner under S.152, C.P.C. was dismissed on the ground that same having been filed after 25 years, was time-barred---Legal representatives of deceased respondent, had stated that they had no objection if decree passed in favour of petitioner, was ordered to be readied---Allowing constitutional petition decree was corrected, accordingly by the High Court.

Manzoor Hussain and 9 others v. Malik Karam Khan and 2 others 1991 SCMR 2451 ref.

Zafar Abbas Khan for Petitioners.

Asif Munir Kantt and Muhammad Siddique for Respondents.

Date of hearing: 13th December, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 414 #

2007 M L D 414

[Lahore]

Before Hasnat Ahmad Khan, J

AHMED DIN and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.299 of 1992, heard on 5th December, 2006.

Penal Code (XLV of 1860)---

----Ss. 302 & 307/34---Appreciation of evidence---Private defence, right of---F.I.R. had shown that it was complainant side, which invited the trouble to take the law into their own hands by getting the house vacated from the possession of accused otherwise than in due course of law---Deceased being owner of house, in case of refusal of accused to deliver the possession of said house to deceased, deceased should have adopted the legal course to get the possession of same---Action of complainant party gave the right of defence of property to the accused---No person was authorized to take the law into his own hands and even if some persons were in illegal or unauthorized possession of any property, the owner of the same could not resort to force to get the possession of the same---Occupant of the property, in circumstances, would be within his right to defend the same---Medical evidence had corroborated defence version in view of fact that accused and his wife received injuries of serious nature during occurrence---Venue of occurrence which was house of accused and injuries suffered by accused and his wife, had shown the possibility of defence version being true, which had further shown that complainant party was also armed with sharp-edged weapon as well as blunt weapon and caused injuries to accused and his wife---Ocular evidence of eye-witnesses had also supported defence version, which was more probable and nearer to truth---Accused did not exceed his right of self-defence of property and person and did not commit any offence while defending his property, himself and his wife---Accused, was acquitted of the charge, in circumstances.

Sahibzada Farooq Ali for Appellants.

Ch. Ghulam Muhammad for Respondent.

Date of hearing: 5th December, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 421 #

2007 M L D 421

[Lahore]

Before Syed Sakhi Hussain Bukhari, J

MUHAMMAD AMJAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2555/B/2005, decided on 27th April, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Bail, grant of---Further inquiry---Accused was not named in F.I.R., but was nominated subsequently in supplementary statement---Accused was in judicial lock-up since his arrest, but challan had not been submitted in the Court---Unexplained delay of 13 days being in lodging F.I.R., accused was entitled to get benefit of said delay---Case against accused being of further enquiry, he was admitted to bail, in circumstances.

Ch. Iftikhar Ahmed for Petitioner.

Sohail Tariq for State with Muhammad Naeem S.-I.

MLD 2007 LAHORE HIGH COURT LAHORE 423 #

2007 M L D 423

[Lahore]

Before Ijaz Ahmed Chaudhry, J

Haji FAIZ MUHAMMAD---Petitioner

Versus

MINES LABOUR WELFARE COMMISSIONER and 5 others---Respondents

Writ Petition No.3207 of 2005, decided on 30th June, 2005.

Constitution of Pakistan (1973)---

----Art. 199----Constitutional petition---Auction---Grant of contract for collection of excise duty on minerals to highest bidder---Offer made after conclusion of auction---Procedure prescribed for awarding of contract was followed---Petitioner sought cancellation of grant of contract for collection of excise duty on minerals for a period of one year made in favour of respondent for total sum of Rs.35,00,000 as according to him the said contract had been made in surreptitious and clandestine mam1er---Petitioner made an offer to the tune of Rs.70,00,000---Respondent contended that contract had been awarded to him in a transparent manner through open auction and allegation of underhand deal was incorrect; that petitioner had filed constitutional petition with mala fide intention and ulterior motive and that though contract was awarded to petitioner for Rs.35,00,000 but he was ready to enhance the amount of contract to Rs.60,00,000---Validity---Admittedly, petitioner had never participated in proceedings conducted by Department for auction of contract and only had come to the court with claim to obtain contract for Rs.70,00,000 after completion of proceedings in favour of respondent---Earlier bidders who stood highest with Rs.50 lac, 51 lac and 55.25 lac respectively in previous year, had not deposited 10% security with fall of hammer as per requirement of Rules and defaulted themselves and earnest money of each bidder was forfeited by Government---Contract had been granted to respondent being the highest bidder through open auction conducted for consideration of Rs.35 lac after completion of all codal formalities regarding deposit of 10% of bid money with fall of hammer and deposit of 50% after approval/confirmation by Government and execution of agreement---Petitioner had failed to give any reasonable explanation that how he was aggrieved by action of the officials for awarding contract to respondent or the proceedings were tainted with mala fides except that it was auctioned at low rate and that petitioner was ready to offer Rs.70 lac for the same contract---Respondent had enhanced bid amount to reasonable extent as Rs.60 lac which was more than earlier offered by other bidders who had not come forward for finalisation of contract--Offer made by outsider after conclusion of auction was quite attractive, yet its acceptance would have not only made a mockery of procedure prescribed for awarding contracts but opened floodgate of litigation being a blatant abuse of discretion---Respondent had enhanced bid amount and it could not be said that any substantial loss was likely to be caused to public exchequer by awarding of contract to respondent as compared with previous rates---Authorities having explained that rate of said contract for previous year was Rs.15.33 lac only and respondent (bidder) had enhanced bid amount to Rs.60 lac, hence, there was no reason to proceed further with constitutional petition---Constitutional petition was dismissed.

PLD 2001 SC 116 rel.

C.P. No. 2404/04 and C.P. No.116/2003 ref.

2003 SCMR 280 distinguished.

Mian Abbas Ahmad for Petitioner.

M.R. Khaid Malik Addl. A.G.

Muhammad Ameer Bhatti for Respondent No.6.

Faiz Muhammad, Assistant, DCO Office, D.G. Khan for Respondent No.3.

Abdul Jabbar, Assistant Mines Labour Welfare Commissioner, Khushab/respondent No.2.

MLD 2007 LAHORE HIGH COURT LAHORE 428 #

2007 M L D 428

[Lahore]

Before Hasnat Ahmad Khan, J

MUNIR HUSSAIN---petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3639-B of 2006, decided on 20th November, 2006.

Criminal Procedure Code (V of 1898)---

---S. 498---Police Order, (22 of 2002) Arts.155 & 35---Bail before arrest, grant of---F.I.R. registered on complaint of Sessions Judge---Offence punishable with three years imprisonment---Absence of mala fide or ulterior motive on the part of police not to debar accused from concession of bail---F.I.R. was registered against accused/petitioner (Sub-Inspector of police) under the order of complainant Sessions Judge as the former failed to arrest an accused involved in a case-Accused .contended that offence under Art.155 of Police Order, 2002 was not attracted to the facts of case; that offence with which accused was charged did not fall within prohibitory clause of S.497, Cr.P.C. and that jurisdiction of complainant to pass order for re challenged under Art.35 of Police Order, 2002, according to which District Nazim was competent to issue such-like direction against accused/petitioner---Validity---Offence under Art.155 of Police Order, 2002, was punishable with three years---petitioner/accused being a government servant was not likely to abscond and case required further inquiry as to whether he deliberately failed to arrest said accused or not---Petitioner/accused succeeded to make out his case for pre-arrest bail and absence of mala fide or ulterior motive on the part of police was not to debar him from concession of bail---petitioner was admitted to ad interim pre-arrest bail.

Riaz Wazir Khan v. The State 2004 SCMR 1167; Meeran Bux v. The State and another PLD 1989 SC 347 and Muhammad Ismail v. Ghouse Bux and another 1990 PCr.LJ 2013 rel.

Abdul Samad for Petitioner.

Sh. Imtiaz Ahmad for the State.

Abdul Haq, S.-I.

MLD 2007 LAHORE HIGH COURT LAHORE 430 #

2007 M L D 430

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD BOOTA through Legal Representations---Petitioners

Versus

SHAMLAT TARAF SYEDAN through Sadiq Hussain and another---Respondents

Civil Revision Case No. 486 of 2002, heard on 12th October, 2006.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.I, R.8---Suit for declaration---Plaintiff sought declaration that land in question was part of graveyard---Defendant's plea that suit-land had been in possession of his forefathers and his family raised construction thereon was confirmed by report of local commission---Revenue record of relevant years, noted in said report, was also in favour of the defendant---Competency of suit was disputed because plaintiff of suit, Shamlat Taraf Syedan, was not a legal person---Neither order under O.I, R. 8, C.P.C. was obtained to give the suit an impression of a representative action nor person who filed the suit was resident of the locality where suit-land was located so that he could have been treated as a plaintiff on behalf of Shamlat Taraf Syedan---Onus of proving that land in dispute was part of graveyard was on plaintiff but he failed to discharge the same.

Ch. Muhammad Nasrullah Warraich for Petitioners.

Ch. Ahmad Masood Gujjar for Respondents.

Date of hearing: 12th October, 2006.

2007 M L D 460

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD SADIQ---Petitioner

Versus

MUHAMMAD SHAFI---Respondent

Civil Revision No.381 of 2006, heard on 28th November, 2006.

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

----Ss. 6 & 13---Suit for pre-emption---Making of Talb-e-Ishhad---Proof---Suit was concurrently decreed by the Trial Court and Appellate Court---Witnesses produced by pre-emptor to prove making of Talb-e-Ishhad were not truthful witnesses---Probity of witnesses was a mandatory requisite of S.13(3) of Punjab Pre-emption Act, 1991, but notice of Talb-e-Ishhad was not proved through truthful witnesses---Suit by pre-emptor, must fail, in circumstances---Contention that requirement of notice of Talb-e-Ishhad was merely procedural, was repelled being not in accordance with wording of S.13(3) of Punjab Pre-emption Act, 1991---Courts below had not read testimony of prosecution witnesses, which had shown a serious contradiction between the two---Impugned decrees being result of non-reading of evidence, same were set aside with the result that suit was dismissed.

Ch. Irshad Ullah Chatta for Petitioner.

Ch. Shahid Saeed for Respondent.

Date of hearing: 28th November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 462 #

2007 M L D 462

[Lahore]

Before Hasnat Ahmad Khan, J

NAZIM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3554-B of 2006, decided on 20th November, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 161---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Bail, grant of---Delay in lodging of F.I.R. ---Criminal cases to be decided on basis of evidence and not on basis of decision of arbitrators---Opinion of police neither admissible in evidence nor binding on courts---Scope---Abscondence of accused---Effect---Allegation against accused/petitioner was that he committed "Zina-bil-jabr" with a girl aged 15/16 years who remained silent for some months just to save her honour; and after she became pregnant, matter was reported to her parents and other persons---Trial Court dismissed post-arrest bail application filed by accused---Accused contended that there was delay of 8/9 months in lodging of F.I.R.; that barring the statement of alleged victim, there was no other evidence against accused and that during investigation accused had been found innocent---Validity---Delay in lodging of F.I.R. in cases of Zina had never been given so much importance as normally aggrieved parties avoid to report such like matters to police in order to save their honour---Allegations levelled in F.I.R. were fully corroborated by statement of victim recorded under S.161, Cr.P.C. which could not be easily brushed aside---Criminal cases were always decided on basis of evidence and not on basis of decisions of arbitrators---Opinion of police was neither admissible in evidence nor binding on courts---Pregnancy conceived by victim due to act of accused had materialized into delivery of a child---Pendency of matter of DNA test would not, in view of statement of victim, entitle accused to bail---Abscondence of accused also disentitled him to right of bail---Noticeable abscondence deprived accused from normal rights and bail could be refused keeping in view abscondence of accused---Fugitive from law was not deemed to be at par with other accused---Reasonable grounds were available on record to believe that accused was involved in a case which fell within prohibitory clause of S. 497, Cr.P.C.---Petition was dismissed.

PLD 1985 SC 182 rel.

Malik Faiz Rasool Rajwana for Petitioner.

Rana Muhammad Javed Akhtar for Complainant.

Javed Iqbal for the State.

Muhammad Arshad, A.S.-I.

MLD 2007 LAHORE HIGH COURT LAHORE 465 #

2007 M L D 465

[Lahore]

Before Sh. Hakim Ali, J

AMANOWEL MASIH---Petitioner

Versus

DEWID BAIDI and another---Respondents

Criminal Miscellaneous No.587CB/2006/BWP, decided on 13th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.380---Petition for cancellation of bail---Initial order for summoning accused on private complaint filed by petitioner, had not been challenged by petitioner, which had attained finality---Bail granting order, in fact was continuation of said earlier order, which could not be considered to be a new or fresh order having passed by the Magistrate---Grant of bail was a discretionary power of Magistrate in a complaint case, which had not been shown to have been exercised illegally or unlawfully---Petitioner had not filed any revision against earlier order and bail granting order---Orders passed by both the courts below needed no interference of High Court.

Rasheed Afzaal Cheema for Petitioner.

2007 M L D 482

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ASHRAF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5303-B of 2006, decided on 17th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 109, 148 & 149---Bail, refusal of---Version of accused and his co-accused during investigation was that complainant party was the aggressor and they had started firing first and accused party had acted in exercise of their right of self-defence---None from accused side had received any injury---Though local police and D.S.P. gave their opinion that other party was the aggressor, but the opinion of the police was not binding on the court---Challan had already been submitted in the Court and accused was attributed specific role of firing on the person of injured on his back which was also supported by medical evidence and injured prosecution witness--Recovery of weapon had also been effected from accused---Accused prima facie was connected with offence falling within prohibitory clause of S.497, Cr.P.C.---Case of accused was not at par with the case of co-accused who had already been admitted to bail by High Court as they were not attributed ineffective firing---Case being not fit for grant of bail, bail application of accused was dismissed.

Ch. Naseer Ahmad Bhutta for Petitioner.

Miss Farina Butt and Liaqat Ali S.-I. for the State.

MLD 2007 LAHORE HIGH COURT LAHORE 484 #

2007 M L D 484

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD AZEEM---Petitioner

Versus

SHABBIR HUSSAIN---Respondent

Civil Revision Nos. 1411 to 1413 of 2006, decided on 4th December, 2006.

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

---S. 6---Facts admitted by adversary party need not .to be proved---Preemption, superior right of--Defendant conceded that shop in question was adjacent to that of plaintiff's---Dismissal of suit for non-production of documentary evidence to prove superior right---Held facts admitted by adversary party need not to be proved.

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

---S. 13---Civil Procedure Code (V of 1908), O.VI, R.1---Pre-emption suit---Talb-e-Muwathibat---Material contradictions---Plaint disclosed that plaintiff got knowledge of sale in question at his Daira while in evidence he stated it to be at his shop---Such was a very material contradiction and no one could be allowed to travel beyond the scope of his pleadings.

Muhammad Rafiq Chaudhry-I for Petitioner.

Sh. Naveed Shahryar for the Respondent.

2007 M L D 494

[Lahore]

Before M.A. Shahid Siddiqui, J

MUHAMMAD JAVED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2408-B of 2006, decided on 1st June, 2006.

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

----S. 498-Penal Code (XLV of 1860), Ss. 337-A(iii), 337-H(ii), 337-L(ii), 148 & 149---Ad interim post-arrest bail, grant of---On the last date of hearing, accused was released on ad interim post-arrest bail with the concurrence of counsel for complainant in order to enable parties to settle the terms of compromise---Complainant present in person, had stated that compromise had been finalized according to which both the parties had compounded the offence---S.H.O. concerned was directed to finalize his report under S.173, Cr.P.C. in the light of agreement and submit same in the competent Court of law within specified period.

(b) Police Order (22 of 2002)---

----Art.155(c)---Criminal Procedure Code (V of 1898), Ss.154 & 155---Penal Code (XLV of 1860), Ss.337-A(iii), 337-H(ii), 337-L(ii), 148 & 149---Non-entering complaint in relevant register---On the last date of hearing it transpired that occurrence had, in fact, been reported to S.H.O. concerned by means of written complaint, but complaint was neither entered in the relevant Register under S.154, Cr.P.C. nor was considered as a report for non-cognizable offence as envisaged in S.155, Cr.P.C.---Effect---Case was registered on a fresh complaint in which prosecution version had been slightly improved---Had the case been registered on the basis of first complaint, prosecution case would not have been prejudiced in any manner---S.H.O. concerned appeared to have wilfully breached or neglected mandatory provisions of law punishable under Art.155(c) of the Police Order, 2002---S.H.O. had shifted the responsibility on his subordinate; S.H.O. under the law was responsible for the irregularities and illegalities committed by his subordinates---Mere fact that he had marked complaint to his subordinate, would not absolve him from his responsibilities---Registration of case was delayed either for extraneous consideration or due to lack of supervision of S.H.O.---Competent Authority was directed to initiate departmental action against the S.H.O. in accordance with law within specified period.

Muhammad Iqbal Sindhu for Petitioner.

Complainant in person.

Miss Shahzadi Parveen for the State.

MLD 2007 LAHORE HIGH COURT LAHORE 497 #

2007 M L D 497

[Lahore]

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

NATIONAL BANK OF PAKISTAN---Appellant

Versus

ZAHEER-UD-DIN through Legal heirs and others---Respondents

R.F.A. No. 309 of 2002, heard on 29th November, 2006.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27---Production of additional evidence in Appellate Court, application for---Private document sought to be produced was alleged to be executed by deceased defendant---Defendant at relevant time was dead---Document on basis whereof decree was sought against deceased defendant stood proved to be forged and fabricated long after his death---Such application and appeal were dismissed in circumstances.

Naeem Ahmad Khan for Appellant.

Tariq Saleem Sheikh for Respondents.

Date of hearing: 29th November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 499 #

2007 M L D 499

[Lahore]

Before Muhammad Muzammal Khan, J

INAYAT MASIH---Petitioner

Versus

RIASAT JAVED -Respondent

Civil Revisions Nos. 642 of 2002 and 2500 of 2003, decided on 2nd November, 2006.

Tort---

----Malicious prosecution---Suit for damages---Defendant proceeded against plaintiff, a police constable, by filing an application for his inquiry into an unauthorized conduct---Plaintiff contended that he was disgraced by moving said application so he claimed damages on account of mental/physical torture suffered by him at the hands of defendant---

Suit was resisted on ground that a compromise had been effected between parties on basis of findings of inquiry---Damages were awarded by Trial Court and appeal thereagainst was dismissed---Validity---Record revealed that neither impugned application nor findings of inquiry officer were produced in evidence even no supporting material was on the file regarding alleged damage of physical/mental torture sustained by plaintiff---Plaintiff also failed to prove that he, in his capacity as a police constable, was adversely exposed in the eyes of his relations or public-at-large-In absence of details of physical/mental torture allegedly suffered by plaintiff, suit for damages could not have been decreed in circumstances.

Ch. Muhammad Jahangir Wahla for Petitioner.

Ishaq Masih Naz for Respondent.

MLD 2007 LAHORE HIGH COURT LAHORE 510 #

2007 M L D 510

[Lahore]

Before Mian Saqib Nisar, J

JAN MUHAMMAD through Legal Heirs and others---Appellants

Versus

NADEEM AKHTAR---Respondent

Regular Second Appeal No. 22 of 2002, heard on 30th November, 2006.

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

----S. 13---Talb-i-Muwathibat---Proof---Paragraph of plaint about performance of Talb-i-Muwathibat was illusive and vague---Pleadings were deficient with regard to the making of talbs---Alleged informer of sale in question was not examined by plaintiff in support of his case and no plausible explanation for such omission was available on record---Witnesses produced by plaintiff had not given the day, date and the time about making of talbs---Courts below, on account of such deficiency in evidence, found that Talb-i-Muwathibat was not proved in accordance with law---Plaintiff was unable to establish that such findings suffered from any defect of appraisal/appreciation of evidence---High Court declined interference in second appeal.

Anwar Ali v. Shah Nawaz and others PLD 1989 Karachi 246 distinguished.

Ch. Muhammad Rafique Warriach for Appellants.

Syed Muhammad Kaleem Ahamd Khurshid for Respondent.

Date of hearing: 30th November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 512 #

2007 M L D 512

[Lahore]

Before M.A. Shahid Siddiqui, J

ZUBAIDA SHEHZADI---Petitioner

Versus

MUHAMMAD ASLAM and another---Respondents

Criminal Miscellaneous No. 640-H of 2006, decided on 4th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Scope of S.491, Cr.P.C.---Custody of minors---Petitioner mother seeking custody of minor girls, was living with her parents separately from her husband/respondent---Medico-legal Certificate of petitioner, prima facie had shown that she had been subjected to violence--Both minors were admittedly enjoying the custody of their mother/petitioner till 6-6-2006 who was allegedly expelled by respondent from his house---Even if it was assumed that she had left the house of her husband on her own accord it would not make any difference---Mother felt compelled to leave the house of her husband alone and both minor daughters stood deprived of the custody of their mother---Interest of minors was that they should be placed again in the custody of their mother---Mere fact that father had also approached Guardian Judge on the same day, would not prevent mother from approaching High Court under S.491, Cr.P.C.---Powers of High Court under S.491, Cr.P.C., though different from the powers of a Guardian Judge under Guardians and Wards Act, but there was no question of one excluding the other---Both minors who had not attained puberty, were ordered to be given in the interim custody of mother---Family Judge/Guardian Judge, would finally decide the question of custody of minors strictly in accordance with law.

Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891 rel.

Ms. Hifza Aziz for Petitioner.

Muhammad Islam Anjum for Respondent No.1

MLD 2007 LAHORE HIGH COURT LAHORE 515 #

2007 M L D 515

[Lahore]

Before Jawwad S. Khawaja, J

GHULAM RASOOL---Petitioner

Versus

ABDUL RASHID and others---Respondents

Civil Revision No. 824 of 2006, heard on 22nd November, 2006.

West Pakistan Muslim Personal Law (Shariat) Application Act, (V of 1962)----

---Ss. 2-A & 5---Colonization of Government Lands (Punjab) Act (V of 1912), S.19-A---Inheritance---Escheat---Plaintiffs who had been declared reversioners of deceased contended that a decree for 1/4th of suit property could not be granted to defendants as they had failed to prove that their predecessors were nephews of widow of deceased---Suit-land was owned by deceased who was last male owned-Widow, limited life owner of suit property, when died plaintiffs being reversioners of deceased claimed title of suit property which was decreed---Plaintiffs further asserted that defendants who had failed "to prove themselves to be legal heirs of widow were not entitled to her share in disputed property---Validity---Held, plaintiffs had no locus standi to make such assertion because if widow died without leaving any legal heir her share in property will vest in the Province by way of escheat and in such event only the Province will have a right to claim the share of widow.

Ch. Ijaz Akbar for Petitioner.

Ch. Muhammad Tufail Soherwardy for Respondents Nos. 8, 9 and 12.

Other Respondents proceeded ex parte.

Date of hearing: 22nd November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 517 #

2007 M L D 517

[Lahore]

Before Maulvi Anwarul Haq, J

Malik ASMATULLAH---Petitioner

Versus

MUHAMMAD LATIF through Legal Heirs---Respondent

Civil Revision No. 1155-D of 1996, decided on 12th December, 2006.

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

---S. 42---Suit for declaration---Sale of land---Proof'---Sales in favour of defendants by plaintiff as well as his predecessor---Sales in question were denied by plaintiff through a declaratory suit which was dismissed by courts below---Validity---Suit-land was described in plaint with reference to Register Haqdaran Zamin wherein name of predecessor of plaintiff was placed in Column of ownership however document showed that said predecessor had made sales in Column of possession which were duly recorded in the document---Scan of record revealed that earlier, a pre-emption suit in respect of suit-land had been decreed against predecessor and decree stood incorporated in revenue record strengthening the assumption that same would have been executed after payment of pre-emption amount---Deed whereby land in question was partitioned between two sons of the predecessor was a registered instrument, even sales made by sons were also effected mostly by registered documents---Correction of mutation by Settlement Officer vide order removing the name of predecessor from Column of possession was also on file---Plaintiff expressed ignorance in response to each and every confrontation---No ground was made out for interference with impugned judgments and decrees within the meaning of section 115, C.P.C.

Ahmad Waheed Khan for Petitioner.

Malik Amjad Pervaiz for Respondents Nos.2-A, D & E.

Rana M. Arshad Khan for Respondents Nos. 2-B and 2-C.

Nemo for others.

Date of hearing: 27th November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 520 #

2007 M L D 520

[Lahore]

Before Mian Saqib Nisar, J

FAZAL KARIM KHAN---Appellant

Versus

EID MUHAMMAD and another---Respondents

Regular Second Appeal No. 68 of 2006, decided on 1st December, 2006.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Agreement in favour of plaintiff through attorney was challenged by principal on ground that agreement was prepared after cancellation of power of attorney---Onus was on plaintiff to prove that agreement in question was within the period when power of attorney was in force and had not been revoked by the defendant/principal---Plaintiff produced his evidence on basis thereof agreement to sell was found by Trial Court to be valid---Merely on account of some overwriting it could not have been assumed that agreement was antedated as the double writing was not made on the date of execution but was made on the date fixed for completion of transaction and had no nexus for antedating the agreement---Non-payment of consideration to defendant/principal was a matter between the principal and his attorney and former might have sought appropriate remedy against latter---No case for interference second appeal was made out in circumstances.

Taki Ahmad Khan for Appellant.

Syed Faiz-ul-Hassan for Respondent No.1.

MLD 2007 LAHORE HIGH COURT LAHORE 522 #

2007 M L D 522

[Lahore]

Before Jawwad S. Khawaja, J

Mst. RASHIDAN BIBI and another---Petitioners

Versus

GHULAM GHAUS---Respondent

Civil Revision No.1008 of 2006, heard on 19th October, 2006.

Specific Relief Act (I of 1877)---

----S. 42---Sale mutation---Proof---Plaintiffs, sisters of defendant, pleaded that land inherited by them was not sold by them to defendant vide sale mutation and that brother had obtained their thumb-impressions with object of getting identity cards prepared for them---Lumbardar of village concerned who was a witness to impugned mutation stated that defendant had told him that mutation was in respect of exchange---Said testimony detracted from authenticity of sale alleged by defendant---Other witness to mutation deposed that no consideration was passed in his presence---Neither rapt roznamcha was produced on record nor Halqa Patwari or Revenue Officer were examined by defendant to prove mutation in question---No material evidence was available on record to prove the sale mutation but Appellate Court proceeded on wrong premise that thumb-impressions of plaintiff on mutation had been proved---Held, mere affixation of thumb-impressions on mutation could not per se, be treated as proof of sale---Plaintiffs being sisters of defendant were held justified in reposing their trust in defendant and putting their thumb-impressions on mutation on latter's asking---Appellate Court having committed material irregularity in exercise of jurisdiction, appellate decree, was set aside.

Aman Ullah Khan v. Abdul Majeed Khan and others 1995 CLC 1 and Muhammad Rashid Ahmad v. Muhammad Siddiqui PLD 2002 SC 293 distinguished.

Ch. Naseer Ahmad Sindhu for Petitioners.

Malik Noor Muhammad Awan for Respondent.

Date of hearing: 19th October, 2006.

2007 M L D 531

[Lahore]

Before Syed Asghar Haider, J

PROVINCE OF THE PUNJAB through Secretary to the Government of Punjab, Communication and Works Department and 2 others---Petitioners

Versus

Messrs UNIQUE TRADERS through Najam Maqsood, Government Contractor---Respondent

Civil Revision No.1388 of 2002, heard on 19th October, 2006.

Arbitration Act (X of 1940)---

---Ss. 2(c) & 31---Civil Procedure Code (V of 1908), Ss.20 & 115---Award to be filed in Court having jurisdiction in the matter---Award made in pursuance of agreement entered into by parties at place J'---Plaintiff filed application under section 17 of Arbitration Act, 1940 at placeL' for making award rule of the court---Application was allowed and appeal dismissed---Validity---Record clearly showed that subject-matter of dispute was located in both parties had agreed and accepted that agreement was executed at J', the alleged breaches also occurred at therefore, the dispute fell within the territory, domain and jurisdiction of civil court atJ'---In contracts usually jurisdiction would vest with courts where agreement was executed or where subject-matter of dispute was located, thus, it was clear that court at possessed jurisdiction over arbitration proceedings---Contention that High Court could not interfere in concurrent finding had no force because High Court in its revisional jurisdiction had ample powers to correct errors of jurisdiction and law---Proceedings at `L', held, were completely without jurisdiction and violative of sections 2(c) and 31 (3) & (4) of Arbitration Act, 1940.

Faqir Muhammad v. Pakistan through Secretary, Ministry of Interior and Kashmir Affairs Division, Islamabad 2000 SCMR 1312; Muhammad Sana Ullah v. Province of Punjab and others 2001 MLD 352; Messrs Cooperative Insurance Society v. Messrs Long View Traders PLD 2005 Lahore 335; Mst. Nichhawar Jahs v. Muhammad Farash Khan 1979 CLC 613; Muhammad Hussain and another v. Muhammad Shall and others 2004 SCMR 1947; S.A. Latif v. Nadir Khan PLD 1968 Lahore 144; Attaullah alias Bilal and others v. Muhammad Ilyas and others 2004 SCMR 830; Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431; Trading Corporation of Pakistan (Private) Limited v. Pakistan Agro Forestry Corporation (Private) Limited and another 2000 SCMR 1703; Mian Fazal Muhammad Nizam-ud-Din Baig and Co. v. The Province of West Pakistan and others (PLD 1969 Lahore 453) distinguished.

Messrs Nalanda Ceramic and Industries Ltd. v. Messrs N.S. Choudhry & Co. (P.) Ltd. AIR 1977 SC 2142; Food Corporation of India and another v. Greet Eastern Shipping Co. Ltd. AIR 1988 SC 1198 and Hayat Muhammad and others v. Mazhar Hussain 2006 SCMR 1410 ref.

Muhammad Nawaz Bajwa, A.A.-G. for Petitioners.

Imran Anjum Alvi for Respondent.

Date of hearing: 19th October, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 536 #

2007 M L D 536

[Lahore]

Before Jawwad S. Khawaja, J

SHER MUHAMMAD---Petitioner

Versus

MUHAMMAD SHAFI and 4 others---Respondents

Civil Revision No.2605 of 2005, heard on 22nd September, 2006.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration and possession---Plaintiff alleged that mutation in question had been fraudulently procured by defendant and that no sale was effected in his favour---Suit was dismissed but allowed in appeal-Reason which had prevailed with Appellate Court was that Patwari concerned had been convicted in anti-corruption proceedings in respect of his conduct relating to another mutation---Defendant contended that conviction of Patwari in respect of some other mutations had no relevance with mutation in question---In an earlier suit filed by plaintiff seeking possession of disputed land Member Zila Council appeared as plaintiff's witness but his testimony proved the defence set up by defendant---Said witness though impleaded as defendant in present suit but was not declared hostile in previous suit-Son of plaintiff who was a witness to mutation and would have been the best witness in the case failed to appear in witness box and no explanation was available on record for such failure---Contentions were well founded and remained uncontroverted and Appellate Court had exercised its jurisdiction with material irregularity---Appellate decree was, therefore, set aside.

Ch. Mubasher Nisar Khan for Petitioner.

Ghulam Nabi Bhatti for Respondents Nos. 1 to 3.

Other Respondents proceeded ex parte.

Date of hearing: 22nd September, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 539 #

2007 M L D 539

[Lahore]

Before Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, JJ

Mst. HAMIDA BEGUM and others---Appellants

Versus

ASSISTANT COMMISSIONER, SADDAR/LAND ACQUISITION COLLECTOR, GUJRANWALA and 3 others---Respondents

R.F.As. Nos.328 and 396 of 2001, heard on 18th September, 2006.

Land Acquisition Act (I of 1894)---

----S. 18---Qanun-e-Shahadat (10 of 1984), Art.114---Reference---Department required land for Research Farm and proclamation was published for the purpose in a daily circular---Admittedly landowners had given in writing to the Department and offered to transfer property at the rate fixed by the Collector---Landowners participated in proceedings before passing of awards---Landowners subsequently moved applications for enhanced compensation on ground that value fixed by the Collector was less than the market value---Validity---Applications of landowners, held, were rightly dismissed by Trial Court holding that landowners had been estopped from filing such applications by their own act and conduct.

Sh Abdul Aziz for Appellants.

Rizwan Mushtaq A.A.-G. for Respondents Nos.1, 3 and 4.

Shafqat Raza Minhas for Respondent No.2.

Date of hearing: 18th September, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 542 #

2007 M L D 542

[Lahore]

Before Sh. Azmat Saeed, J

Major (R) IJAZ AZIZI---Appellant

Versus

MUHAMMAD SHAHZAD HANIF and another---Respondents

F.A.O. 342 No.342 of 2006, decided on 22nd November, 2006.

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

----S. 17(8)---Tentative rent order, non-compliance of---Ejectment---Tenant who failed to comply with tentative rent order contended that factum of the rate of rent of Rs.8,000 per month was evident from admitted lease agreement hence order for deposit of Rs.35,000 per month was perverse and arbitrary, and no order of ejectment could be passed for non-compliance thereof---Validity---Held, although initial rate of rent as agreed upon by both the parties was Rs.8,000 per month but subsequent lease deed and bank record proved that rent of premises was enhanced to Rs.40,000 per month---Prima facie the said amount of Rs.40,000 was paid through cheques by tenant---Fixation of tentative rent under section 17(8) of the Cantonments Rent Restriction Act, 1963 did not appear to be arbitrary or perverse---Tenant was legally bound to comply with said order and in case of non-compliance Rent Controller had no other option but to order tenant's ejectment---No illegality or jurisdictional defect was pointed out in the order in question---Appeal was dismissed.

Haji Saat Muhammad v. Dr. Muhammad Saleem Qureshi and another PLD 1988 Quetta 42 ref.

Ch. Shaukat Ali Saqib for Appellant.

Malik Zafar Iqbal Awan, Addl. A.G. for Respondent No.2.

Aamir Zahoor Chuhan for Respondent No.1.

MLD 2007 LAHORE HIGH COURT LAHORE 544 #

2007 M L D 544

[Lahore]

Before Jawwad S. Khawaja, J

PROVINCE OF THE PUNJAB through Collector, District Gujrat and 2 others---Petitioners

Versus

SOBAT ALI and others---Respondents

Civil Revision No.1430 of 1998 and C.R. No.728 of 1999, heard on 15th September, 2006.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration of title of land---Evacuee land---Allotments by Settlement Department in favour of plaintiff---Suit was resisted on basis of notifications whereby land in question had been given by the Custodian of Evacuee Property to the Province for management by Forest Department as protected forest---Plaintiff contended that allotments by Settlement Department were made prior to the issuance of notification hence allotments could not have been set aside due to said notification---Plaintiff's contentions were not supported by record, on the contrary, it was clearly established therefrom that suit-land was under the management of Forest Department from a date prior to the allotments made in favour of plaintiff---Allotment made in respect of such land suffered from a patent illegality.

Civil Appeal No.269 of 1983 rel.

Muhammad Nawaz Bajwa, A.A.-G. for Petitioners.

Mian M. Ashraf Tanveer for Respondents.

Date of hearing: 15th September, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 547 #

2007 M L D 547

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

MUHAMMAD SHARIF and 3 others---Appellants

Versus

MAHLA through Legal Representatives and others---Respondents

Regular Second Appeal No.48 of 1998, heard on 7th November, 2006.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art.79---Civil Procedure Code (V of 1908), O.XIV, R.1---Suit for specific performance of agreement to sell---Appellate Court dismissed suit on ground that agreement in question was not proved in accordance with Art.79 of Qanun-e-Shahadat, 1984---Validity---Agreement to sell having been attested by two witnesses ought to have been proved in accordance with provisions of law---Evidence on record consisted of only one attesting witness and thus did not meet the requirement of Art.79 of Qanun-e-Shahadat, 1984---Agreement to sell though was registered but mere registration of a document in the Office of Registrar/Sub-Registrar was not sufficient to prove its execution when impugned in pleadings---Objection that issues were not framed properly was not raised before Trial Court hence was baseless---Moreover incorrect or non-framing of any particular issue was not fatal when parties were fully aware about nature of actual controversy and they had every opportunity of substantiating their respective contentions---Agreement to sell was stated to have been executed by owner of suit-land who had since died, it was, therefore, incumbent upon plaintiff to prove that deceased had received earnest money and balance amount of sale---Plaintiff having failed to prove his case, appellate findings, were well reasoned in circumstances.

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

----O. XIV, R.1---Framing of Issues---Incorrect or non-framing of any particular issue was not fatal when parties were fully aware about nature of actual controversy and they had every opportunity of substantiating their respective contentions.

----O. XIV R.1---Framing of issues---Objection that issues were not framed properly having not been raised at trial stage, were not fatal.

Mian Atta-ur-Rehman for Appellants.

Ch. Mohammad Abdullah for Respondents.

Date of hearing: 7th November, 2006.

2007 M L D 576

[Lahore]

Before Jawwad S. Khawaja, J

Mst. BAKHAN and 11 others---Petitioners

Versus

Mst. SADAN and another---Respondents

Civil Revision Case No.1231 of 2006, heard on 18th October, 2006.

Arbitration Act (X of 1940)---

----S.2(a)(b)---Specific Relief Act (I of 1877), S.8---Suit for possession through partition-Defendants who were respectively mother, brothers and sisters of plaintiff asserted that estate of deceased had already been partitioned privately between parties through arbitration and award of arbitrators was duly acted upon---Suit was decreed by courts below on ground that because arbitration award had not been made: rule of the court, partition privately effected by parties could not be given legal effect---Validity---Award though not an instrument of partition nonetheless had evidentiary value for corroborating plea of defendants---Nikahnama of plaintiff's son wherein plot of land which fell to the share of plaintiff had been shown as given to his wife in lieu of dower further substantiated plea of defendants that private partition had been effected between parties and acted upon---Plaintiff neither herself appeared as witness nor she, being a pardanashin lady moved application for recording her statement through a local commission---One of brothers who had sided with plaintiff had accepted partition in question in an earlier suit filed by him---Factum of private partition between parties stood proved---Decrees of courts below though concurrent, proceeded on erroneous legal premises hence set was aside.

Bibi Najma and others v. Abdul Rehman 1998 SCRM 1304 ref.

Malik Noor Muhammad Awan for Petitioners.

Syed Mukhtar Abbas for Respondents Nos. 1.

Respondent No.2 Ex Parte.

Date of hearing: 18th October, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 579 #

2007 M L D 579

[Lahore]

Before Fazal-e-Miran Chauhan, J

Mirza JAHANGEER BAIG---Petitioner

Versus

D.I.G. OF POLICE, GUJRANWALA RANGE and 7 others---Respondents

Criminal Original No. 652-W of 2006 and Writ Petition No.7922 of 2005, decided on 20th December, 2006.

(a) Words and phrases---

----"Verification", defined and explained.

(b) Police Order (22 of 2002)---

----Art. 18(6)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Change of investigation---Investigation could not be changed under the garb of verification of the investigation; it could only be changed as per procedure provided under Art.18(6) of Police Order, 2002---Provision of Art. 18(6) of Police Order, 2002, which controlled investigation of cases, had limited the number of investigations, only to two, providing procedure for change of first and second investigation---Change of investigation by Superintendent of Police (Investigation) under the garb of verification, was not approved and new Investigating Officer, was not authorized to conduct new investigation, unless he was specifically directed by a Board; for its change and by Inspector General of Police for second investigation as provided under the law.

Ikram-ul-Haq v. Inspector-General of Police Punjab, Lahore and 12 others 2005 PCr.LJ 754; Aziz Ahmad v. Provincial Police Officer (IG.P) Punjab Lahore and 6 others PLD 2005 Lah. 185; Muhammad Ali Hussain v. District Police Officer and others PLD 2006 Lah. 95; Mst. Naseem Begum and others v. S.H.O. and others PLD 2006 Lah. 509; Ijaz Ali v. D.P.O. and others 2006 PCr.LJ 1596; Khizer Hayat and others v. Inspector General of Police (Punjab), Lahore and others PLD 2005 Lahore 470; Kaneez Fatima v. Inspector-General of Police, Punjab, Lahore and 16 others 2004 MLD 1520 and Sardar Muhammad Ashiq v. Inspector-General of Police, Punjab, Lahore and 3 others 2004 YLR 931 rel.

Raja Zulqarnian for Petitioner.

Faisal Ali Qazi, Asst A.G., Syed Mazhar Ali Akbar Naqvi for respondent along with Imtiaz Malik, S.P. (Investigation), Gujranwala Hussain Ali Inspector, Police Station, Qila Deedar Singh, Gujranwala.

Date of hearing: 29th November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 584 #

2007 M L D 584

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD SALEEM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3194-B of 2006, decided on 7th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.412 & 411---Bail, grant of---Accused was specifically named in F.I.R.---Accused having possession of car knew that it was snatched in dacoity---Offence fell within prohibitory clause of S.497, Cr.P.C.---Allegation against accused/petitioner was that he along with co-accused snatched car from driver of complainant at gun point which was recovered from his possession---Complainant after receipt of information about recovery of car identified the same and then case was registered against the accused---Trial Court dismissed bail after arrest filed by accused---Accused contended that there was a joint recovery from three persons; that there was delay of 31 days in lodging of F.I.R.; that accused was in jail for a period of more than 10 months and that contents of F.I.R. did not constitute offence under S.412, P.P.C. and at the most it was a case of 411, P.P.C. which did not fall within prohibitory clause of S.497, Cr.P.C.---Validity---Accused was specifically named in F.I.R. and earlier to the present F.I.R. he was involved in two cases of murder along with dacoity, so he could not claim himself to be a person of good record---To make out a case under S.412, P.P.C. it was to be proved that not only accused was in possession of property in question but it was further to be proved that he knew or had reason to believe that property had been transferred by commission of dacoity---F.I.R. prima facie showed that accused was fully aware of the fact that car in question was snatched in dacoity---Assertion of complainant as made in F.I.R. that his car was recovered by police from a gang of car-snatchers was also significant and could not be lost sight of---Offence under S.412, P.P.C. fell within scope of prohibitory clause of S.497, Cr.P.C.---Petitioner was not entitled to bail in circumstances---Petition was dismissed.

AIR 1970 SC 535; 1997 SCMR 412; PLD 1966 Dacca 98 and 1984 PCr.LJ 571 rel.

AIR 1994 SC 968; AIR 1970 SC 537 and Muhammad Rafiq v. The State 1997 SCMR 412 distinguished.

Muhammad Arif Alvi for Petitioner.

Pervaiz Akhtar Gujjar for the State with Khalid Iqbal A.S.-I.

MLD 2007 LAHORE HIGH COURT LAHORE 588 #

2007 M L D 588

[Lahore]

Before Jawwad S. Khawaja, J

MAYO KHAN---Petitioner

Versus

BASHIR AHMAD---Respondent

Civil Revisions Nos. 1207 and 1321 of 2006, heard on 22nd November, 2006.

Specific Relief Act (I of 1877)---

---Ss. 12 & 22---Suit for specific performance of agreement of sale---Defendant pleaded non-payment of earnest money to him, non-delivery of possession of land to plaintiff and resiling of plaintiff from agreement---Contents of agreement showed that entire land was not readily available for delivery---Plaintiff's plea as to voluntary delivery of possession of land was not believable as eighty per cent sale price was outstanding, which had to be paid to defendant on delivery of possession of land---Plaintiff had raised construction on land in violation of status quo order passed by Court---Such conduct of plaintiff had disentitled him to discretionary relief of specific performance of agreement---Suit was dismissed in circumstances.

Ch. Muhammad Zafar Iqbal for Petitioner.

Ch. Khalid Saeed Sindhu for Respondent.

Date of hearing: 22nd November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 592 #

2007 M L D 592

[Lahore]

Before Ijaz Ahmad Chaudhry, J

BASHIR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2204/B of 2006, decided on 5th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.377---Bail, refusal of---Contents of F.I.R. revealed that victim was about 8/9 years of age, but perusal of medico-legal report had shown that minor (victim) was about 7 years---Prima facie evidence had been collected due to abrasions on the body of the victim and medical evidence supported allegation levelled against accused---Even otherwise, there was no reason for the complainant to falsely implicate accused in offence of sodomy committed with his minor brother---Challan in the case had been prepared and sent up to the Court---Accused, in circumstances had not been able to make out a case of further inquiry as sufficient grounds were available to connect him with the commission of offence which was punishable for more than 10 years imprisonment---Case being not fit for grant of bail, bail petition of accused was dismissed.

Muhammad Ishaq Dogar for Petitioner.

Ch. Muhammad Ameer for the State.

MLD 2007 LAHORE HIGH COURT LAHORE 594 #

2007 M L D 594

[Lahore]

Before Syed Hamid Ali Shah, J

PROVINCE OF PUNJAB through Administrator Thal Development, Bhakkar---Petitioner

Versus

ABDUL WAHEED and others---Respondents

Civil Revision No. 256 of 2001, heard on 17th October, 2006.

(a) Evidence---

----Witness---Parties would be bound by testimony of their witnesses.

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

----S. 24(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(e)---Resumption of tenancy, order of---Issuance of letters/notices to allottee at his given address by Authority before passing such order---Plea of allottee that he was not heard before passing such order---Validity---Presumption of correctness and regularity was attached to such documents, which were copies of official record---Such plea was not accepted in circumstances.

1998 SCMR 468; 2000 CLC 159; Pakistan Railways through Divisional Superintendent v. Karachi Development Authority and 5 others PLD 1992 Karachi 74; Muhammad Mian v. Syed Shamimullah and 2 others PLD 1993 Kar. 146; Ahmad Yar v. Miran Bakhsh and others PLD 1951 BJ 36; Mst. Rehmat Bibi v. Panju Khan and others 1986 SCMR 962; Bahadur v. Collector Jhang and another 1984 CLC 2955; Zaheer ud Din Khan and another v. T.D.A. 1988 MLD 1690 and Administration Thal, Bhakkar v. Mst. Zakia Bibi and others 1988 MLD 2154 ref.

Harihar Banerji and others v. Ramshahshi Roy and others AIR 1918.PC 102; Bashir Ahmad v. Mumtaz Khan PLD 1965 (W.P.) Lah. 126; Messrs Industrial Development Bank of Pakistan v. Messrs Sarela Cement Limited Company 1993 CLC 1540 and Messrs Waqas Enterprises and another v. Allied Bank of Pakistan Ltd., Lahore and 2 others 1997 CLC 675 rel.

Najeeb Faisal Chaudhry, Addl. A.G. and Kh. Muhammad Saeed for Petitioner.

Syed Najum-ul-Hassan Kazmi for Respondents Nos. 1 to 9.

Sh. Naveed Sheharyar for Respondents Nos.11 to 20.

Date of hearing: 17th October, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 599 #

2007 M L D 599

[Lahore]

Before Mian Muhammad Najum-uz-Zaman and Sh. Javaid Sarfraz, JJ

RAEES KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.454-J of 2003 and Murder Reference No. 28-T of 2003, decided on 26th April, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 511---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Counsel for accused asserted that on the day of occurrence accused was admitted in the Hospital in an injured condition, but that aspect of case was not brought to the notice of the Trial Court---Evidence brought to the notice of High Court by counsel for accused should have been brought on the record by the Trial Court, but that information was never laid before the Court at the relevant time---Case was remanded by the High Court to the Trial Court with the observation that Trial Court would record the statement of concerned Doctors as Court witness who had examined accused allegedly on day of occurrence; prepare a medico-legal report and if so required to re-examine Investigating Officer or any other witness necessary for the just decision of the case and thereafter to decide the matter afresh after bringing on record fresh statement of accused under S.342, Cr.P.C.

Rai Muhammad Zafar Bhatti for Appellant.

Ms. Iram Sajjad Gul for the State.

Date of hearing: 26th April, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 601 #

2007 M L D 601

[Lahore]

Before Mian Saqib Nisar, J

Haji ALLAH BUKHSH and others---Petitioners

Versus

MUHAMMAD YAR and others---Respondents

Civil Revisions Nos. 882 and 883 of 2004, heard on 11th December, 2006.

(a) Islamic Law---

----Gift by father in favour of sons through two separate simultaneous mutations---Sanctioning of both mutations on same day, one in the father's presence, while the other through attorney---Suit by father challenging gift on coming to know about same---Death of father during pendency of suit---Person having identified father was not produced as he was stated to have died---Father himself was a Lambardar, thus, he would have definitely been known to Patwari, who was not examined---Sanctioning of both mutations in such stated manner would show that father was not there at relevant time---Pattidar of village, who identified father at relevant time, was not examined---Sons did not explain their omission to examine Patwari, Pattidar and Tehsildar---Day, date, month, timing and venue of gift had not been established through independent evidence---Statement of School Teacher to be present at relevant time was highly doubtful as he had not explained the purpose of his presence there---Mutation was not proof of gift, but only a manifestation thereof---Proof as to offer, acceptance and delivery of possession had not been established---Suit of father was decreed in circumstances.

(b) Power of attorney---

---Subsequent power of attorney could not be considered a valid authority for an event, which had already occurred---Illustration.

---Gift through mutation---Proof---Mutation itself is not proof of gift, but only a manifestation thereof---Proof as to offer, acceptance and delivery of possession is a must to establish a valid gift.

Barkat Ali Chaudhry for Petitioners.

Ch. Muhammad Yasin Zahid for Respondents.

Date of hearing: 11th December, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 605 #

2007 M L D 605

[Lahore]

Before Ijaz Ahmad Chaudhry, J

AMIR ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2242/B of 2006, decided on 28th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Bail, refusal of---Accused though was not named in the F.I.R., but complainant had stated that he and the eye-witnesses could identify accused as he had seen him while making firing upon the deceased---Accused, according to record had actively participated in the occurrence in the presence of complainant and he was arrested---Identification parade was conducted, but except complainant, other eye-witnesses had identified accused as one of the accused, which had shown that accused was not previously shown to eyewitnesses---Deeper merits like evidentiary value of identification parade, could not be considered at bail stage---Prosecution had collected sufficient evidence to connect accused with the commission of offence and prima facie case fell within the prohibitory clause of S.497, Cr.P.C.---Accused was arrested in a murder case previously as well in which he was sent to jail---Case being not fit for grant of bail, bail petition was dismissed.

Abdul Razzaq Younas for Petitioner.

Irshad Ahmad Cheema for the Complainant.

Syed Tahir Abbas for the State.

MLD 2007 LAHORE HIGH COURT LAHORE 607 #

2007 M L D 607

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD AKBAR and others---Petitioners

Versus

NOOR BAKHSH through Legal Representatives and others---Respondents

Civil Revision No. 1843 of 1990, decided on 28th September, 2006.

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

----S. 177---West Pakistan Land Revenue Rules, 1968, R. 67-A---Land Record Manual, Para 7.6---Demarcation of land---Naqsha Tafawat prepared by Patwari privately without associating opposite party---Validity---No sanctity could be attached to such Naqsha Tafawat.

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

----S. 115---Concurrent decrees of Courts below---Such decrees not based on evidence relevant for resolving dispute between parties were not legally sustainable.

Khalid Pervaiz Warraich for Petitioners.

Mian Saeed-ud-Din, for Respondents.

Muhammad Nawaz Bajwa; A.A.-G.

MLD 2007 LAHORE HIGH COURT LAHORE 619 #

2007 M L D 619

[Lahore]

Before Maulvi Anwarul Haq, J

TAHIRI---Petitioner

Versus

Mst. SARDARAN and others---Respondents

Civil Revision No.2787 of 1996, heard on 27th November, 2006.

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

----O. XLI, R.23 & S.115---Remand of case by Appellate Court with agreement of parties for trial of specified issues---Trial Court decreed suit after conducting proceedings according to remand order---Appellate Court upheld findings of Trial Court on all issues, but dismissed suit on grounds not specified in remand order---Validity---Defendant had neither taken such objections in written statement nor claimed any issue thereon or pressed same---Remand order, which had to govern proceedings of Trial Court, had attained finality by agreement of parties---Appellate Court while passing impugned judgment/decree had acted with material irregularity in exercise of its jurisdiction---High Court accepted revision petition and set aside impugned judgment/decree.

(b) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S. 3---Civil Procedure Code (V of 1908), S.9---Consolidation matter---Suit involving pure question of title---Civil Court had jurisdiction to decide such question.

Ghulam Akbar Sial for Petitioner.

Nemo for Respondents.

Date of hearing: 27th November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 623 #

2007 M L D 623

[Lahore]

Before Sh. Abdul Rashid and M. Bilal Khan, JJ

NOOR MUHAMMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 5395-B of 2005, decided on 13th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Further inquiry---Co-accused had been admitted to bail and Court while granting bail to co-accused had observed that no legally incriminating material was on the file---Role of accused and his co-accused who had been allowed bail, was of identical nature in F.I.R.---Investigating Officer during course of investigation found that accused had no role in the occurrence and that he had been falsely implicated---Case against accused being of further inquiry, he was admitted to bail.

Zafar Iqbal Chohan for Petitioner.

Aamir Feroze Sheikh with Muhammad Amir, S.-I. for the State.

MLD 2007 LAHORE HIGH COURT LAHORE 624 #

2007 M L D 624

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD SHARIF and others---Petitioners

Versus

REHMAT ALI and others---Respondents

Civil Revision No.2552/D of 1996, heard on 19th December, 2006.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 76(c)---Suit for specific performance of agreement of sale---Defendant pleaded return of earnest money and cancellation of agreement---Plaint silent as to loss or whereabouts of agreement---Plaintiff's evidence was that in his absence original agreement was taken away from his wife (vendor) by defendant---Plaintiff during cross-examination opted to express ignorance when asked as to whether agreement was lost or taken away from his wife by defendant---No evidence existed on record, about loss of original agreement or commission of fraud by defendant in such matter---Suit was dismissed with direction to defendant to return earnest money to plaintiff.

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

--- Ss.12 & 27(b)---Transfer of Property Act (IV of 1882), S.41---Suit for specific performance of agreement of sale---Claim of subsequent purchaser to be ignorant about suit agreement---Proof---Plaintiff did not allege in plaint that subsequent purchaser had knowledge of suit agreement---Plaintiff deposed to have told subsequent purchaser about suit agreement---Plaintiff had not taken such plea in plaint---Plaintiff's such statement was silent as to point of time he had conveyed such information---Defendant in cross-examination was not suggested that before sale in his favour, plaintiff had informed him about suit agreement---Revenue Record showed plaintiff's possession over suit-land as, tenant, against whom subsequent purchaser had filed suit for ejectment---Held, subsequent purchaser was bona fide purchaser without notice of suit agreement.

Ali Muhammad Chaudhary for Petitioner.

Ch. Bashir Ahmad for the Respondent No.2.

Respondents Nos. 1, 3 and 6 proceeded ex parte.

Date of hearing: 19th December, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 628 #

2007 M L D 628

[Lahore]

Before Jawwad S. Khawaja, J

BUSH PAKISTAN (PVT.) LTD through Managing Director---Appellant

Versus

GUANGZHOU GLAMOUR ELECTRICIAN EQUIPMENT COMPANY LTD and another---Respondents

First Appeal Against Order No. 145 of 2001, decided on 18th September, 2006.

(a) Natural justice, principles of--

----Order based on pleadings and documents which were not on record was against the fundamental principles of natural justice and not sustainable in law.

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

---O. XXXIX, Rr. 1 & 2---Stay order refused relying upon pleadings and documents which were not on record and had not been made available to the appellant/plaintiff when stay application was argued---Such order, held, was against fundamental principles of natural justice and not sustainable in law---High Court remanded the stay application to trial Court for decision afresh after hearing parties.

Moeen Qamar for Appellant.

Muhammad Shakeel Abid for Respondents.

MLD 2007 LAHORE HIGH COURT LAHORE 630 #

2007 M L D 630

[Lahore]

Before Khawaja Muhammad Sharif, J

IHTSHAM-UL-HAQ alias Shani---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2533/B of 2006, decided on 2nd May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Bail, refusal of---Trial of case had started and seven witnesses had already been examined---As the trial was in progress, merits of the case could not be commented upon at bail stage---No case for bail having been made out; bail petition was dismissed.

Muhammad Sadik and others w. The State 1980 SCMR 203; Allah Ditta and others v. The State 1990 SCMR 307 and Muhammad Nawaz v. The State 2002 SCMR 1381 ref.

Sardar Muhammad Latif Khan Khosa for Petitioner.

Ch. Arshad Mehmood for the Complainant.

Malik Mazhar Ahmad for the State with Azam, S.-I. with record.

MLD 2007 LAHORE HIGH COURT LAHORE 632 #

2007 M L D 632

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD KHAN through Legal Representatives and others---Petitioners

Versus

SHER ALI KHAN and others---Respondents

Civil Revision No.1151 of 2001, heard on 14th November, 2006.

Specific Relief Act (I of 1877)---

---S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 118---Suit for declaration---Plaintiff's claim was that his ancestors had mortgaged only 3 Kanals of land instead of 22 Kanals---Burden of proof---Plaintiff through Jamabandi and testimony of Patwari had proved that only 1/12th of total Khata equivalent to 3 Kanals had been mortgaged---Onus of proof had shifted on to defendant to produce evidence to establish his claim that in fact one half share in Khata equivalent to 22 Kanals was mortgaged by plaintiff's ancestors.

Muhammad Hanif Niazi for Petitioners.

Nemo for Respondents.

Date of hearing: 14th November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 636 #

2007 M L D 636

[Lahore]

Before Maulvi Anwarul Haq, J

MEHMOOD NAZIR---Petitioner

Versus

MUHAMMAD ILYAS and 2 others---Respondents

Civil Revision No.1616 of 1999, heard on 20th November, 2006.

Punjab Pre-emption Act (IX of 1990---

----S. 13---Talb-i-Muwathibat, performance of---Proof---Mutation of sale attested on 21-12-1994 was made by brother of pre-emptor, who was living in same house---Pre-emptor alleged to have gained knowledge of sale on 24-3-1995 through informer---Witnesses produced by pre-emptor to depose that no notice was affixed on outer door, of the Mosque---Statement of one witness that rumours about sale must have spread 10/15 days thereafter, while other witness deposed to have come to know about sale one month thereafter---Effect---In absence of any evidence that pre-emptor was aware of sale at a point of time before 24-3-1995, knowledge of such witnesses would not lead to inference that pre-emptor was also aware of sale.

Muhammad Sadiq and others v. Saeem Khan 2004 MLD 1122 rel.

Sh. Naveed Shehryar for Petitioner.

Aziz Ahmad Chaudhry for Respondents Nos.1 and 2.

Nemo for Respondent No.3.

Date of hearing: 20th November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 642 #

2007 M L D 642

[Lahore]

Before Maulvi Anwar ul Haq, J

GHULAM HUSSAIN---Petitioner

Versus

MUHAMMAD SHARIF---Respondent

Civil Revision No.1523 of 2000, heard on 30-th November, 2006.

Islamic Law---

----Gift---Deed---Proof---Denial of execution of gift deed by plaintiff---Report of Handwriting Expert that gift deed bore thumb-impressions of plaintiff---Validity---Onus to prove a valid gift of property would tie on defendant---Marginal witness of gift deed produced was son of defendant---Statement of Lambardar that the man; he identified at the time of registration of gift deed, was not known to him---Defendant neither pleaded nor deposed that declaration was made, same was accepted and possession was delivered---Held, such report would not at all be sufficient to prove a valid gift either in law or in fact in favour of defendant.

M. Shahzad Shaukat for Petitioner.

Sh. Shaukat Ali Saqib for Respondent.

Date of hearing: 30th November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 646 #

2007 M L D 646

[Lahore]

Before M. Bilal Khan, J

AHMAD NAWAZ alias BABOO---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2154/B of 2006, decided on 28th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.412---Bail, refusal of--Accused though was not nominated in F.I.R., but car in question stood recovered from him---Accused was involved in as many as twelve cases out of which five were under S.412, P.P.C.---Accused being a member of the gang, was a habitual offender---Offence with which accused had been charged, fell within the prohibitory clause of S.497(1), Cr.P.C.---Bail petition was dismissed in circumstances.

Ch. Shahid Tabassuin for Petitioner.

Ch. Muhammad Nazir, Muhammad Bashir Tahir, A.S.-I. P.S., Ichhra, Lahore and Muhammad Arshad, S.-I., P.S., Laksian, Sargodha for the State.

MLD 2007 LAHORE HIGH COURT LAHORE 648 #

2007 M L D 648

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD RAMZAN---Appellant

Versus

MUHAMMAD SULEMAN and another-Respondents

Regular Second Appeal No.75 of 2006, heard on 5h December, 2006.

Specific Relief Act (I of 1877)--

----Ss. 12 & 42---Civil Procedure Code (V of 1908), O. XLI, R.23---Qanun-e-Shahadat (10 of 1984), Art. 163---Suit for specific performance of agreement of sale by first vendee---Suit for declaration of title to suit-land by subsequent vendee on basis of mutation of sale---Suit by vendor for declaring such mutation to have been procured through fraud---Offer of subsequent vendee that if vendor took special oath that he had not entered into bargain with him, received sale price and obtained sanction of mutation, then his suit be dismissed and both suits of first vendee and vendor be decreed---Vendor accepted such offer and sworn oath in presence of parties and their counsel---Trial Court dismissed suit of subsequent vendee and decreed suits of first vendee and vendor---Appellate Court in appeal of subsequent vendee set aside decree of Trial Court and remanded case for its decision on basis of evidence---Non-filing of appeal by vendor, against remand order---Appeal by first vendee against remand order---Maintainability--Suit of subsequent vendee and suit of vendor stood decided on basis of special oath---Subsequent vendee, thus, had no locus standi to contest suit filed by first vendee, which stood decreed on basis of special oath---Vendor had not assailed decree in suit of first vendee, which had attained finality---Consequence of decree in suit of first vendee was that interest of vendor in suit-land stood transferred to first vendee, who resultantly had stepped into shoes of vendor---First vendee had, thus, locus standi to impugn remand order--Remand order was result of misreading of record---Appellate Court was not justified to go behind the order of Trial Court finding mentioned statements of parties and their counsel---High Court set aside remand order and affirmed decrees of Trial Court in-all three suits.

Irshad Ahmed Cheema for Appellant.

Ch. Muhammad Hussain Chatha for Respondent No.1 and Mian Rabnawaz for Respondent No.2.

Date of hearing: 5th December, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 652 #

2007 M L D 652

[Lahore]

Before Muhammad Nawaz Bhatti, J

TANVIR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No.373 of 2005, decided on 2nd November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.319---Suspension of sentence---Application for---Accused had been in jail for more than one year during the trial and there was no possibility of hearing of main appeal in near future---Sentence of accused was suspended in circumstances.

Zahid Hussain v. The State PLD 2005 Lah. 644 ref. Tariq Zulifqar Ahmad Chaudhary for Petitioner. Shaukat Ali Kharal for State.

MLD 2007 LAHORE HIGH COURT LAHORE 653 #

2007 M L D 653

[Lahore]

Before Mian Saqib Nisar, J

Mst. SABIHA BEGUM through Legal Heirs---Petitioner

Versus

Mst. UMMAT-UL-ISLAM through Legal Heirs---Respondents

Civil Revision No.1073 of 2002, heard on 20th November, 2006.

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

----Ss. 42 & 54---Transfer of Property Act (IV of 1882), S.54---Qanun-e-Shahadat (10 of 1984), Arts. 102, 132 & 133---Suit for declaration and permanent injunction---Registered sale-deed in defendant's favour---Plaintiff alleged sale-deed to be result of fraud and misrepresentation, and invalid for non-payment of sale price---Trial Court decreed suit and annulled sale---Appellate Court dismissed suit, but awarded decree to plaintiff for Rs.10,00,000 as sale price not proved to have been paid to her---Validity---Sub-Registrar had deposed that plaintiff before him had admitted to have received Rs.1,00,000 as sale price---No attribution of either being biased or partisan could be made against Sub-Registrar---Statement of Sub-Registrar had not been subjected to cross-examination---Appellate Court had found that sale-deed was validly executed by plaintiff---Plaintiff in view of provisions of Art.102 of Qanun-e-Shahadat, 1984 could not controvert through oral evidence that payment was not made to her---Plaintiff in suit had been claimed either recovery of amount' decreed in her favour of even amount of Rs.1,00,000--Plaintiff had led no evidence to prove that value of property was that which had been granted to her by Appellate Court---Decision of Appellate Court on such point not being based upon evidence could not sustain---Judgment and decree of Appellate Court directing defendant to pay Rs.10,00,000 to plaintiff was invalid---High Court set aside impugned judgment and decree to such extent.

Hakim Ali v. Sakhi Muhammad and 16 others 1996 SCMR 354; Shahid Nasim and 2 others v. Syeda Imtiaz Khatoon PLD 1997 Lah. 243; Syed Sardar Shah and 2 others v. Qazi Masood Alam and 5 others 2003 CLC 857; Sarfraz Ahmad and 36 others v. Mst. Sakina Bibi and 35 others PLD 1985 Journal 121 and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

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

----Arts. 132 & 133---Fact deposed in examination-in-chief, if not cross-examined, would be deemed to have been admitted.

----S. 54---Qanun-e-Shahadat (10 of 1984), Art. 102---Sale through registered deed---Non-payment of sale price, plea of---Vendor found to have validly executed sale-deed---Effect---Vendor in view of provisions of Art. 102 of Qanun-e-Shahadat, 1984 could not controvert through oral evidence that payment was not made to him.

Riaz-ul-Haq for Appellant.

Ashfaq Qayyum Cheema for Respondent.

Date of hearing: 20th November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 658 #

2007 M L D 658

[Lahore]

Before Sh. Azmat Saeed, J

MUHAMMAD TARIQ and another---Petitioners

Versus

FAZAL ABBAS and 3 others-Respondents

Civil Revision No.240 of 2006, decided on 29th November, 2006.

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

----Ss. 7 & 27---Sale of minor's property by guardian appointed by Court---Application by other relatives of minor seeking cancellation of sale on the ground that guardian was a drug addict; and that purchaser had taken unfair advantage of such disability of guardian to the prejudice of interest of minor---Dismissal of application by Guardian Judge, but its acceptance by Appellate Court---Validity---Serious allegations had been made by both parties against each other---Such allegations could only be determined after a detailed inquiry, and if necessary, recording of evidence Interest of justice would be best served, if allegations and counter-allegations were determined through recording of evidence, so that rights of all parties including minor were protected- 'High Court set aside impugned orders and remanded case to Guardian Judge to decide application afresh, after giving parties opportunity to produce evidence if found necessary.

Sh. Naveed Shehryar for Petitioners.

Ch. Muhammad Imtiaz Bajwa for Respondent No.1.

Ghulam Mustafa Shahzad for Respondents Nos. 2 and 3.

MLD 2007 LAHORE HIGH COURT LAHORE 660 #

2007 M L D 660

[Lahore]

Before M. Bilal Khan, J

M. AKRAM---Petitioner

Versus

ABDUL MAJEED and another---Respondents

Criminal Miscellaneous No. 6802/CB of 2005, decided on 2nd February, 2006.

Criminal Procedure Code (V of 1898)---

---Ss. 497(5) & 498---Penal Code (XLV of 1860), Ss. 302, 324, 337-A(i)(ii), 148, 149 & 109-Bail, cancellation of---Trial Court had drawn definite conclusions and had travelled beyond the realm of tentative assessment of the material available on record---Order by the Trial Court was a judgment passed after a full-fledged criminal trial---Tenor of order showed that Trial Court had drawn definite conclusion and had travelled beyond the realm of tentative assessment of the material on the record---Observations of the Trial Court were absolutely uncalled for---Trial Court while allowing pre-arrest bail to accused, had completely lost sight of the established principles for the grant of bail and the guidelines issued by the superior courts---Grant of pre-arrest bail to accused amounted to stilling prosecution case which was neither permissible nor desirable---Order granting bail to accused was recalled, in circumstances.

Pir Ashraf Ali Qureshi for Appellants.

Muhammad Ramzan Wattoo for Respondents.

Shahid Hussain Bhatti for the State.

2007 M L D 675

[Lahore]

Before Syed Hamid Ali Shah, J

MUHAMMAD INAYAT and 5 others---Petitioners

Versus

GHULAM RASUL through Legal Heirs---Respondents

Civil Revisions Nos.56-D and 57-D of 1998, decided on 20th November, 2006.

Islamic Law---

----Gift---Admission of gift by donor in judicial proceedings---Effect---Donor in earlier round of litigation admitted having made impugned gift in favour of petitioner---Subsequently gift was challenged by legal heirs of donor on grounds of fraud, misrepresentation and non-existence of necessary ingredients of gift---Validity---Donor, during his life time, had affirmed the authenticity of disputed gift before the Court hence stance of legal heirs of donor could not be permitted to be at odd and at variance with the claim of donor---Legal intricacies and alleged contradictions in evidence of witnesses were of no help to legal heirs in circumstances---Admission of donor had knocked the bottom out of legal heirs' case and denuded them of any legal or moral justification to assail the validity of impugned gift.

Kala Khan and others v. Rab Nawaz and others 2004 SCMR 517; Zil Mahmood and 3 others v. Mst. Hayat Bibi and 2 others 1971 SCMR 514; Haji Rehmdil v. The Province of Balochistan and another 1999 SCMR 1060; Noor Alam v. Mehdi and 2 others 1990 CLC 321; Muhammad Ali and 25 others v. Hassan Muhammad and 6 others PLD 1994 SC 245 and Taj Din v. Abdul Rehman PLD 1963 W.P. Kar. 825 ref.

Ch. Riyasat Ali for Petitioners.

Mahmood Arshad Gondal for Respondent Nos. 1 to 7, 9, 11 and 12.

Mansood-ul-Islam Khan Joya for Respondents Nos. 8 and 10.

Dates of hearing: 12th and 13th June, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 679 #

2007 M L D 679

[Lahore]

Before Ijaz Ahmad Chaudhry and Asif Saeed Khan Khosa, JJ

THE STATE---Petitioner

Versus

QAMAR-UZ-ZAMNAN---Respondent

Murder Reference No.604 and Criminal Appeal No.384-J of 2001, decided on 6th July, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)-Appreciation of evidence---Benefit of doubt---Both complainant who was father of deceased and other prosecution witness, were not the eye-witnesses as they had not seen accused while firing at the deceased---Prosecution witness was a chance witness---Both complainant and said prosecution witness had failed to give any plausible explanation for their being attracted to the spot immediately after the occurrence at the time on which they could normally not be present there---Delay in conducting post-mortem examination, had led to draw an inference that F.I.R. was not recorded with promptitude and time was consumed in concocting prosecution story---F.I.R. could not be used as corroborative piece of evidence to ocular account---Court-witness, having proved to be a tutored witness, it was not safe to rely upon his statement for maintaining conviction against accused in a case entailing capital sentence---Recovery of pistol from possession of accused was also doubtful---Occurrence had not taken place in the manner narrated by prosecution-witnesses---No empty was recovered from the spot, which could match with pistol allegedly recovered from accused---Recovery of pistol from accused in circumstances could not be used as a corroborative piece of evidence to ocular account, which had already been found shaky and not confidence-inspiring---Prosecution story having no legs to stand upon version of accused that it was a case of accidental fire and that accused had been falsely implicated, could be accepted---Prosecution was bound to produce evidence of unimpeachable character to connect accused with commission of crime, which was lacking in the case---Prosecution having not been able to bring home to accused beyond any shadow of doubt, impugned conviction and sentence recorded against him by the Trial Court were set aside and he was acquitted of charge of qatl-I-and of deceased by extending him benefit of doubt.

Abdul Hameed Rana for Appellant.

Imtiaz Ahmad Chaudhry for the State (in Murder Reference No.604 of 2001).

Shoaib Zafar for the State (in Criminal Appeal No. 384 of 2001).

Date of hearing: 6th July, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 686 #

2007 M L D 686

[Lahore]

Before Muhammad Sair Ali, J

IMDAD ALI and 5 others---Petitioners

Versus

ASHIQ HUSSAIN and 2 others---Respondents

Civil Revision No.2557-D of 1996, heard on 1st December, 2006.

Islamic Law---

----Inheritance---Claim on behalf of alleged predeceased daughter of propositus---Limitation---Death of daughter in 1953 was not disputed between the parties---Death Certificate of propositus issued by Hospital Authorities showed that propositus had died in 1949 but said certificate was disbelieved by Trial Court on ground that document having been prepared during the suit proceedings was inadmissible---Such finding was reversed by first Appellate Court holding that although Medical Superintendent of the Hospital admitted that document was prepared on tracing out the record and entry in relevant register was made in the first time when a summons was received to this effect from civil court, defendants however failed to produce positive evidence to prove that date of death of propositus mentioned in certificate was fictitious---No defect or legal infirmity in method was shown by defendants nor fraud, illegal gratification or unfairness etc. was alleged by defendants---Even Medical Superintendent of the Hospital was not confronted with such allegations---Defendants' witnesses were uncertain, non-committal and incoherent on the date of death of propositus---Death certificate issued by public authorities from public record without cross-examination on its nature was validly relied upon by Appellate Court in circumstances-=-Fact that daughter survived as one of heirs of propositus having been proved, she and consequently her husband was entitled to inherit---Suit filed by husband claiming share of his deceased wife, a co-sharer, could not be hit by the statutes of limitation.

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

Taki Ahmad Khan for Petitioners.

M. Farooq Qureshi Chishti for Respondents.

Date of hearing: 1st December, 2006.

2007 M L D 701

[Lahore]

Before Sh. Azmat Saeed, J

MISBAH RIAZ---Petitioner

Versus

GOVERNMENT OF PAKISTAN and another---Respondents

Writ Petition No.6561 of 2006, decided on 19th September, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Educational Institution---Provisional admission of a student in the college in a specific programme of the college---College authorities asked the student to withdraw from the programme on account of her non-fulfilment of condition for admission---Validity---Petition had been directed against withdrawal of petitioner from the programme of the College---Petitioner was admitted provisionally with the condition that she must pass each semester with an overall Grade "C", but she had failed to obtain requisite grade in the examination of the semester in question---Petitioner having failed to fulfil condition on which she had been granted provisional admission and having failed to establish alleged allegation of mala fide on part of college authorities, she was rightly asked to withdraw from the college.

Mian Inam-ul-Haq for Petitioner.

Jawad Hassan for Respondent No.3.

Malik Zafar Iqbal Awan, Addl. A.G.

MLD 2007 LAHORE HIGH COURT LAHORE 703 #

2007 M L D 703

[Lahore]

Before Syed Zahid Hussain, J

Messrs F.M. ENTERPRISES---Petitioner

Versus

PUNJAB SMALL INDUSTRIES CORPORATION and others---Respondents

Writ Petitions Nos.10600 of 2005 and 5920 of 2006, heard on 11th January, 2007.

(a) Maxim---

----Audi alteram partem---Principles of natural justice---Scope---Principle of natural justice were deemed to be part and parcel of law, unless specifically excluded by the statute---Before taking any adverse action against a person or his property, he was entitled to a notice and to be heard.

Commissioner of Income Tax East Pakistan v. Fazlur Rahman PLD 1964 SC 410; Province of East Pakistan and another v. Nur Ahmad and another PLD 1964 SC 451; Pakistan and others v., Public at Large and others PLD 1987 SC 304 and Pakistan Medical Association Karachi v. Government of Sindh and 5 others 1979 CLC 382 ref.

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

----Art. 199---Constitutional Petition---Cancellation of allotment---Principles of natural justice---Applicability---Allotment of property made in favour of petitioner was cancelled without giving him any notice and without providing him any opportunity of hearing before issuing letter cancelling his allotment---Cancellation of allotment made without hearing petitioner was declared as without lawful authority---Authorities could afford reasonable opportunity of representation and hearing to petitioner and proceed in accordance with law.

Mirza Munir Hussain v. Additional Deputy Commissioner (G) and others 1985 CLC 1857; Muhammad Ashraf v. Federal Government of Pakistan in the Ministry of Religious Affairs and Minorities Affairs through the Joint Secretary and 2 others 1987 CLC 2071; Shahyar Textile Mills Limited v. Sindh Industrial Trading Estate Ltd. 1988 CLC 1948 and Abdul Majeed Khan v. Hyderabad Municipal Corporation, Hyderabad and 2 others 1990 CLC 796 ref.

Agha Abul Hassan Arif for Petitioner.

Jari Ullah Khan for Respondents.

Date of hearing: 11th January, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 705 #

2007 M L D 705

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

NAWAZ and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 315-J, 316-J, 1442 and Criminal Revision No.873 Murdered Reference No.603 of 2001, decided on 13th April, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 148 & 149---Appreciation of evidence---Benefit of doubt---Both eye-witnesses were closely related to deceased-Although mere close relationship of witnesses was no ground to declare them interested witnesses, but in the present case previous enmity existed between accused and eye-witnesses---Witnesses, in circumstances could be termed as interested witnesses---Said witnesses were residents of place which was far away from the place of occurrence and they having failed to explain reasonable cause for their being present at the spot at the time of incident, they could be termed as chance witnesses, who were summoned subsequently and made witnesses being the close relatives of deceased---Said witnesses were also found contradicting each other regarding range of firing a deceased by accused---Record had established that accused were also inimical towards each other being involved in murder case inter se---Post-mortem examination on dead bodies of both deceased was conducted on the next day of occurrence with the delay of 16/17 hours despite Investigating Officer had reached the spot after about half an hour, who immediately prepared the inquest reports and injury statements of both deceased---Presence of eye-witnesses at the spot was doubtful who were also inimical towards accused---Ocular account, in circumstances was interested and inimical and no independent piece of evidence was available on record to corroborate the same-Recovery of weapons from some of accused was of no use as no empty was recovered from the spot for comparison with said weapons---Medical evidence could not corroborate ocular account as it did not pinpoint the accused who participated in the incident and caused the injuries---Prosecution having miserably failed to prove case against accused beyond any shadow of doubt, impugned judgment of conviction and sentence passed by the Trial Court against accused were set aside and they were acquitted from the charges by extending them benefit of doubt.

Syed Zahid Hussain Bokhari for Appellants (in Criminal Appeal No.1442 of 2001 and in Criminal Appeal No.315-J of 2001).

Shah Ahmed Khan Baloch for the Complainant (in Criminal Revision No.873 of 2001).

Ashfaq Ahmed Chaudhry for the Complainant (in M.R. No.603 of 2001).

Mrs. Tehseen Irfan for the State (in Criminal Appeal No.315-J of 2001).

Masood Sadiq Mirza for the State (Criminal Appeal No.316 of 2001).

Date of hearing: 13the April, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 715 #

2007 M L D 715

[Lahore]

Before Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ

I.J.S. & COMPANY through Partners---Appellant

Versus

Messrs ZULFIQAR ASSOCIATES LIMITED through Chief Executive/Office Secretary and others---Respondents

E.F.A. No.40 F.A.O. No.19 of 2004, C.M. Nos. 1855/C, 1988/C, 1989/C of 2006, Crl. Org. No.42 of 2004 and C.M.A No. 2/C of 2004, decided on 22nd November, 2006.

Civil Procedure Code (V of 1908)---

----O. I, R.10-Application for being impleaded as respondents in pending appeals---Execution of decree---Sa1c through auction---Auction was not confirmed by Banking Court due to objection raised by judgment-debtor---Auction purchaser filed appeals---Subsequently all parties to the lis entered into a compromise, original agreement (compromise deed) was placed on record and parties thereto prayed that appeals be disposed of in the light and terms of said agreement---Meanwhile applicants sought their impleadment as respondents to said appeals on the claim that property in issue or a part thereof had been declared in their favour to be non-evacuee property and for implementation of said order of Custodian of Evacuee Property they had already filed a constitutional petition which was pending adjudication before High Court---Impleadment was allowed as the right and interest of applicants in suit property would have been seriously hampered and prejudiced, if property in question was allowed to be disturbed/transferred on account of settlement between parties to the appeals---Certain portion of suit property was also in occupation of applicants---High Court, disposed of appeals strictly in terms of agreement holding that auction held in favour of auction purchasers to the extent of compromise would have been confirmed by Banking Court however to safeguard the interest of applicants, it was held with the consent of parties that such confirmation and rights of auction purchasers based thereupon would be subject to the final outcome of constitutional petition filed by applicants.

Rasaal Hassan Syed and Syed Najam-ul-Hassan Kazmi for Appellants.

S.M. Naseem for Respondents Nos. 1, 4 and 5.

Ch. Fazal Hussain for Applicant in Crl. Org. No.42-C/2004.

Hafiz Abdul Rehman Ansari for Muhammad Riaz.

Mian Israr-ul-Haq for Applicants in C.M. No.1988-C/2006 and C.M. No.1989-C/2006.

MLD 2007 LAHORE HIGH COURT LAHORE 719 #

2007 M L D 719

[Lahore]

Before Mian Saqib Nisar, J

QURBAN ALI and others---Petitioners

Versus

HAJIRAN BIBI and others ---Respondents

Civil Revision No.1823 of 2006, heard on 6th December, 2006.

Specific Relief Act (I of 1877)---

----S.42-Suit for declaration---Property left by deceased Muslim lady---Defendant, daughter of deceased lady, got an order from Additional Commissioner Revenue to the effect that deceased lady was a Shia therefore she being her only daughter was exclusively entitled to inherit her estate---Revision was allowed by Board of Revenue---Constitutional petition was disposed of and a Mutation was sanctioned in favour of the daughter whereby entire estate of deceased lady was allocated to her---Plaintiffs who were successors of paternal uncles of defendant filed a declaratory suit assailing the Mutation in question---Suit was decreed but decree was reversed in appeal---Validity---Deceased lady was the absolute owner of property in question and she was not holding same under custom---Plaintiffs being the collaterals of predeceased husband of late lady were not entitled to inherit any property which was the ownership of deceased lady whether she was Shia or Sunni---Appellate finding was, based on valid reason.

Rana Zulifqar Ali Khan for Petitioners.

Muhammad Amin Lone for Respondents.

Date of hearing: 6th December, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 721 #

2007 M L D 721

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmed Chaudhry, JJ

MUHAMMAD HUSSAIN and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.76-J, Criminal Revision No.378 and Murder Reference No.283 of 2001, decided on 8th May, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Both eye-witnesses produced in the case by the prosecution were related, inimical and chance witnesses and were planted at some subsequent stage---Statement made by one prosecution witness had shown that deceased had many enemies apart from accused---Occurrence in the case had taken place at a deserted and isolated place and in the area of a District other than the District of his residence and had remained un-witnessed---Medical evidence instead of providing support to ocular account had gone a long way in contradicting and discrediting eye-witnesses---Postmortem examination of dead-body had been conducted on the following day of occurrence---Such delay in conducting post-mortem examination was generally suggestive of an un-witnessed occurrence wherein time was utilized by the complainant party and the police to procure and plant eye-witnesses and to cook up a story of prosecution---Medical evidence was destructive of ocular account---No independent evidence was available on the record of the case to infer that accused knew about efforts made by witnesses to serve him with warrants or a proclamation and that accused had wilfully abstained from joining investigation at the relevant time---No weapon had been recovered from the possession of accused during investigation of the case---No corroboration, in circumstances, was available to the ocular account---Mere motive alleged by prosecution was not sufficient to clinch the issue regarding culpability of accused vis-a-vis the murder of deceased especially when pitched enmity between parties was an admitted fact---Prosecution having failed to prove case against accused beyond any reasonable doubt, conviction and sentence recorded against him by the Trial Court were set aside and he was acquitted of the charge by extending him benefit of doubt and was released from the jail.

Mrs. Khalida Parveen for Appellant (in Criminal Appeal No.76-J of 2001).

Rai Muhammad Hayat Kharal for Petitioner (in Criminal Revisoin No.378 of 2001).

Mrs. Tehseen Irfan for the State (in Criminal Appeal No. 76-J of 2001).

Ijaz Ahmad Bajwa for the State (in murder Reference No.283 of 2001).

Abdul Wajid Malik for the State (in the Criminal Revision No. 378 of 2001).

Rai Muhammad Hayat Kharal for the Complainant.

2007 M L D 741

[Lahore]

Before M.A. Shahid Siddiqui, J

AHMED SHER and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8620/B of 2005, decided on 7th December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 148 & 149---Bail, grant of---Further inquiry---Accused were empty handed---Post-mortem examination showed that few injuries of trivial nature were found on the dead-body of deceased---Cause of death could not be said to have been ascertained---Finding of innocence of accused recorded by different police officers could not be ignored---Case being fit for further probe and inquiry, accused were admitted to bail.

Muhammad Amir Khan Niazi for Petitioners.

Ch. Faisal Naseem with Muhammad Hayat, S.-I. with record for the State.

MLD 2007 LAHORE HIGH COURT LAHORE 752 #

2007 M L D 752

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD ISHAQUE and 6 others---Petitioners

Versus

SULEMAN---Respondent

Civil Revision No.1844 of 2002, heard on 28th September, 2006.

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

----S. 13(3)---Notice of Talb-i-Ishhad, attestation of---Notice sent to vandee in terms of S. 13(3), Punjab Pre-emption Act, 1991 was required to be attested by two truthful witnesses---Attestation was an essential ingredient of Talb-i-Ishhad; such being a question of fact had to be proved by plaintiff through affirmative evidence---Plaintiff, in the present case, in order to prove Talb-i-Ishhad produced two witnesses who acknowledged affixing of their thumb-impressions on the copy of notices but did not state that they attested the notices, which were sent to defendants, by affixing their thumb marks thereon, that being so there was no occasion for defendants to cross-examine said witnesses as to attestation---Plaintiff's failure to prove the notices of Talb-i-Ishhad in accordance with law was fatal to his case but courts below committed illegality and material irregularity of jurisdiction by ignoring such material aspect and decreeing the suit of plaintiff---Impugned judgments and decrees were, therefore, set aside by the High Court.

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

----S. 13(3)---Attestation of notice of Talb-i-Ishhad---Proof, mode of---Two simple ways of proving attestation of notice addressed to vandee, firstly attesting witnesses should have stated that they had attested the notices, if this had been done, onus of proving that notice of Talb-i-Ishhad had not been attested, would have been shifted on to defendant and secondly attestation of notice could be proved by giving notice to vendee to produce the original notice in court---Copy of notice would not in any manner prove the attestation of notice of Talb-i-Ishhad---Term attestation had a special meaning in law, which required, as a bare minimum, the signatures or thumb-impressions of attesting witnesses on the document being attested.

Amir Abdullah Khan Niazi for Petitioners.

Mian Hameed-ud-Din Kasuri and Malik Munsaf Awan for Respondent.

Date of hearing: 28th September, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 756 #

2007 M L D 756

[Lahore]

Before Nasim Sikandar, J

PERVAIZ CLIVE and 3 others---Petitioners

Versus

ABDUL KARIM through Legal Representatives and others---Respondents

Civil Revision No. 979 of 1996, decided on 17th November, 2006.

Specific Relief Act (I of 1877)---

----Ss. 8---Qanun-e-Shahadat (10 of 1984), Preamble---Succession Act (XXXIX of 1925), Ss.307 & 192---Suit for recovery of immovable property---Ground of adverse possession-Scope-Previous _litigation between parties---Loss of original sale deeds not accounted for---Effect---Plaintiffs filed suit against defendants for possession and recovery of charges/compensation for use and occupation of suit property---Defendants contended that alleged sale-deeds on the basis of which plaintiffs claimed ownership were bogus, based on fraud, illegal and without consideration; that alleged transferor was not competent to sell suit property in favour of plaintiffs who had no locus standi to file suit---Trial Court dismissed the suit but Appellate Court accepted the appeal by setting aside finding of Trial Court---Validity---Possession of late father of defendants since year 1947 till 1983 remained completely uncontroverted from the record---Record of litigation between predecessor-in-interest of plaintiffs and defendants showed that possession of late father of defendants had been admitted and by the time written statement was filed on 8-1-1973 in suit filed by predecessor-in-interest of plaintiffs for perpetual injunction, the adverse possession of defendants' late father had already been completed---Possession of defendants' late father had become final and absolute when predecessor-in-interest of plaintiffs had approached Rent Controller by way of first ejectment petition on 7-7-1965---Predecessor-in-interest of plaintiffs had in fact lost her right to re-enter or re-possess the suit .property in possession of defendants' late father as early as the year 1959 and the former was not entitled to re-enter or convey property and during this time and even thereafter till alleged sale in favour of plaintiffs, predecessor-in-interest of plaintiff was never able to prove defendants' father as a tenant or a person who had entered in possession of property as a licensee---Defendants' predecessor-in-interest right from day one when he was sued either on civil or on rent side always pleaded to be in adverse possession-Claim of defendant that earlier his father and after his death he was paying all bills for use of utility and taxes was not challenged in cross-examination---Claim of adverse possession per se meant absence of ownership but first appellate Court confused idea of ownership and adverse possession which having matured on expiry of statutory period conferred a right on possessor not to be dispossessed---Adverse possession of late father of defendant in the suit having completed in late fifties was a past and closed transaction which could not be rejected or refused on ground of a subsequent judgment of court recorded more than 25 years after maturity of adverse possession---Claim of plaintiff that late father of defendant was dispossessed by bailiff under orders of Court on 27-6-1975 and he subsequently re-entered illegally in property was not supported from record---Predecessor-in-interest of plaintiffs had sought ejectment of defendant's father in the garb of a direction of Civil Court on .an application under S.192 read with S.307 of Succession Act, 1925, obtained against persons who were not found to be in possession as per report of Local Commissioner---Claim of plaintiffs that eviction of defendants' late father from property in question was completed on 27-6-1975 was not supported from record---Bailiff of Civil Court had admitted in his cross-examination that warrant of possession did not mention name of defendants' father---Claim of possession in petition under Succession Act, 1925, was mala fide as petitioner (predecessor-in-interest of plaintiffs) had already failed in four rent petitions---Civil court, however, obliged petitioner (predecessor-in-interest of plaintiffs) with warrant of possession without there being any 'proof of letters of administration in her favour---Predecessor-in-interest of plaintiffs had, in earlier litigation between the parties, claimed a right to administer property on the basis of alleged letters of administration of her late brother which were never brought on record---Plaintiff witness, in his cross-examination, failed to answer vital questions with regard to exact time and place of execution of alleged sale-deeds executed in favour of plaintiffs---Trial Court had rightly found that alleged sale deeds in favour of plaintiffs were never proved in accordance with provisions of Qanun-e-Shahadat, 1984---Copies of behi register placed on record did not contain actual signatures and thumb-impressions of parties to transaction---Nothing was brought on record as to the fate and whereabouts of original sale-deeds and in absence of proof of their loss, misplacement or being in possession of other party, the certified copies of aforesaid behi register mere reproducing recitals of alleged registered sale deeds were, therefore, rightly rejected by Trial Court as proof of ownership of plaintiffs---Site map produced by plaintiffs having. been rejected for cogent and relevant reasons by Trial Court, the decree passed by first Appellate Court was not executable in absence of reversal of these findings through plausible reasons---Petition was accepted.

Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617; Joseph Klein and others v. Eliahu (Leo) Heiman and others PLD 1948 Privy Council 91; Faizullah Khan and others v. Abdul Razzaq PLD 1987 SC 130 and Muhammad Ashraf v. District Judge, Lahore and 6 others PLD 1993 Lah. 566 rel.

Naik Muhammad and another v. Manzoor Ahmad and others 1983 SCMR 13; Maqbool Ahmed v. Government of Pakistan 1991 SCMR 2063 and Anjum Khan and others v. Firdaus Khan and another PLD 1989 Lah. 333 distinguished.

Kh. Saeed-uz-Zafar for Petitioners.

Muhammad Alamgir for Respondents.

Date of hearing: 25th July, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 803 #

2007 M L D 803

[Lahore]

Before Muhammad Muzammal Khan, J

JAVED AKHTAR---Petitioner

Versus

NASREEN AKHTAR and another---Respondents

Writ Petition No. 3577 of 2006, decided on 14th February, 2007.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of maintenance allowance---Defendant's right of cross-examination, closure of---Impugned order revealed that counsel for defendant was busy before High Court but request of defendant for adjournment was declined by Family Court in view of his previous conduct of remaining absent---Though reasons for declining adjournment might have been justified from record but professional pre-occupation of counsel for defendant before High Court was sufficient ground for granting request of adjournment---Family Court Judge ignored his legal obligation by not granting defendant, who was present in court, an opportunity of cross-examining the witnesses---Defendant could have been burdened with costs or in the alternative case could have been adjourned to the next day but order closing his right was illegal, void and non-existent in the eye of law hence set aside by High Court directing Family Court Judge to allow only one opportunity to defendant of cross-examining the witnesses subject to payment of costs.

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

----S. 5---Provisional Constitution Order (I of 1981), Art.9---Family Court, authority to pass punitive orders in procedure---West Pakistan Family Courts Act, 1964 is not exhaustive to meet unseen/unpredictable situations like taking of punitive action on non-filing of written statement, deliberate avoidance of cross-examining the witnesses of adversary and failure to produce evidence in spite of repeated opportunities---Judge Family Court in such situations has to adopt procedure of his own choice and by applying general principles of procedure, he can take action and undo the same if some illegality comes to his notice.

Ch. Ahmad Masood Gujar for Petitioner.

Nemo for Respondent.

MLD 2007 LAHORE HIGH COURT LAHORE 808 #

2007 M L D 808

[Lahore]

Before Tariq Shamim, J

ABID---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and 17 others---Respondents

Writ Petition No. 1301 of 2007, decided on 14th February, 2007.

Illegal Dispossession Act (XI of 2005)---

---S. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner filed complaint under provisions of section 3 of Illegal Dispossession Act, 2005 which was dismissed---Validity---Record and impugned judgment revealed that petitioner had admitted in his cross-examination that his possession over the suit-land had never been recorded in any of the Khasra Girdawaries and that according to Khasra Girdawari accused persons were in possession of suit-land---Petitioner failed to produce any evidence to the effect that accused persons had the antecedents of property grabbers or that they belonged to a Qabza Group which was a sine qua non for the applicability of provisions of Illegal Dispossession Act, 2005---Facts and circumstances revealed that dispute between the parties regarding land in question was a private dispute and a civil suit was pending in this regard in which an injunctive order had been passed in favour of accused persons by civil court---Additional Sessions Judge was justified in dismissing the complaint filed by petitioner as provisions of section 3 of Illegal Dispossession Act, 2005 were prima facie not attracted in circumstances---No illegality, infirmity or jurisdictional error was pointed out---Constitutional petition was dismissed.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 ref.

Munir Ahmad Khan Zai for Petitioner.

MLD 2007 LAHORE HIGH COURT LAHORE 815 #

2007 M L D 815

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD alias MAHAMAND---Petitioner

Versus

Rana ABDUL QAYYUM, ADDITIONAL SESSIONS JUDGE, KAMALIA and 2 others---Respondents

Writ Petition No.329 of 2007, decided on 19th February, 2007.

Illegal Dispossession Act (XI of 2005)---

---Ss. 3, 5 & 7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Illegal Dispossession Act, 2005 enacted with object to bring to book the property grabbers who illegally or forcibly dispossessed the owners/occupiers of immovable properties---Complainant having not asserted that petitioner/accused was a property grabber or belonged to some Qabza Group/Land Mafia or was earlier involved in any such activity, provisions of section 3 of Illegal Dispossession Act, 2005 were not attracted---Record revealed that possession of disputed land was being controlled by civil court cognizant of petitioner's suit for possession through pre-emption by issuing a status quo order---Order granting the complaint in circumstances was illegal and void---Complaint under section 3 of Illegal Dispossession Act, 2005 was dismissed by High Court.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 ref.

Rana Muhammad Arif for Petitioner.

Malik Ghulam Siddiqui Awan for Respondents.

MLD 2007 LAHORE HIGH COURT LAHORE 818 #

2007 M L D 818

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD SAEED AHMAD---Petitioner

Versus

THE STATE and others---Respondents

Criminal Revision No.40 of 2007, decided on 7th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of surety bond---Accused for whom petitioner stood surety having jumped the bail bonds, penalty of forfeiting of amount of surety bonds was imposed on petitioner after issuing him notice---Validity---After standing the surety of accused, petitioner was bound to ensure the presence of said accused before the Trial Court on each and every date, but accused for whom he stood surety having jumped the bail bonds, petitioner had failed to fulfil his responsibilities---No legal requirement existed that full bail bond amount should not be forfeited and once accused for whom a person stood surety had jumped bail bond, entire surety amount would become liable to be forfeited in the absence of any mitigating circumstance---Surety bond of petitioner having rightly been forfeited, the Court, which was seized of the matter, was directed to proceed against petitioner strictly in accordance with the provision of S.514(2), Cr.P.C.

Muhammad Safeer v. Faqir Khan 2000 SCMR 312 and Zeeshan Kazmi v. The State PLD 1997 SCMR 267 ref.

Aurangzaib Alamgir Janjua for Petitioner.

MLD 2007 LAHORE HIGH COURT LAHORE 820 #

2007 M L D 820

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. TASNEEM BIBI and another---Appellants

Versus

MUHAMMAD ALI and 8 others---Respondents

Regular Second Appeal No. 10 of 2004, heard on 13th February, 2007.

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

----Ss. 13 & 35---Civil Procedure Code (V of 1908), O. XX, R. 14---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Filing and pendency of pre-emption suit during interregnum i.e. from 1-8-1986 to 28-3-1990----Non-mentioning in plaint date, time and place of making Talb-i-Muwathibat---Effect---Pre-emptor could not be non-suited on ground of absence of such particulars of Talb-i-Muwahibat in plaint--Pre-emptor would be required to prove only Talb-i-Ishhad in presence of two truthful witnesses---Pre-emptor being co-sharer in property upon fulfilment of such requirement of law, would be entitled to decree---Principles.

Mehr Allah Ditta and others v. Muhammad Ali and others PLD 1972 SC 59 and Muhammad Siddique v. Muhammad Sahrif 2005 SCMR 1231 ref.

Altaf Husain v. Abdul Hameed 2000 SCMR 314 and Haji Noor Ahmad v. Abdul Ghani and 2 others 2000 SCMR 329 fol.

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

----Art. 189---Conflicting judgments of Supreme Court on identical question of law---Judgment of larger Bench would be followed--Principles.

Sh. Naveed Shehryar for Appellants.

Muhammad Ilyas Khan for Respondents.

Date of hearing: 13th February, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 829 #

2007 M L D 829

[Lahore]

Before Muhammad Muzammal Khan, J

Dr. ALTAF AHMAD---Petitioner

Versus

Mst. NEELOFAR NAZNEEN and another---Respondents

Writ Petition No.228 of 2006, decided on 14th February, 2007.

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

---S. 5, Sched. & S.10(4)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for dissolution of marriage on ground of Khula--Passing of decree on same date after recalling order of ex parte proceedings against defendant---Validity---Failure of conciliation proceedings though mentioned in impugned order, but presence of plaintiff was not marked therein or in court proceedings---In absence of plaintiff, there was no occasion to hold reconciliation proceedings---Parties had married 23 years ago and had four grown-up children, one of them being a student of graduation and other a medical student---In such family circumstances, decision of case, in absence of plaintiff was not only unlawful being opposed to provision of S.10 of Family Courts Act, 1964, but was highly deprecatory---High Court declared impugned order to be void, but maintained order of recalling ex parte proceedings with direction to Family Court to decide suit by undertaking fresh pre-trial reconciliation proceedings between spouses in the real spirit of applicable law.

Abdul Ghafar Khan for Petitioner.

Respondent No.1 already ex parte.

MLD 2007 LAHORE HIGH COURT LAHORE 832 #

2007 M L D 832

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD TAUFIQUE and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.3878-B and 3944-B of 2006, decided on 6th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)-Penal Code (XLV of 1860), Ss.310-A, 452, 148 & 149---Bail, grant of---Further inquiry---F.I.R. was registered with the delay of about three months---F.I.R., which was a very lengthy document, no date and time of alleged occurrence had been mentioned therein---Names of the witnesses of the alleged occurrence, also did not find mention in the F.I.R.---Offence under S.452, P.P.C. had been deleted during the investigation, and out of 17 accused, 10 had been found innocent by the officer of the rank of S.P.---Father of one of the accused had already been granted bail and the court while granting bail had observed that the manner in which occurrence had taken place appeared to be improbable and that offence under S.310-A, P.P.C. did not appear to have been made out---Hostility existed between the parties---Question as to whether S.310-A, P.P.C. would be applicable in the case, would require further inquiry---Bail could not be refused as a matter of punishment---Case of further inquiry having been made out, accused were admitted to bail.

Azam's case PLD 1984 SC 95 rel.

Sardar Bashir Dogar for Petitioners.

Sardar Noor Akbar Khan for Complainant.

Nasrullah Khan Kakar for the State.

Kaiser Abbas, S.-I.

MLD 2007 LAHORE HIGH COURT LAHORE 848 #

2007 M L D 848

[Lahore]

Before Muhammad Khalid Alvi, J

Malik HAMID ZAMAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SARGODHA and 4 others---Respondents

Civil Revision No.2250 of 2004, decided on 1st February, 2006.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.VII, R. 11 & S. 11---Suit for declaration---Rejection of plaint---Res-judicata principle of---Applicability---Petitioner had raised objection of paternity in his written statement in earlier round of litigation where maintenance was claimed by respondents---No issue regarding the fact of paternity was framed by Judge Family Court in the said suit---Respondents' earlier suit for maintenance, no doubt succeeded throughout, but as observed by the Court in earlier part of the judgment, it succeeded on technical grounds---Fact of paternity having not been decided by any forum, it could not be said that principle of res judicata contemplated by S.11, C.P.C. was attracted to the facts and circumstances of present suit for declaration filed by petitioner seeking declaration that respondents were not his children---Order rejecting plaint of petitioner in the suit for declaration, was set aside, resultantly, suit filed by petitioner would be deemed to be pending and same would be decided in accordance with law.

Chaudhry Tanvir Akhtar for Petitioner.

Mian Jamil Akhtar for Respondents.

Date of hearing: 1st February, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 857 #

2007 M L D 857

[Lahore]

Before Syed Hamid Ali Shah, J

AHMAD KHAN through legal heirs acid others---Petitioners

Versus

GHULAM HUSSAIN and others---Respondents

Writ Petition No.8240 of 2005, decided on 26th February, 2007.

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

----S. 42---Civil Procedure Code (V of 1908), S.48, & O. XX, R.12---Decree for possession not executed within period of limitation---Attestation of mutation on basis of such decree---Validity---Such decree created title in favour of decree-holder---Section 48, C.P.C. barred execution after specified times, but rights of decree-holder in other respect were not affected---Revenue Authorities could not refuse sanction of mutation on ground of failure of decree-holder to execute decree within period of limitation---Mutation on basis of such decree would be attested.

Ali Ahmad and another v. Muhammad Fazal and another 1972 SCMR 322 and Mst. Hussain Bibi v. Siraj Din PLD 1998 Lahore 548 fol.

Zafar Iqbal Chauhan for Petitioners.

Zahid Iqbal Malik for Respondent No.1.

MLD 2007 LAHORE HIGH COURT LAHORE 860 #

2007 M L D 860

[Lahore]

Before Muhammad Jehangir Arshad and Hasnat Ahmad Khan, JJ

GHULAM SAKINA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2932-B of 2006, decided on 11th December, 2006.

Criminal Procedure Code (V of 1898)---

----S.497(i), third proviso---Penal Code (XLV of 1860), Ss.302/148/149---Anti-Terrorism Act (XXVII of 1997), S.7---Bail on statutory ground, grant of---Statutory period of six months of continuous detention of accused had expired much earlier and she could not be blamed for causing delay in conclusion of the trial---Accused, as such, was entitled to the concession of bail under the (newly-added) third proviso to S.497(1), Cr.P.C.---Bail was granted to accused accordingly.

Pir Masood-ul-Hassan Chishti for Petitioner.

Bashir Ahmad Bhatti, Deputy Prosecutor General with Rana Khalid Mehmood for Respondent.

Ghazanfar Abbas Malik for the Complainant.

MLD 2007 LAHORE HIGH COURT LAHORE 875 #

2007 M L D 875

[Lahore]

Before Muhammad Jehangir Arshad, J

RASHID IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2366-B of 2006, decided on 24th August, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 156-B---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Pre-arrest bail, confirmation of---Alleged abductee/victim appeared before High Court and made statement that she had contracted marriage with accused and was living, with him as his legally wedded wife and that she was neither abducted by accused nor was subjected to Zina-bil-Jabr within the meaning of S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Lady further had stated that case was got registered by her under pressure of her father---Held, in view of said statement of alleged victim who was Sui-Juris, and legal position having changed in view of provisions of S.156-B, Cr.P.C. prohibiting arrest of any accused in an offence under Offence of Zina (Enforcement of Hudood) Ordinance, 1979 without permission of concerned Magistrate even no formal order of bail was required by the court, but in view of the contest by the father of the alleged victim as well as counsel for the State, it was appropriate to allow bail application---Ad interim pre-arrest bail earlier granted to accused was confirmed, in circumstances.

Saghir Ahmad Bhatti for Petitioner.

Khawaja Qaiser Butt for the Complainant.

Mumtaz Hassan Awan for the State.

MLD 2007 LAHORE HIGH COURT LAHORE 877 #

M L D 877

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD MAZHAR UL HAQ through General Attorney---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, TOBA TEK SINGH and others---Respondents

Writ Petitions Nos.13059 and 13060 of 2006, heard on 16th February, 2007.

Civil Procedure Code (V of 1908)---

----S. 11 & O. XX, R. 18---Arbitration Act (X of 1940), Ss. 14 & 17---Qanun-e-Shahadat (10 of 1984), Arts. 54 to 58---Partition suit---Plaintiff claimed separate possession of his share by partition of property jointly allotted to predecessors of plaintiff and defendants---Defendants alleged that through an award made rule of Court, suit property was declared to be owned by their predecessor, which decree remained un-challenged, thus, partition suit was bared by S.11, C.P.C.---Validity---Neither plaintiff's predecessor nor any of his legal heirs including plaintiff was party to arbitration agreement, award or proceedings under Ss. 14 & 17 of Arbitration Act, 1940---Such award or decree passed in terms thereof would not constitute res judicata nor would prevent Court from taking cognizance of partition suit---Article 58 of Qanun-e-Shahadat, 1984 provided that if a judgment relevant under Arts. 54 to 56 of the Qanun-e-Shahadat 1984 thereof proved by a party, then other party could demonstrate in same proceedings that same was delivered by a Court not competent to deliver or was obtained by fraud or collusion---Decree on basis of such award, though still intact, would not bar partition suit.

Abdul Majeed Khan for Petitioner.

Syed Muhammad Shah for Respondents Nos.2 to 7 and Muhammad Atif Amin for Respondents Nos. 8 to 13.

Nemo for other respondents.

Date of hearing: 16th February, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 880 #

2007 M L D 880

[Lahore]

Before Sardar Muhammad Aslam, J

ZAFAR IQBAL and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1119-B of 2007, decided on 21st February, 2007.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss. 337-F(i)/337-F(iii)/337-F(v)/337-A(i)/337-A(ii)/337-L(2)/148/149---Pre-arrest bail, grant of---Accused carrying a bat and a sota in their hands had allegedly caused injuries to two witnesses---Three co-accused alleged to have caused injuries graver in nature than those attributed to accused, had already been released on post-arrest bail---Accused had joined police investigation and no useful purpose would be served by refusing concession of pre-arrest bail to them, who were entitled to the same on the principle of consistency---Interim pre-arrest bail allowed to accused was confirmed in circumstances.

Muhammad Ramzan v. Zafar Ullah and another 1986 SCMR 1380 ref.

Muhammad Nasrullah Khan for Petitioners.

Ahmad Rauf for the State along with Sikandar, A.S.-I. with record.

MLD 2007 LAHORE HIGH COURT LAHORE 882 #

2007 M L D 882

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD ASHRAF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5416-B of 2006, decided on 5th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 440, 109, 148 & 149---Bail, grant of---Further inquiry---Allegation against accused was that at his instigation/abetment, his co-accused had committed the murder of deceased---Contents of F.I.R. had revealed that accused and his co-accused were heard by prosecution witnesses, while conspiring for commission of offence; and said witnesses had heard them when they, were passing near the house of co-accused---Mode and manner in which allegedly prosecution witnesses had heard accused and his co-accused conspiring the commission of that offence, was unnatural and doubtful---Case of a conspirator or abettor, not present at the spot, was on the better footing than that of accused instigating his companion to commit the crime being himself present at the spot and normally those accused were admitted to bail by the courts on the principle of further inquiry---Case of accused, in circumstances fell within the ambit of subsection (2) of S.497, Cr.P.C.---Accused was behind the bars since long and Agency had not submitted challan---Further incarceration of accused, in the circumstances of the case would not serve any purpose---Accused was admitted to bail, in circumstances.

Syed Amanullah Shah v. The State and another PLD 1996 SC 241 ref.

Rai Haider Ali Khan Kharl for Petitioner.

Syed Mubashar Gillani for the Complainant.

Mian Abdul Qayyum Anjum for the State.

MLD 2007 LAHORE HIGH COURT LAHORE 889 #

2007 M L D 889

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD AFZAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.752-B of 2007, decided on 21st February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/34/109---Bail, grant of---Accused was not named in F.I.R.---Complainant after one month and eighteen days of occurrence moved an application charging accused and four others for the murder of his deceased father---About more than a month thereafter complainant in his supplementary statement took a complete somersault stating to have seen the accused and his co-accused committing the murder of the deceased---Complainant had taken different stands on three occasions and he could not be explicitly relied upon---Accused was found innocent in four successive investigations---One co-accused had been exonerated later on by the complainant---Involvement of accused in the case, prima facie, was doubtful---Accused was admitted to bail in circumstances.

Khawar Mahmood for Petitioner.

Ahmad Rauf DPG for the State along with Ashiq S.-I. with record.

Shahid Tabbassum for the Complainant.

MLD 2007 LAHORE HIGH COURT LAHORE 891 #

2007 M L D 891

[Lahore]

Before M. Bilal Khan, J

AMEER KHATOON---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, KHUSHAB and 4 others---Respondents

Writ Petition No.1871 of 2006, decided on 6th April, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Constitutional petition---Grievance of petitioner was that her version had not been recorded correctly and that S.10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, ought to have been invoked in view of the fact that she had been subjected to Zina-bil-Jabr---Such plea could be taken before judicial Magistrate, who was seized of the trial---High Court while exercising its constitutional jurisdiction, could not direct the police to invoke or not to invoke a particular provision of Penal Code---Constitutional petition was dismissed.

Muhammad Ameer Khan Niazi for Petitioner.

Malik Asif Ahmad Nissoana for Respondent No.5.

Ch. Aamir Rehman Addl. A.-G. assisted by Tanvir Ahmad Shami for the State.

Abdul Rauf S.-I. Police Station Gunjial District Khusab with record.

MLD 2007 LAHORE HIGH COURT LAHORE 899 #

2007 M L D 899

[Lahore]

Before Muhammad Akhtar Shabbir, J

Dr. AHMED ALI JAFRI---Petitioner

Versus

Mst. ABIDA QAISER and 5 others---Respondents

Writ Petition No. 10972 of 2006, decided on 22nd February, 2007.

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

----S. 175---Specific Relief Act (I of 1877), S.12---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Pendency of suit for specific performance of agreement of sale---Application for temporary injunction, dismissal of---Issuance of warrant of possession of suit-land by Tehsildar on basis of defendant's application alleging same to be in illegal possession of plaintiff---Validity---Suit-land owned by defendant and occupied by plaintiff was not a land reserved for common purposes---Impugned order was not covered by provision of S.175 of West Pakistan Land Revenue Act, 1967, thus, was illegal---Court could not protect illegal act of a public functionary---High Court quashed impugned action

of Tehsildar for being illegal, without lawful authority and without jurisdiction.

(b) Administration of justice---

----Courts cannot protect illegal act of a public functionary.

Khizar Abbas Khan for Petitioner.

Syed Mukhtar Abbas for the Respondents.

Wajahat Hussain Gilani Respondent No.6 in person.

MLD 2007 LAHORE HIGH COURT LAHORE 926 #

2007 M L D 926

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD NADEEM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.179-B of 2007, decided on 22nd February, 2007.

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

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Though challan had been submitted in the Court, yet formal trial had not commenced---Offence under S.489-F, P.P.C. did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Bail in cases not falling within the prohibitory clause, according to practice, was granted as a rule and was refused only in exceptional cases---Present case could not be treated as an exceptional one in view of its facts and circumstances---Accused was in jail for the last more than five months which was a substantial part of maximum punishment of three years as provided under S.489-F, P.P.C.---Where a case for bail was made out, the same would not be refused or withheld as a punishment---Accused was not reported to have been involved in any other case---Bail was allowed to accused in circumstances.

PLD 1995 SC 34; 2006 YLR 1105; 2006 MLD 330; PLD 2006 Lah. 434 and PLD 2006 Lah. 752 ref.

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

----S. 497---Bail---Principle and practice---Bail is cases not falling within the prohibitory clause of S.497(1), Cr.P.C. is granted as a rule and is refused only in exception cases.

----S. 497---Bail, grant of---Principles---Where a case is made out for grant of bail, the same should not be refused or withheld as an instrument of punishment.

Malik Saeed Hassan for Petitioner.

Jawad Hassan for Complainant.

Asif Mehmood Cheema, Deputy Prosecutor General, Punjab for the State.

Muhammad Ismail, A.S.-I.

MLD 2007 LAHORE HIGH COURT LAHORE 929 #

2007 M L D 929

[Lahore]

Before Muhammad Akhtar Shabbir, J

MANZOOR AHMAD and another---Petitioners

Versus

ELECTION TRIBUNAL and 8 others---Respondents

Writ Petition No.1308 of 2007, decided on 27th February, 2007.

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

----S. 152(1)(e)---Punjab Local Government Elections Rules, 2005, Rr.14 & 65---Constitution of Pakistan (1973), Art. 199---Constitutional Petition---Academic qualification of candidate---Objection regarding disqualification of candidate not raised at the time of scrutiny of nomination papers---Effect---Elected candidate, if was disqualified due to lacking academic qualification, would not be entitled to hold office of Local Government---Election of elected candidate, if disqualified, could be challenged by filing election petition by contesting candidate or by a writ of quo-warranto by any voter of the area---Principles.

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

----R. 67(3)---Non-verification of documents annexed with election petition---Effect---Such defect would not render election petition non-maintainable.

Messrs Bashir Leather Int. (Pvt.) Limited and 2 others v. Muslim Commercial Bank Limited through Manager 2006 CLD 132; Gul Muhammad through Legal Heirs v. Karachi Development Authority and another (1998 MLD 150); S.M. Ayub v. Syed Yousaf Shah PLD 1967 SC 486; Abdul Nasir v. Election Tribunal T.T. Singh and others 2004 SCMR 602 and Muhammad Zafarullah Khan and another v. Ehsan Ullah Khan and 2 others 2006 CLC 718 fol.

----S. 152(1)(e)---Punjab Local Government Elections Rules, 2005, R.65---Nazim and Naib Nazim, election of---Academic qualification of candidate---Election petition---Matriculation certificate of Naib Nazim (respondent) under challenge---Proof---Respondent was son of "MT", while photocopy of such certificate produced by him found mentioning his paternity of "MA"---Respondent neither produced original certificate issued in his name by concerned institution nor proved genuineness of matriculation certificate claimed by him---Held, respondent was not qualified to hold post of Naib Nazim, resultantly petitioners were declared to have been duly elected.

Shahid Aslam and others v. Election Tribunal and others; Mian Ahmad Saeed v. Election Tribunal 2003 SCMR 1611 and Bashir Ahmad Bhanbhan's case PLD 2004 SC 570 ref.

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

---R. 71(1)(e)---Application for---Academic qualification of candidate-Summoning of record of Board of Secondary Education---Non-filing of such application within three days of fixation of case for evidence of parties---Application was dismissed in circumstances.

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

----S. 154---Punjab Local Government Elections Rules, 2005, Rr. 14 & 75---Joint candidacy---Rejection of nomination papers of any joint candidate or declaration of election as void by Election Tribunal---Effect---Rejection of nomination papers of any joint candidate would be rejection of nomination papers of both candidates---Vacancy occurring due to declaration of election as void would be filled in on basis of joint vacancy and would not be deemed to casual vacancy in an individual capacity.

Mian Ahmed Saeed v. Election Tribunal 2003 SCMR 1611 rel.

Messrs Azam Nazir Tarar and Hassan Nawaz Makhdoom for Petitioners.

Nazir Ahmad Ghazi for Respondents Nos. 2 to 9.

MLD 2007 LAHORE HIGH COURT LAHORE 944 #

2007 M L D 944

[Lahore]

Before Khawaja Muhammad Sharif, J

BASHIR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6698-B of 2006, decided on 19th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 324/34---Bail, refusal of---Accused was named in F.I.R.---Accused along with his co-accused, not only had committed the murder of deceased, but also caused injuries on the persons of complainant and other injured prosecution witnesses who were three in number---All injured prosecution witnesses had fully implicated accused in their statements under S.161, Cr.P.C.---Accused remained proclaimed offender for a considerable period before his arrest and his co-accused were still at large and had been declared proclaimed offenders---Case was fixed for evidence---Complaint filed by accused against complainant was in progress but no process had been issued against complainant party---Contention raised by counsel for accused that injury on the person of co-accused could not have been caused as mentioned in F.I.R., could not be discussed in the bail petition because it was a matter of evidence and the Trial Court would determine same after recording the evidence of both the parties---Accused along with his co-accused with their common object had committed the murder of deceased and caused injuries to complainant and other injured prosecution witnesses---No case for grant of bail having been made of bail application was dismissed.

Syed Afzal Haider for Petitioner.

Saif Ullah Khalid along with M. Iqbal Bhutta Inspector for the State.

Muhammad Ashraf Nawaz Cheena for Complainant.

MLD 2007 LAHORE HIGH COURT LAHORE 946 #

2007 M L D 946

[Lahore]

Before Syed Asghar Haider, J

Mst. SHAHIDA JAMIL and 4other---Appellants

Versus

RASHIDA HUMAYUN and another---Respondents

R.S.A. 55 of 2006, decided on 24th January, 2007.

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

----S. 1---Fatal accident---Suit for damages---Unrebutted evidence of plaintiffs regarding rash and negligent driving of wagon owned by defendant resulting into death of deceased aged 39 years employed as Grade-I Officer in Bank---Trial Court awarded lumpsum damages of Rs.5,00,000 instead of plaintiffs' claim for Rs.40,70,300---Validity---Method for determining damages would be life expectancy, calculation of pecuniary benefits, if deceased had remained alive till age of retirement and consequential loss suffered by dependants---Trial Court had not given reasons as to how it arrived at impugned amount and what were the reasons for disallowing damages claimed by plaintiffs---Deceased was sole-bread winner for plaintiffs---Salary of deceased was Rs. 8055 per month with 3 annual bonus---Deceased had chance of advancement in grade---Plaintiffs had been deprived of love and affection of deceased and had lost opportunity to compete with people of equivalent resources---High Court modified decree by enhancing damages as claimed by plaintiffs while taking into consideration earning capacity and remaining expected age of deceased.

Punjab Road Transport Corporation, Lahore v. J.V. Gardner and 2 others 1998 CLC 199; Mst. Razia Khatoon and 6 others v. Province of N.-W.F.P. through .Secretary Transport, N.-W.F.P. Secretariat, Peshawar and 2 others 2002 MLD 539; Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Habib and another 1993 SCMR 848; Water and Power Development Authority (WAPDA) through Chairman and others v. Mst. Shamim Akhtar and others 2006 MLD 518; Mst. Nasim Akhtar v. Karachi Transport Corporation, through Chairman, Managing Director or Directors Karachi and 2 others 2006 MLD 71; Baby Mahek alias Sakeena and 4 others v. Miss Aisha Qayyum and 2 others 2006 MLD 468; Mst. Shamim Akhtar v. Javedan Cement Limited through Managing Director 1997 CLC 955; Fouzia Begum v. Karachi Transport Corporation and another 1997 MLD 2787; Karachi Transport Corporation v. Latif-ur-Rehman and others 1993 SCMR 1149; Punjab Road Transport Corporation v. Zahida Afzal and others 2006 SCMR 207; Sri Mamnatha Nath Kuri v. Moulvi Muhammad Mokhlesur Rehman and another PLD 1969 SC 656 and Pakistan through Secretary, Ministry of Defence and others v. Haji Abdul Razzaque 2005 SCMR 587 ref.

Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Habib and another 1993 SCMR 848; Mst. Shamim Akhtar v. Javedan Cement Limited through Managing Director 1997 CLC 955; Fouzia Begum v. Karachi Transport Corporation and another 1997 MLD 2787; Baby Mahek alias Sakeena and 4 others v. Miss Aisha Qayyum 2006 MLD 468 and Punjab Road Transport Corporation v. Zahida Afzal and others 2006 SCMR 207 rel.

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

----S.1---Fatal accident---Suit for damages---Damages, determination of---Scope---Award of damages would be speculative and guess work but effort must be made to balance the scale and ensure adequate compensation---Principles.

There is no barometer or yardstick to strictly measure the loss suffered and offset its effect by awarding damages. Thus, the award of damages is speculative and guess work but effort has to be made to balance the scale and ensure adequate compensation. Therefore, the method adopted to determine the damages is life expectancy, the calculation of pecuniary benefits, if the deceased remained alive till the age of retirement and the consequential loss suffered by the dependents.

M. Shahid Shafi for Appellants.

MLD 2007 LAHORE HIGH COURT LAHORE 980 #

2007 M L D 980

[Lahore]

Before Muhammad Muzammal Khan and Syed Sajjad Hussain Shah, JJ

Mst. NASREEN TARIQ---Appellant

Versus

GOVERNMENT OF PUNJAB through Secretary Housing and Physical Planning Department and 3 others---Respondents

I.C.A. No.110 of 2006, heard on 15th March, 2007.

Land Acquisition Act (I of 1894)---

----Ss. 5-A, 17 & 54---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Maintainability---Compulsory acquisition--Legal formalities, dispensing with---Appellant was aggrieved of acquisition of piece of land owned by her---High Court in exercise of Constitutional jurisdiction, upheld the acquisition proceedings---Validity---Acquisition in question was for public purpose to widen road on account of traffic congestion in the area---Emergent powers by virtue of S.17 of Land Acquisition Act, 1894 on account of urgent nature of work of widening and remodeling the road were invoked, dispensing with other formalities---Appellant was not being subjected to discrimination, as owners of adjoining property had already received compensation for their acquired strip of land---Appellant failed to point out any example of pick and choose by the authorities---Intra-Court appeal was filed under S.3 of Law Reforms Ordinance, 1972, proviso to which had barred availability of such right in case the original enactment out of which proceedings challenged in Constitutional petition emanated, envisaged any appeal/revision or review---Appeal was provided under S.54 of Land Acquisition Act, 1894, against award by Land Acquisition Collector, therefore, judgment passed by High Court was not open to challenge before Division Bench of High Court---Intra Court appeal was dismissed in circumstances.

Karim Bibi and others v. Hussain Bakhsh and others PLD 1984 SC 344 ref.

Nawaz-ul-Haq Chohan v. The State and others 2003 SCMR 1597 rel.

Sh. Zameer Hussain for Appellant.

Tanvir Iqbal A.A.-G. and Khan Abdul Rashid Khan DPG for Respondents.

Date of hearing: 15th March, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 995 #

2007 M L D 995

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD IQBAL---Petitioner

Versus

THE STATE and 2 others---Respondents

Writ Petition No. 5529 of 2006, decided on 20th March, 2007.

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

----Art. 199---Penal Code (XLV of 1860), Ss. 452/354/34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Constitutional petition---Direction issued by Sessions Court to submit challan under a particular provision of law---Validity---Additional Sessions Judge while dealing with an application for cancellation of bail moved against the accused by the complainant in a case registered under Ss. 452/354/34, P.P.C., had observed that F.I.R. had been recorded under wrong provisions of law, because the contents of the complaint had attracted S.18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---While recalling the bail granted to the accused by the Judicial Magistrate, Additional Sessions Judge directed the Magistrate to get the challan completed from the Investigating Officer under the correct provision of law---District Police Officer was also directed to initiate proper action against the delinquent Investigating Officer--Additional Sessions Judge by issuing the said direction had transgressed his jurisdiction, as it was not open to him to have directed the challan to be submitted under a particular provision of law---If the requisite penal provision was not invoked by the police or the investigation was not conducted on proper lines, Additional Sessions Judge could have asked Investigating Officer to reinvestigate the case and submit his report under S.173, Cr.P.C.---Directing the police official to submit challan under a particular provision of law and that too at bail stage amounted to pre-judging the case of accused and thereby causing serious prejudice to him---Another glaring impropriety was that after having issued the aforesaid direction, Additional Sessions Judge ensured that the challan was submitted before him and on receipt of the same he had proceeded with the trial himself---Impugned order to the extent of directing the police to submit challan under a particular provision of law was without jurisdiction and was set aside---Trial proceedings initiated on the basis of the said order were declared to be without any legal effect and were also set aside---S.H.O. Police Station concerned was directed to file a report under S.173, Cr.P.C. uninfluenced by the impugned order---Constitutional petition was allowed accordingly.

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

----Art. 199---Constitutional jurisdiction---Alternative remedy---Where impugned order suffers from lack of jurisdiction, insistence on availing of alternative remedy would be quite misplaced.

Ch. Waseem Ahmed Gujjar for Petitioner.

Tahir Mehmood Gondal Asst. A.G. for the State.

Sh. Irfan Akram for Respondent No.3.

Shaukat Hayat S.-I. Police Station Saddar Gojra, District Toba Tek Singh with police file.

Date of hearing: 20th March, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1004 #

2007 M L D 1004

[Lahore]

Before Khawaja Muhammad Sharif, J

AKBAR ALI---Petitioner

Versus

THE STATE and 3 others---Respondent

Criminal Revision 107 of 2007, decided on 22nd February, 2007.

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

----S. 231---Penal Code (XLV of 1860), Ss.302/460/324/148/149---Two eye-witnesses and the Investigating Officer had been summoned by the Trial Court for cross-examination after the close of prosecution case vide impugned order---Validity---Initially charge under Ss.302, 324 and 149, P.P.C. was framed against the accused and trial proceedings continued till the close of prosecution evidence---Thereafter on the application of the complainant S.460, P.P.C. was added in the charge and on the application of accused Trial Court had re-summoned the aforesaid three prosecution witnesses for cross-examination---Accused had full right to get the prosecution witnesses re-summoned for cross-examination on the altered, amended or added charge and such right could not be denied to them---Impugned order required no interference---Petition was dismissed in limine accordingly.

2006 SCMR 56 and Zuliqar Ali Bhutto v. The State PLD 1979 SC 53 ref.

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

----S. 231---Recalling of witnesses when charge altered---Indefeasible right of accused to re-cross-examine witnesses---When a charge is altered, amended or added then the accused has full right to request the Court for re-summoning the prosecution witnesses in order to cross-examine them on that charge and such right cannot be denied to him.

Ch. Anwaar-ul-Haq Pannun for Petitioner, Ch. Muhammad Hanif Khatana, Addl. A.G. on Court's call.

Naseer-ud-Din Khan Nayyar, A.P.G. on Court's call.

MLD 2007 LAHORE HIGH COURT LAHORE 1006 #

2007 M L D 1006

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMMIAD IQBAL---Petitioner

Versus

RETURNING OFFICER U.C. NO.64, LAHORE and 36 others---Respondents

Writ Petition No.12682 of 2006, decided on 9th February, 2007.

(a) Punjab Local Government Elections Rules, 2005---

----Rr. 35(5), 36(3), 65 & 71---Civil Procedure Code (V of 1908), O.V., Rr. 10, 12, 19, 20 & O. IX, R.13---Constitution petition---Recounting---Constitutional petition---Recounting ,of ballot papers, prayer for---Ex parte proceedings against respondent for his refusal to accept notice from Process-Server---Recounting of ballot papers by Election Tribunal and declaration of petitioner as successful candidate---Application by respondent under O.IX, R. 13, C.P.C. for recalling ex parte order as he was neither served personally nor had he knowledge of election petition; and that recounting was not done in accordance with law---Dismissal of such application by Election Tribunal---Validity---Election Tribunal had not examined Process-Server to testify his inscribed report in terms of O.V., R. 19, C.P.C.---No notice by any other mode or through citation in newspaper was got published against respondent for date on which he was proceeded ex parte---Record was contrary to Election Tribunal's finding that respondent was personally served through registered post A/D---Election Tribunal had ordered recount of ballot papers on basis of concessionary statement of petitioner of another election petition also praying for recounting of ballot papers---Order of recount of ballot papers was sketchy/unreasoned and did not refer to any material justifying the course adopted---Notice to respondent through citation in newspaper was ordered after passing the order of recount, but same was not dispatched at his postal address given in election petition---Such application could not have been decided summarily, wherein disputed factual controversy was raised requiring recording of evidence---Impugned orders of ex parte proceedings and recount of ballot papers were arbitrary/fanciful for having been passed in haste without assigning any lawful reason---High Court declared impugned orders to be void, resultantly such application would be deemed pending before election Tribunal for its decision afresh after framing of issues and recording of evidence; and that Election Tribunal might pass fresh order for recount of ballot papers, if justified in the light of judgments of Supreme Court.

Sheikh Iftikhar ud Din and anther v. District Judge, Bahawalpur exercising powers of Election Tribunal for Union Council of District Lodhran and 8 others 2002 SCMR 1523; Muhammad Tariq Zakhmi and others v. Election Tribunal and others 2002 SCMR 1995 and Liaqat Ali and another v. Election Tribunal Sialkot and others 2003 SCMR 1313 rel.

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

----Rr. 35(5), 36(3), 65 & 71---Recounting of ballot papers, prayer for--Ex parte proceedings against respondent for his non-appearance before Election Tribunal---Effect---Tribunal in such circumstances would not be relieved of its obligation to satisfy its judicial conscience while passing order of recount, which could be passed only on basis of some material/evidence on record.

----Rr. 35(5), 36(3), 65 & 71---Recounting of ballot papers, prayer for---Essentials---Party making such prayer must specifically allege and prove acceptance or wrong counting of invalid votes instead of their rejection---Mere bald allegation of incorrect count/consolidation of results would not be enough to disturb secrecy of ballot papers---Principles.

The recount of votes can be ordered in the light of specific allegations in the pleadings in election petition that illegality/irregularity was committed while original counting, and these allegations must be supported by some material/evidence on the file. Party who prays recount should allege and prove that there had been improper acceptance of invalid votes or improper/invalid votes were wrongly counted instead of rejection. Mere bald allegations of incorrect count/consolidation of results would not be enough to disturb the secrecy of ballot papers, which has always been considered sacrosanct in any democratic process of election, but if purity of the election is proved to have been tarnished materially affecting the election result, then this exercise can be justified to remedy the prejudice caused to the defeated candidates.

Ch. Muhammad Arshad Ramay for Petitioner.

Muhammad Sharif Khokhar for Respondent No.2.

MLD 2007 LAHORE HIGH COURT LAHORE 1011 #

2007 M L D 1011

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD RAFIQUE---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SADAR, PAKPATTAN and 4 others---Respondents

Writ Petition No. 2784 of 2007, decided on 4th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 550---Penal Code (XLV of 1860), Ss.420, 468 & 471---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Seizing vehicle suspected to be stolen property---Quashing of Petitioner had prayed for quashing of F.I.R. registered against him---Vehicle in question was taken into possession by the police under S.550, Cr.P.C. suspecting that same was either stolen or was used in commission of offence---Vehicle was taken into possession simply for the reason that same was carrying a number plate, which was usually used for the interregnum period from the date of purchase till the registration of the same within the period provided for the registration under the law---Such act of taking car into possession under S.550, Cr.P.C. had shown the atrocity of the police---Petitioner purchased said car after getting the facility from the Bank---Letter was duly issued for use of said vehicle in favour of petitioner---Police took into possession said vehicle under S.550, Cr.P.C. despite production of documents of title and had detained the petitioner---Superdari of the car was allowed vide order of the Magistrate, but Police refused to release the vehicle---Police with mala fide intention registered case against petitioner despite the fact that vehicle in question was neither stolen nor it was snatched by the petitioner---No fraud or forgery was committed by the petitioner---Police would not have free hand to play havoc with the rights, life, liberty and honour of a citizen---Incharge of investigation had not taken any step to make progress in investigation which reflected mala fide of police and had strengthened the allegation that petitioner was being dragged in the case' and was being humiliated on the instigation of police officials---Petition was allowed and F.I.R. registered at police station was quashed with direction to District Police Officer to look into the matter and take stern action against delinquent police officials.

Mian Muhammad Hussain Chotia for Petitioner.

Farzana Khan, Assistant Prosecutrix General with Tahir Wahid S.H.O. and Khalid Mahmood S.-I. for Respondents.

MLD 2007 LAHORE HIGH COURT LAHORE 1015 #

2007 M L D 1015

[Lahore]

Before Maulvi Anwarul Haq, J

RIAZ AHMED---Petitioner

Versus

RENT CONTROLLER, MULTAN and another-Respondents

Writ Petition No. 6148 of 2005, heard on 30th March, 2006.

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

----S.13---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Ejectment petition---Production of evidence---On filing ejectment petition by respondent against petitioner, evidence of parties was recorded---Respondent filed application thereafter seeking permission to produce certified copies of some judicial record, which was allowed by Rent Controller---Petitioner had filed constitutional petition against order of Rent Controller---Validity---Respondent, in fact, wanted to demonstrate that when a sum of Rs.2,00,000 by way of advance rent was stated to have been paid to him, he was in jail---Petitioner's own case was that when amount was paid, respondent was in jail, that being so, no prejudice, in any manner, had been caused to petitioner by said order---Even otherwise impugned order being interim order, same could not be brought under attack in constitutional jurisdiction of High Court---Constitutional petition was dismissed.

Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary 1996 SCMR 165 and Abdul Rehman v. Haji Mir Ahmad Khan and others PLD 1983 SC 21 ref.

Sh. Abdul Samad for Petitioner.

Zafarullah Khan Khakwani, A.A.-G. and Mr. Sagheer Ahmad Bhatti for Respondents.

Date of hearing: 30th March, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 1020 #

2007 M L D 1020

[Lahore]

Before Muhammad Akhtar Shabbir, J

Syed ANSAR ZAIDI---Petitioner

Versus

CHIEF SETTLEMENT COMMISSIONER, PUNJAB, LAHORE---Respondent

Writ Petitions Nos. 129/R and 130/R of 1998, heard on 15th February, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Before a person could be permitted to invoke discretionary power of a court, it must be shown that order sought to be set aside had occasioned some injustice to. the parties---If it did not work any injustice to any party, rather it caused removal of an illegality then the extraordinary jurisdiction, ought not be allowed to be invoked---High Court, in exercise of its constitutional jurisdiction, was not competent to interfere in factual controversy involved in the matter---High Court could not examine or re-evaluate evidence or record in exercise of its constitutional jurisdiction.

Muhammad Baran's case PLD 1991 SC 691; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; Muhammad Hussain Munir v. Sikandar PLD 1974 SC 139; Sub. Muhammad Asghar v. Mst. Safia Begum PLD 1976 SC 435; Muhammad Yunus Khan v. Government of NWFP through secretary and others 1993 SCMR 618; Bnedict F.D. Souza v. Karachi Building Control Authority 1989 SCMR 918 and Federation of Pakistan v. Major (Rtd.) Muhammad Sabir Khan PLD 1991 SC 476 ref.

Hamid Ali Mirza for Petitioners.

Ch. Muhstaq Masood for Respondents.

Falak Sher Malik for Applicant.

Date of hearing: 15th February, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 1026 #

2007 M L D 1026

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD SIDDIQUE---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1118 and Criminal Revision No. 731 of 2003, heard on 6th April, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Complainant was real uncle of deceased, while prosecution witness was maternal nephew of complainant---Accused though had led to recovery of pistol, but no report of Fire-arm Expert respecting same was on the record---Ocular account in the case as given in F.I.R. was in conflict with medical evidence---F.I.R. stated that shot was received by deceased from the hands of accused when he was lying on a cot in the prostate condition, but according to medico-legal report the Doctor had found a wound of entrance on front of left side of abdomen of deceased; there should not have been any mistake in that regard especially when there was only one injury---Deceased was not taken to the hospital by any of the three prosecution witnesses mentioned in the F.I.R., which had shown that no said witness was present at the spot---Eye-witnesses, in order to make ocular account in line with medical/post-mortem report, had changed their version by making dishonest improvements---No document was on record to show that Doctor had declared deceased, while injured, fit for recording of statement/dying declaration, for such omission, evidentiary value of said statement was lost---No lantern which at relevant time was stated to be on, was taken into possession by Investigating Officer---Mere recovery of pistol was of no avail to prosecution because no report of the Fire-arm Expert was available on the record in respect thereof--Incident was a night time occurrence, on which point of time identification of culprit was not possible---Even F.I.R. was recorded outside the police station---Prosecution had failed to prove its case against accused beyond any shadow of doubt to sustain conviction of accused---Prosecution case was full of doubts and on basis of such a shaky evidence conviction and sentence awarded to accused, could not be maintained because same having not come through unimpeachable sources, was untrustworthy, unreliable and could not stand the test of judicial scrutiny---Impugned judgment was set aside and accused was acquitted of the charge and was released.

S.D. Qureshi for Appellant (at State expenses).

Naseeruddin Khan Nayyar, APG assisted Ms. Sarnia Bashir for the State.

Nemo for the Complainant.

Date of hearing: 6th April, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1034 #

2007 M L D 1034

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD IHSAN and others---Petitioners

Versus

MUHAMMAD YOUSAF and others---Respondents

Writ Petition No.3216 of 2006, decided on 6th March, 2007.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 7---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Interim possession--- Restoration---Precondition---Qabza Group/Land Mafia---Proof---Trial Court restored interim possession of land on complaint filed by respondent---Validity---Respondent did not bring any proof that petitioners were property grabbers or they belonged to some Qabza Group/Land Mafia---In absence of any such allegation or proof, complaint under S.3 of Illegal Dispossession Act, 2005, could not have been entertained, processed or decided by Trial Court---There having no allegation of the kind against petitioners, order of Trial Court directing return of possession to respondent was coram non judice---Petitioners might have been forcibly dispossessed by the respondent from the land in question but there were other remedies available to respondent under ordinary law of land, to which he might have resorted for restitution of possession, if proved---Jurisdiction under Illegal Dispossession Act, 2005, was wrongly assumed/exercised by Trial Court---Order passed by Trial Court was set aside---Petition was allowed in circumstances.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 fol.

Saeed Yousaf Khan for Petitioners.

Qazi Ibrar Hussain for Respondents.

MLD 2007 LAHORE HIGH COURT LAHORE 1036 #

2007 M L D 1036

[Lahore]

Before Hasnat Ahmad Khan, J

Mst. NAWAZ MAIL---Petitioner

Versus

ADDL. SESSIONS JUDGE and others---Respondents

Writ Petition No.6621 of 2006, decided on 20th February, 2007.

Criminal Procedure Code (V of 1898)---

---Ss. 154, 195 & 476---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Registration of F.I.R.---Pendency of civil suit---Petitioner alleged that agreement to sell relied upon by respondent in civil suit was a forged document---Trial Court, due to bar contained in Ss. 195 & 476, Cr.P.C., declined to get registered the F.I.R.---Validity---When prima facie commission of cognizable offence was shown to have been committed, authorities were under statutory duty under S.154, Cr.P.C. to register the case---Document which was allegedly forged and prepared before filing of civil suit by respondent and which did not come into existence after filing of any civil suit, as such Ss. 195(1)(c) and 476, Cr.P.C. did not create any bar against registration of case---Order passed by Trial Court was declared by High Court to have been passed illegally and unlawfully and with material irregularity, therefore, the same was quashed---High Court directed the authorities to entertain application filed by petitioner and if contents of application would show commission of cognizable offence, authorities were to proceed in accordance with law as enshrined in provisions of S.154, Cr.P.C.---Petition was allowed in circumstances.

Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz) Narowal and 5 others PLD 1992 Lah. 178 and 1999 MLD 2097 fol.

Malik Javed Akhtar Wains for Petitioner.

Muhammad Irfan Wyne, for respondents Nos.3 and 4.

MLD 2007 LAHORE HIGH COURT LAHORE 1040 #

2007 M L D 1040

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SHAHBAZ MASIH alias KABA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1599 of 2004, heard on 19th January, 2007.

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

----Ss. 295-B & 84---Appreciation of evidence---Accused was seen by the eye-witnesses trampling under his feet the pages of the Holy Quran after tearing, and throwing the same on the graves, who was caught red-handed and handed over to police with the torn pages of the Holy Quran---Defence had amply proved oh record that the accused at the time of incident was an insane person and he did not know the nature of his act---Prosecution had failed to rebut on record the version of the accused supported by medical evidence---Intention of the accused had to be proved before holding him guilty of the offence under S.295-B, P.P.C.---Section 84 P.P.C. provided that nothing was an offence done by a person who, at the time of doing it by reason of unsoundness of mind, was incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law---Accused had proved on record that at the time of occurrence he was not in a state of sanity and was incapable of knowing the nature of his act---Accused was acquitted in circumstances.

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

----S. 295-B---Defiling etc. of Copy of Holy Quran---Prerequisite---Intention of accused has to be accounted for before holding him responsible for the commission of the offence under the section.

Sardar Khalil Tahir Sandhu for Appellant.

Maqbool Ahmad Qureshi for the State.

Date of hearing: 19th January, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1045 #

2007 M L D 1045

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

RIAZ HUSSAIN SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4895-B of 2006, decided on 20th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 148 & 149---Bail, refusal of---Case was of promptly lodged F.I.R. in which accused had been named with a specific role of causing fire-arm injuries to deceased---Medical evidence also supported ocular account---Stand of counsel for accused that during investigation it transpired that accused had not actively participated in the occurrence, stood belied by the record produced by counsel for State-Case of co-accused who was admitted to bail by the Court below was distinguishable from the case of accused as during investigation, it came to light that co-accused had not actively participated in the occurrence and had only abetted his co-accused for the commission of offence, whereas case against accused was that of active participation in the occurrence---Principle of consistency was not applicable in the circumstances of the case---No ground for bail having been made out, bail application was dismissed.

Muhammad Hanif Dahar and Ch. Waseem Ahmed Chichi for Petitioner.

Rai Zamir-ul-Hassan Kharl for the Complainant.

Raja Akhtar Nawaz for the State.

Muhammad Hussain Vehniwal S.-I.

MLD 2007 LAHORE HIGH COURT LAHORE 1047 #

2007 M L D 1047

[Lahore]

Before Hasnat Ahmed Khan, J

NASEER AHMAD and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.257 of 1998, decided on 11th December, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---Medical evidence did not corroborate ocular testimony---No source of any light either in F.I.R. or in the entire prosecution evidence was mentioned for identification of accused---Moon-light was also not possible on the night of occurrence---Dera where the incident had taken place was situated miles away from the houses of the deceased and eye-witnesses---Evidence of eye-witnesses regarding leaving from their chak and reaching the place of occurrence was full of contradictions---None of the inhabitants of the Dera of occurrence had come forward to support the prosecution case---Accused could not possibly know about the programme of the deceased party and their presence at the place of incident, which had taken place at a far-flung area from their residence---Was not believable that after having selected odd hours of the dark night for the purpose, accused would expose themselves by raising the Lalkara while launching attack at the deceased---Eye-witnesses even in their evidence did not mention the source of light in which they had identified the accused---F.I.R. was lodged after a delay of three hours---Eye-witnesses were not only related to the deceased, but had also enmity with the accused and as such were interested witnesses, whose testimony was not supported by any other independent evidence---No recovery was effected from the accused---Accused were found innocent during investigation---Accused were acquitted in circumstances.

2005 YLR 2220 ref.

Tariq Zulifqar Ch. and Mian Rashid Ahmed for Appellants.

Nasir Hussain Haidri for Complainant.

Saleem Shakoor for the State.

Dates of hearing: 7th and 11th December, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 1053 #

2007 M L D 1053

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. NAUREEN TAHIRA and 2 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and another---Respondents

Writ Petition No.3412 of 2006, heard on 15th February, 2007.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner/wife filed suit for recovery of amount as mentioned in Column No.17 of Nikahnama---Family Court decreed the suit but decree was reversed in appeal---Validity---Petitioner was deprived of her right to recover disputed amount mainly on the document in form of affidavit---Said document was relinquishment of right of petitioner to recover Rs.100,000 mentioned in Column No.17 of the Nikahnama which she had forgiven during the period she lived amicably with her husband/respondent---Signatures of petitioner who was an educated lady got compared by court of appeal with her admitted signatures on the plaint and found that relinquishment was executed by petitioner voluntarily---Petitioner signed her power of attorney filed in the present petition with different signatures such factum, further, went against her claim---Witnesses produced by respondent stated that document was executed by petitioner without any coercion---Appellate Court's finding to the effect that suit amount could not be considered as part of dower amount and was not recoverable through Family Court established under Muslim Family Courts Act, 1964 were given being oblivious of amendment introduced in the Schedule Part I of the West Pakistan Family Courts Act, 1964 conferring jurisdiction to Family Court for recovery of personal property and belongings of a wife---Petitioner having herself relinquished her right to recover suit amount, suit for recovery of said amount was not maintainable.

Nasrullah v. District Judge, Mianwali and 2 others PLD 2004 Lah. 588 ref.

Javed Iqbal Bhatti for Petitioners.

Ms. Sofia Sethi for Respondent No. 2.

Date of hearing: 15th February, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1056 #

2007 M L D 1056

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD IBRAHIM alias BAWA ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.10400-B of 2006, decided on 14th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302/324/337-A(iii)/337-F(iii)/337-F(v)/148/149/109---Bail, refusal of---Charge had been framed against the accused and the case was fixed for evidence---Accused had been placed in Column No.3 of the challan---No further discussion was considered proper by High Court about the role of the accused whether motive was attributed to him or not, at such stage of the proceedings before the Trial Court---Bail was declined to accused in circumstances.

1995 SCMR 343; 1993 SCMR 1992; 2003 SCMR 958; 2002 SCMR 1415; 2006 PCr.LJ 1548 and 2006 SCMR 966 and 2006 SCMR 1292 ref.

1980 SCMR 203 rel.

Sh. Najam-ul-Hassan for Petitioner.

Munir Ahmad Bhatti for the Complainant.

Naseer-ud-Din Khan Nayyar A.P.G. and Yousaf S.-I. for the State.

MLD 2007 LAHORE HIGH COURT LAHORE 1058 #

2007 M L D 1058

[Lahore]

Before Sardar Muhammad Aslam and Umar Ata Bandial, JJ

AMJAD ABBAS---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3840-B of 2005, decided on 7th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Quantity of 1000 grams Charas was recovered from the shopping bag lying underneath the driver's seat of the car---Co-accused had been admitted to bail and case of accused being at par with that of co-accused he was entitled to the concession of bail on principle of consistency---Accused also deserved concession of bail on the ground that recovery was allegedly effected from the car underneath the driver's seat and responsibility of which could not be fixed on accused alone, who too was one of travellers in the car---Accused was admitted to bail, in circumstances.

Muhammad Amir Khan Niazi for Petitioner.

Wakeel Hassan for the State.

MLD 2007 LAHORE HIGH COURT LAHORE 1059 #

2007 M L D 1059

[Lahore]

Before Maulvi Anwarul Haq, J

NADEEM AKHTAR and 2 others---Petitioners

Versus

ADDITIONAL SESSIONS JUDGE, GUJAR KHAN and another ---Respondents

Criminal Miscellaneous 50-Q of 2006, decided on 19th January, 2007.

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

----Ss. 561-A & 205---Penal Code (XLV of 1860), Ss. 354/500/ 341/365/109---Quashing of order of Sessions Court---Magistrate had dispensed with personal attendance of two accused and the complainant in the case---Sessions Court had` upset the said order mainly on the ground that since the charge against the accused had not yet been framed, the exemption could not be granted---Held, Magistrate under S.205, Cr.P.C. could grant said exemption to any accused summoned by him and there was no bar for him to grant such relief before framing the charge---Even otherwise, the aforesaid three applications for exemption had been filed and granted after the charge had been framed---Impugned order was quashed accordingly being without jurisdiction.

State Bank of Pakistan v. Syed Nasir Hussain Zaidi and 5 others PLD 1988 Kar. 379 ref.

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

----S. 205---Dispensation with personal attendance of accused---Non-framing of charge, no bar---Magistrate under S.205, Cr.P.C. can grant exemption from personal attendance in Court to any accused summoned by him---No bar exists in the way of Magistrate to grant such relief before framing the charge.

Mumtaz Ahmad for Petitioner.

Abdul Rashid Khan, DPG.

Sardar Abdul Raziq for the Complainant.

MLD 2007 LAHORE HIGH COURT LAHORE 1062 #

2007 M L D 1062

[Lahore]

Before Muhammad Akhtar Shabbir, J

Syed MUSHTAQ HUSSAIN SHAH---Petitioner

Versus

JEWAN and 4 others---Respondents

Writ Petition No. 9311 of 2005, decided on 21st February, 2007.

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

----S. 24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Non-deposit of Zar-e-Soem within 30 days---Effect---Extension of such period by court---Scope---Limitation for depositing Zar-e-Soem, computation of--Provision of section 24 Punjab Pre-emption Act, 1991 has provided that court shall require plaintiff to deposit 1/3rd of the sale consideration within such period as court may fix---First proviso of section 24 of the Act bars the discretion of court to extend time beyond thirty days and plaintiff is duty bound to deposit Zar-a-Soem. within prescribed period of thirty days---Period of thirty days as provided under provisions of S.24 of Punjab Pre-emption Act, 1991 would be reckoned from the date of filing of the suit and date on which suit was filed by plaintiff would not be excluded from the count ---Plaintiffs, in the present case, though had deposited one-third of sale amount but same having been deposited one day after expiry of thirty days, their suit could not have been decreed---Courts below by passing the decrees had acted in violation of statutory provisions of law and principles laid down by superior Courts---Impugned decrees were therefore set aside.

Awal Noor v. District Judge, Karak and 8 others 1992 SCMR 746; Ijaz Ahmad Khan v. Muhammad Asif 2000 CLC 808; Jamshed Ali and 2 others v. Ghulam Hassan 1995 CLC 957 and Muhammad Jehangir v. Muhammad Abbas and others 2004 CLC 538 rel.

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

----S. 24---Provision requiring deposit of one-third amount of sale is mandatory and not directory.

Syed Sajid Ali Bukhari for Petitioner.

Muhammad Anees Khatana for Respondents.

MLD 2007 LAHORE HIGH COURT LAHORE 1065 #

2007 M L D 1065

[Lahore]

Before Fazal-e-Miran Chauhan, J

INAYAT and 3 others---Petitioners

Versus

THE STATE---Respondent

Criminal Revision No. 590 of 2006, heard on 16h February, 2007.

Penal Code (XLV of 1860)---

----Ss. 337-F(iv) & 337-F(vi)---Appreciation of evidence---Accused had been sentenced to undergo 1-1/2 years' R.I. each and they had already served out a major portion of their sentence---Conviction of accused was maintained, but their sentence was reduced to the imprisonment already undergone by them in circumstances---Sentence of fine was, however, upheld.

Muhammad Farooq Gondal for Petitioners.

Abdul Majeed Chishti for the State.

Date of hearing: 16th February, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1066 #

2007 M L D 1066

[Lahore]

Before M.A. Shahid Siddiqui, J

MUHAMMAD YASIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1 of 2006 in Criminal Appeal No. 1274 of 2006, decided on 12th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.302(b)---Suspension of sentence---Petition for---Fatal injury to injured was attributed to father of petitioner---Petitioner was allegedly armed with a pistol which he did not use during the occurrence---Case being fit for further appreciation of evidence, petitioner was released on bail after suspending his sentence.

Zafar Iqbal Chohan for Petitioner.

Talha Rasheed Malik for the State.

MLD 2007 LAHORE HIGH COURT LAHORE 1067 #

2007 M L D 1067

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD YAQOOB and 4 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.2884-B and 3202-B of 2006, decided on 17th January, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss. 337-A(ii), 337-N(2), 456, 148 & 149---Post-arrest and pre-arrest bail, grant of---Provisions of S.337-N(2), P.P.C. were not only mandatory, but had overriding effect over all other sections providing punishment for hurt---Offender, in terms of said section, besides payment of Arsh, could be awarded punishment of Tazir only when it was proved that he was a previous convict, habitual or hardened, desperate and dangerous criminal---In absence of any evidence against accused persons showing that accused were either previous convict, or habitual or hardened desperate or dangerous criminals or that offence had been committed by them in the name or on the pretext of honour, accused were granted post-arrest bail---Interim pre-arrest bail earlier granted to other accused, was confirmed.

Aurangzeb v. The State and another 1999 PCr.LJ 230 and Masood Ahmad alias Muhammad Masood and another v. The State 2006 SCMR 933 rel.

Ch. Falak Sher Chadhar for Petitioner (in Criminal Miscellaneous No. 2884-B of 2006).

Syed Jawad Jaferi, for the Complainant Sabir Ali Qureshi for the State and Waris Muhammad, S.-I. (in Criminal Miscellaneous No.884-B of 2006).

Mian Muhammad Shahid Asghar for Petitioner (in Criminal Miscellaneous No. 3202-B of 2006).

Malik Haider Jamal Maitla, for the Complainant Sh. Imtiaz Ahmad for the State and Muhammad Afzal S.-I. with record (in Criminal Miscellaneous. No.3202-B of 2006).

MLD 2007 LAHORE HIGH COURT LAHORE 1071 #

2007 M L D 1071

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

Mst. GHULAM FATIMA alias MALKANI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6599-B of 2006, decided on 5th September, 2006.

Criminal Procedure Code (V of 1898)---

---S. 497 [as amended by Criminal Law (Amendment) Ordinance (XIII of 2006)], S.2---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10, 11, 13 & 16--Bail, grant of---Accused was a woman and according to amended S.497, Cr.P.C. offence was bailable---Prosecution story did not sound to be natural as according to F.I.R. co-accused was maternal uncle of victim girl---Unexplained delay of 13 months in lodging F.I.R., had made prosecution story doubtful---Accused was an old lady of about 70 years---Case being fit for concession of bail, accused was granted bail.

Zafar Iqbal Chohan for Petitioner.

Ch. Muhammad Suleman Addl. A.G for the State.

MLD 2007 LAHORE HIGH COURT LAHORE 1072 #

2007 M L D 1072

[Lahore]

Before Muhammad Muzammal Khan and Syed Hamid Ali Shah, JJ

MUBASHIR KHAN---Appellant

Versus

JAVAID KAMRAN alias JAVED IQBAL and 8 others ---Respondents

R.F.A. No.629 of 2001, heard on 7th February, 2007.

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

----O.XVII, Rr. 1 & 3---Adjournment for evidence granted to plaintiff by Court as last and final opportunity subject to payment of costs---Absence of any objection to adjournment by defendant---Effect---Such adjournment would be deemed to be a routine adjournment and would not call for invocation of provisions of O.XVII, R.3, C.P.C.---Non-suiting of plaintiff for his failure to produce evidence on such adjourned date would not be legal---Principles.

Syed Tasleem Ahmad Shah v. Sajawal Khan and others 1985 SCMR 585; Molvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others PLD 1971 SC 434 and Executive Engineer Peshawar v. Messrs Tour Mehmood and Sons and 4 others 1983 SCMR 619 fol.

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

----O.XVII, R.3---Dismissal of suit for non-production of evidence by plaintiff---Validity---Plaintiff was not present in Court on relevant date and he had not been called upon to appear as his own witness---Plaintiff's counsel present in Trial Court had not been required to produce whatever oral/documentary evidence available with him---Defendant's suit for cancellation of document relied in the plaint by plaintiff was pending and application for its consolidation/transfer was sub judice before District Judge---Trial Court had not noticed transfer of suit on different occasions on administrative side and re-casting of issues---High Court accepted appeal and set aside impugned judgment/decree while granting to plaintiff one opportunity of producing evidence before Trial Court subject to payment of costs of Rs.15000.

----O.XVII, Rr. 1 & 3---Qanun-e-Shahadat (10 of 1984), Art. 129(e)---Dismissal of suit for non-production of 'evidence by plaintiff---Affidavit of plaintiff alleging taking up of case by Court on a date earlier than adjourned date--Validity--Presumption of regularity/correctness attached to judicial proceedings could not be adjudged on mere affidavits---High Court declined to accept such plea of plaintiff.

Muhammad Murad Abro v. The State through A.G. 2004 SCMR 699 and Fayyaz Hussain v. Akbar Hussain and others 2004 SCMR 964 rel.

Abdul Majid Khan for Appellants.

Ch. Muhammad Iqbal Javed Dhillon for Respondents.

Date of hearing: 7th February, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1077 #

2007 M L D 1077

[Lahore]

Before Syed Asghar Haider, J

FAIZ MUHAMMAD---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 6 others---Respondents

Writ Petition No. 8477 of 2006, heard on 16th February, 2007.

(a) Punjab Local Government Elections Rules, 2005---

----R. 71---Election Tribunal, powers of---Scope---Tribunal would be required to follow procedure ordained in C.P.C., thus it would have powers to rectify a procedural deviation---Election being a process to determine the will of people, mere procedural deviation and irregularities could not defeat will of electorate.

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

----Rr. 35, 36, 38, 76 & 77---Constitution of Pakistan (1973), Art.199---Constitutional petition---Prayer for recounting of votes and declaration of petitioner's success---Proof---Statement of count issued by Presiding Officer showing petitioner to have obtained 98 votes from disputed Polling Station---Consolidated result showed petitioner to have obtained zero votes from disputed Polling Station---If 98 votes were counted towards votes obtained by petitioner, then he would become successful---Such matter would fall within ambit of R.76 of Punjab Local Government Elections Rules, 2005 and Election Tribunal had power under R.77 thereof to declare petitioner as successful candidate---Petitioner had obtained a clear majority, thus, Tribunal declared him elected.

Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600 distinguished.

----R.71---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Grounds not argued before Election Tribunal, could not be raised before High Court.

Kashif Ali Ch. for Petitioner.

Dr. Mohy-ud-Din Qazi for Respondents.

Date of hearing: 16th February, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1082 #

2007 M L D 1082

[Lahore]

Before Hasnat Ahmad Khan, J

ZAHOOR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4024-B of 2006, decided on 15th March, 2007.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324/148/149/337-A(i)/337-A(iii) & 337-F(i)---Bail, grant of---Five persons on the side of accused had also suffered injuries during the occurrence, who were got medically examined by the police itself---Accused had also received five injuries including two sharp edged weapon injuries---Complainant while lodging the F.I.R. had suppressed all the said injuries---Accused party had also lodged a cross version in the form of a complaint which was pending and in which Trial Court had summoned the accused mentioned therein---Occurrence had taken place in front of the shop of co-accused which was in his possession and motive for occurrence, as alleged by the complainant, was a, dispute between the parties over the said shop---Joint allegation was that accused and his two co-accused had caused fire-arm injuries to three prosecution witnesses, two of which were not medically examined---Third injured witness who had received two injuries had exonerated the accused---Question as to which party was aggressor required further inquiry---Accused could not be held as hostage for the arrest of absconding co-accused---Refusal of bail on the ground of abscondence of accused was not a rule of thumb, especially when he was not declared as absconder---Even otherwise, accused had become entitled to bail as a matter of right and he could not be denied bail simply on the ground of abscondence which was a rule of propriety---Accused was in jail for the last about six months and early conclusion of trial was not in sight---Bail was granted to accused in circumstances.

The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322 and Khan Mir v. Amal Sherin alias Kamal and 2 others 1989 SCMR 1987 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.324/148/149---Bail---Abscondence---Principle---Refusal of bail on the ground of abscondence of accused is not a rule of thumb, especially when he is not declared as an absconder.

----S.497---Penal Code (XLV of 1860), Ss.324/148/149---Bail---Abscondence---Principles---Bail is normally refused to accused on the ground of abscondence as a rule of propriety and when accused becomes entitled to bail as a matter of right, he cannot be denied bail simply on the basis of rule of propriety.

The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322 and Khan Mir v. Amal Sherin alias Kamal and 2 others 1989 SCMR 1987 ref.

Muhammad Masood Khan and Syed Nizam-ud-Din Shah for Petitioner.

Abdul Salam Alvi for the Complainant.

Rao Atif Nawaz for State.

Bashir Ahmad, A.S.-I.

MLD 2007 LAHORE HIGH COURT LAHORE 1089 #

2007 M L D 1089

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

JAVED IRFAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE---Respondent

Writ Petition No. 17283 of 2005, heard on 8th March, 2007.

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

----S. 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for custody of minor---Welfare of minor---Application by petitioner/father for custody of minor son under S.25 of Guardians and Wards Act, 1890 was accepted by the Trial Court, but on appeal same was dismissed by Appellate Court---Petitioner had contracted second marriage and mother of minor had also contracted second marriage---Minor, who was aged about 12 years was happily living with his maternal grandfather for the last many years---Appellate Court below interviewed the minor who was not willing to live in the house of his father/petitioner with his stepmother---Minor at the relevant time was student of class-V---Maternal grandfather of minor was looking after minor and was attending to his educational requirements---Petitioner/father who had contracted second marriage had children from his second wife and it was not safe to remove minor from his present family set up---Welfare of the minor demanded that he should be permitted to continue to live with his maternal grandfather---Appellate Court, in circumstances had rightly accepted appeal against judgment of the Trial Court---Paramount consideration in determining the question of custody of minor was welfare of the minor, and in the present case, welfare of the minor was that he should remain with his maternal grandfather---In absence of any illegality or infirmity in the impugned order of Appellate Court, same could not be interfered with by the High Court in exercise of its constitutional jurisdiction.

Safdar Hussain and others v. Ms. Parveen Umar and others PLD 2004 SC 357 rel.

Syed Taki Raza Askari for Petitioner.

Muhammad Akhtar for Respondent No.4.

Date of hearing: 8th March, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1096 #

2007 M L D 1096

[Lahore]

Before Hasnat Ahmad Khan, J

ALI MUHAMMAD---Petitioner

Versus

ADDL. SESSIONS JUDGE and others---Respondents

Writ Petition No.2789 of 2006, decided on 6th March, 2007.

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

----Art. 199---Criminal Procedure Code (V of 1898), S.516-A---Penal Code (XLV of 1860), S.406---Constitutional jurisdiction---Scope---Superdari of vehicle, refusal of---Sessions Court while delivering the disputed Bus on Superdari to the respondent had not committed any illegality---Impugned order neither suffered from any jurisdiction error nor from any misreading or non-reading of record nor the same was arbitrary in nature---Extraordinary constitutional jurisdiction could not be exercised where judgments passed by the Courts below were not illegal, perverse and unlawful and no injustice had ensued therefrom--Even the finding of facts recorded by the two Courts below could not be disturbed in constitutional jurisdiction---Question of Superdari normally would be answered in favour of the person from whose possession the disputed property was taken---Bus in dispute was seized by the police from the constructive possession of the respondent---Prima facie, description of the Bus owned by petitioner was dissimilar to that of the Bus given to respondent on Superdari---Constitutional petition was dismissed in limine in circumstances.

Malik Abdul Kadir v. Atique Ahmad through legal heirs and other PLD 2004 Kar. 555; Liaqat Ullah Khan Khatak and 5 others v. Hafeez Akhtar and 9 others PLD 2004 Lahore 312 and Jam Sher Muhammad v. Manzoor Ahmad and another 2006 PCr.LJ 311 ref.

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

----Art. 199---Constitutional jurisdiction---Scope---Constitutional jurisdiction which is extraordinary jurisdiction can be exercised in such cases where injustice would ensur due to the illegality, perversity and unlawfulness committed by the Courts below by delivering the judgments.

----Art. 199---Constitutional jurisdiction---Scope---Finding of facts---Finding of facts recorded by two Courts below cannot be disturbed in constitutional jurisdiction.

Malik Abdul Kadir v. Atique Ahmad through legal heirs and other PLD 2004 Kar. 555 and Liaqat Ullah Khan Khatak and 5 others v. Hafeez Akhtar and 9 others PLD 2004 Lahore 312 ref.

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

----S. 516-A---Delivery of disputed property an Superdari---Principles---Question of Superdari should normally be answered in favour of the person from whose possession the disputed property was taken and the same should be returned to him either till the decision of the Criminal Court or findings recorded by the Civil Court about title of the contesting claimants.

Jam Sher Muhammad v. Manzoor Ahmad and another 2006 PCr.LJ 311 rel.

Malik Muhammad Usman and Muhammad Ashfaq Chaudhry for Petitioner.

Ch. Riaz Ahmad for Respondent No.3.

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

Mazhar Hussain, A.S.-I.

MLD 2007 LAHORE HIGH COURT LAHORE 1106 #

2007 M L D 1106

[Lahore]

Before Sardar Muhammad Aslam, J

SOHAIL SARWAR BUTT and another ---Petitioners

Versus

L.D.A through Director General and another---Respondent

Writ Petition No. 14990 of 2004, decided on 8th March, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction---Scope---Constitutional jurisdiction was to be exercised only where the order of statutory Authority was without jurisdiction, illegal and against facts admitted on record---Pendency of civil suit, was considered to be not an efficacious and alternate remedy to deprive a litigant from invoking constitutional jurisdiction---Once a litigant opted a remedy, he must exhaust the same and he was not allowed to switch over to any other remedy in mid of proceedings just at his own sweet will---Petitioner, in the present case, during the pendency of constitutional petition, had, of its own, voluntarily filed a civil suit, exactly on the same cause of action before a civil court---Petitioner could not turn around to canvass the maintainability of constitutional petition---Constitutional petition merited dismissal on the ground of maintainability.

Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan Works Division and 2 others PLD 1972 SC 279; Province of Punjab and 2 others v. Ch. Zahoor Elahi and others 1982 SCMR 173; Ch. Abdul Hamid v. Deputy Commissioner and others 1985 SCMR 359; Muhammad Mubarak Khan v. The Settlement and Rehabilitation Commission, Multan and Bahawalpur Division, Multan and 3 others 1980 CLC Lahore 1980; M.N. Steel Mills v. The Water and Power Development Authority PLD 1988 Lahore 243; Messrs Haroon Brothers v. Drugs Registration Board and another 1992 CLC Karachi 1017; Mst. Sattan and others v. Group. Captain Masroor Hussain PLD 1962 Lahore 151; Salahuddin and others v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244; Commissioner of Income Tax Companies-II and another v. Hamdard Dawakhana (Waqf) Karachi PLD 1992 SC 847; Commissioner of Income Tax Karachi and 2 others v. Messrs N.V. Philip's Gloeilampenfabriaken PLD 1993 SC 434; Export Promotion Bureau and others v. Qaisser Snafiullah 1994 SCMR 859; Mukhtar Ali and others v. Settlement Commissioner (Lands) Sargodha and others 1975 SCMR 489 and Mir Zaman v. Mst. Sheda and 58 others 2000 SCMR 1689 rel.

Syed Kazim Bokhari for Petitioners.

Muhammad Ghani for Respondents.

MLD 2007 LAHORE HIGH COURT LAHORE 1121 #

2007 M L D 1121

[Lahore]

Before Maulvi Awarul Haq, J

MUHAMMAD USMAN---Appellant

Versus

MUHAMMAD SHAHBAZ and 7 others---Respondents

F.A.O. No.364 of 2006, heard on 6th March, 2007.

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

----O.XXXII, R.10---Person of unsound mind---Determination---Guardian ad litem, appointment of---In terms of O.XXXII, R. 10, C.P.C. a person has to be adjudged as a person of unsound mind, before further proceedings are to be taken in a suit tiled on his behalf through next friend.

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

----O.XL, R.1---Receiver, appointment of---Pre-conditions---Remedy provided in terms of O.XL, R.1, C.P.C. by its very nature is the harshest provided in Civil Procedure Code, 1908---Powers under O.XL, R.1. C.P.C. are to be exercised sparingly and with utmost caution---Conditions for appointment of receiver enumerated.

Following are the conditions for appointment of receiver:

(i) Court is not to appoint a receiver except upon "proof" by plaintiff that he has a prima facie chance of success in suit;

(ii) Plaintiff himself has to show a case of adverse and conflicting, claims to the property;

(iii) Plaintiff himself has to show some emergency or danger or loss demanding immediate action;

(iv) Receiver shall not be appointed where it has the effect of depriving a defendant of a de facto possession as it will definitely cause irreparable loss; and

(v) Conduct of applicant is very much relevant. It has to be free from blame.

----O.XL, R.1---Appointment of receiver---Scope---Dispossession of co-owner---Deceased owner of suit property was predecessor-in-interest of both the parties---During pendency of trial, on application filed by defendants, Trial Court appointed a receiver for suit property---Validity---Even if plaintiffs would succeed in the suit ultimately, validity of institution whereof was prima facie doubtful, the property would be treated to be that of deceased who had died and possession of plaintiff would be that of co-owners---Co-owner in possession could not be dispossessed otherwise than by filing a suit for partition---Order of appointment of receiver, passed by Trial Court was set aside being not only illegal but without lawful authority---High Court directed the plaintiffs to furnish security to the satisfaction of Trial Court securing income/profits accruing from the suit property---Appeal was allowed accordingly.

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

Masood A. Malik for Appellant.

Tariq Pervaiz Malik for Respondents Nos. 1 and 2.

Aftab Rahim for Respondents Nos. 3 and 4.

Ch. Muhammad Amin for Respondents Nos.6 and 7.

Date of hearing: 6th March, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1133 #

2007 M L D 1133

[Lahore]

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

Mian JAVED IBRAR UL HAQ---Appellant

Versus

PROVINCE OF PUNJAB through Secretary, Local Govt. and Rural Development, Lahore and 5 others---Respondents

I.C.A. 372 in Writ Petition No.9031 of 2006, decided on 21st February, 2007.

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

----Ss. 124 & 196(2)---Punjab Local Government (Property) Rules, 2003---Constitution of Pakistan (1973), Art.199---Law Reforms Ordinance (XII of 1972), S.3---Intra court appeal---Respondent filed constitutional petition which was disposed of with a direction to Local Council/Authorities to re-auction the contract for lease of the property owned by Local Government---Order was challenged by appellant contending that the lease granted in his favour in the year 2000 could be extended by Local Government by virtue of section 196(2) of the Punjab Local Government Ordinance, 2001---Validity---Law provides that any document or agreement made shall not be affected provided it is not inconsistent with any of the provisions of the Ordinance and in case of inconsistency the provisions of Ordinance shall prevail---Section 124 of the Punjab Local Government Ordinance, 2001 read with the Punjab Local Government (Property) Rules, 2003 framed thereunder binds a Local Council to lease out the property of Local Government only through competitive bidding in an open auction and procedure prescribed in sub rule (2) of Rule-9 of the said Rules shall be followed, mutatis mutandis---High Court directed the Local Council to hold fresh auction in accordance with law.

Ch. Khan Muhammad Bajwa for Appellant.

Ch. Naeem Masood, A.A.-G. for Respondents (On Court Call).

MLD 2007 LAHORE HIGH COURT LAHORE 1153 #

2007 M L D1153

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD NAWAZ and others---Petitioners

Versus

MEMBER JUDICIAL, BOARD OF REVENUE, PUNJAB and others---Respondents

Writ Petition No. 4803 of 1986, decided on 15th March, 2007.

Land Reforms Regulation, 1972 (M.L.R. 115)---

----Para. 25---West Pakistan Land Revenue Act (XVII of 1967), S.4 (26)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Right of pre-emption, exercise of---Tenancy---Proof---Entries in Khasra Girdawari---Concurrent findings of fact by the Courts below---All the Courts below found pre-emptors as tenants over suit-land, accepted their right of pre-emption and decreed the suit in their favour---Plea raised by vendees was that pre-emptors were neither tenants over the suit-land nor at the time of sale nor at the time of filing of suit, therefore, they had no right of pre-emption over the suit-land---Validity---Entry made in Khasra Girdawari was relatable to the date on which it was made---No presumption or assumption thus could be drawn or was attached to it for period preceding and it could not be related back---Pre-emptors themselves had produced Register Haqdaran Zamin which enjoyed presumption of correctness---Not an iota of evidence was available on record to prove that suit-land was ever leased out to plaintiffs for any period of time by vendors--Oral evidence itself was totally inconsistent with the plaint---Pre-emptors were not tenants at the time of date of sale or at the time of filing of suit---High Court in exercise of constitutional jurisdiction set aside the concurrent findings of fact recorded by the Courts below and suit filed by pre-emptors was dismissed---Petition was allowed in circumstances.

Muhammad Nawaz v. MBR and others 2004 SCMR 1384; Khadam Hussain and others v. Muhammad Nawaz Khan 1981 SCMR 183 and Ghulam Hussain and others v. Sarfraz Khan and others PLD 1956 SC 309 ref.

Ch. Khurshid Ahmad for Petitioners.

Hashim Raja Sabir for Respondents Nos. 1 to 3.

Sh. Naveed Shehryar for Respondents Nos. 4 and 5.

Hafiz Khalil Ahmad for Respondent No.6.

Dates of hearings: 7th and 9h March, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1164 #

2007 M L D 1164

[Lahore]

Before Muhammad Sayeed Akhtar, J

ISHRAT JABEEN SAEED---Petitioner

Versus

MULTAN DEVELOPMENT AUTHORITY through Director General and another---Respondents

Writ Petitions Nos. 6128 and 6476 of 2006, decided on 7th March, 2007.

(a) Disposal of Lands by Development Authorities (Regulation) Act (XII of 198)--

----S. 4(g)---Disposal of Lands by Development Authorities (Regulation) Rules, 2002, R. 6(c)---Contract Act (IX of 1872), S. 2---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Housing Scheme approved by Development Authority---Advertisement inviting applications for allotment of plots in such scheme through balloting---Allotment of plots in favour of petitioners inter se husband and wife---Petitioners filed affidavits accepting allotment letters containing condition that spouses could retain one plot of their choice, while other plot would be surrendered---Cancellation of allotments by Authority on violation of such condition by petitioners---Plea of petitioners that such condition not finding mention in advertisement could not be imposed subsequently as contract became complete after successfully draw in their favour---Validity---Offer was made to petitioners through advertisement for allotment of plots subject to condition that if both husband and wife were successful in the draw of plots, only one spouse would be entitled to retain plot his or her choice---If submission of forms was considered as an offer, then acceptance would be subject to a condition---No contract between parties had come into existence in circumstances---Object of Scheme was to accommodate as many families as possible---Petitioners would be bound by such condition after accepting same by filing affidavits---High Court dismissed constitutional petition.

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

----Art. 199---Constitutional jurisdiction---Scope---Enforcement of contract could not be ordered through constitutional petition.

Syed Muhammad Ali Gillani (in Writ Petition No. 6128/2006) and Abdul Aziz Khan Niazi (in Writ Petition No.6476/2006) for Petitioners.

Muhammad Amin Malik for Respondent (M.D.A.).

Muhammad Qasim Khan, A.A.-G. for the State.

MLD 2007 LAHORE HIGH COURT LAHORE 1167 #

2007 M L D 1167

[Lahore]

Before Muhammad Muzammal Khan, J

SAIFA BIBI and 5 others---Petitioners

Versus

HIDAYAT and 4 others---Respondent

Writ Petition No. 6401 of 2000, heard on 13th February, 2007.

Civil Procedure Code (V of 1908)---

---S.12 (2)---Qanun-e-Shahadat (10 of 1984), Art.129 (e)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Decree, setting aside of---Plea of fraud and misrepresentation---Judicial proceedings---Predecessor-in-interest of petitioners filed suit for declaration which was dismissed as 'withdrawn---Subsequently, predecessor-in-interest of petitioners engaged another counsel and filed application under S.12 (2), C.P.C., which application was also withdrawn---After the death of predecessor-in-interest, the petitioners once again filed application under S.12 (2), C.P.C. assailing the order of withdrawal of the application filed by their predecessor-in-interest---Trial Court as well as Appellate Court dismissed the application filed by petitioners-Validity-Counsel through whom predecessor-in-interest of petitioners withdrew his suit was arrayed as respondent in the application under S.12 (2), C.P.C. but petitioners did not level any malpractice/misconduct on the part of that counsel---Engagement/appearance of different counsel proved transparency/purity of proceedings conducted on behalf of predecessor-in-interest of petitioners---Presumption of regularity/correctness was attached to judicial proceedings which could not be dispelled by petitioners---Both the orders of withdrawal of suit and on application under S.12 (2), C.P.C. were passed by two different Civil Judges who had distinctly noted in each order that statements of predecessor-in-interest of petitioners recorded by them were read over to him and his counsel who, in token of correctness of the same, thumb marked/signed those---Mere bald allegations of fraud/ misrepresentation were not enough to rescind the judicial proceedings---High Court in exercise of constitutional jurisdiction declined to interfere with the orders passed by two courts below---Petition was dismissed in circumstances.

Fayyaz Hussain v. Akbar Hussain and others 2004 SCMR 964 rel.

Mehdi Khan Chohan for Petitioners.

Hafiz Khalif Ahmad and Ch. Ahmad Khan Gondal for Respondents.

Date of hearing: 13th February, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1175 #

2007 M L D 1175

[Lahore]

Before Ijaz Ahmad Chaudhry and M.A. Shahid Siddiqui, JJ

SHAHZAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1375 of 2001 and M.R. No.596 of 2001, heard on 13th December, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---F.I.R. had not been recorded at Hospital as per statements of the eye-witnesses in the manner as claimed by prosecution---F.I.R., in circumstances could not be used as a corroborative piece of evidence to the ocular account and prosecution evidence had to be seen with utmost care and caution---Both eye-witnesses being real paternal cousins of deceased, were close relatives inter se and also with deceased---Both eye-witnesses were in contradiction with each other regarding the manner in which they were sitting in the shrine---Both eye-witnesses during cross-examination had failed to give any reasonable explanation for their being present at the spot at the time of occurrence---Said witnesses were chance witnesses who were bound to give reasonable explanation for their being present at the spot and witnessing the incident, but they had failed to do so---Presence of eye-witnesses at the spot was also found doubtful from evidence of court witnesses---Evidence of court witnesses showed that it was an un-witnessed occurrence and ocular account was concocted afterwards---Medical evidence was also found in contradiction with ocular account in the F.I.R.---Medical evidence, in circumstances was also not in line with ocular account---Medico-legal Report revealed that deceased had received 10 injuries, but only one injury had been attributed to accused and remaining injuries had. been attributed to co-accused who had already been acquitted by the Trial Court through the same judgment while disbelieving same eye-witnesses---Respectables of the locality had not been joined in the recovery proceedings which was violative of S.103, Cr.P.C. and it was not the case of prosecution that private persons of the locality were not available or they were reluctant to join the recovery proceedings---Both the recovery witnesses were also found in contradiction with each other---Statements of recovery witnesses had been recorded on the next day at the police station---Empties had not been sent to the office of Forensic Science Laboratory immediately after its recovery, but were sent after arrest of accused and during that period the empties remained lying at the police station---Recovery of weapon from the accused, in circumstances, could not be used as a corroborative piece of evidence to the ocular account, which even otherwise had not been found trustworthy---From the whole prosecution evidence, it was not clear that in what circumstances statement of deceased in injured condition had been recorded by the police under S.161, Cr.P.C. during investigation---No sanctity was thus attached thereto---Prosecution having failed to prove case against accused beyond any shadow of doubt, impugned judgment of conviction and sentence recorded by the Trial Court against accused, was set aside and he was acquitted of the charge by extending him benefit of doubt.?

Ghulam Sikandar and another v. Mamraz Khan and another PLD 1985 SC 11; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 and Iftikhar Hussain and another v. The State 2004 SCMR 1185 ref.

Mian Muzaffar Ahmed for Appellant.

A.H. Masood for the State (in Murder Reference No. 596 of 2001).

Maqbool Ahmad Qureshi for State (in Criminal Appeal No.1375 of 2001).

Date of hearing: 13th December, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 1187 #

2007 M L D 1187

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ALI---Petitioner

Versus

DISTRICT OFFICER (REVENUE)/ COLLECTOR, OKARA and 2 others---Respondents

Writ Petition No.18227 of 2005, decided on 3rd November, 2006.

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

----S. 111---Constitution of Pakistan (1973), Art.199---Constitutional petition---Lease of State land---Cancellation of lease---Petitioner being lessee of State land had challenged order whereby land under lease was allotted to respondent---Petitioner was recorded as illegal occupant of land in the Revenue papers which was leased out to him for one year which period had expired---Petitioner could not refer to any Scheme entitling him to retain or repossess land in question---Land on lease with the petitioner under Temporary Cultivation Scheme, was allocated for Islamabad Oustees Scheme and was no more available for allotment to petitioner---Petitioners, for his right of allotment of land as an evicted tenant, could approach concerned official/Authority as that exercise could not be undertaken in constitutional jurisdiction of High Court---Petitioner had no right of allotment after efflux of time limited for his lease under S.111 of Transfer of Property Act, 1882, especially when he was no more in possession of the same.

Ali Muhammad and 13 others v. Province of West Pakistan and another PLD 1969 Lah. 951 ref.

Hassan Ahmed Khan Kanwar for Petitioner.

Gohar Siddiquie Advocate for A.A.-G.

Jahangir A. Jhoja for Respondent No.3.

MLD 2007 LAHORE HIGH COURT LAHORE 1189 #

2007 M L D 1189

[Lahore]

Before Syed Asghar Haider, J

SADIQ ALI and others---Petitioners

Versus

Mst. NAHEED KAUSAR and 3 others ---Respondents

Writ Petition No. 19427 of 2001, heard on 30th March, 2007.

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

---S.42---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cancellation of mutation at the instance of previous/ex-owner of property---Effect---Gift mutation sanctioned in favour of respondent was assailed by his sisters before revenue authorities- Respondent who had transferred gifted property to petitioners vide sale mutations defended gift mutation for a period of seven years but finally he gave his consent to cancellation of said gift mutation which was annulled accordingly---Validity---Respondent had sold suit land to petitioners by a registered sale deed thereafter he was not owner of suit land, petitioners had acquired valuable rights in property and stepped into respondent's shoes, thus respondent's consent qua annulment of gift mutation was of no consequence---Held, such cancellation made without hearing the petitioners was a violation of rules of natural justice therefore, could not have been sustained.

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

----S.163---Cancellation of mutation allegedly procured on fraud---Review---Limitation---Question of limitation being a mixed question of law and fact entails inquiry and evidence for which adequate opportunity should have been granted to the parties---In cases of fraud, suspicious and collusive transactions, remedial measures for correction should be readily invoked, as fraud and mis-representation vitiate the of lapse of time most solemn proceedings/transactions-Held, no amount of lapse of time could sanctify such a transaction, in fact, on first available opportunity such transaction should be set aside and illegal gains reversed.

Muhammad Iqbal v. S.A.M. Khan Member, Board of Revenue West Pakistan Lahore and 3 others PLD 1970 Lah. 614 ref.

----S. 172---Board of Revenue, jurisdiction of---Lapse committed by Member Board of Revenue---Authority himself was bound to rectify and correct it, if proved S. 172 West Pakistan Land Revenue Act, 1967.

Lal and others v. Mian Dad and another 1968 SCMR 842 distinguished.

Shamim Hussain Bokhari for Petitioners.

Ch. Anees-ur-Rehman for Respondents.

Date of hearing: 30th March, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1201 #

2007 M L D 1201

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUDASSAR JAVAID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8200-B of 2005, decided on 3rd November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.406 & 420---Pre-arrest bail, grant of---Accused was not involved in any criminal misappropriation of funds as it had been recorded by the auditor that the company sustained losses and no misappropriation was found or unearthed or detected---Accused was found to be innocent during the investigation and remained on judicial remand and no recovery was effected from him---Accused was no more required by the police as per statement of State Counsel---Accused had been placed in Column No.2 and challan had been submitted on the direction of the court after rejecting the request of cancellation of case---Arbitrator .appointed by the parties also observed that no misappropriation was committed by accused---Interim bail already granted to accused was confirmed, accordingly.

Ch. Fawad Ahmad for Petitioner.

Musarrat Parveen with Mahmood Khan, S.-I. for the State.

MLD 2007 LAHORE HIGH COURT LAHORE 1210 #

2007 M L D 1210

[Lahore]

Before Syed Shabbar Raza Rizvi, J

QAISER HAMEED and another---Petitioners

Versus

Ch. IJAZ AHMED and 8 others---Respondents

Writ Petition No. 4341 of 2006, decided on 19th April, 2007.

(a) Punjab Local Government Elections Rules, 2005---

---Rr.35(6) & 78---Record of votes---Mode of maintaining---Valid ballot papers cast in favour of each contesting candidate were required to be put in separate packets and each such packet was to be sealed and contained a certificate as to the number of ballot papers in it and also indicating the nature of such contents specifying the name and symbol of contesting candidate to whom the packet was related---Where bag containing such record was found without any seal or seals were found partially broken, counting of votes on its basis could not form the basis for declaring election of returned candidate as valid---Court in such a case had to declare election as a whole void.

Malik Munawar Khan v. Election Tribunal District Judge Lahore 1991 CLC 480 and Ghulam Mustafa Gujjar v. Election Commission of Pakistan Writ Petition No.1758 of 2006 ref.

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

----R.35(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election Tribunal committed illegality in accepting election petition merely on basis of recounting of votes based on record which was not properly maintained---Election Tribunal's order based on improper record was declared to have been passed without lawful authority and of no legal effect and same was set aside---Election in question was declared by High Court as a whole void and authorities were directed to make arrangement for fresh election as required under the law and rules.

Moiz Tariq for Petitioners.

Shehram Sarwar Chaudhary for Respondents Nos. 2 and 3.

MLD 2007 LAHORE HIGH COURT LAHORE 1219 #

2007 M L D 1219

[Lahore]

Before Jawwad S. Khawaja, J

SHER MUHAMMAD alias SHERA---Petitioner

Versus

SARWAR and 3 others---Respondents

Civil Revision No.619 of 2006, decided on 26th September, 2006.

Specific Relief Act (I of 1877)---

----S. 54---Suit for permanent injunction---Both petitioner and respondents filed suits seeking permanent injunction---Both suits were consolidated---Trial Court decreed suit filed by respondents as prayed for while dismissed suit filed by petitioner, who filed appeal wherein Appellate Court affirmed the decrees of the Trial Court---Case of respondents was that there was a Khal and a passage in respective Khasra numbers and they prayed for an injunction to restrain petitioner from interfering in or demolishing the path and the Khal---Existence of Khal was not disputed as same was established from Aks Shajra---Petitioner had no grievance to the extent of said Khal but petitioner had stated that there was no path in said Khasra No. as alleged by respondents---Record showed that the dispute related to a Khal only and there was no proof of any passage running along the Khal---Courts below in circumstances, had fallen in error by granting the injunction in favour of respondents to restrain the petitioner from demolishing the path---Impugned decrees, were liable to be modified to the effect that same were maintained to the extent of the Khal in dispute, but were set aside to the extent the same related to a passage.

Arshad Ali Chohan for Petitioner.

Fazal Rauf Joya for Respondents Nos. 1 and 2.

Ex parte for Respondents Nos.3 & 4.

Date of hearing: 26th September, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 1221 #

2007 M L D 1221

[Lahore]

Before Syed Shabbar Raza Rizvi, J

Ch. MUHAMMAD YOUNIS---Petitioner

Versus

DISTRICT RETURNING OFFICER and 2 others---Respondents

Writ Petition No. 1598 of 2007, decided on 22nd February, 2007.

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

----Ss. 83, 91, 148(1), 156(6)(7), 158 & 162---Bye-election of Nazim or Naib Nazim---Right of' Officiating Nazim or Naib Nazim to contest bye-election---Scope---Officiating Nazim or Naib Nazim would be a different person/separate entity than a Nazim or Naib Nazim---Holding office of Officiating Nazim or Naib Nazim by a member would not bar him to hold office of a Member as a second office---Officiating Nazim or Naib Nazim would hold such office temporarily to oversee the work of Nazim or Naib Nazim, until he was elected in bye-election as no office could be left vacant even for a single day---Punjab Local Government Ordinance, 2001 did not provide for resignation by Officiating Nazim or Naib Nazim and provisions of Ss. 83, 91 & 158 thereof would not apply to them---Allowing Officiating Nazim or Naib Nazim to resign to contest bye-election would lead to vacuum and inconvenience to functioning of Council---Officiating Nazim or Naib Nazim, whether resigned from such office or not, could not contest bye-election---Principles.

(b) Words and phrases---

----"Officiate"---Meaning.

Ballenine's Dictionary and Illustrated Oxford Dictionary, Volume II, page 1170 ref.

Raja Zulqarnain for Petitioner.

MLD 2007 LAHORE HIGH COURT LAHORE 1234 #

2007 M L D 1234

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD ASIM SIDDIQUI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous. No. 5472-B of 2005, decided on 27th July, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), S. 489-F---Pre-arrest bail, grant of---Further inquiry---Investigating officer had submitted that he had conducted a thorough investigation in the matter and was of the opinion that basically, it was a matter of rendition of accounts between the parties who had been indulging in colossal monetary transactions and he had come to the conclusion that it was the complainant who owed some money to the accused---Case of accused, in circumstances had become one of further inquiry within the meaning of subsection (2) of S.497, Cr.P.C.---State counsel had not opposed the grant of bail to accused---Interim pre-arrest bail granted to accused, was confirmed accordingly.

Ansar Ali Warriach for Petitioner.

Tanvir Ahmad Shami for the State.

Syed Ahmad Raza S.-I., Incharge Investigation, Shadman, Lahore with record.

MLD 2007 LAHORE HIGH COURT LAHORE 1236 #

2007 M L D 1236

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD SHAFI---Petitioner

Versus

Ch. NAZIR AHMAD and others---Respondents

Civil Revision No. 820 of 2005, heard on 6th March, 2007.

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

----S. 52---Lis pendens, rule of---Applicability---Rule of lis pendens embodied in S.52 of Transfer of Property Act, 1882 being a rule of equity was certainly applicable to the lis that was pending and decided by the Revenue Officer and the Collector---Sanction to review order passed in appeal, was rightly refused, in circumstances.

Mian Muhammad Aslam for Petitioner.

Hashim Sabir Raja, A.A.-G. for Respondent No.1.

Riasat Ali for Respondent No. 2.

Nemo for others.

Date of hearing: 6th March, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1242 #

2007 M L D 1242

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

Mst. NAJAM KHATOON---Petitioner

Versus

GHULAM MUSTAFA and others---Respondents

Criminal Miscellaneous No. 1395-H of 2006, decided on 27th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas Corpus petition---Custody of minor girl---Alleged detenue, was minor daughter of petitioner (mother)---Petitioner was entitled to retain the custody of minor girl who was five years of age, being her real mother in preference to respondents---Petitioner had not lost her preferential right for the custody of minor---So far as medical prescription and territorial jurisdiction, was concerned that could be looked into while holding a factual inquiry by the Guardian Court---High Court was not to go into deeper controversies---Alleged detenue/minor girl was handed over to petitioner, accordingly--Respondents, however could approach the Guardian Judge for the custody of minor, if so desired.

Mst. Khalida Parveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1; Mst. Samina v. Ishfaque Hussain and anther 2000 MLD 351; Mst. Kaniz Fatima v. Shaukat Hussain and others 1998 MLD 1996; Mst. Shaishta Naz v. Muhammad Haeem Ahmad 2004 SCMR 990; Mst. Tasneem Fatima v. Arshad Mehmood and another 2005 YLR 883; Mst. Faiz Ahsan v. Syed Ahsan Raza Khan 2005 YLR 1614; Smt. Pari Bai v. Antral Lal and others 1997 PCr.LJ 105 and Asif Mowjee v. Mst. Fatima A. Nowjee and another PLD 1987 Kar. 239 rel.

Muhammad Akram Qureshi for Respondents Nos. 1 and 2.

Respondents Nos. 1 and 2 along with alleged detenu.

MLD 2007 LAHORE HIGH COURT LAHORE 1244 #

2007 M L D 1244

[Lahore]

Before Muhammad Muzammal Khan, J

Mian TARIQ AZIZ---Petitioner

Versus

Mst. GULNAZ JAVED and others---Respondents

C.R. 748 of 2007, decided on 26th April, 2007.

Civil Procedure Code (V of 1908)---

----O.VI, R.17---Specific Relief Act (I of 1877), S.42---Amendment of written statement---Respondents filed suit for possession/declaration claiming to be owners as successors of deceased owner of suit property and asserted that their pre-decessor-in-interest entered into agreement to sell his land with the petitioner, but petitioner had failed to perform his part of contract and he did not pay outstanding sale price---Petitioner being defendant, moved application under O.VI, R.17, C.P.C. praying amendment of written statement, so as to plead that predecessor-in-interest of respondents was not owner of property in dispute---Respondents opposed the prayer of amendment of written statement---Trial Court having dismissed application of petitioner for amendment of plaint, petitioner had filed revision---Validity---Petitioner in his written statement, had not denied title of predecessor-in-interest of respondents, but had proposed amendment in which he had prayed to set up entirely new case, which was in clear contradiction to his earlier stance---Petitioner having once admitted title/ownership of predecessor-in-interest of respondents, could not be permitted to turn around to say that he was not owner of property in dispute---Proposed amendment would introduce a new defence plea in clear contradiction to earlier defence, which course was not permissible under the law---No doubt amendments in the pleadings of the parties were to be liberally allowed under O.VI, R.17, C.P.C. in case those did not aim at to set up a new case, changing the entire complexion of pleas raised or set up in defence or substituted original cause of action---Impugned order had revealed that controversy was correctly put to rest by the Trial Court without committing any error of law/facts or illegality/irregularity in terms of S.115, C.P.C.---No case for interference in revisional jurisdiction of High Court having been made out, revision petition was dismissed.

Tariq Mehmood Niazi v. Nadeem Afzal and another PLD 1996 Lahore 429 and Messrs Trans Oceanic Steamship Co. Limited and another v. (Messrs) Tayoob Moosa and Company PLD 1959 (W.P.) Karachi 399 ref.

M. Abbas Mirza for Petitioner.

Saqib Saleem and Faisal Zaman for Respondents.

MLD 2007 LAHORE HIGH COURT LAHORE 1250 #

2007 M L D 1250

[Lahore]

Before Maulvi Anwarul Haq, J

ADMINISTRATOR GENERAL OF AUQAF, GOVERNMENT OF PAKISTAN, ISLAMABAD and another---Petitioners

Versus

DISTRICT JUDGE, SARGODHA and others---Respondents

Writ Petition No.4982 of 1978, heard on 19th April, 2007.

(a) West Pakistan Waqf Property Ordinance (XXVIII of 1961)---

----Ss.6 & 7---Waqf property---Determination of jurisdiction---Civil Court had jurisdiction to decide the nature of property as to whether it was Waqf or not.

Ahmad Ali v. Rehabilitation Authorities PLD 1964 SC 229; Chief Administrator Auqaf, Sindh, Thandi Sarak, Hydrabad and another v. Mst. Masooma PLD 2001 SC 75 and PLD 2001 SC 75 ref.

(b) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1995)---

----S.8---Where a question arises as to whether an evacuee property is attached to a charitable, religious or educational trust or institution, it shall be decided by the Chairman, Evacuee Property Trust Board---Chairman would be having jurisdiction regarding a property with reference to which there is no dispute about its evacuee character and the only dispute is whether the evacuee property is attached to the said trust or institution---When persons are claiming the property to be part of Muslim Waqf such dispute cannot be decided by the Chairman, and same could only be decided by the Civil Court.

Ch. Muhammad Rafique Waraich for Appellants.

Ch. Riasat Ali, for Respondents.

Mian Qamar uz Zaman for Evacuee Trust Properties Board (ETPB).

Date of hearing: 19th April, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1253 #

2007 M L D 1253

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmed Chaudhry, JJ

MUHAMMAD SALEEM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 334-J of 2001 and M.R. No.655 of 2001, decided on 7th September, 2006.

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

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Both the eye-witnesses were closely related inter-se and with the deceased---Mere relationship of witnesses was not sufficient to discard their evidence and declare them interested witnesses, unless there was any enmity between the parties to falsely implicate accused in a case---Motive of the incident itself had disclosed enmity between the parties---Because of previous enmity between the parties, witnesses, could be termed as interested witnesses---Statements of interested witnesses, no doubt could be relied upon for recording the conviction of an accused if said . witnesses would satisfy the court that they had witnessed the incident and they had spoken the whole truth coupled with the fact that their statements were corroborated by some independent piece of evidence---Occurrence had not taken place near the house or place of residence of deceased or the witnesses, but had taken place in the field---Contradiction was found in the statements of both eye-witnesses regarding role ascribed to accused---Medical evidence had contradicted the ocular account---Claim of the witnesses that accused had fired at deceased by putting his gun over his body had been found in contradiction with the medical evidence and site-plan---Contradiction also existed in the statements of both the witnesses regarding role of accused---No independent piece of evidence was available on the record to corroborate statements of witnesses who otherwise were interested being inimical---Delay in the post-mortem of deceased led to draw an inference that F.I.R. was not recorded with promptitude---Possibility could not be ruled out that police papers were not ready for production before the Doctor and the time was consumed to concoct the story and introduce the close relatives of the deceased as witnesses---Such F.I.R. could not be used as a corroborative piece of evidence---Complainant party had also the motive to falsely implicate accused due to previous enmity---Merely because of motive accused could not be held responsible for the offence---Recovery of carbine from accused was useless as said recovery had been effected from the place which was not exclusively owned and possessed by accused---Even otherwise no empty had been recovered from the spot and the report of Forensic Science Laboratory was only to the effect that weapon so recovered was in working condition, which was not sufficient to hold that said weapon had been used in the incident-Such recovery could not be used as a corroborative piece of evidence to the ocular account which had already been found by Court untrustworthy and not confidence inspiring---Prosecution having failed to prove case against accused beyond any shadow of doubt, impugned judgment of conviction and sentence passed against accused by the Trial Court was set aside and he was acquitted of the charge of qatl-i-amd of deceased by extending him benefit of doubt and accused was set at liberty.

(b) Criminal trial---

---Motive---Motive was not sufficient to connect accused with the commission of the offence as the motive was always a double edged weapon---If accused had a motive to commit the specific offence, at the same time, same motive was also available to the complainant party to falsely implicate their opponents in the occurrence.

Ch. Nazir Ahmad for Appellant at State expense (appointed by Court) and Aftab Ahmad Bajwa, Advocate (private engaged).

Mian Abdul Qayyum for the State (in Murder Reference No.655 of 2001).

Maqbool Ahmad Qureshi for the State (in Criminal Appeal No.334 of 2001).

Date of hearing: 7th September, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 1266 #

2007 M L D 1266

[Lahore]

Before Jawwad S. Khawaja, J

PROVINCE OF PUNJAB through Collector Hafizabad and 3 others---Petitioners

Versus

Syed MUHAMMAD HASSAN---Respondent

C.R. No.1042 of 2006, decided on 29th September, 2006.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Temporary injunction, grant of---Petitioners had impugned order passed by appellate court below, whereby order of the Trial Court was set aside and as a result application for temporary injunction filed by respondent was allowed--Case of respondent was that he was entitled to draw irrigation water from a reclamation shoot in respective Rajbah---Case of petitioner Province was that no water for reclamation was sanctioned in favour of respondent and he was not entitled to draw water from any reclamation shoot---Notification was referred to whereby sanction of reclamation supplies of irrigation was barred---Trial Court considering available record dismissed application for grant of temporary injunction, but Appellate Court had allowed the same---Reclamation policy of Irrigation Department, expressly stipulated that water would be supplied thereunder only for three years--Though there was a stipulation that said period of three years could be enlarged, but any such enlargement of time was exceptional and could only be made after the prior approval of the Chief Engineer---Respondent had not been able to produce any order whereby his land was included in the reclamation Scheme---Even if reclamation supplies, were sanctioned to the respondent in 1992, said sanction expired in 1995 at the latest--. Appellate order, in circumstances was not legally sustainable---Same was set aside, with the result that dismissal of respondent's application for temporary injunction by the Trial Court, was maintained.

Ms. Seema Munawar, Government Pleader for Petitioners.

Naseer Ahmed for Respondent.

Date of hearing: 29th September, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 1270 #

2007 M L D 1270

[Lahore]

Before Sh. Azmat Saeed, J

HILBRO INSTRUMENTS (PVT.) LTD. through Chief Execution---Appellant

Versus

Mst. SIKANDAR BEGUM through Special Attorney---Respondent

S.A.O. No. 95 of 2006, decided on 30th April, 2007.

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

----S.15---Appeal---Maintainability---Appeal had been filed against order, whereby appeal against order of ejectment passed by, Rent Controller was dismissed---Appellant was a private limited company and appeal had been filed through its Chief Executive who was not duly authorized to institute appeal on behalf of appellant company---Any legal proceedings on behalf of a limited company could only be instituted by a person authorized to do so on behalf of said company---No assertion was made in appeal that said Chief Executive who had filed appeal on behalf of appellant company was authorized to institute appeal---Appeal Which was not filed by a duly authorized person, being not maintainable, was dismissed.

Messrs A.M. Industrial Corporation Ltd v. Aijaz Mehmood and others 2006 SCMR 437 and Khan Iftikhar Hussain Khan Mamdot v. Ghulam Nabi Corporation Ltd. PLD 1971 SC 550 rel.

Tariq Ahmed Khan for Appellant.

Sajjad Mehmood Sheikh for Respondent.

MLD 2007 LAHORE HIGH COURT LAHORE 1272 #

2007 M L D 1272

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD ALTAF---Appellant

Versus

SAMINA and 5 others---Respondent

Regular Second Appeal No. 60 of 1997, decided on 7th November, 2006.

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), S.100---Suit for possession---Claim of plaintiffs was that they were owners of house in dispute being legal heirs of its deceased owner and that defendant who was given house in dispute temporarily due to relationship, had no concern with said house---No date or even year had been given in the plaint, as to when disputed house was given to defendant---No averment was in the plaint as to the nature of association (taalukdari) between defendant and plaintiffs---Plaintiffs did not bring on record any document of title which could have proved that they and before them their deceased father, was the owner of the disputed house---Claim of defendant was that he was the owner of house in dispute and before him his father had remained in possession of the house for a period of fifty years until his death---Trial Court dismissed suit filed by the plaintiffs, but Appellate Court had decreed same---Validity---Principal reason which had prevailed with Appellate Court for deciding case in favour of plaintiffs was a document which purported to be an arbitration award rendered by Arbitration Council---Said document was neither mentioned in the plaint nor was included in the list of reliance---No attempt whatsoever was made to summon any functionary of the Union Council or the arbitrators who had signed alleged award---Defendant denied that there was any arbitration---Alleged award had not been proved through any marginal witnesses or any other signatory to the same---Such document could not, in circumstances, have been relied upon as a basis for holding that plaintiffs were the owners of house in dispute---Alleged award having not been proved, plaintiffs had failed to discharge the onus of proof placed on them---Appellate Court had misdirected itself and did not take note of material aspect of the case---Appellate decree which legally was not sustainable, was set aside and decree passed by the Trial Court, was maintained.

Muhammad Farooq Qureshi Chishti for Appellant.

Nemo Already Proceedings against ex parte.

Date of hearing: 7th November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 1276 #

2007 M L D 1276

[Lahore]

Before Tariq Shamim, J

MUHAMMAD AMIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6401-B of 2006, decided on 4th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.364---Bail before arrest, refusal of---Accused was nominated in F.I.R. and specific role of abducting brother of complainant had been ascribed to him---Motive had been proved---Accused twice applied for pre-arrest bail before the Trial Court, but on both the occasions same were dismissed for nonprosecution---Accused had been misusing the concession of ad interim pre-arrest bail granted to him---Accused did not join investigation during the time he was on ad interim bail---No specific mala fides of the complainant or the police had been pointed out of accused regarding his false involvement in the case---Alleged abductee remained with accused for more than one month and during that period abductee was confined by accused and others---Alleged abductee for the first time after his release appeared before the Investigating Officer and got his statement recorded under S.161, Cr.P.C. in which he gave details regarding his abduction, the places where he had been kept in illegal confinement by accused and others---Record had shown that prima facie ample evidence was available to connect accused with the commission of offence---Bail petition was dismissed, in circumstances.

Muhammad Ashraf Azad for Petitioner.

Abdul Qudoos Rawal for Complainant.

Ms. Tasneem Amin for State with Asghar Virk S.-I.

MLD 2007 LAHORE HIGH COURT LAHORE 1279 #

2007 M L D 1279

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD YOUNIS alias MACCA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 730-B of 2007, decided on 11th April, 2007.

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

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of-Accused was not named in the F.I.R. rather he was shown as the informer of the presence of the dead-body in a factory---Another accused suspected as murderer of the deceased in the F.I.R. on the basis of strong motive had been exonerated by complainant and he, later on had involved the present accused---Complainant, had stated that extra-judicial confession had been made by accused before him and other witnesses admitting that he had killed the deceased after committing rape with her, but the Chemical Examiner's report did not support the version of the complainant---No other incriminating material was available on record against the accused---Case of accused, thus, demanded further probe and he could not be denied concession of bail---Accused was admitted to bail accordingly.

Waris Muhammad v. Haji Ahmad Yar and another 1976 SCMR 182; Nawab and another v. The State 1975 PCr.LJ 1270; Sultan Ahmad and others v. The State 1979 PCr.LJ 26; Shakil Ahmad v. The State 1997 MLD 1565; Bashir Ahmad v. The State 2004 PCr.LJ 35; Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585; Muhammad Saleem v. The State PLD 1989 Lah. 233 and Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

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

----S. 497(2)-Penal Code (XLV of 1860), S. 302---Bail---Case of further inquiry---Principle---When a case of further inquiry is made out, bail cannot be refused to an accused just on the ground of the start of trial.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 and Muhammad Saleem v. The State PLD 1989 Lah. 233 rel.

----S. 497---Penal Code (XLV of 1860), S.302---Bail---Benefit of doubt at bail stage---Principle---Ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of interim bail granted to him, but damage to an innocent person caused by arresting him, though ultimately acquitted, would be always beyond repair---Whenever reasonable doubt arises regarding the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of the benefit of bail.

Tariq Bashir and 5 others v. The State (PLD 1995 SC 34) rel.

Syed Muhammad Amin Shah for Petitioner.

Nadir Manzoor Dugal, Deputy Prosecutor General.

Ch. Muhammad Arshad Gujjar for the Complainant.

MLD 2007 LAHORE HIGH COURT LAHORE 1284 #

2007 M L D 1284

[Lahore]

Before Syed Zahid Hussain and Syed Asghar Haider, JJ

LAND ACQUISITION COLLECTOR, SARGODHA and another---Petitioners

Versus

MUHAMMAD SULTAN and another---Respondents

Regular First Appeal No.146 of 2005, decided on 5th October, 2006.

Land Acquisition Act (I of 1894)---

---Ss. 4, 11, 18, 23 & 54---Acquisition of land---Determination of compensation---Reference to Court---Appeal---Land was acquired and award was announced by the Collector wherein compensation for built-up property was assessed---Landowners being dissatisfied with such assessment/fixation of compensation filed reference to Reference Court under S.18 of Land Acquisition Act, 1894---Authority participated in the proceedings for some time and issues were also framed in their presence---Landowners produced their evidence, whereafter dozens of opportunities were given to the Authority for producing evidence, but they failed and eventually they were proceeded against ex parte as on relevant date neither any of functionaries appeared nor produced evidence before the court---Court decided reference by recording finding in favour of landowners---Authority had filed first appeal against judgment of the Reference Court under S.54 of Land Acquisition Act, 1894---Authority having failed to produce evidence despite several opportunities were given to it for such purpose, its conduct did not deserve any further indulgence particularly when on last date of hearing no one attended the court on its behalf---Landowners appeared before the court and produced evidence, they were cross-examined by the Authority, but their evidence as to the nature and value of their property remained unshaken---No evidence to the contrary having been produced by the Authority to contradict the stance of landowners the court was left with no option but to accept and believe statements of landowners 1'hade on oath as to the value of the acquired property---No justification had been made out for interfering with such findings recorded by the Reference Court, except the oral assertion---Order passed by the Reference Court could not be interfered with by the High Court in appeal.

Faisal Zafar for Appellant.

Malik Muhammad Akram Khan for Respondents.

Date of hearing: 5th October, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 1291 #

2007 M L D 1291

[Lahore]

Before Iqbal Hameedur Rehman, J

GHULAM RASOOL---Petitioner

Versus

Mst. SIDDAN and others---Respondents

Civil Revision 956 of 1996, decided on 26h April, 2007.

Specific Relief Act (I of 1877)---

----Ss.12 & 27 (b)---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Specific performance of agreement to sell---Bona fide purchaser for valuable consideration without notice---Onus to prove---Grievance of plaintiff was that defendant, after execution of agreement to sell with him sold the suit property to a third person---Suit was decreed by Trial Court in favour of plaintiff but Appellate Court allowed the appeal and dismissed the suit---Validity---Evidence available on record showed that no notice about transaction between plaintiff and defendant was given to the third party---Total amount of sale consideration was paid by the third party at the time of taking possession of the suit property, which was shown to be free from all encumbrances---Appellate Court had rightly found that the third party was a bona fide purchaser for consideration without notice---Defendant having stated that he had sold the suit property to third party, burden of proof was shifted upon the plaintiff and Appellate Court had rightly dismissed the suit of plaintiff---Plaintiff remained negligent because when it had come to his notice that defendant was going to alienate the property, he should have at least sent a notice to the third party to bring to her knowledge that he had contracted to purchase the suit property and she should not purchase the property in dispute on payment but he failed to do so---Appellate Court had rightly accepted the appeal and set aside the judgment and decree passed by Trial Court---High Court declined to interfere with the judgment and decree passed by Appellate Court---Revision was dismissed in circumstances.

Messrs Pak United Housing Enterprise v. Ramzan and 7 others 1992 CLC 1678 rel.

Khizar Hayat Khan Punian for Petitioner.

Abdul Aziz Khan Jaskani for Respondents.

Date of hearing: 26th April, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1294 #

2007 M L D 1294

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD AMJAD MALIK---Petitioner

Versus

SMALL BUSINESS FINANCE CORPORATION through its Managing Director and 2 others---Respondents

Writ Petition No. 10539 of 1999, decided on 18th January, 2001.

Small Business Finance Corporation Act (XXIX of 1972)---

----S. 21---West Pakistan Land Revenue Act (XVII of 1967), Ss.81 & 82---Constitution of Pakistan (1973), Art.199---Constitutional petition---Arrest of guarantor---Petitioner, who was guarantor for the loan advanced to one of the respondents was arrested in pursuance of non-payment of dues by said respondent and was released on payment of Rs.100,000---While apprehending his arrest afresh, petitioner had filed constitutional petition---Main contention raised by petitioner was that he was arrested without any notice or giving any opportunity of hearing and without following the procedure as provided in S.21, of Small Business Finance Corporation Act, 1972 and also Ss.81 & 82 of West Pakistan Land Revenue Act, 1967---Counsel for Corporation assured that in case, any action was taken in future against petitioner, said provisions of law would be strictly followed and adhered to--Corporation, in circumstances was directed to strictly follow the law before taking any action against the petitioner.

Ch. Tanvir Akhthr for Petitioner.

Preshak for Respondent.

MLD 2007 LAHORE HIGH COURT LAHORE 1297 #

2007 M L D 1297

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL KHALIQ---Petitioner

Versus

BASHIR AHMED and 5 others---Respondents

Writ Petition No.6130 of 1998, heard on 9th May, 2007.

Civil Procedure Code (V of 1908)---

----S.12(2)-Arbitration Act (X of 1940), S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Arbitration proceedings---Contention of the petitioner was that Power-of-attorney executed by him in favour of his wife did not at all authorize her to appoint an arbitrator or to refer the matter to arbitrator, she, therefore, had no lawful authority to appoint an arbitrator---Validity---Power of attorney in question did not spell out any authority to refer the matter to arbitration or to appoint arbitrator---Nothing was available on record that any dispute existed regarding the land in question between the parties--Entire proceedings, in circumstances, were without lawful authority, there being no arbitration and as such there was no question of arbitration proceedings, award or the decree pursuant thereof---Application of petitioner under S.12(2), C.P.C. was accepted and constitutional petition was allowed in circumstances---Principles.

Noorul Amin and another v. Muhammad Hasim and 27 others 1992 SCMR 1744 and Muhammad Yasin and Sh. Hanif Ahmad and 4 others 1993 SCMR 437 fol.

Ch. Muhammad Saleem v. Muhammad Akram and others PLD, 1971 SC 516 ref.

S.M. Tayyab for Petitioner.

Baleegh uz Zaman for Respondents No.1.

Remaining Respondents proceeded ex parte.

Date of hearing: 9th May, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1303 #

2007 M L D 1303

[Lahore]

Before Tariq Shamim, J

ABIDA and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6343-B of 2006, decided on 10th August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498--Penal Code (XLV of 1860), Ss.302 & 109---Bail before arrest, grant of---Delay of seven days in lodging F.I.R. having not been explained, false involvement of accused on account thereof could not be ruled out---Complainant had ample time for consultation and premeditation before lodging F.I.R., which had created doubts regarding the authenticity of prosecution case---Only charge levelled against accused was that of abetment, but in F.I.R. it was not mentioned as to where and in whose presence abetment was made by accused---No motive had been assigned to accused who were females and their case was covered under proviso to subsection (1) of S.497, Cr.P.C.---No recovery had to be effected from accused and since the investigation was complete, sending accused behind the bars would not serve any purpose---Portion of the F.I.R. relating to the "Karwai Police", had revealed that father of deceased had reported the matter to the police as one of suicide on the day of occurrence---Prima facie not enough evidence was available on record against accused to connect them with the commission of murder of deceased---Ad-interim pre-arrest bail already granted to accused was confirmed, in circumstances.

Rai Bashir Ahmad for Petitioners.

Rai Zamirul Hassan for complainant.

Ms. Najma Parveen for the State with Muhammad Hussain. S.-I.

MLD 2007 LAHORE HIGH COURT LAHORE 1305 #

2007 M L D 1305

[Lahore]

Before Maulvi Anwarul Haq, J

KHAN MUHAMMAD through L.Rs.---Petitioners

Versus

Mst. KANEEZ FATTMA and 4 others---Respondents

C.R. No.672 of 2007, decided on 16th April, 2007.

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

----S.5---Sale or gift---Determination of the nature of transaction---Defence of defendant lady that suit land was gifted to her by her father was supported by lambardar concerned---No evidence was available on record that land was sold by father to daughter for consideration---No circumstances had been brought on record to disbelieve defendant lady as to why her father would not have gifted land to her---Courts below. is circumstances were correct in holding that actual transaction was that of bona fide gift from a father to his daughter---Making of a first talb in accordance with law was not made out---Plaint disclosed that plaintiff before filing application for obtaining copy of the mutation was fully aware that sale mutation had been attested---Copy of mutation was issued to plaintiff within a week and thereafter he performed Talb-i-Muwathibat that was against the law as codified in S.13 of Punjab Pre-emption Act, 1991.

Malik Noor Muhammad Awan for Petitioner.

MLD 2007 LAHORE HIGH COURT LAHORE 1309 #

2007 M L D 1309

[Lahore]

Before Muhammad Akhtar Shabbir, J

Malik ZAHOOR AHMED---Petitioner

Versus

DIVISIONAL CANAL OFFICER, DIVISION BAHAWALPUR and others---Respondents

Writ Petition No. 615 of 2006/BWP, decided on 30h May, 2005.

Canal and Drainage Act (VIII of 1873)---

---S. 68---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintaining existing Warabandi---Order impugned, was not a final order- passed on merits, but it was simply an instruction issued by Sub-Divisional Canal Officer to maintain status quo with regard to the existing warabandi and it was sufficient to infer that question involved in the matter pertained to question of fact which required recording of evidence and examination of record---Such question could not be gone into by High Court in exercise of its constitutional jurisdiction---Matter being already pending in the civil court and alternate remedy was available to petitioner to approach said court by filing application or to approach Divisional Canal Officer for passing an appropriate order, constitutional petition was dismissed.

Benedict F.D. Souza v. Karachi Building Control Authority and 3 others 1989 SCMR 918; Federation of Pakistan and.2 others v. Major (Rtd.) 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.

Shamshir Iqbal Chughtai for Petitioner.

Malik Sadiq Joyya for Respondents.

MLD 2007 LAHORE HIGH COURT LAHORE 1311 #

2007 M L D 1311

[Lahore]

Before Maulvi Anwarul Haq, J

NAZIR AHMAD and 5 others---Petitioners

Versus

ITTEFAQ TEXTILE MILLS LTD., LAHORE and another---Respondents

Civil Review Petition No. 48-C of 2000, decided on 20th November, 2006.

Civil Procedure Code (V of 1908)---

----S. 114 & O.XLI, R.1---Review application---Counsel for applicant, firstly had contended that there was an inherent lack of jurisdiction of High Court as the suit filed by respondent proceeded to question the proceedings of a public company and at the relevant time by virtue of S.86 of Companies Act, 1913, jurisdiction exclusively vested in a Company Bench of High Court; secondly counsel for applicant had questioned the de-exhibition of on exhibit as according to him the copy was obtained from the judicial records of the suit filed against other respondent by the applicants and was exhibited there; thirdly he requested that it was a fit case for piercing veil of incorporation as would be disclosed that other respondent was the sole master of the affairs of the company---First question was never raised before the Trial Court, the first Appellate Court and then in the regular first appeal; judgment could not be reviewed on said ground---Reasons up-holding de-exhibition of the exhibit had been stated in the judgment and further it had been observed that even if same was to be considered, it stood negated by another exhibited document---No occasion existed for piercing the veil of incorporation as the case had been decided on the basis of evidence available on record---No case for review of the judgment within the meaning of O.XLI, R.1, C.P.C., having been made out, review application was dismissed.

Dr. A. Basit for Petitioners.

MLD 2007 LAHORE HIGH COURT LAHORE 1315 #

2007 M L D 1315

[Lahore]

Before Mian Hamid Farooq and Iqbal Hameed-ur-Rehman, JJ

Syed GHAUS BAKHSH and others---Appellants

Versus

LAND ACQUISITION COLLECTOR and others---Respondents

F.A.O. No.115 of 2002, decided on 28th March, 2007.

Civil Procedure Code (V of 1908)---

----O.XLI, R.33---Land Acquisition Act (I of 1894), S.18---Appellate Court---Power---Non-appealing parties---Relief---Appellants being landowners were dissatisfied with the award and preferred reference to court---Referee Court maintained the compensation awarded by the authorities---Appellants did not assail the judgment and decree passed by Referee Court---One of the landowners filed appeal before High Court in which whole award was set aside and compensation was enhanced---Appellants filed execution petition for implementation of order passed by High Court---Executing Court dismissed the application on the ground that appellants did not file any appeal before High Court and had accepted the decision of Referee Court---Validity---Appellate Court was empowered, in the interest of justice, to allow appropriate relief to non-appealing parties, where appeal was with, regard to whole of the decree---Very wide discretion was given to Appellate Court in terms of O.XLI, R.33, C.P.C. in order to prevent the ends of justice from being defeated---High Court set aside the order passed by Executing Court as appellants were entitled to recover compensation to the extent of their entitlement as propounded in the judgment of High Court---Appeal was allowed accordingly.

Syed Majh-ul-Islam v. LA.C. Rajanpur 1996 CLC 781 ref.

North West Frontier Province Government, Peshawar through Collector, Abbottabad and another PLD 1993 SC 418 and Muhammad Rafiq Khan v. Province of Punjab through Collector Bahawalpur and others 1992 CLC 1775 fol.

Syed Kabeer Mahmood for Appellants.

Zafar Ullah Khan Khakwani, Asst. A.G. for Respondents.

Date of hearing: 28th March, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1318 #

2007 M L D 1318

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. AYESHA---Petitioner

Versus

MATEE-UR-REHMAN and others---Respondents

Civil Revisions Nos. 346 to 353 of 2007, decided on 20th February, 2007.

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

----Art. 33---Appointment of referee---Admission---Statement of referee, withdrawal of--During trial, both the parties appointed a referee for resolution of their dispute---Trial Court directed the referee to decide the matter after hearing parties and perusal of revenue record---Referee made his statement before Trial Court with regard to his decision but six days later he filed an application to withdraw his earlier statement, as according to him it was wrongly made without inspection of revenue record---Trial Court dismissed the application of referee and decreed the suit---Appellate Court allowed the appeal and remanded the case to Trial Court for decision on merits---Validity---Statement made by referee, under the provisions of Art. 33 of Qanun-e-Shahadat, 1984, was to be treated as an admission on behalf of parties referring---Admission which was wrong on the point of fact or otherwise, could be withdrawn---Fact that referee had not consulted record while making earlier statement would be evident from examining his statement---Trial Court could not have decreed the suit on such statement of referee, as he had left it to the court to discover any mistake in revenue record---Appellate Court had rightly assumed that statement given by referee was without examining of revenue record---High Court declined to interfere with the order passed by Appellate Court, in circumstances.

Irshad Ahmad Qureshi-I for Petitioner.

MLD 2007 LAHORE HIGH COURT LAHORE 1322 #

2007 M L D 1322

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD SHARIF and others---Petitioners

Versus

MUHAMMAD ASLAM AND 17 others---Respondents

Civil Revision No.610 of 2006, decided on 14th September, 2006.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiffs were duly served, but despite repeated calls none having appeared .for them, they were proceeded against ex parte---Defendants who were brother and sister had impugned appellate judgment and decree, whereby decree of the Trial Court was set aside and declaratory suit filed by plaintiffs was decreed---Property in dispute was mutated in the name of one of the defendants by way of inheritance as widow of deceased who died issueless---Plaintiffs who were brothers and/or legal heirs of brothers of deceased, filed a suit to challenge said mutation on the ground that one of the defendants was not widow of deceased---One of he plaintiffs, who was brother of deceased husband of said defendant, appeared as sole witness on behalf of plaintiffs but his testimony was contradictory and even respective ages given by him for the deceased and himself, prima facie, had shown that he was not a truthful witness---Plaintiffs having failed to prove their case, Appellate Court, was not justified in setting aside the decree of the Trial Court.

Rana Javaid Iqbal for Petitioners.

Nemo for Respondent, proceeded ex parte.

Date of hearing: 14th September, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 1329 #

2007 M L D 1329

[Lahore]

Before Sh. Hakim Ali, J

ASMATULLAH---Appellant

Versus

ALLAH NAWAZ and others---Respondents

R.S.A. No.1 of 1994/BWP, decided on 28th February, 2007.

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

----Art, 103---Documentary evidence---Scope---Documents speak more truth than persons.

(b) Evidence---

----Documentary evidence---Authenticity---Party relying upon documents cannot challenge the authenticity, veracity and correctness of those documents.

----S.21---Qanun-e-Shahadat (10 of 1984), Arts.114 & 133---Estoppel---Applicability---Fact not cross-examined---Effect---Dispute was with regard to date of death of one of the vendees---Pre-emptor claimed that death occurred after filing of the suit, while vendees claimed the same prior to filing of the suit---During pendency of suit, pre-emptor filed application for impleading successors-in-interest of deceased as party, which application was allowed---Trial Court decreed the suit in favour of pre-emptor by holding that deceased vendee died after filing of the suit---Appellate Court reversed the finding of Trial Court and dismissed the suit---Contention of vendees was that date of death stated by their witnesses in examination-in-chief was not cross-examined, hence it was presumed to be proved---Validity---All vendees must have known that deceased had died pre or post filing of the suit because he was their partner vendee of the sale transaction---Other vendees could not be presumed to be unaware of such fact at the time of granting permission to bring on record the legal heirs of deceased vendee---Failure of vendees not to take up such objection, in fact was an estoppel, which had stopped them to raise such a plea afterward---Repetition of some tutored sentences or facts in examination-in-chief could not be considered to promote case of a party or corroborate it when in cross-examination, version and statement of a witness was demonstrated to have been deposed falsely and incorrectly by putting different questions and reply to it---Same day, month and weather stated by all witnesses of vendees seemed to be tutored facts, therefore, it was not necessary that such facts must have been repeated again in cross-examination because answers to it would have been the same---High Court in exercise of appellate jurisdiction set aside the judgment and decree passed by Appellate Court and restored that of Trial Court---Appeal was allowed in circumstances.

Ahmad Khan v. Rasool Shah and others PLD 1975 SC 311; Sher Azam v. Mst. Tareena 1983 CLC 3157; Mst. Noor Jehan Begum through legal representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; Muhammad Akram v. Muhammad Raul. 2001 MLD 1277; Muhammad Bakhsh v. Nisar Ahmad 1985 CLC 1974; Ghulam Rasool and 4 others v. Muhammad Hanif 1980 CLC 1611; Allah Dad v. S.M. Khan 1989 CLC 2287; Muhammad Din v. Sher Muhammad 1999 CLC 1526; Abdul Qadir and 5 others v. Muhammad Umar and others PLD 1987 Lah. 232; Muhammad Suleman v. Abdul Rashid and 13 others PLD 1987 Lah. 387; Capt. Shahid Saleem Lone, and others v. Ata-ur-Rahman and others 1985 CLC "2555 and Pitamberdas and others v. Bhawanilal and other AIR 1932 Sind 220 ref.

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

----Art.129 (e)---Judicial and official acts---Presumption---Principles---Judicial and official acts are presumed to have been regularly performed according to Art.129 (e) of Qanun-e-Shahadat, 1984---If such acts are not performed with regularity, then exceptional circumstances are to be brought on record by person/party controverting such fact---Such person/party has to prove that judicial/official acts were not performed with regularity and correctly.

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

----Arts.132 & 133---Examination-in-chief and cross-examination---Object and scope---Falsity or truthfulness of statement is adjudged in cross-examination, by putting questions to witnesses which brings to the surface the reality of facts and veracity of witness---Examination-in-chief and cross-examination make statement of a witness complete, which has to be considered as a whole for its believability and to scrutinize it with regard to its truth or falsehood.

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

----Arts.132 & 133---Appreciation of evidence---Principles---Fact not cross-examined---Effect---Not necessary that each and every word and fact even immaterial must be cross-examined and again put in the mouth of witness -for getting his admission or denial---Cross-examination has to proceed in such manner so as to disprove the version adopted in examination-in-chief---Purpose and aim of cross-examination is to bring out the truth if witness has stated falsely in his examination-in-chief---Cumulative effect of statement consisting of examination-in-chief and cross-examination has to be seen while appreciating the evidence.

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

----S.100---Second appeal---Appreciation of evidence---Scope---Second appeal, though has to be decided on questions of law but questions of law are formed on the basis of facts, their analysis, proof and disproof---If documentary evidence is ignored or its value is not correctly appreciated while disposing of the case or wrong conclusions are drawn from the documentary evidence, which are ex facie perverse, High Court has to interfere in such situation particularly when there is difference of opinion in the judgment of both the courts below---To resolve the controversy as to what is right and who is wrong, High Court has to take the decision.

Utley Singh and another v. Hari Ram and others AIR 1930 Lah. 443 and Muhammad Din and others v. Mst. Naima Bibi and others 2006 SCMR 586 ref.

Ijaz Ahmad Ansari for Appellant.

Ch. Naseer Ahmad for Respondents.

Date of hearing: 23rd February, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1342 #

2007 M L D 1342

[Lahore]

Before Mian Saqib Nisar, J

Mst. GHULAM FATIMA---Petitioner

Versus

DEPUTY COMMISSIONER, KASUR (D.C.O., KASUR) and 6 others---Respondents

Writ Petitions Nos.17695 and 11758 of 2001, decided on 10th March, 2003.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Specific Relief Act (I of 1877), Ss.42 & 54---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for declaration and permanent injunction-Application for setting aside decree on plea of fraud and misrepresentation---Petitioner claimed that she being daughter of deceased owner of two properties, one situated at L' and other inI' was the' his sole heir and as such was entitled to inherit said properties---Mutation with regard to property situated at L' was attested in favour of petitioner and with regard to property situated atI' she filed suit for declaration without impleading any specified person, but had impleaded public-at-large which suit was decreed in her favour---Respondent not only filed application under S.12(2), C.P.C. for setting aside decree passed in favour of petitioner, but she also filed suit for declaration and permanent injunction about her ownership of properties in question---Claim of respondent was that she was the owner of properties in question and was very much alive and that petitioner was an impersonator---Real question for determination was, whether petitioner was legal heir of respondent who was alleged by the petitioner having died in the year 1997 and that she was the mother of petitioner---Such questions could only be decided by the civil court---Authorities, who had entered had sanctioned the mutation in favour of petitioner and also registered the death entry of respondent as per their investigation, if found to be result of fraud and misrepresentation, were possessed with the jurisdiction to examine and determine the question of fraud etc.---Any such order passed, however, would not cause prejudice to the rights of the parties to the properties which were subject matter of application under S.12(2), C.P.C. or the suit for declaration, filed by respondent---High Court, in circumstances could not interfere in the matter in its constitutional jurisdiction.

Muhammad Saleem Sheikh for Petitioner.

Fawad Ahmad, A.A.-G. for Respondents Nos. 1 to 5.

Ch. Hameed-ud-Din with Ch. Tanveer Akhar for Respondent No.6.

Anjum Hussain, Naib Tchsildar, Pattoki.

MLD 2007 LAHORE HIGH COURT LAHORE 1347 #

2007 M L D 1347

[Lahore]

Before Maulvi Anwarul Haq, J

SHAHZAD ANSARI and 2others---Petitioners

Versus

RIAZ ARMED TAHIR and another---Respondents

Civil Revision No. 1250 of 2006, heard on 20th December, 2006.

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

----S. 42---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13-A---Suit for declaration---Sale-deed regarding land in favour of defendant---Issuance of notice to plaintiff's predecessor under S.13-A of West Pakistan Urban Rent Restriction Ordinance, 1959---Reply of .plaintiff's predecessor claiming to be tenant of land and owner of its superstructure---Corrigendum to sale-deed got executed by defendant incorporating therein sale of .superstructure also---Suit by plaintiff alleging such corrigendum to be illegal---Proof---Plaintiff as witness admitted such reply, 'wherein his predecessor had stated that he was tenant of house located on land, but as sale-deed related only to land, thus, he could not be ejected from house---Plaintiff as witness deposed that his predecessor had been paying rent of house regularly to vendor---Vendor as witness confirmed sale of land and its superstructure in favour of defendant---Held; superstructure of land belonged to vendor, which was let out by him to plaintiff's predecessor, suit was dismissed in circumstances.

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

----S. 13---Civil Procedure Code (V of 1908), S. 11---Ejectment proceedings---Question of title---Decision on such question by Rent Controller or Appellate Authority may constitute res judicata.

Muhammad Younas Chaudhary for Petitioners.

Nemo for Respondent No. 1.

Ghulam Farid ud Din for Respondent No.2.

Date of hearing; 20th December, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 1351 #

2007 M L D 1351

[Lahore]

Before Hasnat Ahmad Khan, J

SHUAKAT HAYAT and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 752 of 2002, heard on 27th April, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b), 201 & 34---Appreciation of evidence---Benefit of doubt---Incident was a case of blind murder which entirely based upon circumstantial evidence and evidence of last seen provided by prosecution witnesses---Circumstantial evidence was always considered to be a weak type of evidence, even otherwise evidence of witnesses, could not be relied upon as same had not been found to be trustworthy---Unexplained delay of 12 days in lodging F.I.R., had made prosecution story hazy and doubtful---Prosecution had not proved motive part of story---No witness had been produced to prove motivating factor behind the occurrence---Medical evidence could not advance the case of prosecution as the occurrence was un-witnessed---Prosecution story had been found to be doubtful, benefit of which had to go to accused as it was better to err in acquittal rather than to err in conviction---Conviction and sentence awarded to accused by the Trial Court, were set aside and they were acquitted of the charge and were set at liberty.

Tahir Khan alias Niazi v. State 2005 YLR 2220 ref.

Malik Muhammad Tariq Nonari for Appellants.

Rao Atif Nawaz for the State.

Date of hearing: 27th April, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1366 #

2007 M L D 1366

[Lahore]

Before Mian Hamid Farooq and Iqbal Hameed ur Rehman, JJ

PROVINCE OF PUNJAB through District Collector, Multan and 5 others---Appellants

Versus

Messrs KHALID HUSSAIN AND COMPANY GOVERNMENT CONTRACTORS---Respondent

R.F.A. No. 42 of 2002, heard on 17th April, 2007.

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

----Art. 33---Arbitration Act (X of 1940), Ss. 14 & 17---Suit, pendency of---Matter in dispute referred by Trial Court to Referee nominated by both parties agreeing to be bound by his decision---Referee made report after recording evidence of parties and examining record summoned by him and produced by parties---Suit decreed by Trial Court on basis of report of Referee---Validity---Neither parties had agreed that Referee nominated by them should make simplicitor statement furnishing information nor did Referee make such statement---Such matter had been decided as an "Arbitrator" and not as a "Referee"---Such report was an award and not a "Faisla" or information---Suit had not been decided on mere statement of Referee---Trial Court should have treated such report as award and not a "statement furnishing information" and ought to have asked parties to file objections to award, and then to have decided the matter---Trial Court had committed grave illegality in passing impugned judgment---High Court set aside impugned judgment/decree with direction to Trial Court to decide matter afresh after inviting objections from parties against award of Arbitrator.

Ghulam Farid Khan v. Muhammad Hanif Khan and others 1990 SCMR 763 and Nazir Ahmed and others v. Muhammad Qasim and others 2004 SCMR 1292 rel.

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

----Art. 33---Matter in dispute left by parties to be decided upon statement of third person---Effect---Statement of such third person would be considered as admission by parties to suit---Principles.

Article 33 of Qanun-e-Shahada, 1984 envisages that statements made by the persons to whom a party to the suit has specifically referred for information in reference to the matter in dispute are admissions. It follows therefrom that if a matter is left to be decided upon the statement of third party, such statement is to be considered as admission by the parties.

---Ss. 14 & 17---No decree could be passed on basis of award without giving an opportunity to parties to file objections thereto.

Zafarullah Khan Khakwani, A.A.-G. for Appellants.

Muhammad Tariq Hussain for Respondent No. 1.

Respondent No.2 was proceeded ex party.

Date of hearing: 17th April, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1372 #

2007 M L D 1372

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

THE STATE through Dy. Director (Legal) ANF---Appellant

Versus

FARUUKH NADEEM through Branch Manager---Respondent

Criminal Appeal No. 889 of 2006, heard on 16th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c)/15, 74 & 32---Release of vehicle on Superdari---Validity---Trial Court while ordering interim release of the .vehicle to the respondent company had rightly observed that no evidence was available on record to show that the vehicle in question has been used in trafficking of narcotic substance allegedly recovered from the accused----State (appellant) had even not been able to establish locus standi of the Anti-Narcotic Force Authorities to challenge ownership of the vehicle---Admittedly the vehicle was owned by the Leasing Company and there was no rival claimant---Section 74 of the Control of Narcotic Substances Act, 1997 read with its S. 32 did not create any absolute bar for the release of a vehicle---Owner of the vehicle was only required to prima facie established that he had no knowledge that the vehicle was being used for transporting narcotics---Impugned order was based upon solid reasons and did not suffer from any illegality calling for interference by High Court---Vehicle had rightly been given to respondent on superdari--Appeal was dismissed accordingly.

Ch. Arshad Mahmood for the State.

Khalil Masood Sandhu for Respondent.

Date of hearing 16h April, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1374 #

2007 M L D 1374

[Lahore]

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

Messrs ORIENT OCCIDENT (PVT.) LTD. through Director and others---Appellants

Versus

Messrs UPAZA COMMERCIAL ENTERPRISES through Proprietor and others---Respondents

Regular First Appeal No. 884-DB of 2001, heard on 28th November, 2006.

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

----O.XXIII, R. 3---Suit for recovery of money---Compromise of suit after recording its terms and conditions in court---Compromise partly acted upon---Non-payment of balance amount by defendant seeking return of cheques in possession of plaintiff---Plaintiff refused to accept such condition of defendant for being not relatable to suit---Recording failure of compromise by Trial Court for such reason---Validity---Trial Court had no option, but to pass- decree for unpaid amount, which could be recovered from defendant in execution---Such observation of Trial Court was wholly without jurisdiction---High Court passed decree in accordance with compromise.

Sourendra Nath Mitra and others v. Tarubala Dasi AIR 1930 PC 158; Charles Hulert Kirsch v. Edward Ketih Walcott and others AIR 1929 PC 289 and Shaukat Habibi and 5 others v. Raja Muhammad Bashir and another 2004 YLR 175 ref.

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

----O.IX, R.13---Non-appearance of defendant on a date, when miscellaneous application was fixed for hearing---Ex parte decree, passing of---Validity---Trial Court could dismiss application for non-prosecution, but could not proceed ex parte in suit against defendant.

Qazi Muhammad Iqbal v. Hasin Jahan and 3 others 1993 SCMR 1949 rel.

----O.IX, R.13---Limitation Act (IX of 1908), Art. 156---Ex parte decree, setting aside of---Non-appearance of defendant on a date, when not suit, but only miscellaneous application was fixed for hearing---Delay in riling appeal against such decree---Validity--Impugned judgment was wholly without jurisdiction---Question of limitation would not arise in such case, and same would be of no significance.

Sardar Ahmad Yar Khan Jogezai and 2 others v. Province of Baluchistan through Secretary C & W Department 2002 SCMR 122 rel.

Ch. Imdad Ali Khan for Appellants.

Respondent No. 1 proceeded ex parte on 18-4-2006.

Respondents Nos. 2 and 3 proceeded ex parte on 28-9-2006.

Date of hearing: 28th November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 1379 #

2007 M L D 1379

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

MUHAMMAD YASEEN and 4others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 1928 of 2006 and 66 of 2007, heard on 2nd April, 2007.

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

----S. 7(h)---Penal Code (XLV of 1860), Ss. 427/149---Appreciation of evidence---Promptly lodged F.I.R. had eliminated the possibility of fabrication or false implication---Credible account of occurrence had established the time, place and manner of the incident as well as the fear created by it---Eye-witnesses had corroborated each other in all respects who had no enmity with the accused and had duly identified the accused in Trial Court---Acquittal of some accused on the same evidence could not help the accused as the maxim "falsus in uno falsus in omnibus" had since been discarded and now grain had, to be sifted from- the chaff in each case according to the circumstances---Rule that integrity of a witness was indivisible could not be accepted as of universal application---Evidence of incriminating recoveries from the accused furnished by police officials was credible, who were as. good witnesses as other witnesses and the same had fully supported the ocular testimony---On account of terror and fear created by the accused in the area, no independent witness could be willing to come forward to participate in the recovery proceedings---Investigation conducted in the case was honest and transparent---Conclusions arrived at by Trial Court were not arbitrary, perverse or against the law---Convictions and sentences of accused were upheld in circumstances.

Muhammad Naeem alias Naeema v. The State 1992 PSC (Crl.) 725; Muhammad Khan v: The State 1994 SCMR 1543; Rashid Mehmood v. Administrator, District Council and others PLD 1997 Lahore 407; Munawar Shah v. The State 2004 MLD 200 ref.

M. Ahsan Bhoon for Appellants.

M. Mazhar Sher Awan for Respondent.

Date of hearing: 2nd April, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1388 #

2007 M L D 1388

[Lahore]

Before Hasnat Ahmad Khan, J

YAQOOB and 2others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos. 4-B and 574-B of 2007, decided on 22nd May, 2007.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 324, 342, 354, 382, 427, 454, 337-A(ii) &.337-F(ii)(iii)---Bail, grant of---Further inquiry---Previous bail application tiled by accused was dismissed as withdrawn without discussing the merits of the case---Withdrawal of bail application would not mean that it was dealt with on merits---Fresh bail application could be moved and decided on merits---Role assigned to one of accused was that of causing a sota blow on the body of injured prosecution witness---Allegation against two co-accused was in the generalized form and no specific injury had been attributed to them---Five persons on the side of accused were injured in the same occurrence, but injuries suffered by them were suppressed by the complainant---Prima facie, it appeared that it was a case of free fight in which possibility could not be ruled out that ultimately each accused would be dealt with by the Trial Court according to his individual role---Co-accused had been able to show that a case of further inquiry had been made out in favour of accused persons---Accused persons had not caused any injury to deceased and only role ascribed to them was that of causing blunt weapon injury to injured prosecution witnesses---Role ascribed to accused was almost similar to the role ascribed to their co-accused who had already been granted bail---Accused were languishing in jail since long---Bail could not be refused as a matter of punishment---Accused persons were allowed bail, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

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

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 454 & 337---Bail, refusal of---Co-accused had been ascribed the role of causing fire-arm injury on the right thigh of injured prosecution witnesses---Even if case of .said co-accused was taken up as that of individual liability, he could not be treated like the other co-accused who had .already been granted bail---F.I.R., revealed that during occurrence only .three accused including the co-accused had effectively used their fire-arms---Choice of weapon of assault and, the locale of injury attributed to co-accused prima facie had. shown that his intention was not so innocent---After pressing the trigger of rifle, prima facie, accused had done the best on his part; Police record showed that weapon of offence, the rifle had been recovered at the instance of co-accused and at present stage it would be premature to hold that co-accused had no intention to kill prosecution witness as deeper appreciation of evidence at bail stage, world not be permissible---Each criminal case had to be decided on its own merits---Bail application .filed by said co-accused, being meritless, was dismissed.

Ch. Pervaiz Aftab for Petitioners.

Sh. Muhammad Farooq for Petitioner (in Criminal Miscellaneous No. 574-B of 2007).

Sh. Imtiaz Ahmad for the State with Tasadaq Hussain, S.-I. with record.

Dil Muhammad Khan Alizai for Complainant.

MLD 2007 LAHORE HIGH COURT LAHORE 1395 #

2007 M L D 1395

[Lahore]

Before Maulvi Anwarul Haq, J

SHAKIL AHMED---Appellant

Versus

MUHAMMAD HANIF and another---Respondents

F.A.O. No. 199 of 2005, heard on 22nd May, 2007.

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

----S. 17(4)---Ejectment petition by donee of shop---Objection of tenant that gift in favour of donee by his father was made without prior approval of Central Government; and that approval granted after filing of ejectment petition rendered same incompetent---Validity---Permission of Central Government or Cantonment Board would not be necessary for transfer of old grant---Central Government had granted post facto approval to such gift---Objection was overruled in circumstances.

Mst. Bhaghan and 2 others v. Sh. Muhammad Latif and 2 others PLD 1981 Lah. 146 rel.

(b) Cantonment Rent Restriction Act (XI of 1963)---

----S. 17(4)---Ejectment petition---Personal bona fide need of landlord---Landlord leaving country during pendency of ejectment petition---Effect---Landlord would not be supposed to remain on the streets till Final decision of ejectment petition---If landlord in such interregnum left country for doing some job, then same would not derogate from his bona fide personal need, "if otherwise proved.

Sardar Muhammad Ghazi for Appellant.

Munir Ahmad Malik for Respondents.

Date of hearing: 22nd May, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1398 #

2007 M L D 1398

[Lahore]

Before Khawaja Muhammad Sharif, J

Professor (R.) Mian KHALID IKRAM MEHMOOD and another---Petitioners

Versus

CCPO, LAHORE and 7 others---Respondents

Writ Petition No. 4005 of 2007; decided on 15th May, 2007.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Maintainability---Petitioners, who were retired Professors being old man and lady having about 80 years of age, had been dispossessed from their house by respondents---Petitioners had been made rolling stones and they were running from pillar to post to get justice from the court and the Police, but had failed--Constitutional petition being discretionary relief, High Court should not fall into technicalities of law and if court came to conclusion that justice had not been done, then .Court should do justice---Three attempts had been made by respondents to dispossess petitioners from their house---Constitutional petition filed by petitioners was accepted and D.S.P. present in the court was directed to get possession of house in dispute and hand over the same to petitioners---Police would also be duty bound to protecttheir possession, life .and liberty even after handing over possession to the petitioners---If petitioners would move application for registration of the case, Police would be duty bound to register case against respondents.

Khizer Hayat and others v. LG. Punjab and others PLD 2005 Lah. 470 rel.

Aftab Ahmad Bajwa for Petitioners.

Ch. Muhammad Hanif Khatana, Addl. A.-G. along with Imran Ahmad; SP, Ateeq Sindhu DSP, Umar Rashid Butt Inspector, Sana Ullah Inspector Legal and Naeem Ahmad S.-I.

M.S. Shad for Respondents Nos.6 and 7.

Ch. Imtiaz Elahi for Respondent No.5.

MLD 2007 LAHORE HIGH COURT LAHORE 1406 #

2007 M L D 1406

[Lahore]

Before Syed Shabbar Raza Rizvi, J

COMMERCIAL ADVERTISERS through Managing Partner ---Petitioner

Versus

TEHSIL MUNICIPAL ADMINISTRATION, SARGODHA and 3 others---Respondents

Writ Petition No. 6886 of 2006, decided on 15th May, 2007.

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

----Ss.54 (2) & 191---Punjab Local Government (Auctioning of Collection Rights) Rules, 2003, Rr.2 & 5 (5)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Auction of Publicity Board Tax---Reserved price, non-mentioning of---Effect---Petitioner being unsuccessful bidder assailed auction proceedings on the ground that no reserved price was mentioned in publication and the highest bidder being an individual did not qualify to participate in the proceedings---Validity---Although no reserved price was mentioned in the publication, yet no prejudice was caused to petitioner for such lapse as such price was published on Notice Board of the authorities and was also announced prior to commencement of auction proceedings, copy of the same was also distributed amongst all bidders---Any person, firm or a company was eligible under R.2 of Punjab Local Government (Auctioning of Collection Rights) Rules, 2003, to make contract with local government, therefore, highest bidder was not disqualified to participate in auction proceedings---High Court declined to interfere with auction proceedings conducted by the authorities---Petition was dismissed in circumstances.

2004 YLR 366 distinguishing.

Oxford Advanced Learners Dictionary, 7th Edition, page 332 ref.

Ch. Anwarul Haq for Petitioner.

Imtiaz Hussain Khan Baloch for Respondents.

MLD 2007 LAHORE HIGH COURT LAHORE 1409 #

2007 M L D 1409

[Lahore]

Before Hasnat Ahmad Khan, J

BHOORA KHAN and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4140-B of 2006 decided on 15th May, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 201, 148 & 149---Bail, grant of---Further inquiry---Benefit of doubt---F.I.R. was lodged in the case with an inordinate delay of about two months---Dead body of deceased had not been recovered---No medical evidence was available 'against accused---Glaring contradictions on the part of complainant, had raised many questions about the genuineness of claim of complainant made in F.I.R.---Accused during investigation were found innocent---Accused, though in a subsequent investigation had been found guilty of offence, but benefit of doubt on the basis of contradictory opinions of police, even at bail stage, could be given to accused---Prosecution had failed to prove that accused remained fugitive from law---No incriminating article had been recovered at the instance of accused during investigation---Accused were not previous convicts---Mere registration of cases against accused in past without any conviction could not be made a ground for refusing bail to accused---Case of further, inquiry having been made out in favour of accused, they were entitled to bail as a matter of right---Start of the trial would not become an impedement in the way of accused to get post arrest bail---Accused were allowed bail, in circumstances.

Muhammad Islarnil v. Muhammad Rafiq and another PLD 1989 SC 585; Muhammad Saleem v. The State PLD 1989 Lah. 233; Zulfiqar Ali. v. The State 1987 MLD 1608 and Munir v. The State 2002 MLD 712 rel.

Abdul Rehman Khan Laskari for Petitioners.

Sh. Imtiaz Ahmed for the State with Ijaz Hussain S.-I. with record.

Shakeel Ahmed Bhatti for Complainant.

MLD 2007 LAHORE HIGH COURT LAHORE 1415 #

2007 M L D 1415

[Lahore]

Before Mian Hamid Farooq and Iqbal Hameed ur Rehman, JJ

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Vice-Chancellor and another---Appellants

Versus

MUHAMMAD AWAIS RAFIQ---Respondent

I.C.A. No. 136 of 2006 in Writ Petition No. 4458 of 2006, decided on 8th May, 2007.

Educational institution---

----University examinations---Rules and Regulations for conducting examinations would fall within domain of University Administration to run internal affairs relating to examinations etc.

Muhammad Ijaz-ul-Haq v. Executive District Officer and others 2006 SCMR 989; Yahya Gulzar v. Province of Punjab through Secretary Health, Government of Punjab Lahore and 3 others 2001 CLC 9 and Dr. Liaqat Ali v. Vice-Chancellor, University of Agriculture, Faisalabad and. 2 others PLD 1999 Lah. 454 ref.

Punjab Small Industries Corporation v. Ahmad Akhtar Cheema 2002 SCMR 549 and Muhammad Ryas v. Bahauddin Zakariya University, Multan and another 2005 SCMR 961 rel.

Malik Muhammad Tariq Rajwana for Appellants.

Muhammad Ameer Bhatti for Respondent.

MLD 2007 LAHORE HIGH COURT LAHORE 1420 #

2007 M L D 1420

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD YASIN---Appellant

Versus

MANZOOR AHMAD and another---Respondents

Criminal Appeal No. 1664 of 2006, heard on 11th May, 2007.

Criminal Procedure Code (V of 1898)---

----S.417(2-A)---Penal Code (XLV of 1860), Ss.337-A(ii) & 452---Appeal against acquittal---Judicial Magistrate convicted and sentenced respondent/accused under Ss.337-A(ii) & 452, P.P.C., but Appellate Court below acquitted accused---Even if statement of both sons of victim who were prosecution witnesses, were disbelieved, there was no reason with the court to disbelieve statement of victim who being injured was a star witness of the case; because occurrence had taken place in her house where she was attacked by respondent/accused and was caused injuries---No question was of false implication, because that was a rare phenomenon, coupled with the fact that ocular account was fully corroborated with the medical evidence---Conviction could be .awarded to accused, even on the basis of sole statement of a witness---Victim/prosecution witness was not only a witness, but was injured as well---No reason existed not to believe her statement, who throughout the case had fully supported prosecution case---Regarding non-recovery of blood stained earth, except in murder cases, it was never taken into possession---Argument of counsel for respondent/accused, was of no avail, in circumstances---Omission to take into possession, blood stained clothes of victim, would be a negligence on the part of Investigating Officer, but same could not vitiate the trial---Trial Court should also have convicted respondent/accused under S.324, P.P.C. because it was an attempt to Qatl-i-Amd on the part of respondent/accused and S.324, P.P.C. was a mandatory provision of law---Even if the charge was not framed in the case under S.324, P.P.C. but the facts and circumstances of the case transpired that said provision of law was fully attracted---Appeal against acquittal was accepted, judgment of the Trial Magistrate whereby accused/respondent was convicted and sentenced, was restored and was also convicted under S.324, P.P.C. and sentenced to two years' R.I. with fine.

Zulifqar Ali Bhutto v. The State PLD 1979 SC 53 rel.

Ch. Muhammad Nawaz Bowgun for Appellant.

Naseruddin Khan Nayyar, APG for the State.

Sardar Ahmad Khan for Respondent.

Date of hearing: 11th May, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1431 #

2007 M L D 1431

[Lahore]

Before Ijaz Ahmad Chaudhry, J

RAB DITTA alias KALA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2293/B of 2007, decided on 13th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.394---Bail, grant of---Further inquiry---Benefit of doubt---Delay in lodging F.I.R., prima facie had lost the sanctity of nomination of accused by the complainant into the F.I.R.---Incident was a dark night occurrence and no source of light had been disclosed at the place of occurrence in which accused were identified---Exact place of incident in the case was also doubtful and during the Investigation different Investigating Officers came to the conclusion that case against accused was doubtful---No recovery had been effected from accused---Finding of the police though. was not binding upon the courts, but it could be considered for the grant of bail to accused, if same was based on cogent and solid reasons and supported by the evidence collected during the investigation---Accused for the time being had succeeded in making out a case of further inquiry---Accused was behind the bars for the last more than one year and bail could not be withheld as punishment---Benefit of doubt at any stage of the case had to go to accused---Accused was admitted to bail, in circumstances.

Ch. Muhammad Saeed Haer for Petitioner.

Saeed Ashraf Warraich, Addl. P.G. for the State.

Muhammad Yasin, S.-I. with record.

MLD 2007 LAHORE HIGH COURT LAHORE 1436 #

2007 M L D 1436

[Lahore]

Before Muhammad Sair Ali, J

NAJEEBULLAH KHAN---Petitioner

Versus

PROVINCE OF PUNJAB through District Collector and others---Respondents

Writ Petition No. 3379 of 2007, .decided on 18th May, 2007.

(a) Words and phrases---

----`Premature'---Connotation---Claim can only be termed as premature, if fact, cause or effect thereto have not come into existence or have not happened or ripened to give rise to a legal injury upon which a legally enforceable claim can be formulated by an applicant.

Black's Law Dictionary by Brayn A. Garner (17th Edition) ref.

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

----Art. 199---Constitutional petition---superdari of land---Premature application---Proceedings in question were carried out in execution of some orders passed by authorities whereby superdari of petitioner's crops was handed over to superdar and suit land was resumed---Under the orders of authorities, petitioner's possession over suit land was interfered with and petitioner was deprived of the yield of crops sown by him---Petitioner sought revocation of proceedings of superdari and resumption of land, which application was dismissed by Trial Court and the order was maintained by Appellate Court in exercise of revisional jurisdiction on the ground that application was premature---Petitioner questioned the actions of authorities as illegal and in violation of stay orders---Validity---Vices of such actions became the litigated facts and questions in petitioner's application filed before Trial Court---Grievance or cause to agitate thereagainst had thus unarguably matured as the facts/action had given rise to as marry causes as the facts---Both the Courts below could not term petitioner's application as premature as the court's had adopted a course to bypass the decision on merits of a mature cause---Order passed by authorities was declared without lawful authority and of no legal effect---High Court set aside the orders passed by both the courts below and remanded the application filed by petitioner to Trial Court for decision in accordance with law.

Ch. Bashir Ahmed for Petitioner.

Ch. Maqsood-ul-Hassan A.A.-G. for Respondents Nos.1 and 2 with Muhammad Aslam, Tehsildar Bhakkar.

MLD 2007 LAHORE HIGH COURT LAHORE 1440 #

2007 M L D 1440

[Lahore]

Before Hasnat Ahmad Khan, J

RASHEED AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1101-B of 2007, decided on 23rd May, 2007'.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 397, 412 & 34---Bail, grant o1'---Further inquiry---Previous bail application filed by accused was not dismissed on merits, but was simply dismissed as withdrawn with direction to Trial Court to conclude the trial within specified period---Said direction had not been complied with by the Trial Court---Simple withdrawal of bail application would not mean that it was dealt with on merits---Objection of counsel for complainant in that respect was spurned---Presiding Officer holding that trial of the case had been transferred and it was not known as to when his successor would take the charge and resume the duty---After dismissal of previous bail application, bail application of co-accused had been allowed---Even otherwise accused having succeeded in making the case as one of further inquiry, start of the trial would not debar him from getting the bail---None of the accused was nominated in the F.I.R. which was got registered against 4/5 unknown persons---Incident was a night time occurrence---Accused were subsequently involved in the case on the basis of supplementary statement of complainant---Question of admissibility of supplementary statement and genuineness of said excuse advanced by the complainant for non-mentioning the important facts in the F.I.R. would be requiring further inquiry at the time of trial---Deceased had sustained only one fire-arm injury and during investigation it had been found by investigator that it was co-accused who had caused that injury to deceased---No stolen property was recovered from the physical possession of accused -and carbine allegedly recovered from accused, did not stand connected with alleged offences---Case against accused called for further inquiry into his .guilt within the ambit of subsection (2) of S.497, Cr. P.C.---Even otherwise accused was entitled to bail on the rule of consistency as co-accused had already been granted bail and case of accused was at par with their case--Accused was admitted to bail, in circumstances.

Muhammad Riaz v. The State 2002 SCMR 184; Muhammad Ismail w. Muhammad Refique anal another PLD 1989 SC 585; Muhammad Saleem v. State PLD 1989 Lahore 233 Muhammad Ali alias Mamma v. State 2(504 MLD 1518 and Munir. v. State 2002 MLD 712 ref.

Haider Zaman Khan for Petitioner.

Haji Khuda Yar for the Complainant.

Rao Atif Nawaz for the State.

Muhammad Altaf, A.S.-I.

MLD 2007 LAHORE HIGH COURT LAHORE 1448 #

2007 M L D 1448

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD YOUSAF---Petitioner

Versus

MUHAMMAD SHAHBAZ and another---Respondents

Criminal Miscellaneous No. 2670-CB of 2007, decided on 27th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Juvenile Justice System Ordinance (XXII of 2000), S.10(7), proviso---Penal Code (XLV of 1860), S. 302---Bail, cancellation of---Main ground for grant of bail to accused was that. he was minor and his age was less- than 16 years---Court, according to Proviso to S. 10(7) of Juvenile Justice System Ordinance, 2000, might refuse to grant bail to an accused of the age of 15- years or above, if he was involved in an offence which in its opinion was heinous, serious, gruesome, brutal and sensational in character or shocking to public morality---What more heinous or gruesome offence could be than that of taking the life of an innocent person just on a dispute over the land, as alleged against the accused---Even otherwise, record did not reveal at all that the accused was minor at the time of occurrence---Accused was involved in an offence punishable with death or imprisonment for life, but he even did not remain in jail for a period of one year---Sessions Court by making observation regarding recovery of weapon of offence while granting bail to accused, had in Pact decided the case at a premature stage rather had pre-empted the trial---Bail allowed to accused was cancelled in circumstances.

Syed Zahid Hussain Bukhari for Petitioner.

Gohar Nawaz Sindhu for Respondent.

Ch. Muhammad Hanif Khatana, Addl. A.-G. for the State.

Naseer-ud-din Khan Nayyar, A.P.G. and Ashiq, A.S.-I. with record.

MLD 2007 LAHORE HIGH COURT LAHORE 1451 #

2007 M L D 1451

[Lahore]

Before Iqbal Hameedur Rehman, J

Khawaja MUKHTAR RASOOL and others---Petitioners

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Civil Revision No. 867 of 2007, heard on 1st June, 2007.

Specific Relief Act (I of 1877)---

----S.42---Punjab General Provident Fund Rules, 1978, Rr. 1.7 & 1.34---Punjab Government Servants Benevolent Fund Ordinance, 1960, Ss.2(a), 3 & 4---Punjab Government Employees' Welfare Fund Ordinance (I of 1969), S. 2(a)---West Pakistan Government Employees' Welfare Fund Rules, 1969, R.11---Suit for declaration---Plaintiff being mother of deceased civil servant claimed as nominee to be entitled solely to receive family pension, gratuity, general provident fund, group insurance and other outstanding service benefits payable under the law at her death---Husband, brothers and sisters of deceased civil servant resisted suit by denying status of plaintiff as nominee, while her husband also claimed to be solely entitled to such service benefits---Application for rejection of plaint by husband---Death of plaintiff during pendency of suit--Application by brothers and sisters for their impleadment in plaint as legal heirs of plaintiff (their mother)---Dismissal of suit by Trial Court on account of death of plaintiff without framing issues and recording evidence---Appellate Court while accepting appeal of husband directed authority to work out such service benefits in accordance with rules--Validity---Pleadings of parties were at variance---Civil servant had died issueless, thus, hey; assets were to be devolved upon, her legal heirs according to Sharia---Trial Court had to decide questions (i) whether plaintiff was a nominee or not? (ii) what would be the effect, if plaintiff was proved to be a nominee? (iii) if plaintiff was alive avid not having been able to prove herself as a nominee, whether she was entitled to inherit according to Sharia, and if she had. died, whether her legal heirs were entitled to same---Such facts for their decision on merits necessitated framing of-issues and recording of evidence---Appellate Court had given power to authority to decide such matter, which purely fell within domain of civil court to decide same on merits after-following mandatory procedure envisaged by law---High Court, set aside impugned orders and remanded case to Trial Court for its decision on merits after framing issues and recording evidence.

Federal Government v. Public at Large PLD 1991 SC 731 ref.

Ahmad Waheed Khan for Petitioners.

Shahbaz Ahmad Dillon, A.A.-G.'

.Shama Zia Deputy Secretary Law.

Mian Israr ul Haq for Respondent Nos. 3.

Nemo for Respondent No.4.

Date of hearing: 1st June, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1460 #

2007 M L D 1460

[Lahore]

Before Hasnat Ahmad Khan, J

HAQ NAWAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3942-B and 3957-B of 2006, decided on 22nd March, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.364---Bail, grant of---Further inquiry---Benefit of doubt---Delay of more than one month in lodging F.I.R.---Neither details of manner of abduction of alleged abductee had been given nor name of any witness of abduction had been mentioned in the F.I.R.---Eight persons including ladies had been named in the F.I.R., without disclosing source of information qua abduction of alleged abductee---Witness produced by complainant during investigation, did not implicate any of accused regarding abduction of alleged abductee---Investigating Officer finding case false, reported for its cancellation, however after alleged recovery of abductee, the police arrested accused persons and challaned them ---Statement of alleged abductee made by him under S.164, Cr.P.C. had shown that abductee was not recovered by the police from the custody of accused and record had shown that he was produced by some Patwari before Investigating Officer---All said facts had -made case of accused that of further inquiry---Prima facie prosecution's story seemed to be hazy---Benefit of doubt could be given to accused even at bail stage---Accused was. behind the bars since long---Some of accused persons were yet to be arrested---Early conclusion of the trial, in circumstances was not in sight---Bail could not be withheld as a measure of punishment---Accused were admitted to bail, in circumstances.

Syed Muhammad Hussain Shah Qadri for Petitioner (in Criminal Miscellaneous No 3942-B of 2006).

Azmat Ali Khanzada for Petitioner (in Criminal Miscellaneous No 3957-B of 2006).

Rana Muhammad Nazir Screed for the Complainant.

Sh. Imtiaz Ahmad for the State along with Muhammad Sadiq, S.-I.

MLD 2007 LAHORE HIGH COURT LAHORE 1468 #

2007 M L D 1468

[Lahore]

Before Iqbal Hameedur Rahman, J

MANZOOR AHMED and others---Petitioners

Versus

Rao MAQSOOD ALI KHAN---Respondent

Writ Petition No. 484 of 2007, heard on 29th May, 2007.

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

----S. 42---Transfer of Property Act (IV of 1882), S.41---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Entries in revenue record---Validity---Confirmed allotment of land to displaced person---Sale of said land to petitioners by legal heirs of allottee, a decree in respect thereof for specific performance was passed and sale deed was registered accordingly---Allotment of deceased allottee was declared invalid by the Settlement Authority on the application of respondent which order was challenged by petitioners by way of revision petition before the Settlement authorities which was dismissed---Petitioners filed constitutional petition against said order wherein a compromise was effected . between petitioners and respondent and the constitutional petition was disposed of accordingly---Both the parties filed applications for implementation of the order in the constitutional petition and during the pendency of said applications land was entered in the revenue record in the names of both the parties---Said mutations having not been challenged before any Civil Court, valuable rights had accrued in favour of the petitioners and the same were fully protected under S.41, Transfer of Property Act, 1882---Sale deed existed in favour of petitioners and was registered under the direction of the Court and judgment and .decree of the Court still helot field and no application under S.12(2), C.P.C. had yet been moved that the said decree had been obtained through fraud and misrepresentation---Judgment and decree regarding the registration of the sale deed passed by the Court had attained finality and under S.42, West Pakistan Land Revenue Act, 1967 it was the duty of the revenue hierarchy to implement the order of the Court and the revenue staff could not go beyond the decree and was bound to give effect to it unless it was. set aside or varied by competent Court---Entries on the record of rights having been made on the basis of allotment made under the Settlement Laws and such allotments being past and closed transaction, no action could be taken against the petitioners, who were bona fide purchasers---Notified Officer could only interfere in actively pending matters but in the present case, the matter had been decided upto the level of High Court and the compromise effected between the parties had not been challenged by the Deputy Commissioner/Collector of the District and the Additional Commissioner, who were parties and were fully represented in the constitutional petition but they never objected to the compromise in the High Court at that time nor challenged the same before any forum---Order of the High Court in constitutional petition therefore, had become binding on them as well---Authorities, in circumstances, were not justified in issuing memorandum about the validity of allotment of the laud---Constitutional petition was accepted in circumstances.?

Mian Dilawar Mahmood, Senior Advocate Supreme Court of Pakistan v. Member (Judicial-III)/Chief Settlement Commissioner, Board of Revenue Punjab, Lahore 2004 CLC 1412; Government of Sindh v. Zafarul Islam and others 2002 SCMR' 447; Nawabzada Zafar Ali Khali and others v. Chief' Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore and others 1999 SCMR 1719 and Abdul Hameed, Ex-Patwari R/o Village Kagrbat, Tehsil Cantt. District Lahore and others v. Member (Revenue) Bor and 3 others 2005 SCMR 1617 2005 PLC (C.S.) 1367 ref.

Pir Kaleem Ahmad Khurshid for Petitioners.

Mian Dilawar Mahmood for Respondent No.1.

Khurram Fraz for Respondents Nos. 2 and 3.

Shahbaz Ahmad Dillon, A.A.-G.

Date of hearing: 29th May, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1477 #

2007 M L D 1477

[Lahore]

Before Hasnat Ahmad Khan, J

IMRAN-UL-HAQ HASSAN SAEED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2S84-B of 2007, decided on 28th. May, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420, 468, 471 & 409---Prevention of Corruption Act (II of 1947), S.5---Bail, grant of---Accused, a bank employee had contended that during physical remand obtained by the police, nothing was recovered from him; that departmental enquiry had already been conducted and competent authority had recommended for reinstating him; that during the course of investigation, accused had been found guilty of only contributory negligence; that prosecution was not armed with any direct evidence against him; that no allegation was against him of mis-appropriation or embezzlement, of any amount; that he as per duty roster, was not assigned role of handling cash and only role assigned to him was that of dealing with all types of loan/finances, preparation of all kinds of loan balance books and computer operation; that he had signed two vouchers in a routine matter---Firstly accused had made offer that he was ready to furnish security or executing mortgage deed in favour of the Bank to .compensate in case an award was given against him by the Registrar before whom. application riled by the Bank was pending---Deputy Prosecutor-General though had opposed the bail application on merit, but he had not opposed the offer made by accused---Contention raised by accused had been found to be weighty---Bail application of accused in peculiar circumstances of the case was accepted subject to the condition that either accused or somebody on his behalf would mortgage any immovable property valuing not less than an amount of Rs.7,00,000 in favour of Bank to secure the ultimate interest of the Bank.

Muhammad Ramzan Chaudhry for Petitioner.

Ch. Amjad Hussain, DPG for State with Amjad Ali C/o ACE.

MLD 2007 LAHORE HIGH COURT LAHORE 1481 #

2007 M L D 1481

[Lahore]

Before Muhammad Jehangir Arshad, J

HAFEEZ UR REHMAN---Petitioner

Versus

EXECUTIVE DISTRICT OFFICER, (HEALTH), KHANEWAL---Respondent

Writ Petition No. 2087 of 2007, decided on 14th May, 2007.

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

---S. 152(2)(b)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Letter issued by Tehsil Nazim coercing Executive District Officer (Health) to pass transfer order of an employee in Health Department---Validity---Tehsil Nazim undertook not to issue such directions .in future and to remain within authority of law---High Court warned Tehsil Nazim that for any illegal interference on his part in future in such matters of postings and transfers, not only contempt proceedings would be initiated against him, but Chief Election Commissioner of Pakistan would be requested for initiating proceedings against him in terms of S.152(2)(b) of Punjab Local Government Ordinance, 2001.

Zahid Akhtar's case PLD 1995 SC 530 rel.

(b) Civil service---

----Transfers and postings of civil servants---Such matter fell within exclusive jurisdiction of public functionaries---No person could be allowed to illegally interfere in such jurisdiction of public functionaries---Public functionary. would not accept any pressure regarding such matters, but would act strictly in accordance with law by refusing any illegal direction/order given to him by any political figure---Public functionary, if passed any order regarding such matter under political pressure, would become liable to legal action in the light of law laid down by Supreme Court in Zahid Akhtar's case PLD 1995 SC 530.

Zahir Akhtar's case PLD 1995 SC 530 rel.

Petitioner in person.

Mubashar Latif Gil, A.A.-G. along with Muhammad Khan Khichi, D.C.O. Khanewal, Muhammad Akbar, Tehsil Nazim, Kabirwala and Ikhlaq Ahmad Ansari, EDO (Health), Khanewal in person.

MLD 2007 LAHORE HIGH COURT LAHORE 1483 #

2007 M L D 1483

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD AKRAM and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. i in Criminal Appeal No. 7 of 2007, decided on 27th March, 2007.

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

----S.426---Penal Code (XLV of 1860), S.302---Suspension of sentence--Role attributed to accused lady was only that of providing facility to the main accused who had caused the death of deceased by chocking his breath---Prosecution's version was that at the time of occurrence,. co-accused was sitting on the belly of deceased---In presence of said allegation, role attributed to accused would be needing reappraisal and re-consideration by court to see as to whether there was airy need of catching hold of legs of deceased, while two male accused had- already overpowered the deceased---Accused, apart from being a lady, had got suckling baby who was also languishing in jail---Accused had been able to make out a case of suspension of sentence---Application for suspension of sentence was accepted, sentence of accused .was suspended, in circumstances.

Sughran and others v. The State 1992 MLD 2373 and Ms. Shafaga Tahira v. The State 2000 PCr.LJ 912 rel.

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

----Ss. 426 & 497---Penal Code (XLV of 1860), S.302---Suspension of sentence---Principles embodied in section 497, Cr.P.C. could be considered while deciding application for suspension of sentence.

Sahibzada Farooq Ali Khan for Petitioner.

Ch. Anwar-ul-Haq for Complainant.

Rao Atif Nawaz for the State.

MLD 2007 LAHORE HIGH COURT LAHORE 1490 #

2007 M L D 1490

[Lahore]

Before Muhammad Muzammal Khan, J

PERVAIZ BASHIR WARRAICH and another---Petitioners

Versus

ELECTION TRIBUNAL and 7others---Respondents

Writ Petition No. 6764 of 2006, decided on 3rd May, 2007.

Punjab Local Government Elections Rules, 2005---

----Rr. 25 & 71---Constitution of Pakistan (1973), Art.199---Constitutional petition---Power of Election Tribunal to direct re-poll---Order of Election Tribunal of re-poll was challenged by the parties relying upon R. 2S of Punjab Local Government Election Rules, 2005---Validity---Rule relied: upon only dealt with powers of Returning Officer to direct fresh poll at the polling station where the poll was interrupted/obstructed for the ,reasons beyond the control of Presiding Officer or ballot boxes were taken out of the custody of Presiding Officer or were destroyed accidentally/intentionally or the ballot papers were destroyed/tampered---Reliance on R. 25 was not only unwarranted but was also misplaced in circumstances---Rule 25 did not confer unbridled powers on Election Tribunal to direct re-poll at any or all polling stations, if inevitable on basis of evidence on the file---Pleadings of the parties clearly depicted that certain ballot papers were really snatched at one of the. polling stations---Upon re-count done in the presence of parties by Election Tribunal 23S ballot papers were found missing---Election Tribunal therefore, rightly ordered to re-poll at the polling station of question---Plea raised by respondents/runners up that on basis of re-count Election Tribunal was to declare respondents as returned candidates had no force as election of the petitioners/returned candidates was not declared void by Election Tribunal and after re-poll at polling station in question Returning Officer would prepare fresh consolidated statement in Form XV---Record and impugned judgment revealed that controversy was correctly put to rest without committing any error of law/facts---Petition was dismissed.

Rana Wakeel Ahmed Khan v. Chief Election Commissioner and 9 others PLD 2004 Lah. 794 distinguished.

Malik Din and another v. Muhammad Aslam PLD 1969 SC 136 ref.

Azam Nazir Tarar for Petitioners.

Muhammad Ahsan Bhoon for Respondents.

Date of hearing: 16th April, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1496 #

2007 M L D 1496

[Lahore]

Before Fazal-a-Miran Chauhan, J

MAHBOOB ALAM and 2 others---Appellants

Versus

PROVINCE OF THE PUNJAB, through Secretary, Education, Lahore---Respondent

Regular First Appeal No. 601 of 2000, heard on 11th April, 2007.

(a) Suit---

----Filing of---Limitation---Filing of suit from date of knowledge is always presumed to be in time unless otherwise proved.

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

----S. 53---Specific Relief Act (I of 1877), S.42---Declaration of title---Mutation, assailing of---Principle---Limitation to challenge mutation without notice to plaintiff runs from the date of his knowledge.

----Ss. 42 & 52---Mutation---Entries---Scope---Mutation is not a document of title and by itself it does not confer any title, right or interest---Burden of proof lies on the party, who seeks to establish genuineness of transfer in its favour---Record of rights though not instrument of title but unless rebutted, presumption of truth is attached to it.

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

----O.VI; R.2---Written statement---Fact not pleaded---effect---Question of fact not pleaded; mentioned in written statement, unless amended with permission, cannot be allowed to be argued.

(e) Privately Managed Schools and Colleges (Taking our) Regulation 1972 (MLR 118)---

----Para. S---Specific Relief Act (I of 1877), S.42---West Pakistan Land Revenue Act (XVII of 1967), Ss.42 & 53---Declaration of title---Land of nationalized schools---Plaintiffs assailed mutation of land of nationalized school in favour of Provincial Government on the ground of their being its owners---Suit filed by plaintiffs was dismissed by 'Trial Court---Plea raised by the plaintiffs was that land in dispute was illegally taken over by authorities and mutation was recorded behind their back, who were never called upon or served any notice by Revenue Authorities---Validity---Merely because privately managed schools along with their assets were to vest in Government, under the terms of para.5 of Martial Law Regulation No. 118, it did not imply that government had become owner in relation to buildings wherein schools or colleges were being run---Intention of Martial Law Regulation No., 118 manifestly was only to take over the management of institution and not to confiscate property in which privately managed school was being run---No evidence was produced by authorities. to show that at the time of taking over of the school under Martial Law Regulation No. 118, land in dispute was owned by the school---Record showed that the land was owned by father of plaintiffs and on his death, the same was.-transferred to them by mutation of inheritance--Disputed land was wrongly mutated in the name of Provincial Government presuming the same to be the property of the school or property of Provincial Government--In absence of any solid proof, the mutation so recorded was riot recorded in accordance with law as required under S.42 of West Pakistan Land Revenue Act, 1967---Judgment and decree passed by Trial Court was set aside and suit was decreed in favour of plaintiffs---Appeal was allowed in circumstances.

1987 SCMR 1187; Muhammad Lehrasa6 Khan v. Mst. Aqel un Nisa and 5 others 2001 SCMR 338; Fiaz Hussain and 7 others v. Muhammad Din through Legal Heirs 1991 MLD 1386 (Lah.) and 1998 CLC 2008 ref.

Board of Foreign Missions of the Presbyterian Church in the United States of America through Lahore Church Council v. The Government of the Punjab through Secretary Education, Civil Secretariat, Lahore and another 1987 SCMR 1197 fol.

Sahibzada Anwar Hameed for Appellants.

Ms. Seema Munawar A.A.-G. for Respondent.

Date of hearing: 11th April, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1505 #

2007 M L D 1505

[Lahore]

Before Tariq Shamim, J

DOST MUHAMMAD---Petitioner

Versus

Mian KAUSAR HUSSAIN and 5 others---Respondents

Writ Petition No. 1297 of 2007, decided on 10th May, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Quashing of proceedings---Civil and criminal proceedings---Contemporaneous determination---Validity---Petitioner had called in question the inquiry proceedings initiated against him by Anti-Corruption Establishment on application of respondent, which stood finalized on the basis of material produced before it---High Court could not interfere in the inquisitorial exercise being conducted by an Investigating Agency---Determination of the validity or otherwise of the allegations. would entail resolution of controversial question of -fact which exercise could not be undertaken by High Court in its constitutional jurisdiction---Contention that since the matter had been finally settled by the Revenue Authorities,- therefore proceedings being conducted by the Anti-Corruption Establishment was unwarranted, had no force---Determination of a dispute by Revenue Authorities could by no means wipe out the criminal liability of a person who, on the basis of material collected by the Investigating Agency; was prima facie found to be implicated in the crime---Other argument that matter being essentially of civil nature, continuation of proceedings by the Investigating Agency was uncalled for, was also devoid of any force---Civil as well as criminal proceedings could continue side by side as those both related to different laws and. could be instituted simultaneously---Counsel for petitioner had not been able to satisfy the court as to the maintainability of constitutional petition.

Ch. Muhammad Aslam for Petitioner.

Shahbaz Ahmed Dhillun, A.A.-G. and Muhammad Azam for Respondents.

MLD 2007 LAHORE HIGH COURT LAHORE 1511 #

2007 M L D 1511

[Lahore]

Before M. Bilal Khan, J

AKBAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 732 of 2002 and Criminal Revision No. 107 of 2004 heard on 1st March, 2007.

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

----S. 302(b)---Appreciation of evidence---Complainant had furnished a detailed, meticulous and consistent account of occurrence and his integrity could not be shaken during exhaustive cross-examination---Testimony of the complainant could not be discarded merely because lie happened to be a brother of the deceased---Complainant party was not alleged to have any animosity with the accused and had no plausible reason to have substituted him for the real culprit---Solitary statement of a witness appearing reliable and confidence-inspiring was sufficient to bring home guilt to accused---Ocular account furnished by complainant was corroborated by medical report, motive .and recovery of fire-arm from the accused which was found to be in working order---Evidence of the complainant as against the accused could not be discarded for the reason that his co-accused could not be convicted on the basis of said evidence and had been acquitted---Finding of Trial Court did not suffer from any legal flaw, misreading or non-reading of material evidence---Conviction and sentence of accused were maintained in circumstances.

Muhammad Ilyas and 2 others v. The State 2002 SCMR 350 ; Haroon alias Harooni v. The State and another 1995 SCMR 1627; Mushtaq alias Shaman v. The State PLD 1995 SC 46; Asghar Beg v. The State 1999 SCMR 2438; The State v. Muhammad Sharif and 3 others 1994 SCMR 635 and Falak Sher v. The State. 1999 SCMR 2432 ref.

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

----S. 302(b)---Appreciation of evidence---Related and inimical witnesses---Principles---Close relationship of prosecution witnesses with the deceased and even background of enmity between them would not ,justify rejection of their testimony which is corroborated by confirmatory piece's of evidence, such as promptly lodged F.I.R., motive and medical evidence.

Muhammad Ilyas and 2 others v. The State 2002 SCMR 350 ref.

----S. 302(b)---Appreciation of evidence---Inimical witness---Principles---Statement of the worst enemy of the accused may be accepted and relied upon without corroboration, if the same is in consonance with the probabilities fitting in the circumstances of the case and also inspires confidence in the mind of a reasonable prudent man.

Haroon alias Harooni v. The State and another 1995 SCMR 1627 ref.

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

----S. 302(b)---Appreciation of evidence---Contradictions differ from variations---All variations do not disturb the intrinsic value of the evidence of an eye-witness---Variations which do not relate to material part of prosecution story or the salient and .important features of the case, can be ignored.

Mushtaq alias Shaman v. The State PLD 1995 SC 46 ref.

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

----S. 302(b)---Appreciation of evidence---Witnesses---No particular number of witnesses is required to prove the prosecution story---Even solitary statement of a witness appearing reliable and confidence-inspiring is deemed sufficient for bringing home guilt of the accused.

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

----S. 302(b)---Appreciation of evidence---Acquittal of some accused and conviction of others on the same evidence---Effect---Acquittal of certain accused on the extension of benefit of doubt did not necessarily mean that the eye-witnesses had either not seen the incident or that they had deliberately and falsely implicated the acquitted accused persons.

Asghar Beg v. The State 1999 SCMR 2438; The. State v. Muhammad Sharif and 3 others 1994 SCMR 635 ref.

Rai Muhammad Hayat Kharal for Appellant.

Iftikhar Ahmad A. D. P. P, for Respondent.

Ch. Naseer Ahmad Sandhu for the Complainant.

Date of hearing: 1st March, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1533 #

2007 M L D 1533

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD SALEEM---Petitioner

Versus

MUHAMMAD ALI through Real Mother and 2 others---Respondents

Writ Petition No. 3902 of 2004, decided on 15th April, 2007.

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

----Ss. 5, Sched. & 14(2)(c) (as amended by West Pakistan Family Courts (Amendment) Ordinance (LV of 2002) w.e.f. 1-10-2002)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for recovery of maintenance allowance---Institution of suit on 21-5-2002---Decree for maintenance Rs.600 per month passed on 17-3-2003---Dismissal of appeal by Appellate Court for lack of jurisdiction under S. 14(2)(c) of West Pakistan Family Courts Act, 1964---Validity---Institution of suit would carry an implication that all rights of appeal then in force would be available to litigants till the end---Words "one thousand" were substituted in place for words "five hundred" by West Pakistan Family Courts (Amendment) Ordinance, 2002 w.e.f. 1-10-2002---Right of appeal was available to parties at the time of institution of suit under un-amended law from a decree for maintenance of more than Rs.500---Appellate Court had erred in law to reject appeal on ground of lack of jurisdiction---High Court set aside impugned judgment/decree with direction to Appellate Court to decide appeal after hearing parties.

Khawaja Muhammad v. District Judge, Mansehra and others 1999 MLD 2723 and Saeeda Alia v. Syed Ghulam Mursalin Naqvi and another 2004 MLD 306 ref.

Mst. Ghulam Fatima v. Fazal and others 1986 CLC 2057 fol.

Younis Sheikh for Petitioner.

Ch. Muhammad Javed Aslam for Respondents.

MLD 2007 LAHORE HIGH COURT LAHORE 1535 #

2007 M L D 1535

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD AFZAL---Petitioner

Versus

MUHAMMAD BASHIR and 2 others---Respondents

Criminal Miscellaneous No. 1164-M of 2004, decided on 4th April, 2007.

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

----Ss. 145 & 561-A---Quashing of proceedings---Magistrate had appointed a Receiver ,over the disputed land on the application of the respondent and Sessions Court had dismissed the Revision petition filed by the petitioner against that order---Validity---Civil Court had issued the status quo order in respect of the property in dispute and criminal Court had initiated proceedings under S.145, Cr.P.C. with regard to the same---Criminal Court was not to interfere in the matter of possession of a property where such matter was already being regulated by an order of Civil Court---Respondent in his application moved under S.145, Cr.P.C. had claimed to have sown the land and that petitioner .and others used to cut the crop and further that he had moved the Revenue Court for entry of his name in the column of Khasra Girdawari---Possibility could not be ruled out that the respondent had filed the application under S.145, Cr. P. C. in order to defeat the proceedings before the Civil Court and Court the status quo order in favour of the petitioner---No proceedings under S.145, Cr.P.C. could be initiated on the application of the respondent and the same were quashed accordingly.

Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470; Mst. Nasim Akhtar v. The State and others 1996 PCr.LJ 560; Qazi Gran v. Muhammad Jan and another PLD 1996 SC 541; Hakim Khan and others w. The State and another 1991 PCr.LJ 218; Imdad Khan and 7 other's v. Syed Muhammad Ilyas and 2 others 1971 SCMR 581; Shah Muhammad v. The State and 5 others 1983 SCMR 1173; Muhammad Amin v. Master Bashir Ahmad and others 2006 SCMR 969 and Mehr Muhammad Sarwar and others v. The State and' others PLD 1985 SC 240 ref.

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

----S. 145---Dispute concerning land etc. likely to cause breach of peace---Extent and scope---Criminal Court not to interfere where possession being regulated by Civil Court---Criminal Court cannot interfere is the matter of possession of a property where such matter is already being regulated by an order of Civil Court.

Shah Muhammad v. Haq Nawaz and another PLD 1970 5C 470; Imdad Khan and 7 others v. Syed Muhammad Ilyas and 2 others 1971 SCMR 581; Shah Muhammad v. The State and 5 others 1983 SCMR 1173; Muhammad Amin v. Master Bashir Ahmad and others 2006 SCMR 969 and Mehr Muhammad Sarwar and others v. The State and others PLD 1985 SC 240 ref.

Rana Muhammad Arif for Petitioner.

Zafar Iqbal Chohan for Respondent No.1.

Saeed Ashraf Waraich, Addl. P.G. for State.

Dates of hearing: 2nd and 4th April, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1540 #

2007 M L D 1540

[Lahore]

Before Maulvi Anwar-ul-Haq, J

Mst. TASNEEM IQBAL---Petitioner

Versus

ARSHAD KHAN and another---Respondents

Writ Petition No. 57 of 2006, heard on 23rd May, 2007.

(a) Islamabad Urban Rent Restriction Ordinance (IV of 2001)---

----Ss. 2(f) & 17(4)---Ejectment petition---Bona fine need of building for occupation by land-lady and her husband---Validity---Provision of S.17(4) of Islamabad Urban Rent Restriction Ordinance, 2001 enabled a landlord/land-lady to get building vacated on ground of her personal need and also that of her family---Definition of "family" given in S.2(1) of Islamabad Rent Restriction Ordinance, 2001 included a spouse.

(b) Islamabad Urban Kent Restriction Ordinance (IV of 2001)---

----S. 17---Ejectment petition---Bona fide need of shop for occupation of landlady---Tenants plea was that landlady wanted to sell shop and a suit for specific performance was pending---Proof---Such suit was filed by vendee for breach of terms of agreement to sell by landlady---Landlady under such agreement was not required to deliver vacant possession of shop to vendee---Ejectment petition was filed prior to such suit---No mala fide on the part of landlady with reference to such agreement was found---Ejectment petition was accepted in circumstances.

Raja Tauqeer Ahmad Satti for Petitioner.

Mujeeb ur Rehman Kiani for Respondent No. 1.

Date of hearing: 23rd May, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1543 #

2007 M L D 1543

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD HAYAT---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 1034 and 1270 and Criminal Revision No. 639 of 2005, heard on 27th April, 2007.

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

----Ss. 302(b), 324, 337-A(ii) & 337-L(ii)---Appreciation of evidence---Motive against the accused was not proved---Throughout the investigation police never arrested the accused who were found innocent and did not challan them---Complainant did not file any complaint against the accused, however Trial Court had summoned them to face the trial---No recovery was effected from the accused---Incident had taken place in dark hours after sunset but no source of light was either mentioned in the F.I.R. or produced during the trial and accused, therefore, could not possibly be identified by prosecution witnesses---Six accused in the case had been acquitted on the same set of evidence---If an injured eye-witness could tell a lie qua the said acquitted accused he could not be believed qua the present accused in the absence of any .independent corroboration to his statement---Other eye-witness being a previous convict and involved in many criminal cases could not be relied upon in a case of capital punishment---Prosecution case was replete with doubts---Accused were acquitted in circumstances.

Muhammad Pervaz and others v. The State and others 2007 SCMR 670; Said Ahmad's case 1981 SCMR 795; Ayub Masih v. The State PLD 2002 SC 1048 and The State v. Muhstaq Ahmad PLD 1973 SC 418 ref.

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

---Ss. 302(b), 324, 337-A(ii) & 337-L(ii)---Appreciation of evidence---Injured witness,. credibility of---Injuries on a prosecution witness only indicate his presence at the spot, but do not prove his credibility and truth.

Muhammad Pervaz and others v. The State and others 2007 SCMR 670 and Said Ahmad's case 1981 SCMR 795 ref.

----Ss. 302(b), 324, 337-A(ii) & 337-L(ii)---Appreciation of evidence---Benefit of doubt, grant of---Principles---Where prosecution fails to prove its case against the accused beyond any reasonable doubt, he becomes entitled to benefit of doubt as of right---Benefit of an element of doubt as to the guilt of the accused must be extended to him---Such doubt, of course, must be reasonable and not imaginary or artificial---Rule of benefit of doubt, described as the golden rule, is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law---Such rule is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted"---Rule of Benefit of Doubt occupies a pivotal place in the Islamic Law and is enforced vigorously in view of the saying of the Holy Prophet (PBUH) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent".

Ayub Masih v. The State PLD 2002 SC 1048 ref.

Ch. Anawarul Haq Pannuu and Dr. Muhammad Akmal Saleemi for Appellant.

Naseeruddin Khan Nayyar, Additional P.G. for State.

Mian Muhammad Sikandar Hayat for the Complainant.

Date of hearing: 27th April, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1551 #

2007 M L D 1551

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MEHBOOB ZAFAR BUTT---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3797-B of 2007, decided on 1st June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.409---Bail before arrest, refusal of---Accused had obtained vehicle in question on superdari, which -was confirmed in his favour---Application was subsequently moved by complainant for cancellation of said superdari and through interim order passed by Civil Judge, accused was directed to deposit vehicle in question in the court; but accused failed to deposit same---Contention of accused that order of superdari which was confirmed in favour of accused, could not be cancelled had already been repelled by the High Court by the order passed in constitutional petition---Accused did not restore the custody of vehicle to the court thereafter---Mere return of same two days before applying for pre-arrest bail, would not exonerate accused from the commission of alleged occurrence, when firstly the order for its return was passed with the direction that vehicle would remain in the custody of the court and accused sought time to produce the same in the court---Case was adjourned and subsequently on three dates accused absented himself: from the court and never returned the vehicle---Accused, in circumstances had violated the terms and conditions of Superdari order according to which he was bound to produce the vehicle in the court whenever required by it--Bail before arrest was meant to protect innocent citizens, if they were found to have been involved in a criminal case with mala fide intention, but accused, in the present. case, appeared to have intentionally failed to produce the vehicle in question in the court inspite of directions issued by the court in, his presence---Offence, in circumstances, was made out against accused---No ground existing for the grant of pre-arrest bail to accused, his application which was devoid of any merit, was dismissed.

Sardar Mashkoor Ahmad for Petitioner.

Ch. Ahmad Khan Gondal for the Complainant.

Saeed Ashraf Waraich Addl. Prosecutor General for the State along with Nazar Hussain A.S.-I. with record.

MLD 2007 LAHORE HIGH COURT LAHORE 1554 #

2007 M L D 1554

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD RAFIQUE and 7 others---Appellants

Versus

NOOR AHMAD---Respondent

Regular Second Appeal Case No. 122 of 2000, heard on 10th May, 2007.

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

----Arts. 17(2)(a), 79 & 129(g)---Failure of plaintiff to examine in Court one marginal witness of document without giving any explanation therefor---Effect---Such conduct of plaintiff would tantamount to withholding of best evidence, for which presumption could be drawn against him under Art. 129(8) of Qanun-e-Shahadat, 1984.

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

----O. XIII, R.4---Qanun-e-Shahadat (10 of 1984), Art. 74---Photo of document produced in evidence without taking permission from Court for secondary evidence---Validity---Such document could not be taken in evidence.

----S. 54---Agreement of sale, execution of---Proof---Notice by vendee to vendor informing him to come to office of Sub-registrar for completion of transaction---Notice returned back un-served---Unilateral appearance of vendor before Sub-Registrar and marking of his presence there---Validity---Such unilateral appearance of vendor would not be taken as proof of execution of agreement, which would be proved by vendee in accordance with law.

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

----S. 52---Registration Act (XVI of 1908), S.47---Filing of suit on 17-4-1982---Execution of sale-deed on 13-4-1982 and its registration on 21-4-1982---Effect---Such sale under law would take effect from 13-4-1982, thus, would not be hit by principle of lis pendens.

Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2.others PLD 1972 SC 25 ref.

Ch. Khan Muhammad Bajwa and Ghulam Hussain Awan for Appellants.

Muhammad Farodq Qureshi Chishti for Respondent.

Date of hearing: 10th May, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1558 #

2007 M L D 1558

[Lahore]

Before Muhammad Muzammal Khan, J

AHMAD SHER and 10 others---Petitioners

Versus

MUHAMMAD HAYAT and 3 others---Respondents

Civil Revision No. 1881 of 2006, decided on 4th October, 2006.

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

----O.XXI, R.10 & S.115---Punjab Pre-emption Act (I of 1913), Ss. 4 & 21---suit for pre-emption---Execution of decree---Objection petition---Defendants contested suit with the plea that sale in their favour stood annulled by means of a consent decree---Suit was dismissed by the Trial Court and appeal filed against the same was also dismissed---Plaintiff however, succeeded before the High Court in revision and suit was decreed by the High Court and decree passed by the High Court was maintained by the Supreme Court, defendants, besides filing review petition before the Supreme Court, filed simultaneously an objection petition before Executing Court with the alike objection of cancellation of sale through earlier decree, which had seen its fate up to apex Court, but Executing Court issued warrant of possession under decree passed in favour of plaintiff---By issuance of warrants of possession under decree passed by the High Court, objection petition, which, on the face of it, was frivolous, would be deemed to have been dismissed by the Executing Court by implication---After. mandate by Supreme Court, no further adjudication/decision about the same matter was needed---Both Courts below having concluded the lis in accordance with -law, no interference in revisional jurisdiction of High Court was made permissible, under law---No illegality/irregularity in terms of S.115, C.P.C. having been committed by the Executing Court or court of appeal, revision petition being devoid of merits, was dismissed.

Muhammad Umar Riaz for Petitioners.

Malik Muhammad Akram Khan Awan for Respondent No. 1.

MLD 2007 LAHORE HIGH COURT LAHORE 1561 #

2007 M L D 1561

[Lahore]

Before Hasnat Ahmad Khan, J

ABDUL LATIF and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 33 and Criminal Revision No. 45 of 2005, heard on 15th June, 2007.

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

----S. 302(b)---Appreciation of evidence---Accused initially was not named in the F.I.R.--Different sets of accused were investigated during the investigation---Services of foot trackers and sniffing dogs were also hired to trace the murderers of the deceased---Accused was involved in the case after about nine months of the occurrence on the basis of evidence of extra-judicial confession allegedly made by him at a bus stop before two prosecution witnesses, who had neither apprehended the accused nor informed the complainant or the Investigating Officer about the same at that time---Said witnesses after 13 days of the extra-judicial confession got their statements recorded under S.161, Cr.P.C. and uptil that stage the accused was not even suspected to be the murderers---No reliance, therefore, could be placed on the evidence of said extra-judicial confession---Complainant had claimed in the F.I.R. that assailants were duly seen by him and other witnesses at the time of occurrence, but despite that the accused who admittedly being a resident of the village of the complainant was fully known to the complainant party, was not named in the F.I.R.---Improved story of the motive alleging that accused had suspicion of illicit liaison of his wife with the deceased also showed that he was known to the witnesses---Identification of accused during the trial, thus, was meaningless---Eye-witnesses had made deliberate dishonest improvements at the trial---No incriminating material had been recovered at the instance of accused---Accused was acquitted in circumstances.

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

----S. 302(b)---Circumstantial evidence---Extra-judicial confession---Scope---Extra-judicial confession is always treated as a weak type of evidence.

----S. 302(b)---Appreciation of evidence---Corroboration---Principles---One tainted piece of .evidence cannot corroborate another such piece of evidence.

Maqbool Elahi Malik and Ijaz Maqbool Malik for Appellants.

Nadir Manzoor Duggal DPG for State.

Syed Zahid Hussain Bukhari for the Complainant.

Dates of hearing: 25th May and 15th June, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1568 #

2007 M L D 1568

[Lahore]

Before Mian Saqib Nisar, J

MUSHTAQ AHMED and others---Petitioners

Versus

MUMTAZ BEGUM through L.Rs. anal others---Respondents

Civil Revision No. 2076 of 2001, heard on 4h April, 2007.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Contract Act (IX of 1872), Ss.182 & 202---Declaration of title---Principal and attorney---Sale by attorney in favour of his brother---Plaintiffs executed general power of attorney in favour of defendant, who sold suit-land to his real brother---Plaintiffs assailed the transaction on the ground that it was sham transaction---Trial Court having round the power of attorney as genuine dismissed the suit---Appellate Court also found the power of attorney as genuine but allowed the appeal and decreed the suit in favour of plaintiffs only for the reason that defendant and purchaser were brothers---Validity---Only for the reason that sale had been made to the brother by defendant per se could not be held to be invalid and defendants were required to lead some evidence in such behalf---Plaintiffs failed to establish as to why the power of attorney was given to defendant, when there was no close relationship between them---Power of attorney was primarily assailed but was declared by two courts below to be genuine---Validity of sale in question was dependent on the validity of power of attorney, with regard to which plaintiffs had failed---It was not the case of plaintiffs that power of attorney was given to their agent and purchaser had committed some fraud with them---Plaintiffs sold the property to defendant and his brother and power of attorney was given for that purpose---Such fact was proved by the statements of witnesses produced by defendant who appeared to testify about the sale of the property to defendant and his brother---Appellate Court while deciding the matter committed an error of jurisdiction, which judgment and decree could not be sustained and was set aside with the result the judgment and decree passed by Trial Court was restored---Revision was allowed in circumstances.

PLD 1989 Lah. 440; PLD 1985 SC 341 and 1994 CLC 1690 ref.

Ch. Arshad Mahmood and Mobin Ahmad. Siddiqui for Petitioners.

Syed Muhammad Javed Rizvi for Respondent No. 1.

Respondents for except respondents No.1(vi).

Date of hearing: 4th April, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1571 #

2007 M L D 1571

[Lahore]

Before Muhammad Khalid Alvi and Sh. Hakim Ali, JJ

MUSHTAQ AHMAD---Appellant

Versus

MEMBER BOARD OF REVENUE, PUNJAB, LAHORE and others---Respondents

I.C.A. No. 30 of 2002/BWP, decided on 11th May, 2006.

Evacuee Property and Displaced Persons Lands, (Reforms) Act (XIV of 1975)---

----S. 3---Law Reforms Ordinance (XII of 1972), S.3---Intro-Court Appeal---Cancellation of allotment of land---Allotment of land made in favour of respondent was cancelled in Mukhbari application---Constitutional petition filed by respondents against said cancellation having been dismissed by the High Court, respondent filed Intro-Court appeal which was allowed by the High Court and case was remanded to Member Board of Revenue for entrustment to a Notified Officer and Notified Officer decided the matter---Order passed by Notified Officer showed that earlier allotment surrendered and purchased by appellant was not only restricted, but was also confirmed; he however, was given a choice to surrender the remaining land acid in terms of said order he retained surrendered land through an application and detailed his choice separately for the land to be surrendered and retained, accordingly two mutations for the surrender in favour of Provincial Government and in the name of respondent, were sanctioned---Land being claimed by appellant as detailedin the constitutional petition, was retained by respondent by his choice and stood mutated in his favour vide mutation---Appellant had never challenged said mutation earlier nor raised any objection in Intra-court appeal with regard to sanction of said mutation---Said .mutation stood sanctioned on the strength of order of Notified Officer---Appellant without throwing any challenge to the said mutation and the orders on the basis of which said mutation was sanctioned, could not claim any right to purchase property mentioned in the said mutation---Land having been claimed by appellant was not dealt with under the impugned order, appellant had no locus standi to challenge said order.

Bilal Ahmad Qazi and Faiz-ul-Kabir for Appellant..

Aejaz Ahmad Ansari, Shamsher Iqbal Chughati, Shafi Muhammad Tariq and Ch. Parmoon Bashir for Respondent.

Date of hearing: 4th May, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 1575 #

2007 M L D 1575

[Lahore]

Before Khawaja Muhammad Sharif, J

KHURRAM and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 504 and Criminal Revision No. 709 of 2005, heard on 22nd June, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Occurrence in the case had taken place in the dark hours of night---Altercation had taken place between co-accused and deceased prior to the occurrence and accused was not part of said. alleged quarrel---Accused was not related to co-accused---Accused was not even connected with the motive part of prosecution story---Contradiction existed between ocular account and medical evidence--No crime empty was recovered from the spot---Investigating Officer had stated that accused did not possess any weapon and did not fire at the deceased---Both the site plans did not show that there was bulb---Two tube-lights had been shown, in the site plan without. scale but those were far away from the place of occurrence---Both prosecution witnesses who were closely related to deceased, had made dishonest improvements before the Trial Court, they were duly confronted with their previous statements; even their statements were contradictory to each other---Prosecution had failed to prove its case against accused beyond any shadow of doubt to maintain conviction---Allowing appeal, impugned judgment was set aside, accused was acquitted from the case and was directed to be released.

Karam Ellahi v. State PLD 2007 SC 255 and Muhammad Yaqoob v. The State PLD 1969 Lah. 548 rel.

Miss Gulzar Butt for Appellant.

Naseeruddin Khan Nayyar, APG for the State.

Date of hearing: 22nd June, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1580 #

2007 M L D 1580

[Lahore]

Before Mian Hamid Farooq, J

MAZHAR KHAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MAILSI and others ---Respondents

Writ Petition No. 2616 of 2007, decided on 23d May, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Civil Procedure Code (V of 1908), S.115 & O.I, R.10---Constitutional petition---Maintainability---Impleading of necessary parties---Revisional order---Interference in constitutional petition---Scope---Revisional order arising out of civil litigation, could not be challenged in constitutional petition---If order passed in revisional jurisdiction by revisional court, was altogether illegal, but was passed with jurisdiction, then same could not be assailed in constitutional petition; and if an order passed by revisional court was wholly void or coram non judice, constitutional petition against such revisional order, would be competent---Except for such orders, in no other case an order passed by revisional court in civil litigation, could not be challenged through constitutional petition---Impugned order passed in revision neither was void nor without jurisdiction and same had been passed by revisional court of competent jurisdiction---Constitutional petition deserved to be dismissed on that ground alone---Even otherwise, petitioner had got no case on merit---Both Courts below after taking into consideration every aspect of the case correctly found that person sought to be impleaded was neither necessary nor proper party in the suit and petitioner could summon or produce him in evidence.

Mst. Maqbool Begum v. Gullan and others PLD 1982 SC 46; Avari Hotels Limited through Chairman and Chief Executive v. Investment Corporation of Pakistan through Managing Director/Principal Officer and 6 others 2002 CLC 1889; Mst. Kausar Bibi v. Muhammad Mushtaq and 6 others 1990 CLC 1205; Muhammad Sami Ullah Khan v. Additional District Judge and others PLD 2002 Lah. 56; Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131; Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322 and Muhammad Khan v. Ghulam Fatima 1991 SCMR 970 ref.

Hafiz Muhammad Naveed Akhtar for Petitioner.

MLD 2007 LAHORE HIGH COURT LAHORE 1583 #

2007 M L D 1583

[Lahore]

Before Mian Saqib Nisar, J

ABDUL MAJEED KHAN---Petitioner

Versus

HABIBULLAH KHAN and 4 others---Respondents

Writ Petitions Nos. 2362 and 2379 of 2006, decided on 25th April, 2006.

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

----Ss.6, 13 & 24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for pre-emption---Determination of price of suit property---Revisional Court had only relied upon the notice of Talb-i-Ishhad. to hold that the price of the property mentioned therein was Rs.4,30,000, but counsel for respondents had stated that as per enquiries of Anti-Corruption Department and D.C.O., it stood established that original "Part" had been changed because in the "Partsarkar" the price of suit property was mentioned as Rs. 1,30,000, it was also stated that as per roznamcha waqiati of the Patwari, District Council tee and mutation fee, had been deposited according to said value---Said factors had not been examined by the revisional court and in absence of same, no effective decision could have been given---Impugned order was set aside with direction to revisional court to re-decide the matter after looking into all the factors, which were propounded by the parties to determine as to what was the correct price of the property, and whether zar-a-soem should have been paid by the petitioner at Rs. 1,30,000 or Rs.4,30,000.

Zafar Iqbal Chohan for Petitioner.

Malik Noor Muhammad Awan for Respondent.

Date of hearing: 25th April, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 1584 #

2007 M L D 1584

[Lahore]

Before Hasnat Ahmad Khan, J

ALI SHER and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 261 of 2000, heard on 22nd May, 2007.

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

----S. 302(b)/34---Appreciation of evidence---Benefit of doubt---Prosecution had failed to prove the motive behind the occurrence---Medical evidence had not fully supported the prosecution version---Identification of accused in the light of a lantern at the relevant time in dark hours of night was highly doubtful, which was considered to be a weak source to identify a person under stress and emotion---Eyewitnesses who had made contradictory statement had not in fact seen the actual murderers and they had been established on record to have themselves been involved in criminal cases previous to the present occurrence---Nothing incriminating had been recovered at the instance of accused during investigation---Uncorroborated ocular testimony could not be implicitly relied upon---Accused were acquitted on benefit of doubt in circumstances.

Ali Nawaz .v. The State 1988 PCr.LJ 1736; Gullan v. The State 1990 MLD 1110 and Muhammad Arshad v. The State PLD 1995 SC 475 rel.

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

----S. 302(b)/34---Identification of accused in the light of lantern---Scope---Source of light of a lantern in a dark night is considered to be a weak source to identify a person under stress and emotion.

Ali Nawaz v. The State 1988 PCr.LJ 1736; Gullan v. The State 1990 MLD 1110 and Muhammad Arshad v. The State PLD 1995 SC 475 rel.

Altaf Ibrahim Qureshi for Appellants.

Nadir Manzoor Dugal, DPG with Rao Atif Nawaz for the State.

Date of hearing: 22nd May, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1591 #

2007 M L D 1591

[Lahore]

Before Mian Saqib Nisar, J

NASIR IQBAL---Appellant

Versus

Khawaja IJAZ AHMAD and another---Respondents

Regular First Appeal No. 168 of 2004, heard on 13th February, 2007.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.2 & 3---Suit for recovery of amount on basis of cheque---Application for leave to appear and defend suit---Application for leave to appear and defend was allowed by Trial Court---Trial Court had come to the conclusion that cheque in question, on basis of which suit had been filed, was executed the encashment of which was got stopped by defendant and decreed the suit---Plea of defendant was that plaintiff agreed to purchase some goods which ultimately were to be sold by plaintiff; and it was in lieu of such transaction that the cheque was issued; but because said goods were not supplied to defendant therefore he got the payment of the cheque stopped---Defence of defendant was meaningless because it was the case of plaintiff that he delivered the goods for which cheque was issued; and if the goods had not been further supplied to the defendant, plaintiff could not be held responsible for that---Trial 'Court, in circumstances had rightly passed impugned judgment and decree---No case for interference having been made out, appeal was dismissed.

Malik Muhammad Hussain Awan for Appellant.

Muhammad Akram Javed for Respondents.

Date of hearing: 13th February, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1593 #

2007 M L D 1593

[Lahore]

Before Muhammad Muzammal Khan, J

ALLAH DITTA---Petitioner

Versus

SECRETARY, LOCAL GOVERNMENT AND RURAL DEVELOPMENT, GOVERNMENT OF THE PUNJAB, LAHORE and others---Respondents

Writ Petition 13991 of 2005, decided on 22nd May, 2006.

Punjab Local Government (Auctioning of Collection Rights) Rules, 2003---

----Rr. 3, 5, 7 & 17---Constitution of Pakistan (1973), Art.199---Constitutional petition--Auction for leasing out contract of collection of tee on sale of animals---Petitioner who was successful bidder, his offer was accepted and he deposited requisite amount---Authorities, instead of completing agreement with petitioner, re-advertised auction on the ground that petitioner did not deposit advance instalment for the month of July, 2004---Petitioner filed application. before Tehsil Nazim complaining that Authority having deliberately failed to execute lease agreement, its re-auction was not justified without refund of his earnest money and other deposits---Petitioner's application for refund of his earnest money having been dismissed, he filed appeal before' Secretary, Local Government, which also having been dismissed, `petitioner had filed present constitutional petition---Petitioner admittedly, had deposited all requisite amount for execution of lease agreement, but same .was never executed/completed under the garb that petitioner did not deposit installment for the month of July, 2004---Authority had not dilated upon the claim of petitioner that he would have been liable to pay advance instalment at July, 2004 only after approval of the House of the Tehsil Council, which was never obtained---Impugned order was silent as to why earlier to the date on which instalment for the month of July, 2004 i.e. 5th of that month, contract was advertised for re-auction and how petitioner was liable to deposit said instalment and his so-called lapse, how his entire amount had been forfeited---No finding had been given on the touchstone of Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 and instead petitioner's appeal was haphazardly dismissed approving unilateral confiscation by the Authority---Record and impugned order revealed that rights of the parties had not been determined by the appellate authorities in accordance with law---Impugned order being .not maintainable being bad at law, same was declared to be void and of no legal consequence.

Muhammad Ramzan Wattoo for Petitioner.

Ch. Muhammad Sadiq, Addl. A.G. for Respondent No.1.

Imtiaz Hussain Khan for Respondents Nos.2 & 4.

MLD 2007 LAHORE HIGH COURT LAHORE 1596 #

2007 M L D 1596

[Lahore]

Before Hasnat Ahmad Khan, J

ABDUL SATTAR and others---Appellants

Versus

THE STATE---Respondent.

Criminal Appeal No. 400 of 2002 and Criminal Revision No. 258 of 2002, heard on 25th May, 2007.

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

----S. 302(b)/34---Appreciation of evidence---Benefit of doubt---Eye-witnesses had tried to dishonestly improve their version at the trial in order to bring their evidence in line with medical evidence---Ocular version was not corroborated rather it stood contradicted by medical evidence---Occurrence had taken place in a dark night, but the mentioned source of light i.e. the bulb was not taken into possession by the police---Admittedly eye-witnesses were inimical towards the accused and their .statements were not corroborated by any independent evidence---No weapon of offence was recovered at the instance of accused and, therefore, recovery of crime empties from the spot was of no significance---Benefit of doubt was given to accused in circumstances and they were acquitted accordingly.

Muhammad Arshad v. The State PLD 1995 SC 475; Sajjad Hussain v. The State 1997 SCMR 174; Ali Nawaz v. The State 1988 PCr.LJ 1736 and Tahir Khan alias Niazi v. State 2005 YLR 2220 ref.

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

----S. 302(b)/34---Appreciation of evidence---Corroboration---Principles---One tainted piece of evidence cannot corroborate another tainted piece of evidence.

----S. 302(b)/34---Appreciation of evidence---Benefit of doubt, grant of---Principles---Benefit of doubt howsoever slight it may be, has to go to accused; it is better to err in acquittal rather than in conviction.

Tahir Khan alias Niazi v. State 2005 YLR 2220 ref.

Sahibzada Farooq Ali Khan for Appellant.

Nemo for the Complainant.

Mian Bashir Ahmad Bhatti DPG for the State.

Date of hearing: 25th May, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1603 #

2007 M L D 1603

[Lahore]

Before Mian Saqib Nisar, J

ATTA-UR-REHMAN and another---Appellants

Versus

ABDUL WAHAB and 13 others---Respondents

Regular Second Appeal No. 36 of 1995, heard on 7th February, 2007.

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

----S. 27(b)---Defence of being bona fide purchaser not raised in terms of S.27(b) of Specific Relief Act, 1877---Effect---Mere mentioning in written statement that defendant was bona fide purchaser; would be sufficient to bring his case within purview of S.27(b) of Specific Relief Act, 1877.

(b) Pleadings---

----Pleadings in mufassal courts would be construed liberally.

----Ss. 12 & 27(b)---Transfer of Property Act (IV of 1882), S. 41---Qanun-e-Shahadat (10 of 1984), Art. 119---Suit for specific performance of agreement of sale---Bona fide purchaser, defence of---Burden of proof---Plaintiff would be bound to prove positively that subsequent purchaser had knowledge of his agreement.

Ch. Arshad Mahmood for Appellants.

Hassan Ahmad Khan Kanwar for Respondents.

Date of hearing: 7th February, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1606 #

2007 M L D 1606

[Lahore]

Before Nasim Sikandar, J

NASEER AHMED AWAN---Petitioner

Versus

SUB-REGISTRAR, LAHORE and another---Respondents

Writ Petition No. 12256 of 2006, heard on 28th March, 2007.

(a) Finance Act (V of 1989)---

----S.7 [as amended by S.15 of Punjab Finance Act (III of 2006)]---Capital Value- Tax---Levy of---Date and time of purchase or acquisition of right from seller by purchaser provides for levy of Capital Value Tax and not the day or date of its registration under Registration Act, 1908.

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

----S. 54---Sale---Scope---Sale-transaction, in case it is brought in black and white, is complete when it is confirmed by parties.

----Ss.71, 72, 73 & 77---Finance Act (V of 1989) S.7 [as amended by S.15 of Punjab Finance Act (III of 2006)]---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Capital Value Tax, levy of---Past and closed transaction---Deposit of sale deed for registration prior to the cut off date---Petitioner sold his land vide sale deed which was completed in presence of Local Commissioner and petitioner had received consideration amount---Sale deed was presented for registration before 1-7-2006 but it was not registered on certain objections---Later on the Registration authorities asked the petitioner to pay Capital Value Tax as registration was not completed before cut-off date---Validity---Transaction was completed when petitioner as seller put his signatures and thumb impressions on the document in presence of witnesses as also the Local Commissioner appointed by the authorities---Seller having accepted the consideration, the purchase or acquisition of title by purchaser was complete---Since the amendment in S.7 of Finance Act, 1989, by way of S.15 of Finance Act, 2006, providing for levy on such like transactions carne into effect on 1-7-2006, the transaction of sale in question was a past and closed transaction as tar the levy was concerned---Transaction could not be brought to the levy, merely for the reason that the document number, book number, volume number or date of registration could not be filled in, though the stamped recitals had been signed by Registrar for whatever reason---Refusal on the part of Registrar to rill in blanks or to give document number, book number, volume number or date of registration data was nothing but crude anal unacceptable attempt to avoid the charge of inefficiency on his part---Petitioner having presented the document well before the enforcement of levy viz. 1-7-2006, which was signed by both the parties and it was so admitted by Registrar in the stamped recitals signed by him---Petitioner could not be held responsible for non-filling of the blanks or assignment of document number, book number, volume number and date of registration---Refusal on the part of Registrar to award such details to complete sale deed was declared to be illegal and without lawful authority---High Court directed the authorities to award document number, book number, volume number and date of registration to the document in question as having been presented on 23-6-2006 and registration/authentication having completed in law on or before 30-6-2006---Petition was allowed in circumstances.

Amir Wakeel Butt for Petitioner.

Raley Ahmad Khan, A.A.-G. far Respondents.

Date of hearing: 28th March, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1613 #

2007 M L D 1613

[Lahore]

Before Muhammad Khalid Alvi, J

MUHAMMAD RIAZ---Petitioner

Versus

Syed IBRAR SHAH---Respondent

C.R. No. 351 of 2004, decided on 9th March, 2006.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.2 & 3---Limitation Act (IX of 1908), S.5---Suit for recovery of amount on basis of Pro note---Application for leave to appear and defend suit---Delay, condonation of---Defendant, who was served on 16-2-2004 through summons, entered appearance before the court on next date of hearing which according to summons was 26-2-2004---Members of the Bar being on strike on said date, application for leave to appear and defend the suit was filed on 28-2-2004 along with application for condonation of delay of two days in filing said application under S.5 of Limitation Act, 1908---Validity--Copy of plaint was not delivered to defendant along with the summons at the time of service---Even on date fixed by the court, defendant was not in a position to have services of a counsel as the Members of Bar were on strike---Defendant immediately having obtained legal advice, filed application for leave to defend just two days thereafter---Order of the court also had indicated that defendant was not warned by the court on the date when he appeared in the court that same was the last date for him to file application for leave to appear and defend suit---Some lapse did occur on the part of defendant coupled with lapse on the part of Process Server, the Trial Court anal the absence of the lawyers on account of strike---There being some lapse on the part of defendant as well, delay could have been condoned, subject to payment of costs---Revision was allowed subject to payment of cost of Rs.3000---Application for leave to defend suit would be deemed to be pending and decided in accordance with law and on its own merits.

2003 YLR 2583; 2003 YLR 1130 and 1993 CLC 2271 rel.

Muhammad Khalid Farooq for Petitioner.

Tariq Zulifqar Ahmed Chaudhry for Respondent.

MLD 2007 LAHORE HIGH COURT LAHORE 1616 #

2007 M L D 1616

[Lahore]

Before Ijaz Ahmad Chaudhry, J

FARMAISH ABBAS---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4011-B of 2007, decided on 18th June, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 324 & 337-A(i), F(vi)---Bail, grant of--- Further enquiry---Accused was not named in F.I.R., but his name was introduced subsequently in the supplementary statement without disclosing any source of information about his participation in the occurrence---Statement of victim was recorded, wherein he had stated that he had received fire-arm injuries from co-accused---General role was attributed to accused and co-accused for causing injuries with fist, but no such injury was found on the person of victim during medical examination---Contradiction existed in medical evidence and role attributed to accused on the face of record---Accused was behind the bars since 27-3-2006, but there was no likelihood of the conclusion of the trial in the. near future---No useful purpose would be served to the prosecution by keeping accused in jail for indefinite period, who had succeeded in making out a case of further enquiry---Commencement of the trial in such circumstances was not a ground for refusal of bail to accused---Even under S.497(4), Cr.P.C. bail could be granted before announcement of final judgment---Mere recovery of pistol from accused was not sufficient to refuse bail to accused as he had not used same during occurrence---Accused was, admitted to bail, in circumstances.

Muhammad Naeem Malik for Petitioner.

Saeed Ashraf Warraich, Additional Prosecutor General for the State.

Muhammad Aslam, S.-I. with record.

MLD 2007 LAHORE HIGH COURT LAHORE 1619 #

2007 M L D 1619

[Lahore]

Before Syed Hamid Ali Shah, J

ALI MUHAMMAD SHAH---Appellant

Versus

IJAZ HUSSAIN SHAH---Respondent

Regular First Appeal No. 436 of 2005, heard on 8th November, 2006.

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

----O.XXXVII, R.3---Suit for recovery of money on the basis of negotiable instrument---Leave to defend the suit---Concessionary statement of counsel for plaintiff---Effect---Practice and procedure---Plaintiff asserted that no -leave to defend the suit was granted by Trial Court---Validity---Court granted leave to defend the suit on the concessionary statement of counsel of plaintiff, though no statement of the counsel for plaintiff was recorded---Order passed by court had precedence over the assertions of parties or their counsel to the contrary.

Fayyaz Hussain v. Akbar Hussain and others 2004 SCMR 964 rel.

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

----O.XXXVII, Rr.1 & 3---Negotiable Instruments Act (XXXVI of 1881), S.120---Qanun-e-Shahadat (10 of 1984), Arts.17 (2) & 59---Recovery of money---Promissory note---Proof---Non-production of two marginal witnesses---Handwriting Expert, opinion of---Failure to decide miscellaneous application---Suit filed by plaintiff was dismissed by Trial Court on the ground that two attesting witnesses of promissory note did not enter into witness box---Plea .raised by plaintiff was that without deciding his application for referring disputed signatures to Handwriting Expert, Trial Court could not have decided the suit---Validity---Non-appearance of marginal witness was fatal to the case where ordinary document was to be proved like agreement to sell etc.---Since presumption of truth was attached to promissory note, in terms of S.120 of Negotiable Instruments Act, 1881, mere non-production of one of its marginal witnesses was not fatal, specially when scribe, promisee and one marginal witness entered into witness box to prove its veracity--Trial Court had drawn erroneous conclusion that failure to examine one marginal witness defeated the provisions of Art.17 (2) of Qanun-e-Shahadat, 1984---Promissory note was signed by two marginal witnesses, which had met the requirement of S.17 (2) of Qanun-e-Shahadat, 1984---Without first deciding pending application of plaintiff, Trial Court could not have proceeded to pass final judgment---High Court directed the Trial Court to decide pending application of plaintiff for referring disputed signatures for examination of Handwriting Expert and then to decide the matter on the basis of available evidence and also on the basis of opinion of Handwriting Expert, if need be---Judgment and decree passed by Trial Court was set aside and the case was remanded for decision afresh---Appeal was allowed accordingly.

Messrs Waheed Corporation. and another v. Allied Bank of Pakistan 2003 CLD 245; Sheikh Muhammad Kashif v. Askari Leasing Limited 2004 CLD 1645 and Messrs M.A. Chaudhry and others v. National Bank of Pakistan 2005 CLD 875 rel.

Ras Tarqi Chauhdry for Appellants.

Baleegh uz Zaman Chaudhry for Respondents.

Date of hearing: 8th November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 1622 #

2007 M L D 1622

[Lahore]

Before Syed Zahid Hussain and Muhammad Sayeed Akhtar, JJ

SAJID SAEED---Appellant

Versus

INAM UL HAQ---Respondent

Regular First Appeal No. 358 of 2005, heard on 23rd April, 2007.

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

----O. VII, R. 11---Rejection of plaint---Material to be kept in view by Court highlighted.

In order to apply the provisions of Rule 11 of Order VII of Code of Civil Procedure, 1908, the Court is obliged to keep in view the contents of the plaint only and other undisputed or admitted material. Plea of defendant when it is disputed and denied by the plaintiff cannot be made a ground for rejection of the plaint.

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

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

----S. 12---Transfer of Property Act (IV of 1882), S.54---Oral agreement of sale---Validity---Such agreement could be made basis of a suit for specific performance.

Bashir Ahmed v. Muhammad Yousaf represented by Muhammad Shafique 1993 SCMR 183 and Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189 rel.

----S. 12---Civil Procedure Code (V of 1908), O. VII, R.11---Qanun-e-Shahadat (10 of 1984), Arts. 17(2)(a) & 79---Suit for specific performance of agreement of sale---Denial of agreement by defendant in written statement---Rejection of plaint by Trial Court---Validity---Objections as to existence, validity or otherwise of agreement raised by defendant warranted trial of matter by framing necessary issues---Question of applicability and effect of Arts. 17(2) & 79 of Qanun-e-Shahadat, 1984 could not be judged al such initial stage without putting matter to trial---Plea raised in written. statement that suit was frivolous and did not disclose cause of action, would be adverted to by Trial Court after giving opportunity to parties to lead evidence in such matter---Summary dismissal of suit in such circumstances was not called for, particularly after filing of written statement---High Court set aside impugned order and remanded case to Trial Court for trial of suit in accordance with law.

Bashir Ahmed v. Muhammad Yousaf represented by Muhammad Shafique 1993 SCMR 183; Abdul Karim v. Safia Mirza and 5 others 1986 MLD 1333; Mst. Miraj Bibi v. Additional District Judge and others 1991 CLC 1405; Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089; Muhammad Yaqoob and others v. Naseer Hussain and others PLD 1995 Lah. 395; Ghulam Yasin Butt and 2 others v. Manzoor Hussain and 3 others 2000 YLR 915; Iqbal Akbar and 3 others v. Province of Sindh and 3 others 2002 MLD 1835 and Shajar Ali Hoti v. Esmail Sobhani 1985 CLC 342 ref.

Sh. Abid Aziz for Appellant.

Umar Riaz for Respondent.

Date of herring: 23rd April, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1625 #

2007 M L D 1625

[Lahore]

Before Nasim Sikandar, J

SOCIAL SECURITY HOSPITAL, LAHORE through Chief Executive and 3 others---Petitioners

Versus

UNIVERSITY COLLEGE OF MEDICINE & DENTISTRY, LAHORE through Dean of Faculty, Health and Sciences and another ---Respondents

Civil Revision No. 2602 of 2004, decided on 5th April, 2005.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1, 2 & S. 115---Temporary injunction, grant of---Petitioner had challenged order of Appellate Court in revision whereby order of the Trial Court confirming interim injunction allowed in favour of respondent was maintained---Court of first instance as well as the court of first appeal had rightly found existence of three ingredients for grant of temporary injunction; .viz. prima facie case; balance of convenience and irreparable loss, in the case of respondent---Order of the Trial Court as well as the First Appellate Court contained sustainable reasons to justify grant and maintenance of interim injunction, on the other hand petitioner, had not been able to bring home any requirements provided for interference by High Court under revisional jurisdiction which were exercise of jurisdiction not vested in the courts below or failure on their part to exercise their jurisdiction so vested; or acting in exercise of their jurisdiction illegally or with material irregularity---Mere fact that an order was adverse to the position taken by a party would not justify interference by High Court in revisional jurisdiction---Orders of the courts below did not suffer from any of the said infirmities, revision petition against said orders was dismissed.

Dr. Abdul Basit for Petitioners.

Ch. Tanveer Akhtar for Respondent.

Date of hearing: 5th April, 2005.

MLD 2007 LAHORE HIGH COURT LAHORE 1630 #

2007 M L D 1630

[Lahore]

Before Muhammad Farrukh Mahmud and Sh. Javaid Sarfraz, JJ

MEHMOOD and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 269 and 275 of 2001 and Criminal Revision No.132 of 2002, decided on 23rd May, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---Sentence, reduction in---Case of two versions and if both versions were put in juxtaposition, defence version was supported by overwhelming documentary evidence and circumstances to establish that accused were in possession of disputed land and on day of occurrence deceased and his brother had trespassed into land of accused---Accused had the right of private defence of property---Whether deceased and his companions were armed or they launched any criminal assault against accused was not available in evidence, in the circumstances, the right of private defence of property, did not extend to causing of death---Trial Court, in circumstances had rightly found that accused had exceeded their right of private defence of property---Medical evidence did not support prosecution case---Hostility existed between parties over possession of land in dispute---Prosecution witnesses in their statements before the Trial Court had suppressed the true facts and did not come out with the true story---Statements of the prosecution witnesses also suffered from mutual discrepancies on material points, their statements, in circumstances were rightly disbelieved by the Trial Court---Trial Court, in circumstances was not justified to convict accused under S.302(b)/34, P.P.C.---Conviction of accused, was altered from offences under S.302(b)/34, P.P.C. to offences under S.302(c)/34, P.P.C..---Accused had already served out more than eleven years of sentence---Sentence of accused was reduced to the period already undergone by them.

Miraj Begum v. Ijaz Anwar and others PLD 1982 SC 294, ref.

Mian Muhammad Afzal Wattoo for Appellants.

Ch. Haq Nawaz, Deputy District Public Prosecutor for the State.

Abdul Rehman Tayyab for Complainant.

Dale of hearing: 22nd and 23rd May, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1644 #

2007 M L D 1644

[Lahore]

Before Mian Saqib Nisar, J

NAEEMUDDIN MAAN---Appellant

Versus

AKHTAR ALI and 2others---Respondents

Regular Second Appeal No. 165 of 2005, heard on 11th April, 2007.

Specific Relief Act (I of 1877)---

----S.42---Transfer of Property Act (IV of 1882), Ss.60 & 67---Civil Procedure Code (V of 1908), S.11---Mortgage---Foreclosure, right of---Alternate relief---Effect---Principle of res judicata---Applicability---Mortgagor sought declaration of title on the ground that mortgage deed was executed without consideration just to secure certain business transaction, hence it could not be executed---On the contrary mortgagees also filed a suit For foreclosure of mortgaged property on the ground that mortgagor had failed to return mortgaged money after due date---Both the suits were dismissed by Trial Court but Appellate Court allowed the appeal of mortgagees and decreed their suit---Plea raised by mortgagor was that suit filed by mortgagees was not maintainable as principle of res judicata was applicable to their suit---Validity---Nothing was available on record to ascertain, if issues involved in appeal filed by mortgagor were directly and substantially in issue in his suit---No comparison could be made within the contemplation of S.11, C.P.C---Mortgagor never accepted mortgage deed to be a valid document, rather he challenged same mainly for lack of consideration, which he was not able to prove---Suit filed by mortgagor was not for redemption of the property within the purview of S.60 of Transfer of Property. Act, 1882---Mortgagor never offered to make payment or tendered mortgage money before or after due date---Mortgagees brought the suit for foreclosure after due date, which squarely met the condition of S.67 of Transfer of Property Act, 1882---Addition of alternate relief by mortgagees in their suit did not mean that right of foreclosure would be prejudiced in any manner---High Court declined to interfere with the judgment and decree passed by Appellate Court---Second appeal was dismissed.

Mureed Khan, v. Muhammad Khan and 2 others PLD 1971 Pesh. 28 and Suleman and 3 others v. Custodian, Evacuee Property, West Pakistan, Lahore and 2 others PLD 1971 Lah. 77 distinguished.

Ahmed Waheed Khan for Appellant.

Syed Zafar Ali for Respondent.

Date of hearing: 11th April, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1657 #

2007 M L D 1657

[Lahore]

Before Syed Hamid Ali Shah, J

GHULAM ALI---Petitioner

Versus

RANJHO KHAN---Respondent

Civil Revision No. 1176 of 2005, decided on 12th February, 2007.

(a) Malicious prosecution---

----Damages, suit for---Acquittal of plaintiff in criminal case after giving him benefit of doubt---Claim of damages pertained to expenses incurred on pursuing criminal case, suffering of mental torture, material and reputation loss---Damages neither ;claimed in plaint separately on each score nor proved by evidence on each point---Evidence adduced by plaintiff being general, vague and scanty could not be relied upon---Mere filing of criminal complaint and acquittal of plaintiff by extending him benefit of doubt, would not be sufficient by itself to establish case for malicious prosecution against him---Suit was dismissed in circumstances.

Abdul Rauf v. Abdul Razzak and anther PLD 1994 SC 476; Rafique Ahmed Khan v. Province of Punjab through Secretary, Education and others 2004 SCMR 1065 and Nazir Ahmad and another v. Haji Nazir Ali and 3 others 2006 MLD 907 ref.

Subedar (Retd.) Fazale Rahim v. Rab Nawaz 1999 SCMR 700; Dhunjishah B. Ghadialy and others v. Karachi Parsi Cooperative Housing Society Ltd. and others 2004 CLC 587 and Nazir Ahmad and another v. Haji Nazir Ali and 3 others 2006 SCMR 907 rel.

(b) Tort---

----Damages, suit for---Such suit could be decreed only when damages suffered were mentioned in plaint on each score separately and proved by evidence on each point.

----Damages, suit for---Mere filing of criminal complaint and acquittal of plaintiff by extending him benefit of doubt would not be sufficient by itself to establish case for malicious prosecution against him.

Subedar (Retd.) Fazale Rahim v. Rab Nawaz 1999 SCMR 700 rel.

Zafar Abbas Khan for Petitioner.

Faiz Muhammad Bilal for Respondent.

Date of hearing: 17th January, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1664 #

2007 M L D 1664

[Lahore]

Before Syed Zahid Hussain, J

ABDUL MAJEED---Petitioner

Versus

DIRECTOR, EXCISE AND TAXATION DEPARTMENT, FARID KOT HOUSE, LAHORE and 4 others---Respondents

Civil Revision No. 2002 of 2002, decided on 25th September, 2006.

Civil Procedure Code (V of 1908)---

----S. 96---Appeal, competency of---In absence of necessary party, appeal suffered from inherent defect and was incompetent, which could not be accepted---Appeal itself being incompetent before the first appellate court, judgment rendered by it on such appeal, would lose all its significance and legal efficacy.

Mst. Maqbool Begum, and others v. Gullan and others PLD 1982 SC 46; Ghulam Muhammad .and others v. Mehtab Beg and others 1983 SCMR 849; Abdul Qadir and 5 others v. Muhammad Umar and others' PLD 1987 Lah. 232; Muhammad Suleman v. Abdul Rashid and 13 others PLD 1987 Lah. 387; Muhammad Ibrahim and another v. Jalal Din 2002 CLC 165 and Sher Muhammad and 27 others v. Muhammad Mumtaz-ul-Islam through Legal Heirs and 6 others 2001 MLD 1964 ref.

Ch. Sajjad Tabassum for Petitioner.

Respondents ex parte.

Date of hearing: 25th September, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 1666 #

2007 M L D 1666

[Lahore]

Before Khawaja Muhammad Sharif, J

MIAN KHAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 14 of 2005, heard on 22nd June, 2007.

Penal Code (XLV of 1860)---

----Ss.302(b), 324, 332-A(ii), 332.L(ii) & 149---Appreciation of evidence---Benefit of doubt---Case of two versions---Four persons from accused party received twenty four injuries during the occurrence----Said factum of injuries was supported by the Doctor who appeared before the Court as defence witness---Both accused were attributed one injury each on the person of injured---No recovery was effected from accused while sota was allegedly recovered from co-accused which was not blood-stained---Complainant party received eight injuries in all, while number of injuries received by accused were twenty four which injuries were more serious than those of complainant party---While granting benefit of doubt to accused, conviction and sentences awarded to them by the Trial Court were set aside by the High Court and they were acquitted.

Ch. Manzoor Hussain Basra for Appellants.

Naseeruddin Khan Nayyar Additional Prosecutor General for the State.

Date of hearing: 22nd June, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1678 #

2007 M L D 1678

[Lahore]

Before Mian Saqib Nisar, J

CAPTAIN-PQ CHEMICAL INDUSTRIES (PVT.) LTD. SARGODHA ROAD, FAISALABAD through General Manager---Petitioner

Versus

PROVINCE OF PUNJAB through District Officer Revenue/Collector, Faisalabad and 6others---Respondents

Civil Revisions Nos. 1996 and 1997 of 2006, heard on 8th May, 2007.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Colonization of Government Lands (Punjab) Act (V of 1912), S.10---Transfer of Property Act (IV of 1882), S. 52---Civil Procedure Code (V of 1908), O.VII, R. 11---Suit for declaration and permanent injunction---Lessee of State land (plaintiff) filed first suit seeking relief against interference in his possession and regularization of its lease---Granting of interim relief to plaintiff in first suit---Second suit by plaintiff challenging allotment of suit-land by Colony Department in favour of "A", wherein status quo order was passed---Trial Court framed issues after consolidating both suits---Transfer of suit-land. by "A" in favour of "R"---Application by "R" for rejection of plaint was accepted by the Trial Court for non-availability of suit-land for transfer to plaintiff---Appellate Court dismissed plaintiff's: appeal---Validity---Transfer of suit-land in favour of "A" and thereafter in favour of "R" were made during pendency of plaintiff's suits, thus, were hit by rule of lis pendens and could not affect original cause of action propounded by plaintiff in such suits---Plaints at such stage could not be rejected for non-disclosure of cause of action or that suits had become redundant due to transfer of land in favour of "R"---Plaintiff in changed circumstances could apply to trial Court for making appropriate amendment in plaint, so as to sustain his suits especially in situation, where there was some injunctive order in field---Trial Court under its inherent jurisdiction could bring back party to a position, where he originally stood as if injunction order had not been violated---Impugned order was absolutely illegal, infirm and based on erroneous exercise of jurisdiction---High Court accepted .revision petition, set aside impugned orders and remanded case to Trial Court for its decision afresh in accordance with law.

Bakhtwar, and others v. Amin and others 1980 SCMR 89 rel.

Muhammad Raza Qureshi for Petitioner.

Ahmed Waheed Khan and Ms. Seema Munawar, A.A.-G. for Respondents, Date of hearing: 8th May, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1681 #

2007 M L D 1681

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUR REMAN and 6 others---Appellants

Versus

MUHAMMAD AKBAR---Respondent

F.A.O. No.259 of 2003, decided on 28th November, 2006.

Civil Procedure Code (V of 1908)---

----O. VII, R.2, O.XXI, Rr.10, 23-A, 64 & O.XLI, R.1---Suit for recovery of amount---Execution of decree---Sale of attached property---Appeal against order---Suit for recovery of amount having been decreed, decree-holder filed execution petition---Property mentioned in Fard Taleeqa was attached and then ordered to be sold in execution application---Appellants had filed objection petition; in which it was claimed that they were the owners in possession of property sought to be auctioned and without determining separate share of judgment-debtor, auction of said property could not be made---Objection petition was dismissed, however, with clarification that only the share of the judgment-debtor in said properties would be put to sale---Validity---Every co-sharer had a right to dispose of his share, subject to ultimate partition of the joint property---No bar existed against the sales through auction of the share of the judgment-debtor as clarified in the impugned order---Appeal, thus had no force---Mother of judgment-debtor/appellant had prayed for time to consult her sons in the matter of payment to decree-holder of the decretal amount---Prayer was granted and appellants were given three months time in which they would make payment of decretal amount to the decree holder---If appellants failed to do so, Executing Court would proceed with the sale of property forthwith---First Appeal against order wasdismissed with such observations.

Ali Baqir Najfi for Appellants.

Sh. Naveed Shaharyar for Respondent.

Dates of hearing: 20th and 28th November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 1692 #

2007 M L D 1692

[Lahore]

Before Iqbal Hameed ur Rehman, J

KHALID MAHMOOD---Petitioner

Versus

TAHIRA YASMIN and 2 others---Respondents

Writ Petition No. 7328 of 2007, decided on 3rd August, 2007.

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

----S.5 & Sched.---Constitution of Pakistan (1973); Art. 199---Constitutional petition---Recovery of dowry articles---Concurrent findings of fact by courts below---Husband divorced his wife, who sought recovery of dowry articles---Family Court decreed the suit in favour of wife which was maintained by Appellate Court---Validity---Family Court, after proper scrutiny of list of dowry articles and excluding some items, decreed the suit for recovery of dowry articles to the extent of Rs.50,000---Appellate Court, after proper appreciation of evidence on record, upheld the findings of Family Court---Held, articles included in the list were ordinarily given to a bride at the time of her marriage---Both the courts below had given concurrent findings which were based upon substantial evidence and husband was not able to controvert the stance taken by wife during trial, nor he could point out any illegality or irregularity committed by courts below in the judgments so as to warrant interference by High Court in its constitutional jurisdiction---Where question of facts had been correctly discussed and apprised by Courts below, High Court should decline to interfere with the findings of Family Court---High Court declined to interfere with concurrent judgments and decrees passed by two courts below---Petition was dismissed in circumstances.

Muhammad Nawaz v., Mst. Doulan' and 2 others 2000 YLR 2637; Lahore Development Authority through Director General v. Shakil Ahmad Naser and 2 others 2001 CLC 863 and Adnan Aziz v. Civil/Family Judge, East Karachi 2002 CLC 113 rel.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Concurrent findings of fact by the courts below---Interference---Principles---High Court has no jurisdiction to substitute its own findings in place of concurrent findings of facts of the courts below---High Court cannot interfere in its constitutional jurisdiction in concurrent findings of facts arrived at by the Courts below after proper appraisal of evidence on record in absence of any illegality or any other error of jurisdiction committed by courts below.

Mst. Khair-un-Nisa v. Abdul Majeed and others 1989 MLD 1945 rel.

----S.8---Special oath, administering of---Duty of Court---.Administration of justice--Court of law is to decide a case keeping in view the. rights and liabilities of parties in the light of record on file and not merely to dispose of a case in hurry---Courts being ultimate protectors of rights of litigants, have the responsibility to ensure that valuable rights of such litigants are not destroyed by their unintentional faults and innocent mistakes---Court should avoid situation where one party in the heat of discussion, or in emotional situation offers oath to the opposite party without due consideration of its effects and without submitting a proper application and the opposite party in the same circumstances immediately accepts the offer without having chance of patiently considering the consequences of oath.

Ahmad Khan and others v. Jewan PLD 2002 SC 655 and Muqadar Shah and others v. Mudam Gul 2005 CLC 1441 ref.

(d) Administration of Justice---

---Court of law is to decide a case keeping in view the rights and liabilities of parties in the light of record on file and not merely to dispose of a case in hurry---Courts being ultimate protectors of rights of litigants, have the responsibility to ensure that valuable rights of such litigants are not destroyed by their unintentional faults .and innocent mistakes.

Ahmad Khan and others v. Jewan PLD 2002 5C 655 and Muqadar Shah and others v. Mudam Gul 2005 CLC 1441 ref.

Rana Mashhood Ahmad Khan for Petitioner.

MLD 2007 LAHORE HIGH COURT LAHORE 1697 #

2007 M L D 1697

[Lahore]

Before Maulvi Anwarul Haq, J

GUL MUHAMMAD and another---Petitioners

Versus

MUHAMMAD LATIF---Respondent

C.R. No. 304 of 2007, heard on 16th May, 2007.

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

----Ss.6 &. 13---Superior right of pre-emption---Shafi Jaar---Determination---Pre-emptor claimed his superior right of pre-emption on the basis of his being owner of the immovable property adjacent to suit land---Suit was dismissed by Trial Court but Appellate Court decreed the same in favour of pre-emptor---Plea raised by vendee was that exact date of knowledge of sale was not proved by pre-emptor---Validity---Register Haqdaran Zamin and Aks Shajra clearly showed that land owned by pre-emptor and the one sold lay adjacent to each other---Appellate Court had correctly found that pre-emptor had superior right of pre-emption being Shafi Jaar---Contents of the plaint revealed that pre-emptor had duly pleaded date, time and place of making of first Taib and further he had stated names of informer as well as witnesses in the plaint---High Court did not find any ground to interfere with the judgment and decree passed by Appellate Court---Revision was dismissed in circumstances.

Atiq-ur-Rehman (through his father) and another v. Muhammad Amin PLD 2006 SC 309 and Hayat Muhammad and others v. Mazhar Hussain 2006 SCMR 1410 ref.

Faiz Muhammad Bilal for Petitioner.

Malik Ejaz Hussain Gorcha for Respondent.

Dates of hearing: 16th April and 16th May, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1710 #

2007 M L D 1710

[Lahore]

Before Iqbal Hameed ur Rehman, J

ZULIFQAR ALI---Petitioner

Versus

JUDGE, FAMILY COURT and 7 others---Respondents

Writ Petition 7251 of 2007, decided on 30th July, 2007.

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

----S.5 & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Recovery of dowry articles and dower amount---Concurrent findings of fact by the courts below---Nikkah was performed in consideration of 3-marla plot valuing Rs.75,000 and two tolas of gold ornaments---Husband divorced his wife, who sought recovery of dowry articles and dower amount---Family Court decreed the suit in favour of wife and judgment and decree was maintained by Appellate Court---Validity---Both the courts below had given concurrent findings which were based upon substantial evidence and husband was not able to controvert the same during trial---Husband failed to show any illegality or irregularity committed by courts below in the judgments so as to warrant interference by High Court in its extraordinary constitutional jurisdiction---When question of facts had been comprehensively discussed and apprised by lower Courts, High Court should decline to interfere with this finding---High Court declined to interfere with concurrent judgments and decrees passed by two courts below---Petition was dismissed in circumstances.

Mst. Khair-un-Nisa v. Abdul Majeed and others 1989 MLD 1945 and Adnan Aziz v. Civil/Family Judge, East Karachi 2002 CLC 113 rel.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Concurrent findings of fact by the courts below---Interference---Principles---High Court has no jurisdiction to substitute its own findings in place of concurrent findings of facts of the courts below--High Court cannot interfere with concurrent findings of facts arrived at by the courts below after proper appraisal of evidence on record in exercise of its constitutional jurisdiction in absence of any illegality or any other error of jurisdiction committed by courts below.

Muhammad Nawaz v. Mst. Doulan and 2 others 2000 YLR 2637 and Lahore Development Authority through Director General v. Shakil Ahmad Naser and 2 others 2001 CLC 863 rel.

Muhammad Rehman for Petitioner.

MLD 2007 LAHORE HIGH COURT LAHORE 1717 #

2007 M L D 1717

[Lahore]

Before Syed Hamid Ali Shah, J

Ch. MUHAMMAD AZEEM---Petitioner

Versus

ELECTION TRIBUNAL/DISTRICT AND SESSIONS JUDGE and 8others---Respondents

Writ Petitions Nos. 2165 and 2654 of 2007, decided on 29h June, 2007.

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

----Ss. 16 & 14---Punjab Local Government Elections Rules, 2005, Rr. 12(3)(ii) & 14(3)(iv), Proviso---Election of Nazim and Naib Nazim---Joint candidacy---Sinker, doctrine of---Applicability---Joint candidacy must remain intact from stage of filing nomination papers up to election petition---Principle of sinker would be applicable even in election petition---Principles.

Ch. Maqbool Ahmad and others v. Malik Falak Sher Farooqa, A.D.J./Election Tribunal and others PLD 2003 Lah. 138 and Sheikh Muhammad Akram and another v. Sheikh Muhammad Yaqub and others PLD 2006 Lah. 24 ref.

Mian Ahmad Saeed and others v. Election Tribunal for Kasur v. Okara and 7 others 2003 SCMR 1611 and Sher Zaman Sher and others v. Jahanzeb Khan and others PLD 2004 SC 305 rel.

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

----Rr. 12(4), 14 & 65---Election petition---Misdeclaration of assets in Asset Form by returned candidate---Failure of contesting candidate to object to such Asset Form at stage of scrutiny of nomination papers of returned candidate---Effect---Such failure of contesting candidate would not debar him from challenging election of returned candidate through election petition.

----Rr. 12(4}, 14 & 65---Election petition---Non-declaration of property in Asset Form by returned candidate---Plea of candidate that he had sold non-declared property through agreement of sale---Failure of candidate to produce in evidence .such agreement, its marginal witnesses or vendee---Effect---Due to such failure, property could not be said to have been sold and transferred to vendee---Such agreement would not confer any title on vendee, thus, its legal title would remain with such candidate, which he was bound to mention as his asset in Assets Form---Election petition was accepted in circumstances.

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

----Rr. 65 & 71---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Election petition---Prayer for production of additional evidence after closure of evidence---Dismissal of constitutional petition by High Court filed against refusal of Election Tribunal to accept such prayer---Dismissal of election petition challenged in constitutional petition raising therein question of additional evidence---Validity---Such question had attained finality---Petitioner could not re-agitate such question once again in constitutional petition.

(e) Punjab Local Government Elections Rules, 2005---

----Rr. 65, 74 & 77---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Election petition, acceptance of---Declaration of election petitioners as returned candidates by Election Tribunal---Plea of petitioner that one election petitioner was matriculate, thus, he could not be declared as returned candidate---Validity---Election petitioners had claimed in election petition for their declaration as returned candidates---Petitioner had failed to file recriminatory petition and give evidence within 14 days of commencement of trial---Petitioner had not given notice to Election Tribunal in terms of R.74 of Punjab Local Government Elections Rules, 2005 and deposited prescribed fee according to R.65 thereof---Petitioner had no right at such stage to claim annulment of election on ground of disqualification of election petitioner---High Court dismissed constitutional petition in circumstances.

Sardar Tariq Javaid v. Provincial Election Commission of Punjab and 8 others 2004 SCMR 1242 ref.

(f) Punjab Local Government Elections Rules, 2005---

----Rr. 65 & 75(c)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Election petition, acceptance of---Declaration of election petitioner as returned candidate by Election Tribunal---Plea of petitioner that his disqualification was not notorious and in voters' knowledge at time of scrutiny of nomination papers, thus .votes given to him could not be thrown away---Validity---Petitioner in reply to election petition had neither raised such plea nor an issue to such effect had been framed---Petitioner about his notorious disqualification had neither himself uttered a single word in evidence nor produced any witness---Such plea not urged before Election Tribunal could not be urged before High Court---Constitutional petition was dismissed in circumstances.

Talib H. Razvi for Petitioner.

Ch. Muhammad Anwar, Bhinder for Respondents Nos. 3 and 4.

Ch. Abdul Ghaffar for Respondent No 9.

Date of hearing: 25th June, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1725 #

2007 M L D 1725

[Lahore]

Before Syed Hamid Ali Shah, J

MUHAMMAD TARIQ CHAUDHRY---Petitioner

Versus

KHALID AHMAD and 7 others---Respondents

Writ Petition No. 851 of 2007, decided on 9th July, 2007.

Punjab Local Government Elections Rules, 2005---

----Rr. 57 & 58---Qanun-e-Shahadat (10 of 1984), Arts. 114 & 129 (e)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Unsealed ballot bags---Principle of estoppel---Applicability---Judicial acts---Presumption---Parties agreed to recounting of votes and signed the order sheet accepting process of recounting---After recounting in presence of parties, respondent was declared as returned candidate---Plea raised by petitioner was that ballot bags were not found sealed at the time when brought for recounting and his statement on order sheet was added subsequently by manipulation---Validity---Petitioner signed order sheet in due acceptance of process of recount of votes pertaining to disputed polling stations, from the election record summoned by Returning Officer---Petitioner having agreed before Election Tribunal for recounting from election record, was estopped by his conduct to turn around and say that recounting of ballot papers from unsealed bags was unfair exercise---Plea raised by petitioner was neither convincing nor there was any justification to accept such plea---Court record had precedence over any other material to the contrary, unless strong and unimpeachable evidence in that behalf was brought on record in rebuttal---Petitioner did not move against Presiding Officer of Election Tribunal, for incorporating his alleged statement and unauthorized addition as to his consent in his absence---Petitioner was bound by his consent and could not wriggle out of it by merely saying that unauthorized additions were made in the order sheet---Bar of estoppel could be applied to the case of petitioner with full vigor---Petitioner had no right to challenge recount of votes from unsealed bags, when he had himself consented to it at the time of recounting before Election Tribunal---Petition was dismissed in circumstances.

Malik Muhammad Munawar Khan v. Election Tribunal District Judge, Lahore and 8 others 1991 CLC 180; Badarul Haque Khan v. The Election Tribunal, Dacca and others PLD 1963 SC 704 and Muhammad Hussain Muair and others v. Sikandar and others PLD 1974 SC 139 ref.

Fayyaz Hussain v. Akbar Hussain and others 2004 SCMR 964 rel.

Dr. Khalid Ranjha and Atir Mehmood for Petitioners.

Hafiz Abdul Rehman Ansari for Respondents.

Date of hearing: 22nd June, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1732 #

2007 M L D 1732

[Lahore]

Before Fazal-e-Miran Chauhan, J

Mst. SABAHAT IDREES and another---Appellants

Versus

Mst. CLARE BENEDICTA CONVILLE and 4 others---Respondents

R.S.A. No. 62 of 2005, decided on 29th June, 2007.

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

----S.2 (9), O.XX; R.4 (2) & O.XLI, R.31---Specific Relief Act (I of 1877), S.42---Judgment---Appreciation of evidence---Conscious effort on the part of court---Principles---Failure to give reasons for findings---Effect---Suit and appeal filed by plaintiffs were concurrently. dismissed by Trial Court and Appellate Court---Grievance of plaintiffs was that Trial Court reproduced written arguments of defendants in its judgment and Appellate Court also did not give its own reasons for the decision but relied upon the reproduction of the decision of Trial Court---Plea raised by plaintiffs was that since conscious application of mind was missing in judgments of both the courts below, therefore, judgments were against the law---Validity---Judgment and orders of both the courts below were nothing but a recapitulation of written arguments of defendants---:Evaluation of evidence led by both the parties and conscious efforts of courts to reach at conclusion were missing---Trial Court by simply writing down that counsel for plaintiffs failed to rebut the arguments proceeded to decide issues against plaintiffs was not a conscious effort on the part of Trial Court as required under the law---Trial Court: having failed to give its own decision and reasons for decision on the issue, judgment so pronounced could not be termed to be judgment as defined in S.2 (9) and O.XX, R.4 (2), C.P.C.---Appellate. Court also failed to give its reasons for decision arrived at while dismissing .appeal of plaintiffs and such pronouncing simply reproducing the decision of Trial Court on the issues, especially when decision of Trial Court was also not in consonance with the law laid down by superior courts; was not a judgment in the eye of law---Judgments and decrees passed by both the courts below were set aside and case was remanded to Trial Court for re-writing .the judgment after hearing the parties on the issues separately.

Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore and others PLD 1964 SC 829; Balwan Singh v. Baldev Singh and others AIR 1921 Lah. 119; (Mennem) Venkayya and others v. Emperor AIR 1928 Madras 1130; Muhammad Nawaz Shah v. Imam Bukhsh and 4 others 2000 YLR 1456; Lahore Development Authority, Lahore and others v. Sauna Riaza and another 2003 YLR 1579; Muhammad Akhtar v. The State PLD 1957 SC 297; Ram Bharose and others v. Diwan Rameshawar Prasad Singh AIR 1938. Oudh 26; Mt. Anandi Devi v. Mohan Lal and others AIR 1932 All 444; Faza1 Ahmad v. Mst. Rakhi PLD 1958 W.P. Lah. 218; Khushi Muhammad and others v. Noor Bibi and others 2005 YLR 2645; Wali Muhammad and others v. Mst. Zainab Bibi and others 1.996 MLD ..869; Fida Muhammad v. Pir Muhammad Khan and others PLD 1985 SC 341; Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494; Mst. Surraya Begum and others v. Mst. Suban Begum and others 1992 SCMR 652; Hassan Muhammad v. Muhammad Sharif 1989 MLD 1410; Marine Engineers Association of Pakistan v. Shipping Master, Govt. of Shipping Office, Govt. of Pakistan, Karachi 1989 CLC 588; Safdar Ali and others v. Muhammad Nawaz and others 2006: YLR 1133; Muhammad Amir v. Khan. Bahadur and another PLD 1996 SC 267 and Ghee Corporation of Pakistan Ltd. and 2 others v. Habib Bank Ltd. and 2 others PLD 1984 Lah. 421 ref.

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

----S.2 (9)---`Judgment'---Connotation---Essential elements---Judgment means judicial decision of a court or a Judge, it need not necessarily deal with all matters in issue in a suit but may determine only those issues, decision of which has the effect either adjudicating all the matters in controversy or result in a final disposal of suit---Essential element of a judgment is that there should be a statement of grounds 1'or decision---judgment should contain a conscious statement of case, points for determination, decision of court with regard to issues and the reasons for decision---Judgment should not only state finding but also evidence and how it supports finding.

Z.Z. Ahmad (Retd.) Deputy Inspector-General of Police v. National Bank of Pakistan PLD 1991 SC 363; Mst. Nasim Bashir v. Abdul Jabbar 2004 MLD 510; Abdul Zahir v. Haji Gulab 2002 CLC 4 and Pakistan Tobacco Company Ltd. v. Pakistan Chest Foundation PLD 1998. Lah. 100 rel.

----Pronouncement of judgment---Duty of Court---Scope---Court is required to give its own reasons by discussing facts and evidence on record for pronouncing ajudgment---If court fails to give its own reasons, it would be deemed that court had acted with material irregularity and illegality, in such eventuality the decision or judgment given by Court would not be sustained in the eye of law.

Pakistan Tobacco Company Ltd. v. Pakistan Chest Foundation PLD 1998 Lahore 100; Ali Muhammad v. Muhammad Hayat and others 1982 PSC (Cases) 804; and Anjuman Tajran Outside Delhi Gate and 15 others v. Chief Administration of Auqaf Punjab Awan-e-Aquaf and another 2001 CLC 136 rel.

(d) Judgment---

----Final judgment---Scope---Final judgment determines principal matter in question conclusively so that if it is given for plaintiff, it is conclusive against defendant and if it is given for defendant, it is conclusive against plaintiff---Such judgment being judgment in personam should fully determine their rights---Judge is required to use all his skills in highlighting each and every point under controversy and his own reasons for agreeing with either of the parties on those points.

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

----O.XLI, R. 31---Judgment---Necessary ingredients---Appellate judgment should state points arising for determination, its decision thereon and reasons for its decision---Appellate Court must apply its own independent mind on the controversy and itself should review the record for the purpose of pronouncing. its judgment---Appellate Court is required to give its decision with regard to each point, which should be self-explanatory, illuminative and in case of such order Appellate Court must" state its own reasons in the decision.

(f) West Pakistan Civil Courts Ordinance (II of 1962)---

----S.3---Civil court---Procedure of trial---Scope---Civil courts are to strictly follow provisions of Civil Procedure Code, 1908, in letter and spirit and save wastage of time, which takes place on account of their aberrations.

M. Maqbul Sadiq and Mrs. Rabia Farooq for Appellants.

Ch. Imdad Ali Khan for Respondents.

Date of hearing: 30th May, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1756 #

2007 M L D 1756

[Lahore]

Before Syed Asghar Haider, J

E.D.O.---Petitioner

Versus

SHAUKAT ALI---Respondent

Civil Revision No.1359 of 2006, decided on 6th October, 2006.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration-~-Plaintiff filed suit for declaration against defendant wherein it was claimed that plaintiff was owner in possession of the suit-land---Defendant filed written statement and raised preliminary objection---Trial Court and Appellate Court concurrently decreed the suit and defendant filed revision against concurrent judgments of the courts below---Plea of adverse possession which. defendant had raised in the revision had never been raised by him in previous proceedings---Defendant could not make out a case beyond his pleadings---Contentions qua adverse possession having no basis, was repelled---Plaintiff by producing documentary evidence on record had established. his ownership in respect of suit-land---Defendant had failed to place on record quality evidence to off-set the repots prepared by Tehsildar which had clearly established that defendant had illegally encroached upon the property of plaintiff---Concurrent findings of the Courts below, which were in consonance with law and evidence, could not be interfered with in revision in absence of any jurisdictional error, material illegality or irregularity.

Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 and Kazim Imam Jan v. Muhammad Jawaid and 4 others 2003 CLC 200 rel.

Muhammad Nawaz Bajwa, A.A.-G. for Petitioner.

MLD 2007 LAHORE HIGH COURT LAHORE 1758 #

2007 M L D 1758

[Lahore]

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

MUHAMMAD IFTIKHAR HUSSAIN and 3 others---Appellants

Versus

STATE LIFE INSURANCE CORPORATION through Regional Chief, Lahore

and others---Respondents

R.F.A. No. 473 of 2006, heard on 28th March, 2007.

Civil Procedure Code (V of 1908)---

---O.VII, R.11---Malicious prosecution---Suit for recovery of amount of damages and compensation with reference to a criminal case registered against appellant wherein he was .acquitted by the Trial Court---Application was filed by respondent praying for rejection of plaint under O. VII, R. 11, Cr.P.C., wherein it was stated that appeal against acquittal of appellant was pending in the court---Trial Court acting on a certificate issued by Advocate that appeal against acquittal had. been filed proceeded to reject plaint---Validity---Trial Court had not only acted illegally, but without lawful authority while rejecting the plaint as appeal though- was filed against acquittal of appellant, but as to what became of said appeal after it was filed in the office of the court, no one knew---Allowing appeal, impugned judgment and decree were set aside with the result that suit filed by appellant would be deemed to be .pending before civil court, which would take all steps to decide the same.

Appellant in person.

Mazhar Abbas Bhatti for Respondent.

Date of hearing: 28th March, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1764 #

2007 M L D 1764

[Lahore]

Before Jawad S. Khawaja, J

DOST MUHAMMAD alias DOSA---Petitioner

Versus

SULTAN---Respondent

Civil Revision No. 1693 of 1994, heard on 22nd February, 2005.

Civil Procedure Code (V of 1908)---

----Ss. 35 & 35-A---Suit for damages/cost---Basis of plaintiff's claim in the suit was that an earlier suit filed by the defendant against him was dismissed---Present suit was filed by plaintiff with the object of recovering his cost in the earlier suit of defendant which was dismissed---Suit was not maintainable because it was for plaintiff as a defendant in earlier suit filed by defendant to have claimed costs or special costs therein---Court was to decide the earlier suit to award costs, or special costs, if any---No separate .suit was maintainable for recovery of costs incurred by the plaintiff in the earlier suit---Courts below were not justified in decreeing suit of plaintiff, in view of illegality in the exercise of jurisdiction of the courts below, concurrent decrees, were set aside and as a consequence suit filed by plaintiff was dismissed.

Zahid Hussain Khan for Petitioner.

Nemo for Respondent.

Date of hearing: 22nd February, 2005.

MLD 2007 LAHORE HIGH COURT LAHORE 1769 #

2007 M L D 1769

[Lahore]

Before Mian Saqib Nisar, J

GHULAM MUHAMMAD and another---Petitioners

Versus

MUHAMMAD RAMZAN through L.Rs.---

Respondents Civil Revision No.661 of 2005, heard on 1st June, 2006.

Islamic law---

---Gift---Oral gift---Original owner of land in dispute having died issueless, mutation of inheritance was effected in favour of respondents as his collaterals---Petitioners aggrieved of said mutation, .filed suit asserting that deceased owner of suit land had gifted' suit property to them orally in his life time and thereafter had executed a "Yadashat Hiba"---No oral evidence was produced about the time, date and place as to where offer of alleged gift was made by deceased owner to petitioners, which was accepted by them; and when and how the delivery of possession was ,made to petitioners under said oral gift---Allegedly "Yadasht Hiba" was not scribed by a professional, but a private person who was closely related to petitioners; it was not on a stamp paper---Two Courts below had rightly disbelieved statements of the plaintiff witnesses of about the proof of said document---Concurrent findings of fact recorded by the two courts below could not be interfered with.

Sh. Naveed Shahrayar for Petitioners.

Zahid Hussain Khan for Respondent.

Date of hearing: 1st June, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 1777 #

2007 M L D 1777

[Lahore]

Before Muhammad Muzammal Khan, J

Syed QAMAR ALI SHAH---Petitioner

Versus

S.D.O. WAPDA and others---Respondents

Writ Petition No. 14494 of 1996, decided on 1st March, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Petitioner was not only one of the senior most members of Lahore High Court Bar Association, but was also, world class public interest lawyer enrolled since 1959 sand was running anon-profitable, non-commercial public interest organization and had genuinely served .public interest, without any monetary benefits---Petitioner had .complained that. premises in his use, was equipped with supply of 220 Voltage of electricity and he had been paying exorbitant bills on commercial rate--Grievance of petitioner was about supply of low voltage, which was not attended to by WAPDA authorities despite repeated representations---Stance canvassed in the constitutional petition, rested on disputed factual controversy, requiring determination ,through detailed inquiry/recording of evidence, which exercise could not be undertaken while discharging jurisdiction under Art.199 of the Constitution---Matter could be brought to the notice of concerned competent authority, which could take remedial steps on the basis of its own inquiry/inspection.

Syed Javed Iqbal Jafaree for Petitioner.

M. Mudassar Badla, Legal Advisor for the L.D.A. for Respondent.

MLD 2007 LAHORE HIGH COURT LAHORE 1778 #

2007 M L D 1778

[Lahore]

Before Jawwad S. Khawaja, J

GHULAM ABBAS and 2 others---Appellants

Versus

MUHAMMAD ILYAS---Respondent

Regular Second Appeal No. 51 of 2004, heard on 13th February, 2007.

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

----S. 13---Pre-emption suit---Talb-i-Muwathibat---Delay of 10/15 minutes in making first demand was fatal to pre-emption---Suit-land was being cultivated by a tenant who deposed that he had heard of sale and that plaintiff also expressed suspicion of sale before him---Informer of the sale appeared as a witness and stated that when he informed the. plaintiff of sale, plaintiff remained silent for about 10/15 minutes and thereafter expressed his desire to pre-empt the sale---Such fact was sufficient to show that no immediate demand was made by the plaintiff on coming to know of the sale---Plaintiff's suit for pre-emption was rightly dismissed by Trial Court in circumstances.

Sh. Naveed Shahiryar for Appellants.

Syed Ijaz Qutab and Mian Zafar Iqbal Kalanauwri for Respondent.

Date of hearing: 13th February, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1782 #

2007 M L D 1782

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AWAIS and 4 others---Petitioners

Versus

MUHAMMAD. JAVED IQBAL and 4 others---Respondents

Civil Revision No. 740 of 2006, heard on 22nd February, 2007.

Specific Relief Act (I of 1877)---

----Ss. 10 & 42---Suit for declaration and recovery of amount---Amanat---Proof---Plaint averred that plaintiff, by means of a cheque, paid Rs. two million to father of defendant as Amanat---Subsequently father of defendant died and defendant refused to return the amount to plaintiff---Decree for declaration and recovery of disputed amount was sought accordingly---Trial Court decreed the suit which was upheld in first appeal with finding that document referred to as an "Amanatnama" could not have been allowed to be tendered in evidence---Validity---Amount in question was admittedly transferred to the account of deceased from the account of plaintiff after clearance of a cheque issued by him, however defence set up by defendant was that deceased had given the amount of Rs. two million as loan to plaintiff and same was returned to deceased by plaintiff through said cheque which was encashed and transferred to the account of deceased---Deceased was a head clerk in Settlement Department, his monthly emoluments were not more than Rs.7/8 thousand and he was not reputed to be corrupt---No evidence was available on record of financial capability of deceased to loan out such a huge amount to plaintiff nor there was any proof that amount, in fact, was borrowed by plaintiff and was given to him by deceased---Plaintiff proved his case by producing oral as well as documentary evidence---Defendant refused to answer as to how his father arranged and made the payment of Rs. two million to plaintiff as a loan---Plea- taken up by defendant that his father., used to sell and purchase properties as, a part time job and large amounts always were present in his account, was not pleaded in his written statement---Defendant was even unable to state the particulars of any such property---Statement of account of deceased was produced by the bank on application of plaintiff---Such statement was admitted in evidence subject to objection however what was the objection it was not explained---Bank statement revealed that before the deposit of disputed amount the highest credit entries were of Rs.75,000 and transactions of deposits or withdrawal were not more than of Rs.10,000 to Rs.15,000---Document referred to as an `Amanatnama' could not have been looked into along with that part of the testimony of witnesses relating to its .execution hence was rightly disallowed to be .tendered in evidence---No misreading of evidence by Courts below was pointed out---Petition was dismissed.

Ali Akbar Qureshi for Petitioners.

M. Shahzad Shaukat for Respondent No.1.

Moiz Tariq for Respondent No.2 and 3.

Nemo of others.

Date of hearing: 22nd February, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1790 #

2007 M L D 1790

[Lahore]

Before Mian Hamid Farooq, J

Mst. KARAM SAWAI alias KARAMO MAI and another---Petitioners

Versus

GUL SHER and 3others---Respondents

C.R. No. 126-D of 2007, heard on 28th March, 2002.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O.XVII, R.3---Limitation Act (IX of 1908), S.5---Suit for declaration---Closing of evidence and dismissal of suit---Delay, condonation of---Trial Court framed issues and called upon plaintiffs to produce evidence, but they having failed to produce evidence despite providing various opportunities. to them, Trial Court while invoking provision of O.XVII, R.3, C.P.C. closed evidence of plaintiffs and dismissed suit---Time barred appeal filed by plaintiffs along with application under S.5 of Limitation Act, 1908 for condonation of delay, was also dismissed by Appellate Court---Validity---Plaintiffs had sought condonation of delay on two grounds; firstly that plaintiffs were pardanashin ladies; and secondly that they did not know about the law---Said two grounds were neither plausible nor in accordance with parameters set up under S. 5 of Limitation Act, 1908 justifying condonation of delay---In absence of sufficient cause for condonation of delay Appellate Court had rightly dismissed application for condonation of delay and also appeal---Revision petition which was incompetent and devoid of any substance, was dismissed in circumstances.

Mst. Qabal Jan v. Mst. Habab Jan and 9 others 1992 SCMR 935; Hyderabad Development Authority through M.D. Civil Centre, Hyderabad v. Abdul Majeed and others PLD 2002 SC 84; PLD 1980 Lah. 171; Muhammad Nazir and others v. Punjab Province and others 1984 CLC 1386; Muhammad Hussain and others v. Settlement and Rehabilitation Commissioner and others 1975 SCMR 304; Mst. Hajran v. Sardar Muhammad 1970 SC 287 and Mahmooda Begum etc. v. .Major Malik Muhammad Ishaq etc. 1986 MLD 806, rel.

Anwar Ali and others v. Manzoor Hussain and another 1996 SCMR 1770; Aamir Shah v. Ziarat Gull 1998 SCMR 593; Muhammad Shujaat Khan through legal heirs and others v. Nawab Mashkoor Ahmed Khan and others 2000 SCMR 53 and Mst. Bushra v. Farzana Khatoon and 4 others 2000 SCMR 1628 ref.

Rafiq Ahmad Malik for Petitioners.

Muhammad Ramzan Khalil Joyia for Respondents.

Date of hearing: 28th March, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1795 #

2007 M L D 1795

[Lahore]

Before Umar Ata Bandial, J

Mst. UZMA PARVEEN and 2 others---Petitioners

Versus

MUHAMMAD RAMZAN---Respondent

Civil Revision No. 2970 of -2004, decided on 16th February, 2007.

Tort---

----Malicious prosecution---Essential ingredients---Suit for recovery of amount as damages for malicious prosecution---Suit was dismissed by trial court, but Appellate Court decreed the suit---Validity---Appellate Court, had altogether failed to consider the existence of ingredients essential for establishing a claim of malicious prosecution---Charge of malicious prosecution could not be laid, unless it was proved; firstly; that prosecution was instituted without reasonable or probable cause; and secondly, that such prosecution was launched due to malicious intention and not with a mere intention of carrying the law into effect---Appellate Court had not applied its mind to either of the foregoing crucial considerations for sustaining the claim---Amount of damages had been awarded by the Appellate Court without: any proof of loss---No evidence whatsoever,. about earning capacity, reputation or injured feelings of the plaintiff was brought on record---Appellate Court had no material available on file to uphold the claim in the suit by the plaintiff and had acted on assumption---Impugned judgment which was grossly deficient and suffered from wrongful exercise of jurisdiction, was set aside by the High Court in revision and restored judgment of the Trial Court.

Mst. Afroz Qureshi and another v. Muhammad Ikram Siddqui 1995 CLC 735; Sher Muhammad v. Moula Bux 1995 CLC 1134 and Subedar (Retd.) Fazale Rahim v. Rab Nawaz 1999 5CMR 700 rel.

Ch. Sikandar Ali Janbaz for Petitioners.

Ex parte for Respondent.

MLD 2007 LAHORE HIGH COURT LAHORE 1801 #

2007 M L D 1801

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ASHRAF and others---Petitioners

Versus

METROPOLITAN CORPORATION, LAHORE through Lord Mayor, Lahore---Respondent

C.R. No. 1065-D of 1992, heard on 12th July, 2007.

Municipal Administration Ordinance (X of 1960)---

----S.3(38)---Specific Relief Act (I of 1877), S.54---Illegal possession of land---Removal of unauthorized construction---Suit for permanent injunction---Petitioners were purportedly doing their respective business in temporary cabins in form of "Khokhas" placed on municipal land for the last 24 years as tenants under the then Municipal Corporation---Municipal Corporation treated petitioners in illegal possession and threatened them to remove unauthorized construction, which led petitioners to file suit for permanent injunction---Trial Court decreed the suit holding that petitioners were licenses of Municipal Corporation---Appellate Court, however .found petitioners to be unauthorized occupants of land of Corporation and permitted Municipal Corporation to remove petitioners forcibly---Validity---No proof of letting out place in dispute to any of petitioners by Municipal Corporation was available on record---Petitioners did not produce any rent deed or order of any competent Authority/Officer creating tenancy or receipt of regular deposit of rent by petitioners---Petitioners could not produce any thing on record to prove that they occupied land in dispute under some lawful authority/permission of the Municipal Corporation---Permitting petitioners to continue with their illegal possession, :would amount to authorize every citizen to encroach upon public properties and to maintain suit but law did not favour that course---No case for interference in revisional/constitutional jurisdiction of High Court, having been made out, petitions were dismissed.

Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018 and Soofi Muhammad Ishaque v. The Metropolitan Corporation, Lahore Mayor PLD 1996 SC 737 ref.

Mian Hamid-ud-Din Kasuri and Mr. Iqbal Cheema for Petitioner.

Khawaja Muhammad Afzal and Mr. Muhammad Usman Arif for Respondents.

Date of hearing: 12th February, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1807 #

2007 M L D 1807

[Lahore]

Before Syed Asghar Haider, J

MUHAMMAD ZAHEER---Petitioner

Versus

SHUMAILA ZAIB and another---Respondents

Writ Petition No. 2552 of 2006, decided on 22nd May, 2007.

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

----S.5, Sched. & S.9(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles---Ex parte decree, setting aside of---Case for recovery of dowry articles, having been decreed ex parte, petitioner had filed application under S.9(6) of West Pakistan Family Courts Act, 1964 for setting aside the same---Family Court stayed the execution proceedings directing petitioner to furnish Bank guarantee of decretal amount---Validity---Section 9(6) of the West Pakistan Family Courts Act, 1964 was explicit and clear and had ordained that "aggrieved" party could make such application and plead reasons for his absence---If the applicant was able to persuade the court by showing that his non-appearance was neither contumacious nor deliberate, he could be granted relief prayed for---No condition having been attached .in that behalf, imposition of condition of Bank guarantee upon petitioner was not in consonance with law---Constitutional petition was allowed, impugned order was set aside, with direction to Family Court to decide application under S. 9(6) of West Pakistan Family Courts Act, 1964 filed by the petitioner in accordance with law on merits expeditiously.

Abdullah v. Mst. Zubeda Begum and others 1988 CLC 1631 ref.

Agha Abdul Hassan Arif for Petitioner.

MLD 2007 LAHORE HIGH COURT LAHORE 1818 #

2007 M L D 1818

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. AYSHA and 6 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos. 4437-B, 4403-B, 4539-B and 4592-8 of 2007, decided on 3rd September, 2007.

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

----S. 497---Penal Code (XLV of 1860), Ss.371-A & 371-B---Bail, refusal of---All accused were between the ages of about 18 to 26 years, who were residents of different places and were arrested from a Guest House, which was place of occurrence---Except three accused; others in their statements/first version before the police at the time of their arrest had admitted that they had come there -for sexual lust---Accused had failed to allege any mala fide or enmity against the police to falsely implicate them in the case---Facts and circumstances of the case and the evidence collected by the police showed that offences under Ss.371-A & 371-B, P.P.C. were made out, which were cognizable and fell within the prohibitory clause of S.497, Cr.P.C.---If one offence was cognizable, the police could register the case under the said offence, while including the non-cognizable offences as well---Contention of the counsel for the petitioners that at the most offence under S.496-B, P.P.C. was made out and the case could not be registered, was repelled---Report under S.173, Cr.P.C. had been submitted in the court---Accused persons had failed to make out a case of further inquiry and alleged their false implication in the case for any ulterior motive---Chances were that if accused were allowed bail the offence would be repeated---Bail application of said accused persons was dismissed.

KLR 2005 Crl. Cases 43 rel.

Khushi Muhammad v. Station House Officer, Police Station Makhdoom Rashid Multan and another 2006 PCr.LJ 34 and PLD 1997 SC 408 ref:

(b) Criminal Procedure Code (V of 1899)---

----S. 497---Penal Code (XLV of 1860), Ss.371-A & 371-B---Bail, grant of---Accused was real sister of co-accused---Both of -them were aged 16/17 and 18/19 years---Both pleaded their innocence before the Police at the time of their arrest; they were only working in the Guest House (place of offence) as servants---Manager of the Guest House, on the very first day had stated before the police that both of them were innocent and that they were only working in the Guest House---Some doubt existed in the prosecution case about the involvement of said accused as it could not be believed that she, in the presence of her real brother in the other room was indulged in the commission of Zina---Another accused had already taken a specific stand that he was friend of the Manager of the Guest House and had come there to meet him, but he was not involved in any of such activities---Both the said accused were admitted to bail in circumstances.

Ch. Iftikhar Ahmad and Mian Aman Ullah Khan Chaughta for the Petitioners (in Criminal Miscellaneous. No. 4437-B of 2007).

Muhammad Zaman Khan and Ali Danish Khawaja for the Petitioners (in Criminal Miscellaneous No. 4403-8 of 2007).

Mian Shah Abbas for the petitioner (in Criminal Miscellaneous No. 4539-B of 2007).

Muhammad Riaz Bhatti for Petitioner (in Criminal Miscellaneous No. 4592-B of 2007).

Syed Faisal Raze Bokhari, DPG for the State.

Muhammad Tanvir A.S.-I. with the record.

MLD 2007 LAHORE HIGH COURT LAHORE 1825 #

2007 M L D 1825

[Lahore]

Before Tariq Shamim, J

MAHMOOD AHMAD and 3 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.5590-B of 2007, decided on 13th September, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 324/148/149---Pre-arrest bail, grant of---Unexplained delay in lodging F.I.R. created serious doubt about veracity of prosecution case and on account thereof, false implication of accused persons could not be ruled out--Medicolegal report of complainant was not available on record, but instead medico-legal report of another person not named in F.I.R. was available. on record, who had no concern with the present case---Prosecution could not provide any plausible explanation for placing on record medico-legal report of another person---Injury mentioned in medico-legal report of another person was on the left -leg being anon-vital part of body---Ad interim pre-arrest bail granted to accused persons was confirmed subject to their furnishing fresh bail bonds each in the sum of Rs.30,000 with' one surety to the satisfaction of Trial Court.

Saleem Anwar Khan for Petitioners.

Mian Ihsan-ul-Haq Sajid Deputy Prosecutor-General along with Shafi, S.-I. for the State:

MLD 2007 LAHORE HIGH COURT LAHORE 1826 #

2007 M L D 1826

[Lahore]

Before Khawaja Muhammad Sharif, J

RAZI ALLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4693-B of 2007, decided on 5th September, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Further inquiry---Charge in the case was framed 11 days after submission of challan---Case was adjourned for 38 dates, but despite so many. opportunities, not a single witness had been examined---Incident was not an intentional murder, but was a case of Qatl-e-Khata or of negligence on the part of accused, who was also injured in the case and remained in hospital for a long period---Alleged earlier cases against accused, were of minor offences including illicit arms and accused was acquitted in all said cases---Case of accused was fully covered by the definition of S.318, P.P.C. and maximum punishment under said Section was five years imprisonment along with Diyat---Case of accused fell within the ambit of subsection (2) of S.497, Cr.P.C. calling for further inquiry---Accused was admitted to bail, in circumstances.

Mazhar Iqbal Sindhu for Petitioner.

Ms. Tasneem Amin for the Complainant.

Ch. Jamshaid Hussain, Deputy Prosecutor General for the State.

MLD 2007 LAHORE HIGH COURT LAHORE 1841 #

2007 M L D 1841

[Lahore]

Before Hasnat Ahmad Khan, J

GHULAM YASIN and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1305-B of 2007, decided on 5th September, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.354-A---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Bail, grant of---Further inquiry---Complainant had alleged that four persons including accused had raped his wife, turn by turn, but Medico-Legal certificate and report of Chemical Examiner negated prosecution version, whereafter offence under S. 10 of the Offence of Zina (Enforcement of Hudood), Ordinance, 1979 was deleted, however, offence under S.354-A, P.P.C. was added---Said fact, prima facie, indicated that version of the victim qua allegation of rape was disbelieved by the Investigating agency itself---Version of the victim, in such background, would be taken with a pinch of salt---Question as to whether offence under S.354-A, P.P.C. was committed or it was simply a case of commission under S.354, P.P.C., would require further inquiry---Statements of two ladies who were allegedly accompanying the victim at the time of occurrence were recorded after 14 days of lodging of the F.I.R.---Contents of F.I.R., prima facie, indicated that offence of stripping off the clothes of the victim was not seen by said two ladies---Large number of able-bodied men belonging to the accused family had been roped in the case, prima facie, due to the background of occurrence as narrated in the F.I.R. itself, possibility of false implication of accused just to widen the net, could not be ruled out---Benefit of doubt could be granted to the accused even at bail stage---Even otherwise, in case of grant of mistaken relief of bail, the prosecution could be adequately compensated by convicting and sentencing accused, but innocent persons, after undergoing unjustified pre-trial punishment, could not be adequately compensated, in case of their acquittal---Case of accused required further inquiry under sub-section (2) of S.497, Cr.P.C. into the guilt of accused---Accused were suffering pre-trial punishment since 19-11-2006, but charge had not been framed so far---Earlier conclusion of the trial was the right of every accused, which in the case had been denied to accused---Accused were entitled to grant of bail, in circumstances.

Muhammad Ashraf and 3 others v. The State 1989 PCr.LJ 1453; Muhammad Altaf v. Nazir Ahmed and another PLD 1975 Lah. 568; Tariq Ali Khan v. The State 1988 PCr.LJ 544; Muhammad Sarwar and another v. The State 1997 PCr.LJ 418 and Tariq Bashir and 5 others v. The State PLD 1995 SC SC 34 ref.

Malik Mumtaz Akhar for Petitioners.

Nadir Manzoor Duggal Deputy Prosecutor General for the State.

Abdul Rehman Khan Laskani for Complainant.

2007 M L D 1877

[Lahore]

Before Maulvi Anwarul Haq, J

Messrs NIZAM CERAMICS INDUSTRIES, G.T. ROAD, GUJRANWALA through Proprietor---Petitioner

Versus

SUI NORTHERN GAS PIPELINES LTD. through Managing Director and others--Respondents

Civil Revision No. 359 of 2007, heard on 11th June, 2007.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Bill on average basis---Tampering with meter---Grievance of plaintiff was that additional amount was added without any justification to his bill on the allegation of some fault in natural gas meter installed at his premises---Contention of gas company was that meter was found tampered with and unrecorded gas supply was charged---Trial Court as well as Appellate Court dismissed the suit- and appeal filed by plaintiff---Plea raised by plaintiff was that according to agreement, the company could charge for 15 days only---Validity---No evidence was available to the effect that plaintiff in any manner tampered with or was otherwise responsible for alleged error in recording of meter---Adjustment could have been made only for 15 days, whereas company had made adjustment for 107 days---Such demand of the company was violative of condition of the agreement, even if it was assumed that some defect was found in the meter---Company failed to prove any defect in meter and thus plaintiff could not have been charged for adjustment for a period of more than 15 days---High Court directed the company to serve the plaintiff with bill prepared in accordance with the agreement---Judgments and decrees passed by two courts below were set aside and suit was decreed accordingly.

Auraugzeb v. Messrs Sui Southern Gas Company Ltd. 2003 YLR 1673 distinguished.

Ijaz Ahmad Chadhar for Petitioner.

Umar Sharif for Respondents.

Date of hearing: 11th June, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1882 #

2007 M L D 1882

[Lahore]

Before Jawwad S. Khawaja, J

GHULAM HADIAT and others---Petitioners

Versus

SADIQ ALI CHAUDHRY---Respondent

Civil Revision No. 2417 of 2006, decided on 15th February, 2006.

Civil Procedure Code (V of 1908)---

----S. 115 & O.XLI, R.27---Revision petition---Production of additional evidence---Earlier revision petition was allowed ex parte against respondents---One of the respondents filed application praying for setting aside ex parte judgment because she had never been served---Said application of the respondent was accepted and ex parte order was set aside---Ex party judgment was passed on the premise that Fard Taqseem in question was an authentic document, which should have been admitted in evidence by the Appellate Court---Such was done in the absence of applicant respondent who had not been served---Where the respondent had entered appearance and her counsel had expressly taken objection to the authenticity of disputed Fard Taqseem, it would have been proper, if the appellate decree had been set. aside---Appellate Court was directed by High Court to first decide application for additional evidence, filed by petitioners---Appellate decree was set aside with observations that Appellate Court would decide application filed by the petitioners under O. XLI; R. 27, C.P.C. and thereafter decide the appeal afresh.

Ch. Anwaar-ul-Haq Pannu for Petitioners.

Ch. Abdur Razzaq for Respondent No.4.

Ch. Muhammad Nawaz Bajwa, A.A.-G. with Muhammad Azem for Respondents.

Date of hearing: 15th February, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 1885 #

2007 M L D 1885

[Lahore]

Before Mian Saqib Nisar, J

SAEED KHALID and 3 others---Petitioners

Versus

NAZIR AHMED and 11 others---Respondents

Civil Revision No. 538 of 2007, heard on 25th April, 2007.

Civil Procedure Code (V of 1908)---

----O.XLI, R.27---Specific Relief Act (I of 1877), S.8---Suit for possession---Additional evidence, production of---Suit for possession of property having been decreed, defendants filed appeal against judgment and decree at the Trial Court---Defendants, during pendency of said appeal, moved application for production of additional evidence for bringing on record, three documents viz., statement made by one of the plaintiffs in an earlier suit in which said plaintiff had allegedly conceded that he had no connection with property bearing number different from number of suit property; alleged transfer order of suit property and judgment of civil Court in a suit---Said application of defendants was dismissed---Validity---Defendants could not establish that, .in an earlier suit which pertained to a different property number, statement made by one of the plaintiffs was relevant for resolving dispute with regard to property involved in the suit---Judgment of civil court was part of judicial record which had come into existence after passing of judgment and decree of the Trial Court, and in the judgment reference was made to the property in question, which was declared by the court to have been purchased by defendants' predecessor---Said document having become relevant, same should have been permitted by the court---Proposition that judgment and decree of civil court was binding upon plaintiffs, who were not party to that lis and whether defendants' predecessor had purchased suit property validly from the person who had the title to sell the property, would be questions to be resolved by the court---Revision was partly allowed to the extent of permitting defendants to place on record copy of judgment and decree of civil court as additional evidence---To that extent, impugned order was set aside, whereas remaining petition was dismissed.

Muhammad Akram Ch. for Appellants.

Jari Ullah Khan for Respondents.

Date of hearing: 25th April, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1890 #

2007 M L D 1890

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. LAVIZA KHATOON and 5 others---Appellants

Versus

SALEEM ULLAH KHAN and 2 others---Respondents

Regular Second Appeal No, 35 of 2003, decided on 26th June, 2007.

Specific Relief Act (I of 1877)---

----S.8---Recovery of possession---Evacuee land---Concurrent findings of fact by the courts below---Plaintiff soughs recovery of possession on the basis of proprietary title which had already been decided by the civil court of competent jurisdiction---Suit was decreed by Trial Court in favour of plaintiff---Judgment and decree passed by Trial Court was maintained by Appellate Court---Plea raised by defendants was that matter pertaining to entitlement of land located in India could have been decided only by Rehabilitation Authorities and it was so decided---Defendants further raised the plea that judgments and decrees passed in the earlier suit and appeal had no effect on the decision of Rehabilitation Authorities---Validity---By the time civil court gave its decision and appeal was decided, the land stood confirmed in favour of plaintiff, at such stage civil court had all the jurisdiction---Plaintiff being confirmed allottee was vested with certain rights in the land confirmed in her favour---Matter was never decided by any Rehabilitation Authority and even if it be assumed that it was so decided by Rehabilitation Authorities, then the same was without jurisdiction as by that time inter parts judgments passed by civil court and confirmed by higher forums were in the field and had a binding effect as the matters were dealt with at a point of time when land stood confirmed in favour of plaintiff---High court declined to interfere with the judgments and decrees passed by two Courts below---Second appeal was dismissed in circumstances.

Mst. Zainab v. Mst. Raji and others PLD. 1960 SC 229; Mst. Ghulam Fatima v. Muhammad Hussain and 5 others PLD 1976 SC 729;. PLD 1960 SC 229 and Muhammad Siddiq and 2 others v. Muhammad Sharif and 2 others 1992 SCMR 22.60 rel.

Jari Ullah Khan for Appellants.

Ijaz Feroze for Respondents Nos. 1 to 3.

Nemo for Respondents Nos. 4 to 6.

Date of hearing: 12th and 26th June, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1896 #

2007 M L D 1896

[Lahore]

Before Mian Saqib Nisar, J

AMANAT ALI and another---Applicants

Versus

MUHAMMAD AZEEM through Legal heirs---Respondent

C.M. No. 1-C of 2005 in C.R. No. 928 of 1999, heard on 17th April, 2007.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Plaintiff, in the suit had claimed that they were in possession of land as owners which formed part of "Abadi Deh' and that defendants should be restrained from denying their ownership and interfering in their possession---Defendants contested the suit---Most important issue framed was about the ownership of plaintiffs in respect of land in dispute---Parties produced their evidence and the Trial Court on basis of appreciation of evidence, came to the conclusion that plaintiffs had proved themselves to be the owners---Suit was decreed by the Trial Court and the decree was confirmed in appeal---Validity---Defendants were not the original owners in the mauza, but they had purchased some land from Pattidar' outside the Abadi through registered sale-deed---Defendants thus had not become owners of any specific part ofAbadi Deh' on account of having purchased such area, which was in possession of plaintiffs---Besides concurrent finding of fact was recorded by two courts below, which was on account of appreciation of oral evidence that plaintiffs were the owners- and no misreading and non-reading of evidence had been established by the defendants.

Amir Muhammad Joya for Applicants.

Syed Ahmad Saeed Karmani and Ghulam Hussain Awan for Respondents.

Date of hearing: 17th April, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1898 #

2007 M L D 1898

[Lahore]

Before Muhammad Jehangir Arshad, J

Malik MUSHAHID ALI---Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY through Vice-Chancellor and 4 others---Respondents

Writ Petition No. 1609 of 2007, decided on 10th April, 2007.

General Clauses Act (X of 1897)---

----S.24-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Duty of public functionary---Contention of petitioner was that as appeal filed- against impugned order had not been decided by the Vice-Chancellor of the University, petitioner was compelled to file constitutional petition---Since it was the duty of every public functionary to decide/dispose of representation/appeal etc. within a reasonable time; and after application of independent mind by giving reasons, in terms of S.24-A of General Clauses Act, 1897, constitutional petition was disposed of by the High Court with the direction to the Vice-Chancellor to dispose of appeal of petitioner within one week.

Khurshid Ahmed Khan for Petitioner.

Malik Muhammad Tariq Rajwana for Respondent.

MLD 2007 LAHORE HIGH COURT LAHORE 1901 #

2007 M L D 1901

[Lahore]

Before Maulvi Anwarul Haq, J

PROVINCE OF THE PUNJAB through Collector Bhakkar and others---Petitioners

Versus

NOOR HUSSAIN---Respondent

Civil Revisions Nos. 436 and 437 of 2001, heard on 12th February, 2007.

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

----S. 10---Land reserved for allotment to affectees of Chashma Barrage Respondents being tender holder of disputed land sought conferment of proprietary rights---Validity---Proprietary rights could .have been conferred only upon the tenants under some schemes initiated under Colonization of Government Lands (Punjab) Act, 1912---Respondents were neither tenants in suit-land nor possession was delivered to them under a legal order---Conferment of proprietary rights on respondents by E.A.C.O. in circumstances, was without jurisdiction hence w2s rightly directed to be withdrawn by the Commissioner.

Bashir Ahmad v. Member Board of Revenue and others 2006 SCMR 1093 ref.

(b) Administration of Justice---

----Order without jurisdiction---Every Court and tribunal possesses the

jurisdiction to withdraw its own order if it was passed without jurisdiction.

Aamir Rehman; A.A.-G. for Petitioners.

Malik Ijaz Hussain for Respondent.

Date of hearing: 12th February, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1904 #

2007 M L D 1904

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

MANZOOR alias BHOOLA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 7049-B of 2005, decided on 23rd December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 363 & 364-A---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Bail, grant of---Allegation against accused was that he along with two co-accused had abducted the son of the complainant for committing sodomy upon him---Both the co-accused had already been released on bail---F.I.R. had been lodged with an unexplained delay of 32 days and accused was entitled to get benefit of the same---Trial Court was directed to decide the case within two months, but due to absence of one co-accused the case was still pending---No prosecution witness had so far been examined in the case---Bail was allowed to accused in circumstances.

Justin Gill for Petitioner.

Abdul Majeed Chishti for the State.

Muhammad Sain, S.-I. along with record.

MLD 2007 LAHORE HIGH COURT LAHORE 1906 #

2007 M L D 1906

[Lahore]

Before Sh. Azmat Saeed and Umar Atta Bandial, JJ

Sardar MUHAMMAD IQBAL---Appellant

Versus

ITTEFAQ GENERAL INSURANCE COMPANY through Chief Executive/Managing Director and others---Respondent

Regular First Appeal No.191 of 2006, decided on 4th April, 2007.

Specific Relief Act (I of 1877)---

----Ss.39 & 42---Civil Procedure Code (V of 1908), O.VII, R.11---Companies Ordinance (XLVII of 1984), S. 290---Suit for declaration and cancellation of documents---Rejection of plaint---Suit for declaration, cancellation of resolution of defendant Insurance Company as well as the power of attorney and sale-deed executed in pursuance thereof---Plaint in the suit was rejected under O.VII, R.11, Cr.P.C. on the ground that suit was barred by S.290 of Companies Ordinance, 1984---Defendants had conceded that the basis for rejection of plaint as disclosed in the impugned order, were not tenable in law, but plaint was liable to be rejected on other grounds and impugned order and decree were not sustainable---Validity---Held, it would be appropriate that defendants in the suit, were to take all objections to the maintainability of the suit together which could always be adjudicated upon by the Trial Court after hearing the parties and. thereby ensuring that none of the .parties was taken by surprise---Appeal was accepted, impugned order and the decree were set aside and case was remanded to the Trial Court for decision afresh.

Malik Abdul Wahid for Appellant.

Muhammad Saleem Chaudhry and Malik Abdul Sattar Awan for the Respondents.

MLD 2007 LAHORE HIGH COURT LAHORE 1909 #

2007 M L D 1909

[Lahore

Before Nazir Ahmad Siddiqui, J

ABDUL MAJEED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1709 of 2005, decided on 23rd June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 860), Ss. 452/337-F(i)/337-A(i)/354/148/149---Pre-arrest bail, grant of---House in which occurrence had taken place belonged to real brother of accused who used to visit there freely---Co-accused had already been enlarged on bail---No sharp-edged weapon injury was sustained by the complainant and all the injuries on her person were in the shape of bruises ---No motive was available for the accused for causing injuries to the complainant---Offences with which the accused was charged did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Accused had no previous involvement in such like cases---Accused in case of his arrest would suffer disgrace and humiliation---Case of accused fell within the ambit of further inquiry---Interim bail already granted to accused was confirmed in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Tariq Zulfiqar Ahmad Ch. for the Complainant.

Raja Sultan Khurram for the State.

Imdad Ali, S.-I.

MLD 2007 LAHORE HIGH COURT LAHORE 1910 #

2007 M L D 1910

[Lahore]

Before Jawwad S. Khawaja, J

KARAMAT and others---Petitioners

Versus

FAZAL AHMED and others---Respondents

Civil Revision No. 811 of 2002, heard on 2nd February, 2007.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 64---Suit for declaration---Original owner of suit property having died, inheritance mutation in respect of his property was sanctioned in favour of his eight soils and two daughters---After more than 42 years of said mutations, two sons of deceased who had already received their shares in the inheritance along with their six other brothers and two sisters, filed suit for declaration, on the ground that their deceased father had also another daughter, who was deprived of inheritance---Said alleged daughter of deceased or her legal heirs, neither filed suit nor had expressed any grievance against inheritance mutation sanctioned more than 42 years back in favour of eight sons acid two daughters of deceased---Each of them had failed to appear in the Court to assert that deceased had also a daughter other than two daughters--Said two sons of deceased/plaintiff, had only produced unconnected persons as witnesses, who did not possess even qualification required by Art.64 of Qanun-e-Shahadat, 1984 to prove deceased had another daughter as was claimed by plaintiffs---Plaintiffs themselves were also estopped by their conduct from calling iii question inheritance mutation which was sanctioned 42 years before, the " filing of the suit and based on which they had been enjoying the benefits of suit property---No occasion existed for decreeing the suit, in circumstances---Impugned decree being against law was set aside by High Court, in revision.

Ch. Nazir Hussain for Petitioners.

Ch, Muhammad Anwar for Respondents.

Date of hearing: 2nd February, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1912 #

2007 M L D 1912

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ATIQUE KHAN---Appellant

Versus

BARKATULLAH and others---Respondent

Regular Second Appeal No. 91 of 2006, heard on 8th February, 2007.

Specific Relief Act (I of 1877)---

----Ss.42 & 12---Civil Procedure Code (V of 1908), O.XLI, R.27---Suit for declaration and in the alternative specific performance of agreement to sell---Plaintiff claimed to be owner in possession of suit house on basis of agreement to sell and pleaded that sale-deed executed and registered in favour of defendant was without consideration, void and ineffective being benami transaction---Plaintiff's suit was dismissed while suit for possession filed by defendant was decreed by Courts .below---Validity---Only point .which required determination was as to whether vendor/defendant had executed agreement in question---Agreement was purported to bear the signatures of vendor and. it was attested by two witnesses---Scribe of disputed document was produced by plaintiff as witness who categorically stated that neither vendor nor attesting witnesses of agreement had signed the document in his presence and that document was written by him -under the instruction of plaintiff---Scribe added that document was incomplete hence he aid not enter it in his register---Attesting witnesses of agreement in question appeared and completely falsified each other---Plaintiff claimed that vendor was his employer who had provided suit house to plaintiff for residence after this he wanted to sell his house to plaintiff whereupon the latter was appointed as special attorney---Plaintiff asserted that said attorney received the consideration amount, delivered plaintiff document and took back receipts which he had issued for amount of consideration--Plaintiff did not state a single word that agreement was executed by defendant or that he received any amount under said agreement from plaintiff or from alleged attorney---Plaintiff did not produce alleged power of attorney on record---Observation of first Appellate Court that attorney of plaintiff was a pivotal character but nobody knew where he was or why he was not produced by plaintiff, was- made after appraising entire evidence on record---Appellate Court committed no illegality by dismissing the application filed by plaintiff under Order XLI Rule 27, C.P.C. as Court had itself examined the document and found the same to be forged and in presence of overwhelming evidence proving forged and fabricated nature of a document, it would be futile to examine the Handwriting Expert---Plea of benami transaction-was not pressed---Plaint itself averred that plaintiff was allowed to reside in the suit house by defendant---Disputed house having been lawfully transferred to defendant the latter had a valid title to get the possession of house in question.

Anwar Ahmad v. Mst. Naha Bano through LRs. 2005 SCMR 152 ref.

Abdul Waheed Khan for Appellant.

Kh. Muhammad Farooq for Respondent Not.

Date of hearing: 8th February, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1920 #

2007 M L D 1920

[Lahore]

Before Asif Saeed Khan Khosa, J

FALAK SHER---Petitioner

Versus

THE STATE and 14 others---Respondents

Criminal Revision No. 1032 of 2005 Criminal Miscellaneous Nos. 1 of 2005 and 41-M of 2006, decided on 18th January, 2006.

Penal Code (XLV of 1860)---

----Ss.302/324/337/-F(i)/148/149---Trial Court .had permitted .the prosecution to give up the Inspector as unnecessary witness after his

examination-in-chief had already been recorded---Validity---Examination-in-chief of the Inspector showed that during his investigation of the case he had recorded only .the statements of some formal witnesses under S.161, Cr.P.C. and submitted an incomplete challan---Giving up of the said Inspector by the prosecution might prejudice the cause of prosecution, but the same was not likely to prejudice the defence in any substantial manner and probably for this reason co-accused of the accused petitioner had not joined him in challenging the impugned order---Even otherwise, impugned action taken by Trial Court appeared to be merely an irregularity curable under S.537, Cr.P.C. which was not prejudicial to the case of accused in any significant manner---Trial of accused was at an advanced stage and he appeared to have challenged the impugned order only to delay conclusion of his trial---Revision petition was dismissed in limine in circumstances.

M.A. Zafar for Petitioner.

MLD 2007 LAHORE HIGH COURT LAHORE 1929 #

2007 M L D 1929

[Lahore]

Before Khawaja Muhammad Sharif, J

HAKAM ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1065 of 2006, decided on 18th September., 2007.

Penal Code (XLV of 1860)---

---S.302(b)---Appreciation of evidence---Benefit of doubt---No recovery

was effected at the instance of accused---Role attributed to accused was that on Lalkara of female co-accused he gave hatchet blows to deceased, which hit on the shoulder and back of deceased---Injuries attributed to accused, were not only in contradiction with each other, but also contradictory to the post-mortem examination report of deceased---Accused was declared innocent by the Investigating Officer---Opinion of the Police though was not binding upon the court regarding the innocence of accused, but in such like cases, such opinion would become relevant for the just decision of the case---Prosecution had not been able to prove its case against accused beyond any shadow of doubt---Conviction and sentence awarded to accused was set aside extending him benefit be doubt and he was released from jail:

Mazhar Hayaat for Appellant.

Ch. Jamshaid Hussain, Deputy Prosecutor General assisted by S.D. Qureshi for the State.

Dates of hearing: 17th and l8th September, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1937 #

2007 M L D 1937

[Lahore]

Before Sardar Muhammad Aslam and Fazal-e-Miran Chauhan, JJ

MUHAMMAD RIAZ and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 273-J and Murder Reference No. 31-T of 2006, heard on 6th September, 2007.

Penal Code (XLV of 1860)---

----Ss.302, 324; 337-H(ii); F(iii), 452, 148, 149 & 109---Police Order [22 of 2002], Art.151---Anti-Terrorism. Act (XXVII of 1997); S.7---Appreciation of evidence---Benefit of doubt---While evaluating the ocular account furnished by prosecution witnesses, it appeared that they were not present at the spot---Statements of said witnesses were also not worthy of any reliance as they had not seen the occurrence---False involvement of accused thus could not be ruled out---Ocular account was also not compatible with recovery of crime empties---Investigating Officer recovered 26 crime empties of Klashnikov from the spot immediately on spot inspection after the occurrence---No crime empty of .244 or .303 bore rifle was recovered---Seemingly all the injuries were result of one burst from Klashnikov---Each accused was assigned role to cause injury to one person only, deceased or injured---Such conduct was abnormal---Assailants were not expected to fire one shot and retrieve back to give chance to another as it was not a shooting competition--Statements of female injured witnesses were not independent and were made under active influence of their male members---Recovery effected from accused, was not sent to the Forensic Science Laboratory for matching in absence of crime empties---Each recovery, in circumstances was inconsequential---Two of the accused persons were old-aged persons who were not expected to join hands at that age at midnight---Physical remand of accused persons was also not obtained by Investigating Officer on account of their old-age and failing health---Prosecution had failed to produce sufficient material to connect-accused with commission of crime beyond reasonable doubt---Conviction-and sentence of accused were set aside giving them benefit of doubt.

Khawaja Sultan Ahmed for Appellants.

Ch. Muhammad Hussain Chachar, D.P.G. for the State.

Date of hearing: 6th September, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1945 #

2007 M L D 1945

[Lahore]

Before Muhammad Jehangir Arshad, J

KHURAM IJAZ---Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, HAFIZABAD and 2 others ---Respondents

Writ Petition No. 8541 of 2007, decided on 13th September, 2007.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for recovery of dowry articles---Decree passed on basis of special oath given by plaintiff's brother after accepting its offer made by defendant's counsel---Validity---Defendant from his conduct was estoppel to file constitutional petition, which was dismissed by High Court.

(b) Counsel and client---

----Consent for decision of suit given by Counsel/Attorney without having authority and. consent of his party (client) would still be binding on his party---Principles.

A duly constituted Attorney/Counsel has the implied authority to make offer for the decision of a case through, of course, a legal manner, and in case the party feels that his counsel has given any consent for the decision of the suit without having authority, even then the said offer given by his counsel is binding on him and the party cannot wriggle out by asserting that the said offer was neither with his consent nor with his authority.

----Ss. 5, 14 & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for recovery of dowry articles---Decree in -suit, passing of---Appellate Court reduced decretal amount after obtaining signatures of petitioner on order-sheet---Constitutional petition filed after 10 months of passing such order challenging its validity on the ground that .Appellate Court had not recorded statement of petitioner; and that his signatures were not taken with his free consent---Validity---Impugned order had been passed in presence of petitioner and his counsel---Petitioner's silence for 10 months after passing of impugned order would amount to acquiescence as well as laches on his part---No weight could be given to mere petitioner's such assertion going against the record carrying presumption of truth---High Court dismissed constitutional petition on merits and also on basis of laches.

Jawad Mir Muhammadi and others v. Haroon Miraza and others PLD 2007 SC 472 ref.

Nisar Ahmad Gondhal for Petitioner.

MLD 2007 LAHORE HIGH COURT LAHORE 1964 #

2007 M L D 1964

[Lahore]

Before Ijaz Ahmad Chaudhry, J

KHADIM HUSSAIN FAROOQI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 5989-B of 2007, decided on 20th September, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 392, 397, 411, 109, 148 & 149---Bail; grant of---Further inquiry---Accused was not named in` F.I.R. and the only allegation against him was that he had abetted co-accused in the murder .and had close connection with accused---Nothing was recovered from the petitioner during the investigation and no incriminating evidence had been collected by the .police to prima facie connect him with the commission of the crime---Nothing was on record-that accused had intentionally avoided to surrender before the police---Even otherwise the prosecution had to stand on its own legs and mere absconson of accused, even for such a long period, could not be taken as a substantive piece of evidence to prima -facie hold him guilty, unless prosecution was equipped. with some solid evidence towards the guilt of accused and for his involvement in the occurrence---Accused, in circumstances, had succeeded in making out a case of further inquiry and bail could not be withheld as a punishment---Accused was admitted to bail, in circumstances.

Ch. Nawab Ali Mayo for the Petitioner.

Syed Faisal Raza Bokhari, Deputy Prosecutor-General for the State.

Raza Hussain, S.-I. with record.

MLD 2007 LAHORE HIGH COURT LAHORE 1972 #

2007 M L D 1972

[Lahore]

.Before Maulvi Anwarul Haq, J

LIAQAT ALI SABRI---Petitioner

Versus

Mst. RASHEED TOOSY through General Attorney and 2 others---Respondents

Writ Petitions No. 2817 of 2007, heard on 12th September; 2007.

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

----S. 13---Ejectment petition---Default in payment of rent for one month---Plea of tenant that premises was let out and its rent had been received by brother of land-lady's husband as her attorney in absence of Power-of-Attorney---Effect---Such plea would not give rise to contumacious denial of relationship of landlord and tenant between parties.

Makhan Bano v. Haji Abdul Ghani PLD 1984 SC 17 ref.

Mian Muhammad Nawaz for Petitioner.

Mian Muhammad Jahangir for Respondent No. 1.

Date of hearing: 12th September, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1975 #

2007 M L D 1975

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

KHALID HUSSAIN---Appellant

Versus

MUHAMMAD ZAHID alias AJJI---Respondent

Criminal Appeal No. 32i of 2007, decided on 18th September, 2007.

Penal Code (XLV of 1860)---

----Ss.302, 148 & 149---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Injuries resulting in the death of deceased were caused by co-accused---Only role ascribed to respondent/accused was of making aerial firing. with a .7mm rifle---Prosecution's own version was that no injury had been caused by respondent/accused on the body of deceased---Recovery of rifle from the possession of accused, was of no avail to the prosecution as no empty of rifle was recovered from the place of occurrence, which could be matched with the weapon recovered---.Trial Court had rightly concluded that a wide net had been thrown by the prosecution in order to implicate maximum number of persons from accused side---Trial Court had rightly disbelieved the ocular account furnished by the eye-witnesses as same was not found to be credible to his extent--Medical evidence though supported ocular account to the extent of co-accused, but same had no relevance insofar as accused was concerned---No misreading or non-reading of evidence or perversity having been found in the reasoning of Trial Court, no reason was to disagree with the conclusions arrived at by the Trial Court---Accused having been acquitted of all the charges, double presumption of innocence was attached to him.

Syed Zahid Hussain Shah for Appellant.

MLD 2007 LAHORE HIGH COURT LAHORE 1983 #

2007 M L D 1983

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ARIF and 12 others---Petitioners

Versus

MUHAMMAD HAFEEZ and 32 others---Respondents

C.Rs. Nos. 361 of 2002 and 2669 of 2001, heard on 18th September, 2007.

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

---S. 11---Sale of property by several persons including a minor---Validity---Such sale to the extent of minor would be void.

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

----S. 42---Mutation---Evidentiary value---Mutation would neither confer any title nor would be evidence of title---Beneficiary of mutation, in case of dispute, would have to prove transaction as a fact.

Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 and Aurangzeb through L. Rs. and others v. Muhammad Jaffar and another 2007 SCMR 236 rel.

----Plea of adverse possession and plea of title, if raised in same breath, would be mutually destructive.

(d) Co-sharer---

----Actual possession of a co-owner/co-sharer in case of joint land would be of no relevance---Such possession to all purposes would inure to benefit of remaining co-owners/co-sharers as well till such time partition was effected.

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

Syed M. Kaleem Ahmad Khurshid for Petitioners.

Agha Intizar Ali Imran for Respondents..

Date of hearing: 18th September, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 1991 #

2007 M L D 1991

[Lahore]

Before Syed Hamid Ali Shah, J

Mirza ILYAS BAIG and another---Petitioners

Versus

DISTRICT & SESSIONS JUDGE, TOBA TEK SINGH/ ELECTION TRIBUNAL, FAISALABAD and 2 others---Respondents

Writ Petition No. 1714 of 2006, decided on 18th January, 2007.

Punjab Local Government Elections Rules, 2005---

----Rr. 65, 67(3) & 72---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election for the seat of Nazim and Naib Nazim---Respondents; -who remained unreturned, filed election petition against petitioners who were returned candidates---Petitioners/returned candidates filed application for rejection of election petition on the ground that mandatory provisions of R.67(3) of Punjab Local Government Elections Rules, 2005, had not been complied with as election petition and documents annexed with election petition were not duly verified according to law---Contention of petitioners was that non-verification of election petition had rendered same non-maintainable---Authority, after hearing the parties, .dismissed application filed by the petitioners/returned candidates for rejection of election petition---Election Tribunal while passing impugned order, examined record and found that election petition was verified on oath by one of the respondent---Besides the verification, said respondent had sworn in an affidavit which was duly attested by the Oath Commissioner, wherein the assertions made in the election petition, were verified---Penal provisions as contained in R.72 of Punjab Local Government Elections Rules, 2005, were not attracted to the present case and Election Tribunal, had rightly observed that election petition could not be dismissed---Constitutional petition filed against order passed by the Election Tribunal, was dismissed, in circumstances.

Sundarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600; Iqbal Zafar Jhagra v. Khalil ur Rehman and others 2000 SCMR 250; Abdul Nasir and another v. Election Tribunal Toba Tek Singh 2004 SCMR 602; Mst. Shehnaz Begum and 4 others v. Ashiq Hussain Bhatti 1995 CLC 327; Engineer Jamil Ahmad Malik v. Ghulam Sarwar Khan and 6 others 2004 CLC 914; S.M. Ayub v. Syed Yousaf Shah PLD 1967 SC 486 and Abdur Rauf Khan v. Bashir Bilour and 6 others 2004 MLD 244 ref.

Muhammad Khalid Sajjad Khan for Petitioners.

Ch. Abdul Salam for Respondents Nos.2 and 3.

Date of hearing:. 2nd November, 2006.

MLD 2007 LAHORE HIGH COURT LAHORE 1994 #

2007 M L D 1994

[Lahore]

Before Sardar Muhammad Aslam and Muhammad Jehangir Arshad, JJ

FAZAZ ABBAS---Appellant.

Versus

THE STATE---Respondent

Criminal Appeal No. 1949 of 2004 and Criminal Appeal No. 934 of 2007, heard on 17th September, 2007.

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

----Ss.9(c) & 15---Criminal Procedure Code (V of 1898), Ss.265-C &

412---Appreciation. of evidence---Accused after submission of challan, were produced in the court and case was adjourned for appoint-went of counsel by accused as well as for distribution of copies of documents in terms of S.265-C, Cr.P.C.---Accused having made confession on the adjourned date, Trial Court; without distributing the copies of statements/documents as mandated by S.265-C, Cr.P.C: and without appointment of counsel on behalf of accused, proceeded to frame the charge after recording confessional statements of both accused and on the same day, convicted anal sentenced them---Validity---Trial Court prima facie had acted in a bit haste in proceeding to frame the charge and recording confessional statements of accused without following the requirement of S.265-C, Cr:P.C.---Such omission on the part of the Trial Court to comply with the provisions of S.265-C, Cr.P.C., could -not be construed to be a mere irregularity, but same was a serious illegality going against the fundamental principles of safe administration of justice---Conviction and sentence of accused were set aside and case was remanded to the Trial Court which after treating accused as under trial accused, would proceed with the trial.

Ajeet Singh v. The State PLD 1982 Lah. 10 rel.

Nazar Ahmad Ghazi for Appellant.

Rana Sohail Iqbal Special Prosecutor, A.N.F. for Respondent.

Date of hearing: 17th September, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 2009 #

2007 M L D 2009

[Lahore]

Before Maulvi Anwarul Haq, J

Ch. MUHAMMAD HANIF---Petitioner

Versus

Mst. ASIA---Respondent

Civil Revision No. 1575 of 2007, heard on 20th September, 2007.

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

----O.XXI, Rr. 97, 100 & 103---Questions relating to title and possession between an applicant under O.XXI, R. 97, C.P.C. or an applicant under R.100 thereof and opposite party would be determined by Executing Court and no separate suit would lie.

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

----S. 17---Civil Procedure Code ('V of 1908), O.XXI, Rr. 100 & 103---Ejectment order, execution of--Objection petition by applicant (brother of tenant) under O. XXI, R. 100, C.P.C., claiming to be owner of rented premises---Maintainability---Order XXI, R, 103, C.P.C. would .cover the case of an applicant under R.100 thereof contemplating dispossession of a person other than judgment-debtor---Findings of Rent Controller rendered on applicant's application for joining him as party in ejectment petition were that he was not in possession of property---Such findings were upheld by Appellate Court and High Court---Objection petition in view of such fact would not be maintainable, rather suit would be maintainable---Objection petition was dismissed in circumstances.

Mst. Khurshid Begum and others v. Mr. Ghulam Kubra and others 1982 SCMR 90 ref.

Muhammad Hanif Niazi for Petitioner.

S. Abid Mumtaz Tirmzi for Respondent.

Date of hearing: 20th September, 2007.

MLD 2007 LAHORE HIGH COURT LAHORE 2014 #

2007 M L D 2014

[Lahore]

Before Syed Asghar Haider, J

ABRAR HUSSAIN and another---Petitioners

Versus

DIN MUHAMMAD ---Respondent

Civil Revision No. 1697 of 2006, decided on 14th May, 2007.

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

----Ss. 5, 6 & 13---Transfer of Property Act (IV of 1882), Ss. 54 & 55---Civil Procedure Code (V of 1908), O. VII, R. 11---Pre-emption suit---Making of Talbs upon vendor instead of vendee---Rejection of plaint---Scope---Right of pre-emption accrues on sale of immovable property---Vendor on execution of sale-deed completely divests himself of all rights in property, which would stand transferred to vendee---Pre-emptor considering himself aggrieved of sale seeks to retrieve back property from vendee---Talbs, thus, must be made upon new owner (vendee)---Plaint would be rejected in case Talbs were not made upon new owner of property (vendee), but were made upon vendor .being an improper person---Principles.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Akbar Ali Khan and others v. Mukamil Shah and others 2005 SCMR 431; Umar Khan through Legal Heirs v. Ali Akbar through Legal Heirs and others 2004 CLC 1671; Muhammad Ramzan v. Lal Khan 1995 SCMR 1510; Taj Din v. Jumma and others PLD 1978 Peshawar 88; Mumtaz Begum v. Mukhtar Begum PLD 1983 SC 76; Muhammad Khan v. Sadiq and others PLD 1983 Lahore. 929; Ghulam Tayyab v. Shahroo Khan PLD 1962 (W.P.) BJ-1; Jaffaran Bibi v. Saleh Muhammad 1979 CLC 889; Muhammad Khan v. Khan Muhammad PLD 1973 Lah. 806 and Mustagim Khana v. Abdullah Khan PLD 1951 Pesh. 1 ref.

Inayat Ullah Khan v. Muqarrab Khan PLD 1983 Pesh. 129; Mst. Mah Rauf Sultan v. Abdul Yamin 1968 SCMR 874 and Taj Din v. Jumma and 6 others PLD 1978 SC (AJ & K) 131 distinguished.

Asjad Saeed and Khawaja Saurd-u-Zafar for Petitioners.

Abdul Samee Khawaja for Respondent No.1.

Farooq Qureshi Chishti for Respondent.

Date of hearing: 10th April, 2007.

Peshawar High Court

[Peshawar]

Before Ijaz-ul-Hassan Khan and Fazlur Rehman Khan, JJ

RAHMAN GUL---Petitioner

Versus

NIZAKAT BIBI and another---Respondents

Writ Petition No.912 of 2006, decided on 8th November, 2006.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction of High Court---Scope---Suit for dissolution of marriage, recovery of dower, maintenance and return of dowry articles---Suit having partially been decreed by Family Court, petitioner filed constitutional petition against judgment of Family Court---Validity---Constitutional jurisdiction of High Court, was completely discretionary in nature and could be declined in appropriate cases---While exercising constitutional jurisdiction, High Court, had to see, if the Tribunal or Court acted without jurisdiction or in violation of any relevant statute or law---High Court in such cases could not embark upon a reappraisal of evidence and proceed as if it was hearing an appeal from a subordinate court---Appellate Court was to appraise evidence and same had been done in the case in accordance with law---No irregularity or jurisdictional defect had been pointed out in the case by counsel for petitioner inviting interference of High Court--Material on record had established that after marriage, relations between spouses were not cordial due to ill-treatment of petitioner and his parents, which led respondent to leave the house of petitioner and take abode in the house of her parents---Dower amount had not been paid by petitioner to respondent and dowry articles of respondent were in possession of petitioner---Impugned judgment and decree of Family Court was supported by evidence on file and hardly called for interference of High Court in constitutional jurisdiction.

Mst. Bushara Nazneen v. Allah Ditta and 2 others 2004 CLC 1700; Muhammad Asad Khan. v. Mst. Sadaf Niaz and another 2005 CLC 1881; Muhammad Zafar, v. Judge, Family Court and another 2005 CLC 1844; Abdul Rauf v. Mst. Rafia Gul and 2 others 2003 YLR 3047; Mst. Hanifa Bai, v. Muhammad Moosa and another PLD 1998 Karachi 234 and Dr. Anees Ahmad v. Mst. Uzma PLD 1998 Lah. 52 rel.

Saeedullah Khan Khalil for Petitioner.

MLD 2007 PESHAWAR HIGH COURT 556 #

2007 M L D 556

[Peshawar]

Before Talaat Qayyum Qureshi, J

SHAH MULK---Petitioner

Versus

Mst. HUSSAN PARI and another---Respondents

Civil Revision No.1314 of, 2006, decided on 8th November, 2006.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and perpetual injunction---Plaintiff had sought declaration to the effect that he was owner in possession of' suit property on basis of two deeds and that defendants had nothing to do with the said property---Perpetual injunction restraining defendants for interfering in suit property was also sought---Claim of plaintiff being based on two deeds, it was his bounden duty to have proved said two documents by producing marginal witnesses and scribe, but none of them was produced before the Trial Court to prove those documents---Counsel for plaintiff stated at the bar that marginal 'witnesses of both said deeds were dead, but record of the case had belied the stand of counsel---Counsel for plaintiff neither filed any application mentioning that marginal witnesses and scribe of deeds were dead nor any permission was sought from the Trial Court for producing secondary evidence---Plaintiff was bound to prove both said deeds, but he had failed to do that---Where party had withheld best evidence, presumption would be that if said witnesses were produced their deposition must have been against him---Plaintiff having failed to prove two deeds relied upon by him, courts below had rightly dismissed his suit as well as appeal---In absence of any misreading/non-reading of evidence or any illegality or irregularity or any jurisdictional error or defect, concurrent judgments of the courts below could not be interfered with by the High Court.

Anwar Ahmad v. Mst. Nafiz Bano through L.Rs. 2005 SCMR 152; Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235 and Mst. Gohar Sultan v. Gul Waris Khan PLD 2003 Pesh. 189 ref.

Walayat Khan Khattak for Petitioner.

MLD 2007 PESHAWAR HIGH COURT 570 #

2007 M L D 570

[Peshawar]

Before Ijaz-ul-Hassan Khan and Fazl-ur-Rehman Khan, JJ

BAKHT ZADA---Petitioner

Versus

Mst. JOOMREZA and 2 others---Respondents

Writ Petition No.968 of 2006, decided on 7th November, 2006.

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

----S.5, Sched. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Scope-.Suits for dissolution of marriage, recovery of dower, maintenance, custody of minor and restitution of conjugal rights---Respondent (wife) had filed suit against petitioner for dissolution of marriage, recovery of dower, maintenance and custody of minor, whereas petitioner (husband) had filed suit for restitution of conjugal rights against the respondent---Both suits were consolidated---Suit. filed by respondent was partially decreed qua dissolution of marriage, recovery of dower and maintenance allowance and her prayer for custody of minor daughter was declined and suit filed by petitioner for restitution of conjugal rights was dismissed by Family Court---Judgment and decree passed by the Family Court was upheld in appeal---Validity---Constitutional jurisdiction of High Court was completely discretionary in nature which could be declined in appropriate cases---High Court while exercising constitutional jurisdiction, had to see, if the Tribunal or Court acted without jurisdiction or in violation of any relevant statute or law---High Court in such cases could not embark upon a reappraisal of evidence as it was the job of Appellate Court to appraise evidence, which had been done in the case in accordance with law---No irregularity or jurisdictional defect had been pointed out by the petitioner inviting interference of High Court---Tribunal having jurisdiction to decide a matter, was competent to decide it rightly or wrongly---Mere fact that decision was incorrect, did not render decision of said Tribunal as without lawful authority---Material on record had proved that dower amount fixed at the time of marriage had not been paid to wife and husband who had contracted second marriage without prior permission of respondent, had not provided any maintenance to her---Judgments and decrees of Courts below were supported by evidence on file--Constitutional petition was dismissed, in circumstances.

Zulfiqar Khan Awan v. Secretary Industries and Mineral Development, Government of Punjab, Lahore and 8 others PLD 1973 SC 530 ref.

(b) Islamic Law---

----Marriage---Parameters---Divorce---Principles---Marriage, under Islamic Law was a civil contract and not a sacrament as ordained in Holy Qur'an---Marriage was for the comfort, love and compassion and it was bounden duty of husband to keep his wife with love and affection, respect and provide her maintenance during subsistence of marriage---Islam had laid down parameters for spouses to live within those bounds and if parties transgress those parameters, they should relieve each other i.e. they could break matrimonial tie with kindness.

Masoodur Rehman for Petitioner.

MLD 2007 PESHAWAR HIGH COURT 573 #

2007 M L D 573

[Peshawar]

Before Talaat Qayyum Qureshi, J

JEHANGIR KHALID and others---Petitioners

Versus

GHULAM FAROOQ and others---Respondents

Criminal Revision No. 197 of 2006, decided on 1st December, 2006.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 5---Illegal dispossession---Complaint against---Petitioners, who claimed to be owners of land in dispute, allegedly having been dispossessed from said land, filed application/complaint against said dispossession and for restoration of their possession---Application/complaint was dismissed by the Trial Court---Validity---Alleged dispossession had taken place much before promulgation of Illegal Dispossession Act, 2005---Provisions of Illegal Dispossession Act, 2005 being not applicable retrospectively, acts of respondents who allegedly dispossessed petitioner, would not fall within the ambit of the Act---Petitioners did not even lodge report at the police station against alleged occurrence of dispossession---Even otherwise if petitioners were aggrieved by any acts of respondents they could safely approach civil court of competent jurisdiction for redressal of their grievance---Court below had rightly dismissed complaint filed by petitioner which was filed with abnormal delay with due deliberations and consultation---In absence of any illegality or any justification to interfere with findings recorded by court of competent jurisdiction, revision against said finding, was dismissed.

Shahbaz Khan for Petitioners.

MLD 2007 PESHAWAR HIGH COURT 613 #

2007 M L D 613

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

SAJJAD ALI---Petitioner

Versus

Mst. MAH PARI and another---Respondents

Criminal Appeal No. 529 of 2004 and Criminal Revision No.145 of 2005, decided on 3rd November, 2006.

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

----Ss. 302(b) & 458---Appreciation of evidence---Benefit of doubt---Duty of prosecution---Prosecution primarily was bound to establish guilt against accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the court to draw conclusion; whether prosecution had succeeded in establishing accusation against accused or otherwise; and if it would come to the conclusion that the charges so imputed against accused had not been proved beyond reasonable doubt, then accused would become entitled for his release on getting benefit of doubt in the prosecution case---Requirement of the criminal law was that prosecution was duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt was created, it must go to accused and it would be sufficient to discredit the prosecution story and entitle accused for acquittal.

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

----Ss. 302(b) & 458---Appreciation of evidence---Benefit of doubt---Sole testimony of complainant was not sufficient to prove the charge against accused, especially when it was highly doubtful---Statement of complainant, in the present case, was not reliable and the Trial Court had wrongly believed same to award conviction and sentence to accused---Depositions of complainant and other prosecution witness who was grandson of complainant, were inconsistent inter se and stood belied by the medical evidence and the site plan---Accused had no motive to commit the offence nor prosecution had proved any against him---Occurrence did not appear to have taken place in the manner as alleged---F.I.R. had not been lodged at police station and it was generally understood that in such a situation, it was likely that F.I.R. had been registered after due consultation and deliberation by the complainant party and preliminary investigation by the police at the spot---Availability of eye-witnesses at the scene of crime at the relevant time, was found to be quite suspect---Impugned judgment suffered from a number of legal and factual infirmities and Trial Court had not been able to prove beyond any doubt that accused was involved in the crime---Medical evidence being in nature of confirmatory evidence, could not be considered corroborative evidence---Abscondence of accused could be taken as corroborative evidence and not evidence of the charge against accused---Crime empties recovered from the spot during investigation, had not been sent to the Fire Arm Expert for ascertainment of the fact whether same were fired from one weapon or more of-same calibre/bore---Plea of alibi taken by accused, stood satisfactorily proved---If oral evidence was discarded then no conviction could be based on corroborative piece of evidence---Case of prosecution being highly doubtful against accused, he was entitled to the benefit of doubt---Allowing appeal conviction and sentence recorded by the Trial Court against accused were set aside and he was acquitted of the charges and was directed to be released, accordingly.

Khawaja Muhammad Khan Gara for Appellant.

Shah Nawaz Khan Respondent and Mr. Obaidullah Anwar, A.A.-G. for the State.

Date of hearing: 25th September, 2006.

MLD 2007 PESHAWAR HIGH COURT 639 #

2007 M L D 639

[Peshawar]

Before Ijaz ul Hassan Khan, J

THE STATE through Advocate-General, N.-W.F.P., Peshawar---Petitioner

Versus

RAZA KHAN and others---Respondents

Criminal Revision No. 105 of 2002, decided on 15th November, 2006.

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

----Ss. 9 & 25-Appreciation of evidence---Petition for enhancement of sentence---Accused were convicted and sentenced to suffer ten years' R.I. each along with fine---State in its revision petition had sought enhancement in sentence awarded to accused by the Trial Court---All prosecution witnesses were unanimous on all the broad features of the case and their statements bore all shades of truthfulness---No available reason was for the rejection of their testimony---Mere fact that witnesses were official witnesses, would not rob their testimony of its evidentiary worth---Counsel for accused had failed to point out any background of bitterness or ill-will between the recovery witnesses and accused, so as to prompt witnesses to falsely involve accused in the case of such nature---Huge quantity of contraband charas and opium had been recovered from the "gatrees" carried by accused---Report of Chemical Examiner regarding the samples of the recovered material, was in the positive---Discrepancies pointed out by counsel were minor and insignificant and were not fatal to main allegation of recovery of narcotics---Section 25 of Control of Narcotic Substances Act, 1997 had excluded application of S.103, Cr.P.C.--Magistrate had recorded confessional statements of accused persons according to law---Plea of accused being acting in the capacity of carriers, though was not taken by them before the Trial Court, but under the law, High Court could consider said plea, if it was borne out from the evidence produced by the prosecution---Confessional statements of accused, relied upon by the Trial Court, would reveal that it was specifically stated by accused persons in confessional statements that they were poor labourers and were misled to act as carriers for a principal accused---Accused having been found acting as carriers, sentence awarded to them was appropriate in the circumstances of the case and did not warrant interference of High Court in its revisional jurisdiction.

Manullah alias Aman v. The State 2000 PCr.LJ 1536; Sherzada v. The State 1993 SCMR 149; Zahoor Ahmad Awan and another v. The State 1997 SCMR 543 and Asghar Ali v. The State 1996 SCMR 1541 rel.

Amin ur Rehman for the State.

Malik Haroon Iqbal for Respondents.

Date of hearing: 15th November, 2006.

MLD 2007 PESHAWAR HIGH COURT 811 #

2007 M L D 811

[Peshawar]

Before Raj Muhammad Khan, J

NADAR KHAN---Petitioner

Versus

ALI JAN and 3 others---Respondents

Civil Revision No. 75 of 2004, decided on 16th February, 2007.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Pre-emptor had alleged that transfer of suit property by vendor to vendees, in fact, was sale and preemptible by him, but to defeat his right of pre-emption, mutation was given the colour of gift-deed---Trial Court dismissed suit for pre-emption holding that transaction was a gift mutation and that pre-emptor could not prove satisfactorily that it was a sale---Appeal filed by pre-emptor against judgment of the Trial Court, was also dismissed by Appellate Court---Validity---Pre-emptor and his witnesses could not prove whether any consideration in cash or kind had been passed between the parties for the land in question---Allegation of pre-emptor that transaction was sale and not gift and so was pre-emptible, had not been proved by him---Concurrent findings of courts below that transaction was gift, called for no interference therein since no illegality or legal infirmity appeared in the judgments of the courts below---Transaction in question having been proved to be gift and not sale, was not pre-emptible---Concurrent judgment of courts below were not interfered with by High Court in circumstances.

Mst. Gohar Sultan v. Gul Waris Khan PLD 2003 Pesh. 189; Muhammad Munir v. Naseer Ahmad 2004 CLC 1315; Muhammad Anwar v. Muhammad Rafique 2004 CLC 1884 and Dodha v. Aadit and another 2005 SCMR 1499 rel.

H. Zafar Iqbal for Petitioner.

Malik Muhammad Bashir for Respondents.

Date of hearing: 16th February, 2007.

MLD 2007 PESHAWAR HIGH COURT 844 #

2007 M L D 844

[Peshawar]

Before Muhammad Raza Khan, J

Raja MUHAMMAD RIAZ---Petitioner

Versus

AKBER---Respondent

Civil Revision No.257 of 2005, decided on 20th February, 2007.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6, 13, 20 & 22---Suit for pre-emption---Improvement in the status of vendee---Effect---Suit for pre-emption having been concurrently decreed by the Trial Court and Appellate Court---Counsel for vendee had claimed that after sale of suit property and before filing of suit for pre-emption, he having purchased more land from the suit Khasra number, he had acquired equal right of co-sharership with pre-emptor; he alleged that decree for the entire land in favour of pre-emptor was in violation of S.20 of North-West Frontier Province Pre-emption Act, 1987---Counsel for pre-emptor had pointed out that under relevant law, there was no scope of improvement in the status except through inheritance as per S.22 of North-West Frontier Province Pre-emption Act, 1987---Validity---Plain reading of S.22 of North-West Frontier Province Pre-emption Act, 1987, had shown that improvement in the status of vendee after institution of the suit would be of no benefit, which impliedly meant that prior to the institution of the suit, he could improve his status---If vendee and pre-emptor were placed on equal status, they had to share the suit property equally under S.20 of North-West Frontier Province Pre-emption Act, 1987---Improvement of the status by vendee, whereby he acquired equal status with pre-emptor, would' entitle him to half of the property---Impugned judgment and decree was modified by the High Court to the effect that vendee would be entitled to retain half of the property and to that extent decree was set aside whereas decree to the extent of remaining half in favour of pre-emptor was maintained.

PLD 1960 Pesh. 1; 90 PR 1909 ILR 1942 Lah. 155 and PLD 1980 SC AJK 18 ref.

Muhammad Ghazanfar for Petitioner.

Malik Abdul Jalil for Respondent.

Date of hearing: 20th February, 2007.

MLD 2007 PESHAWAR HIGH COURT 970 #

2007 M L D 970

[Peshawar]

Before Ijaz ul Hassan Khan, J

LAL WAZIR---Petitioner

Versus

MUHAMMAD ZUBAIR and another---Respondents

Criminal Miscellaneous Nos.221 and 87 of 2006, decided on 31st January, 2007.

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

---Ss. 516-A, 517 & 520---Superdari'---Where no rival claimants were available forsuperdari' of vehicle, same should ordinarily be given on `superdari' to the person from whose possession it was taken---Criminal courts were not competent to investigate into the question of title as their jurisdiction was confined under S.516-A, Cr.P.C. or for that matter under S.517, Cr.P.C. to the determination of the entitlement to possession and not to the title to the property---Question of ownership, was to be determined by a competent civil court---Section 516-A, Cr.P.C. spoke of two types of properties regarding which criminal court had to pass an order i.e. the property regarding which any offence appeared to have been committed and the property which appeared to have been used for the commission of an offence.

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

----Ss. 561-A & 516-A---Superdari---Petition for quashing of order---Petitioner had sought quashing of order passed by Additional Sessions Judge, whereby revision petition filed by respondent against order of Judicial Magistrate regarding superdari' of motor car, in favour of petitioner was accepted and superdari was recalled---Motor car in question had been recovered by the police from an abandoned place from the villageabadi' and not from the possession of the petitioner---Iqrar Nama provided by petitioner regarding purchase .of vehicle in question was found bogus and procured---Petition-writer had totally denied having scribed the stamp paper regarding purchase of the vehicle in question---Case vide F.I.R. also stood registered against petitioner---Mere fact that no rival claimant, registration number of vehicle was mentioned in the F.I.R. and name of petitioner did not figure therein, by itself, could not be considered a good ground to prove ownership of petitioner---Impugned order, having regard to facts and circumstances of the case was in accordance with law, which could not be interfered with---Nothing was found in impugned order to give rise to interfere on the ground that it was suffering from any legal or jurisdictional error---Petition for quashing order was bereft of merit and same was dismissed---Order of High Court regarding suspension of operation of impugned order was recalled in circumstances.

Mehtar Yousaf v. The State and another PLD 2004 Pesh. 91 and Jam Sher Muhammad v. Manzoor Ahmad and another 2006 PCr.LJ 311 rel.

Muhammad Amin Khattak Lachi for Petitioner.

Malik Hamid Khan for Respondents.

Ch Samiullah for the State.

Date of hearing: 31st January, 2007.

MLD 2007 PESHAWAR HIGH COURT 985 #

2007 M L D 985

[Peshawar]

Before Ijaz ul Hassan Khan, J

SHADEED HUSSAIN---Petitioner

Versus

KHADIM ALI---Respondent

Civil Revision No. 566 of 2005, decided on 15th January, 2007.

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

----O.VII, R.2, O.IX, R.13 & S.115---Limitation Act (IX of 1908), Arts.181 & 164---Suit for recovery of amount---Ex parte decree, cancellation of---Limitation---Revisional jurisdiction, exercise of---Defendant having remained absent on date fixed for plaintiff's evidence, ex parte decree was passed against defendant---Application for setting aside ex parte decree, supported by an affidavit, filed after about three and half months from passing of ex parte decree, having been accepted, plaintiff had filed appeal which was converted into revision, and was dismissed---Case was remanded to the Trial Court with direction to decide same on merits---Contention of plaintiff was that application for cancellation of ex parte decree, was hopelessly time-barred in terms of Art.164 of Limitation Act, 1908---Validity---Since defendant had appeared in court in response to the summons issued to him and contested the suit and thereafter absented, period of limitation available to him for filing application for setting aside ex parte decree was three years under Art.181 of Limitation Act, 1908 and not 30 days as provided under Art.164 of Limitation Act, 1908---Trial Court had rightly accepted application of defendant for setting aside ex parte decree and Appellate Court below had rightly upheld judgment of the Trial Court---High Court would seldom interfere in concurrent judgments of two courts below unless and until discretion was exercised arbitrarily---High Court had very limited jurisdiction to interfere in concurrent findings of courts below while exercising jurisdiction under S.115, C.P.C., unless and until judgments of the courts below were the result of misreading or non-reading of evidence or decision of the case was in violation of parameters prescribed by the superior courts.

Honda Atlas Cars (Pakistan) Ltd. v. Honda Sarhad (Pvt.) Ltd. and others 2005 SCMR 609; Messrs Rehman Weaving Factory (Regd) Bahawalnagar v. Punjab Small Industries Corporation, Lahore PLD 1981 SC 21 and Water Power Development Authority v. Muhammad Hayat Khan and 7 others PLD 1986 Pesh. 81 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings of Court below---High Court would seldom interfere in concurrent judgments of two courts below unless and until discretion was exercised arbitrarily---High Court had very limited jurisdiction to interfere in concurrent findings of courts below while exercising jurisdiction under S.115, C.P.C., unless and until judgments of the courts below were the result of misreading or non-reading of evidence or decision of the case was in violation of parameters prescribed by the superior courts.

Haider Zaman Shinwari for Petitioner.

Syed Mazhir Hussain for Respondent.

Date of hearing: 20th December, 2006.

MLD 2007 PESHAWAR HIGH COURT 1215 #

2007 M L D 1215

[Peshawar]

Before Hamid Farooq Durrani, J

Raja ZUBAIR---Appellant

Versus

Chaudhary MOHABIT---Respondent

R.F.A. No. 55 of 2003, decided on 20th April, 2007.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.2 & 3 & S. 96---Negotiable Instruments Act, (XXVI of 1881), S. 118---Suit for recovery of amount on basis of promissory note---Leave to defend suit---Facts available on record, had suggested that business relationship existed between the parties and payment of amount, promised through the promissory note was conditional upon various eventualities, while same was not, in fact received by defendant as a consideration of promissory note---Facts had also revealed that allegations of non-performance of the terms of business agreement between the parties were against each other, whereas for settlement of account and termination of partnership business, a suit was pending trial before competent Court---Jurisdiction conferred upon the Trial Court under O.XXXVII, C.P.C. was in. order to entertain all suits based upon negotiable instruments and to dispose of the same in a summary mam1er---Contents of the plaint and the evidence by the parties, had suggested that suit was not directly founded on a negotiable instrument, but the basis of the same was a business agreement---Provisions of S.118 of Negotiable Instruments Act, 1881, in such a situation, were properly and correctly resorted to by the Trial Court which had provided a presumption of receipt of consideration by maker of a negotiable instrument, if not proved to the contrary---In the present case, there was no claim of receipt of consideration by defendant from the plaintiff in connection with the promissory note in question---Important affidavit and acknowledgement, both executed subsequent to the promissory note, had further weakened the stance of plaintiff for entertaining suit under O.XXXVII, C.P.C.---Proper remedy for the parties was to have the controversy settled through a regular suit, which they had already resorted to---Trial Court, in circumstances had rightly declined to exercise its jurisdiction to adjudicate upon the merits of the case and dismissed the suit on point of jurisdiction after discussing threadbare the material available on record---Impugned judgment/decree of the Trial Court did not merit interference by the High Court, in given facts and circumstances.

Sajjad Ahmed for Appellant.

Muhammad Shoaib Khan for Respondent.

Date of hearing: 20th April, 2007.

MLD 2007 PESHAWAR HIGH COURT 1262 #

2007 M L D 1262

[Peshawar]

Before Hamid Farooq Durrani, J

ABDUL AZIZ---Petitioner

Versus

SAFEENA JAN---Respondent

C.R. No. 28 of 2003, decided on 23rd April, 2007.

Civil Procedure Code (V of 1908)---

----Ss.12(2), 115 & O.IX, R.13---Specific Relief Act (I of 1877), S.54---Suit for permanent injunction---Ex parte decree, setting aside of---Defendant who was put on notice, having failed to appear in the court, was proceeded ex parte---Ex parte evidence was recorded and the suit was finally decreed---Application filed by defendant for setting aside ex parte decree was dismissed and appeal filed by the defendant, was also dismissed---Application filed by defendant under S.12(2), C.P.C. was also dismissed---Validity---Application under S.12(2), C.P.C. was filed by the defendant on the ground that plaintiff had suppressed the fact of having filed two suits previously regarding suit property and that plaintiff, after obtaining ex parte decree against defendant, was attempting to illegally occupy the house owned by defendant in execution of said decree---Two suits were filed against parties other than defendant and defendant did not figure in any capacity in those suits---Fact of two other suits, even if mentioned, would not have affected the merits of the third suit filed by plaintiff against defendant---Besides, plaintiff had nowhere denied the filing of two suits nor had stated contrary to the facts at any stage---Decree passed ex parte against defendant, was not arrived at by the Trial Court due to the alleged concealment of facts---Ground asserted by defendant in terms of his dispossession in execution of decree passed against him, could conveniently be agitated before court executing decree in question--Application under S.12(2), C.P.C., in circumstances was not competently filed by defendant before said Court.

Haji Muhammad Yousaf for Petitioner.

Ijaz Muhammad Khan for Respondent.

Date of hearing: 23rd April, 2007.

2007 M L D 1647

[Peshawar]

Before Ijaz ul Hassan Khan, J

UMAR HAYAT and others---Petitioners

Versus

Mst. KHATOON BIBI and others---Respondents

Civil Revision No. 102 of 2002, decided on 11th July, 2007.

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

----Ss.8 & 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration of title and. recovery of possession---Misreading and non-reading of evidence---Suit filed by plaintiffs was decreed by Trial Court in their favour but Appellate Court reversed findings of Trial Court and dismissed the suit---Validity---Appellate Court adverted to every aspect of the case and rightly decided issues agitated by parties and rendered a reasoned judgment, which was not open to legitimate exception---Plaintiffs failed to prove that judgment passed by Appellate Court was outcome of misreading and non-reading of evidence or suffered from illegality or material irregularity---Appellate Court gave exhaustive judgment after due appraisal of evidence on file after discussing all pros and cons of the case---No legal defect in the judgment of Appellate Court was pointed out which was in consonance with evidence on file---Nothing could be pointed out effectively and convincingly which could persuade High Court to disagree with the findings of Appellate Court below on the issues in question---Appellate Court had scanned entire evidence in its true perspective and its findings could not be termed either perverse or arbitrary and the same were immune from further scrutiny in revisional jurisdiction under S.115, C.P.C.---Revision was dismissed in circumstances.

Shafaullah and 13 others v. Saifur Rehman and 7 others PLD 1991 SC 1106; Qutab-ud-Din v. Gulza and 2 others PLD 1991 SC 1109; Ghulam Haqani and another v. Mst. Zulekha and others PLD 1953 Pesh. 53; Sahib Jan Khan v. Muhammad Nawaz Khan and another PLD 1953 Pesh. 68; Muhammad Nazeef and others v. Mst. Mumtaz Begum 2002 CLC 1517; Nasrullah Jan v. Mst. Farzana Begum and 6 others 2002 CLC 1523; Mian Hayatullah v. Mst. Shamo Sahar and another PLD 1983 Pesh. 202; Khalique Ahmad v. Abdul Ghani and another PLD 1973 SC 214; Noor Muhammad Khan v. Haji Muhammad Ali Khan and. 24 others PLD 1973 SC 21; Ahmad Miaji and others v. Eakub Ali Munshi and others PLD 1961 Dacca 25 and Muhammad Nawaz and others v. Sh. Abdul Latif and another PLD 1971 SCMR 198 ref.

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

----S.151, O.I, R.10 & O.XLI, R.20---Appeal---Joinder of parties---Principles---Term "interested in result of appeal"---Import---Appellate Court, powers of---Scope---Provision of O.XLI, R.20. C.P.C. is applicable only where proposed respondent was party to the suit from whose decree appeal has been preferred---Not only, where Court discovers the defect, provision of O.XLI, R.20, C.P.C. is applicable but also to cases where Appellate Court desires addition of respondent---Appellant alone was to determine respondents against whom he wishes to prosecute his appeal---Power to add parties can only be exercised at the hearing---Appellate Court has discretionary powers under O.XLI, R.20, C.P.C. in the matter of adding respondents and such powers can be exercised suo motu or on application---Persons who were not parties to the suit can be added as respondents in exercise of powers under S.151 C.P.C. and principles of O.I, R.10, C.P.C: are also applicable to appeals---Where non-joinder is not of necessary parties, appeal may continue but non-joinder of necessary party can be fatal---Any person can be added as respondent in appeal even though in suit he was on the same side as the appellant---Term interested in result of appeal' has reference to question whether proposed party is one whose interests are likely to be prejudiced by determination in appeal and not as to whether his presence is necessary for adequate disposal of appeal.

----O.I, R.10---Necessary party---Joinder and mis-joinder---Effect --Joinder of any person as a party to suit contrary to provisions of Civil Procedure Code, 1908, is mis-joinder and O.I, R.10, C.P.C. empowers court to remedy such defect---Non-joinder or mis-joinder of parties do not by itself defeat a suit and court can deal with the matter in so far as regards the parties actually before it and can dispose of the suit provided it can be effectively disposed of between the parties on record---Objection to-mis-joinder and non-joinder should be taken at the earliest possible opportunity---Mis-joinder by itself is not fatal nor is non-joinder per se fatal---Non-joinder though is not fatal, yet where there is non-joinder of necessary party i.e. a party who ought to have been joined and in whose absence effective decree cannot be passed, the suit ultimately fails, unless such necessary parties are made parties to the suit---Court cannot decide suit in absence of necessary parties.

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

----O.XLI, R.31---Judgment of Appellate Court---Necessary ingredients--Appellate judgment should state points arising for determination, its decision thereon and reasons for its decision, it is necessary for Appellate Court to record points for determination, so that it can be determined whether court has dealt with all points---Appellate Court must state its reasons for the decision as provisions of O.XLI; R.31, C.P.C. are mandatory.

Abdul Sattar Khan for Petitioners.

Mir Adam Khan for Respondents.

Date, of hearing: 25th June 2007.

MLD 2007 PESHAWAR HIGH COURT 1660 #

2007 MLD 1660

[Peshawar]

Before Talaat Qayum Qureshi, J

FAZAL BACHA---Petitioner

Versus

ABDUL QADIR and another---Respondents

Criminal Miscellaneous No. 695 of 2007, heard on 16th July, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17 (3)---Penal Code (XLV of 1860), Ss.365-A/381-A/148/149---Qanun-e-Shahadat (10 of 1984), Art.22---Bail, grant of---Identification parade---Object and scope---Accused was directly charged for commission of heinous offence and had been assigned a specific role---Complainant was confined in Baithak of house of accused wherefrom broken pieces of iron chain with which his feet were tied, were recovered--- Plea raised by accused was that no identification parade was held---Validity---Recovery of pieces of iron chain was seen by an independent witness---No previous enmity or ill-will existed to falsely charge accused along with his co-accused and sufficient evidence was available on record to connect him with commission of offence---Holding of identification test, though was not a requirement of law but it was one of the methods to test the veracity. of evidence of independent eye-witnesses / complainant, who had an occasion to see an accused and claimed to identify him---Non-holding of identification parade would not arm the accused to claim bail as of right---Keeping in view the high/ rising trend of dacoities which had made lives and properties of citizens unsafe, High Court declined to release the accused on bail---Bail was refused in circumstances.

Syed Hashim Raza v. The State 1987 PCr.LJ 1609; Tariq v. The State 1987 PCr. LJ 972 and Mahboob Iqbal v. The State 1986 PCr. LJ 2522 ref.

Jan Muhammad Khan for Petitioner.

Khanzada Ajmal Zeb Khan and Ubaidulah Anwar, Addl. A.-G. for Respondents.

Date of hearing: 16th July, 2007.

MLD 2007 PESHAWAR HIGH COURT 1675 #

2007 M L D 1675

[Peshawar]

Before Talaat Qayum Qureshi, J

OWAIS KHAN---Petitioner

Versus

SABZ ALI, A.S.-I., POLICE STATION, DAUDZAI and 4 others---Respondents

Q.P. No. 54 of 2007, heard on 20th July, 2007.

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

----S.561-A---West Pakistan Food Stuff Control Act (XX of 1958), Ss. 11 & 23---West Pakistan Pure Food Ordinance (VII of 1960), Ss.15, 17, 20 & 32---Quashing of F.I.R.---Adulterated food---Registration of F.I.R.---Procedure---Jurisdiction of police---On failure of driver to provide any document of ownership, police registered F.I.R. and seized Ghee under Ss.11 and 23 of Food Stuff Control Act, 1958---Plea raised by accused was that mechanism provided under West Pakistan Pure Food Ordinance, 1960, was not followed for registration of F.I.R.---Validity---Local Authority was supposed to carry into execution and enforce provision of West Pakistan Pure Food Ordinance, 1960, within its jurisdiction with a view that all articles of food and drink were sold in a pure and genuine state---For such purpose inspectors were to be appointed by Government and Health Officer as well as .Officers authorized in such behalf were given powers as mentioned in S.17 of West Pakistan Pure Food Ordinance, 1960---Authorized Inspectors could purchase sample and method of taking sample was given in S.20 of West Pakistan Pure Food Ordinance, 1960---One sample was to be sent to public analyst and after receiving expert report, if the foodstuff was found in contravention of the provisions of West Pakistan Pure Food Ordinance, 1960, then under S.32 of the Ordinance, it was only the Health Officer of a Local Authority or an Inspector authorized in such behalf by way of a general or special order of Director who could file complaint---No court was to take cognizance of any offence punishable under West Pakistan Pure Food Ordinance, 1960, except on the report in writing of the facts constituting such offence made by the officials mentioned in the Ordinance---Case was registered by unauthorized officer and that too without having report of analyst that detained / seized Ghee was adulterated or misbranded---High Court in exercise of jurisdiction under S.561-A, Cr.P.C., quashed the F.I.R.---Petition was allowed accordingly.

Niaz Ali Khan of Petitioner.

Nizar Muhammad, D.A.-G. for Respondents.

Date of hearing: 20th July, 2007.

MLD 2007 PESHAWAR HIGH COURT 1683 #

2007 M L D 1683

[Peshawar]

Before Ijaz ul Hassan Khan, J

LALZADA---Petitioner

Versus

Mian TAUHEEDULLAH---Respondent

Civil Revision No. 374 of 2005, decided on 16th July, 2007.

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

----Arts.117 to 120---Fact---Onus to prove---Plaintiff has to prove his case from his own evidence and cannot seek benefit from weaknesses in defendant's case---Whoever desires any court to give judgment as to any legal right or liability dependant on existence of facts, which he asserts, must prove that those facts exist.

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

----Ss.8 & 54---Civil Procedure Code (V of 1908), S.115---Suit for recovery of possession---Concurrent findings of fact by the courts below---Revisional jurisdiction of High Court---Interference---Principles---Suit by respondent for recovery of possession of property was concurrently decreed by two courts below in his favour whereas suit for perpetual injunction by petitioner was dismissed---Plea raised by petitioner was that appreciation of evidence by both the courts below was not proper---Validity---High Court in its revisional jurisdiction could interfere with a concurrent finding of fact, where error of jurisdiction was apparent or illegality and irregularity was found in proceedings of the Court---Revisional Court could not interfere with a concurrent finding of fact based on, evidence on the ground that appreciation of evidence was not proper---Findings of facts recorded by two courts below in present case were neither arbitrary nor perverse nor capricious---Both the courts below had applied their mind to factual and legal aspects of the matter; giving cogent reasons in support of their decisions and had properly appreciated evidence on record---No material misreading and non-reading of evidence was pointed out by petitioner---Reappraisal of evidence was not permissible nor could any conclusion drawn by courts below be upset merely because an opposite view was also feasible---High Court declined to interfere with concurrent judgments and decrees passed by two Courts below---Revision was dismissed, in circumstances.

Jan Muhammad v. Mst. Zubaida Begum 1982 SCMR 367 and Allah Ditta v. Muhammad Ziaul Haq and others 1985 CLC 2020 ref.

Muhammad Ismail Fehmi for Petitioner.

Asghar Khan for Respondent.

Date of hearing: 6th 2007.

MLD 2007 PESHAWAR HIGH COURT 1713 #

2007 M L D 1713

[Peshawar]

Before Muhammad Raza Khan, J

Mst. BIBI ROZA---Petitioner

Versus

JAN SAID and others ---Respondents

Civil Revisions No. 998 and 999 of 2006, decided on 22nd June, 2007.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and injunction---First suit was filed by plaintiff claiming therein that she was the owner in possession of suit property and that defendants had no concern therewith---Plaintiff filed suit for declaration and injunction with the prayer for possession in the alternative---Defendants, after a month of institution of suit by plaintiff, instituted a counter suit claiming that the property was purchased by their uncle for their benefit and that they were in possession of said property---Courts below concurrently dismissed suit filed by the plaintiff, and decreed suit of defendants---Validity---Mutation in respect of suit property was attested in favour of plaintiff---Both Courts below had concurrently found that defendants were in possession of suit property and they had given preference to unregistered document in favour of defendants over mutation which was duly attested in favour of plaintiff'---If uncle of defendants had allegedly sold suit property to defendants there should be some documentary evidence in that regard---Merely claiming that their uncle had purchased suit property for their benefit would not be sufficient for a decree in favour of defendants by superseding mutation in favour of plaintiff---If a mutation was compared with an unregistered deed, mutation would certainly have additional value unless the constant adverse physical possession of the adversary was proved, as owner or under the belief of ownership---Defendants did not appear to. have been recorded as owners or in possession of the entire suit property and did not figure at all in the Revenue Record---Defendants could not produce evidence on record to prove that they were in constant possession of suit property---High Court set aside impugned judgment and decree and remanded matter to the Trial Court for recording additional evidence with regard to the physical possession of the property from 1970 till 2002 and thereafter the eases to be decided accordingly.

Rehmat Shah and 2 others v. Sarwar and another PLD 1971 Pesh. 205 and Hakim-Khan v. Nazeer Ahmad Lughmani 1990 MLD 89 ref.

Gul Sadbar for Petitioner.

Khalid Khan for Respondent.

Date of hearing: 22nd June, 2007.

MLD 2007 PESHAWAR HIGH COURT 1809 #

2007 M L D 1809

[Peshawar]

Before Dost Muhammad Khan and Jehanzaib Rahim, JJ

MUHAMMAD IBRAR---Appellant

Versus

ABDUL MAJEED and another---Respondents

Criminal Appeal No. 782 and Murder Reference No. 35 of 2006, decided on 31st July, 2007.

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

----S.302(b)---West Pakistan ._Arms Ordinance (XX of 1965), S.13---Appreciation of evidence---Case was based on circumstantial evidence, because in the F.I.R. none was charged by the complainant as he was not able to identify the culprit at the time of occurrence---In cases which were fully dependent on circumstantial evidence to justify inference of guilt, incriminating fact/facts must be incompatible with the innocence of accused or the guilt of any other person and in no manner be incapable of explaining upon any reasonable hypothesis other than that of guilt of the accused---Nature of motive in the present case was so frail, flimsy and obscure, that in no manner would convince a prudent mind for resting a belief over it---Point for consideration, in the present case, was .that motive having nexus with the complainant, why he was not a victim of assault---Motive, whether proved or unproved, though would play no decisive role in determining the guilt or innocence of accused, but when it was set up in a case based on circumstantial evidence, it definitely would assume importance one way of the other---Motive set up in the case was not' only weak, but was also founded on far fetched guess work which was shrouded in the mystery---Story tailored about the manner of arrest of accused, appeared to be a fabricated one and so was the recovery of the rifle---Conviction on a capital charge could only be recorded on the basis of reliable, tangible and cogent evidence coming from unimpeachable source---Investigations conducted in the case were not above board---Culprit could not be identified by the complainant as it .was sufficiently dark---Visual identification. at dark hours or semi dark hours with momentary glimpse, would fall within the category of suspect evidence, which would never be considered safe and sound for conviction, unless same was substantially corroborated---Implication of accused in the crime through the planted recovery of rifle; was the result of foul play committed by Investigating Officer---Prosecution having failed to establish guilt of accused beyond any reasonable doubt, conviction and death sentence awarded to him by the Trial Court, were set aside, extending him benefit of doubt---Accused was acquitted of all the charges and was set free.

Muhammad Arshad v. The State PLD 1995 SC 475; State through Advocate-General Sindh Karachi v. Farman Hussain and others PLD 1995 SC 1; Md. Nazir Hussain Sarkar and another v. The State 1969 SCMR 388; Mst. -Sairan alias Saleema v. The State PLD 1970 SC 56; Fazal Elahi alias Sajawal v. The Crown PLD 1953 FC 214 and Muhammad Noor and another v. Member-I, Board of Revenue, Balochistan and others 1.991 SCMR 643 ref.

(b) Criminal trial---

----Motive---Motive, whether proved or unproved, though would play no decisive role in determining the guilt or innocence of accused, but .when it was setup in a case based on circumstantial evidence, it 'definitely would assume importance one way or the other.

Mamrez Khan Khalil for Appellant.

Miss Neelam A. Khan for the State.

M. Zahurul Haq Barristor and Abdul Latif Afridi for the Complainant.

Date of hearing: 31st July, 2007.

MLD 2007 PESHAWAR HIGH COURT 1923 #

2007 M L D 1923

[Peshawar]

Before Talaat Qayum Qureshi and Ejaz Afzal Khan, JJ

Haji AMIR ZADA---Petitioner

Versus

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

Writ Petition No. 1237 of 2007 with C.M.A. No. 457 of 2007; decided on 2nd August, 2007.

North-West Frontier Province Local Government Ordinance (XIV of 2001)---

----S.152(2)---North-West Frontier Province Local Government (Conduct of Elections) Rules, 2005, Rr.61, 62, 63 & 72---Constitution of Pakistan (1973), Art.199---Constitutional petition---Disqualification of returned candidates---Jurisdiction of Election Tribunal---Petitioner/returned candidate in his constitutional petition had assailed judgment of Election Tribunal, whereby it had allowed election petition filed by respondent and by declaring election of petitioner void; had directed to held fresh election of Nazim---Contention of petitioner was that power to disqualify a returned candidate on ground of any disqualification exclusively lay with the Chief Election Commissioner in view of S.152(2) of North-West Frontier Province Local Government Ordinance, 2001; and that Election Tribunal had overstepped its jurisdiction by passing an order on such score---Validity---Chief Election. Commissioner under S.152(2) of North-West Frontier Province Local Government Ordinance, 2001, no doubt had the power to disqualify a candidate for election to any office of Local Government or an elected Member of Local Government, if he vas found to have contravened the provisions contained in said section, but that power had also been delegated to the Election Tribunal by the Chief Election Commissioner himself---Rule 72 of the Local Government (Conduct of Elections) Rules, 2005, listing the premises for the exercise of that jurisdiction by the Tribunal, included the ground of declaring the election of returened candidate as void on account of disqualification---Power being concurrent and co-extensive with that of the Chief Election Commissioner, could be exercised by the Tribunal as well---Such power being exercisable by both Chief Election Commissioner and Election Tribunal, it could not be said chat same fell within exclusive jurisdiction of the Chief Election Commissioner and could not be exercised by the Election Tribunal---Judgment of election Tribunal being free from any infirmity, muchless jurisdictional error, was not open to any interference.

Shakeel Shahid v. Muhammad Younis Zahid and others PLD 2005 Lah. 357; S.M. Ayub v. Syed Yousaf Shah and others PLD 1967 SC 486 and Abdul Nasir and another v. Election Tribunal Toba Tek Singh and others 2004 SCMR 602 rel.

Barrister Masood Kausar for Petitioner.

Abdul Latif Afridi for Deputy Election Commissioner in person.

Shafiq Ahmed for Respondent.

Date of hearing; 2nd August, 2007.

MLD 2007 PESHAWAR HIGH COURT 1935 #

2007 M L D 1935

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

NAEEM and 3 others---Petitioners

Versus

SAJJAD and another---Respondents

Criminal Miscellaneous No. 948 of 2007, decided on 17th September, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Bail---Grant/refusal of bail---Principles---Question of grant/refusal of bail, was to be determined judiciously having regard to the facts and circumstances of .each case---Where the prosecution satisfied the court that reasonable grounds were available to believe that accused had committed the offence falling in the first category of S.497, Cr.P.C., the court must refuse bail---Where, however, accused .satisfied the court that reasonable .grounds existed to believe that he was not guilty of such offences, then the court must release accused on bail---For arriving at the conclusion as to whether or not reasonable grounds were available to believe that accused was guilty of offence; the court would not conduct a preliminary inquiry, but would only have tentative assessment of the material on the record---Deeper appreciation of evidence and circumstances appearing in the case were neither desirable nor permissible at bail stage---Accused in the present case stood directly nominated in the promptly lodged report for commission of the offence in question resulting in the murder of two innocent persons---Medical evidence, site plan and witnesses of the spot had fully supported the charge against accused---Mere fact that no specific role had been assigned to ally of the accused and there were general allegations, by itself, could not be considered a good ground for grant of bail.

Jaffar and others v. The State 1980 SCMR 784; Karam Dad and others v. Muhammad Younas and others 2005 PCr.LJ 1535; Muhammad Adnan and another v. The State 2005 MLD 962; Muhammad Saleem v. The "State and another 2003 MLD 145; Muhammad Aslam Khan v. The State 2006 PCr. LJ 702 and Muhammad Ismail and 2 others v. The State and 2 others 2005 MLD 786 rel.

Mian Amir Qadir for Petitioners.

Waheed Ullah for the State.

Muhammad Qayum for the Complainant.

Date of hearing: 17th September, 2007.

MLD 2007 PESHAWAR HIGH COURT 2012 #

2007 M L D 2012

[Peshawar]

Before Muhammad Raza Khan, J

Malik MANZOOR ELAHI---Petitioner

Versus

ZULFIQAR ALI and 2 others---Respondents

Civil Revision No. 270 of 2007, decided on 18th September, 2007.

Civil Procedure Code (V of 1908)---

---O.VII, R.11---Rejection of plaint---Counsel for defendants had stated at the bar that they had no concern whatsoever with the suit property and that their activity was: restricted to their own Khasra numbers wherein plaintiff. had no concern---Defendants having clearly declared that they had neither interfered in the suit property nor they intended to do so, such a bald and unreserved statement of defendants should have pacified the plaintiff---Petitioner could proceed against defendants if any encroachment in the suit property was ever made by them---No cause of action there having accrued to plaintiff to institute suit, both courts below had rightly .applied their mind to reject the plaint.

Muhammad Younas Khan Tanoli for Petitioner.

Khalid Rehman Qureshi for Respondent.

Date of hearing: 18th September, 2007.

Quetta High Court Balochistan

MLD 2007 QUETTA HIGH COURT BALOCHISTAN 83 #

2007 M L D 83

[Quetta]

Before Ahmed Khan Lashari, J

NOORUDDIN---Petitioner

Versus

SAFFAR KHAN---Respondent

Civil Revision No.86 of 2003, decided on 29th March, 2005.

Civil Procedure Code (V of 1908)---

----O.VII, R.2---Suit for recovery of amount---Respondent adopted minor daughter of petitioner aged about 1-1/2 years---When said child attained the age of 8/9 years, she came to her father's (petitioner's) house---Respondent tried his best for return of the child, but of no avail---Respondent filed a suit for recovery of Rs.60,000 based on alleged agreement which had indicated that petitioner took responsibility of maintenance of child till her marriage---Said agreement which was denied by petitioner did not contain any clause showing that petitioner had bound down himself for return of money to respondent---Qazi dismissed suit filed by respondent against petitioner, but Majlis-e-Shoora being Appellate Court, despite declaring relief claimed by respondent as illegal and unlawful, decreed the suit to the extent of Rs.15,000 without specifying reasons for reversing the decree passed by Qazi/the Trial Court---Appellate Court in wrongful exercise of jurisdiction decreed suit to the extent of Rs.15,000---Impugned judgment of Appellate Court below was set aside by the High Court in revision.

Ch. Mumtaz Yousuf for Petitioner.

Sundar Dass for Respondent.

Date of hearing: 16th March, 2005.