MLD 2009 Judgments - Pakistan Legal Archive

Courts in this Volume

Board Of Revenue Punjab
Election Tribunal Punjab
Islamabad
Karachi High Court Sindh
Lahore High Court Lahore
Pakistan Bar Council
Peshawar High Court
Quetta High Court Balochistan

Board Of Revenue Punjab

MLD 2009 BOARD OF REVENUE PUNJAB 789 #

2009 M L D 789

[Board of Revenue, Punjab]

Before Muhammad Aslam Hayat, Member (Judicial-I)

NAZIR AHMAD and others---Petitioners

Versus

DIVISIONAL CANAL OFFICER---Respondent

R.O.R. No. 0 of 2006, decided on 19th January, 2009.

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

----S.164---Revision---Petitioners were alleged to have committed breach of Moga and consumed water in excess of their entitlement and Divisional Canal Officer imposed special charges upon the petitioners without conducting any inquiry and affording them an opportunity to defend the allegation and the petitioners were condemned unheard---Validity---Divisional Canal Officer must have given the notice to the petitioners before imposing the Tawan/special charges---No person should be condemned unheard at the time of passing any order against him---Impugned order of Divisional Canal Officer was set aside---Revision petition was partially accepted and special charges imposed on the petitioners were reduced to two times instead of ten times.

Muhammad Navid Shabir Goraya for Petitioners.

MLD 2009 BOARD OF REVENUE PUNJAB 797 #

2009 M L D 797

[Board of Revenue, Punjab]

Before Tariq Yousaf, Member (Consolidation)

Mian ALI NAWAZ and 20 others---Petitioners

Versus

KIIALID HUSSAIN and 28 others---Respondents

R.O.R. No. 2852 of 1982, decided on 26th November, 2008.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

---S.23---West Pakistan Land Revenue Act (XVII of. 1967), Ss. 39 & 164---Consolidation of holdings---Nature and distribution of Shamlat land---Ownership of respondents over the land attached to the 9 Wells, which was part of Shamlat Deh, was conditional as per Wajib-ul-Arz of 1880, 1903-04 & 1924-25---Said land was partitioned by Consolidation Officer along with Shamlat land among shareholders on the basis of proprietary area owned by each, as stipulated in the said Wajib-ul-Arz---Counsel for respondents had objected to said distribution contending that said land was sole ownership of respondents and was not part of Shamlat Deh---Order of consolidation was rejected by Addl. Commissioner (Cons.) and Consolidation Scheme was set aside vide impugned order---Rights of landowners pertaining to distribution of Shamlat Deh were determined on the basis of Wajib-ul-Arz, which would take precedence over entries in successive Jamanbandies including Jamanbandi immediately preceding the consolidation---Addl. Commissioner vide impugned order had erroneously found that Jamanbandi immediately preceding consolidation was vital for consolidation---Wajib-ul-Arz and next two settlements revealed that land attached to and under the wells, was part of Shamlat Deh and was granted to respondents on the condition that at the time of distribution of village 'Shamlat, any area in that land owned by respondents in excess of their right would be deducted from their share out of that land and distributed among share-holders of remaining village Shamlat land---Conditions contained in Wajib-ul-Arz were binding on concerned party---Entries by the Revenue Officer in the revenue record not supported by any document, could not create any right, title or interest in the land---Land in question being part of Shamlat Deh, no entries in revenue record made subsequently could change the initial character of the land which was Shamlat Deh---No record or legal basis was available to substantiate the fact that land in question which initially was Shamlat Deh had lost that character with the passage of time---Jamanbandi was merely a record of rights which would give effect to conditions contained in Wajib-ul-Arz, while Wajib-ul-Arz was a primary document and the Jamanbandi would hold only a secondary position in relation to Wajib-ul-Arz--As per condition of Wajib-ul-Arz land attached to and under the Wells was part of Shamlat Deh and it was protected against partition only to the extent of share of respondents in total Shamlat Deh---Impugned order of Addl. Commissioner, in circumstances, being not lawful, was set aside.

Sh. Naveed Shahryar for Petitioners.

Ch. Ihsan ul Haq Bhalli for Respondents Nos. 1, 3, 4, 7, 8 and 11.

Muhammad Irshad Chaudhary for Respondents. Nos. 5, 6, 13 and 14.

Ch. Iqbal Ahmad Khan for Respondents.

2009 M L D 840

[Board of Revenue, Punjab]

Before Dr. Liaquat Ali Khan Niazi, Member (Judicial-II)

DILDAR KHAN---Petitioner

Versus

ISHTIAQ AHMAD---Respondent

R.O.R. Nos.902 and 1317 of 1996, decided on 4th March, 2008.

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

----Ss. 36 & 164---West Pakistan Land Revenue Rules, 1968, R.17---Appointment of Lamberdar---Respondent, who was son of deceased Lamberdar, was appointed Lamberdar on the ground that he was son of deceased Lamberdar and was entitled to be appointed as such---Appointment order passed by the Collector was upheld by the-Commissioner---Appointment of the respondent was challenged by the petitioner on the ground; firstly that respondent owned only 39 Kanals of land, whereas the petitioner owned 360 Kanals-2, Marlas; secondly that respondent was convicted in a criminal case; thirdly that hereditary claim was not available to the respondent as said claim had been declared to be against the injunctions of Islam as reported in PLD 1999 SC 444; and that hereditary claim could be ignored, if the person claiming hereditary claim had some disqualification or was not favourable candidate as appointment of Lamberdar was essentially an administrative appointment for convenience and assistance of the administration and also for taking care of the interest of the landowners---Validity---Mere fact that one owned more land than the other, was no ground to give preference---If property of candidate was sufficient to meet government demand, it was not necessary to ignore him because his property was less than that of other candidate---Choice of District Collector had to be given due weight while deciding Lamberdari cases--Main allegation against respondent was that he was a convicted person---Respondent clarified that probation order passed against him did not tantamount to conviction---Respondent had been performing duty as Lamberdar since 1995, but no case of embezzlement pertaining to revenue matter was ever registered against him---Case under Ss.420, 468 & 471, P.P.C. no doubt was registered against the respondent, but he was discharged in that case later on---Concurrent orders passed by two forums whereby respondent was appointed as Lamberdar, were upheld by Board of Revenue---Executive District Officer (Revenue)/Revenue Staff was directed to implement said order.

PLD 1999 SC 444; 1968 SCMR 665; PLD 1995 Rev. 68; 1992 MLD 1418; Board of Revenue, Punjab Ghulam Farid v. Ahmad Din 1990 CLC 1983; Mehr Ali v. Noor Muhammad 2007 SCMR 1965; Muhammad Amir v. Naeem Arshad 2001 CLC 1773; PLD 1959 Rey. 53 and PLD 1959 Rev. 62 ref.

Hameed Jilani, Muhammad Saeed Asadi and Muhammad Irshad for Petitioner.

Sabir Hussain Baloch for Respondent.

MLD 2009 BOARD OF REVENUE PUNJAB 847 #

2009 M L D 847

[Board of Revenue, Punjab]

Before Khalid Hanif, Member Judicial-III

ABDUL MAJID and others---Petitioners

Versus

MUHAMMAD ANWAR KHAN and others---Respondents

Revision Petition No.395 of 2007, decided on 15th January, 2008.

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

----Ss. 42, 44 & 164---Cancellation of mutation---High Court having accepted revision against order of the Appellate Court petitioners challenged order of the High Court before the Supreme Court in appeal, which was dismissed by the Supreme Court---After dismissal of appeal respondents applied for implementation of orders of the Supreme Court and District Officer (Revenue) allowed implementation and mutation in that respect was entered, but before its attestation petitioners filed appeal before the Executive District Officer (Revenue) against said order of District Officer (Revenue)---Said appeal was dismissed as a result of which mutation was sanctioned---Petitioners challenged said order of mutation before the Deputy District Officer (Revenue) who, vide impugned order, cancelled said mutation and mutation which already was sanctioned was restored-Against order of Deputy District Officer (Revenue) respondents filed appeal before Execution District Officer (Revenue) who vide his order accepted said appeal and restored mutation which was subsequently sanctioned---Validity---Impugned order passed by the Deputy District Officer (Revenue), was well balanced and based on facts as the same had been passed keeping in view the original decree passed by the civil court---Order passed by the Deputy District Officer (Revenue) was upheld and order passed by the Executive District Officer (Revenue) was set aside.

Sameer Ijaz for Petitioners.

Irshad for Respondents.

MLD 2009 BOARD OF REVENUE PUNJAB 855 #

2009 M L D 855

[Board of Revenue, Punjab]

Before Zafar Iqbal, Member (Judicial-I)

MEHR KHAN---Petitioner

Versus

THE STATE and another---Respondents

R.O.R. No.225 of 2007, decided on 25th February, 2008.

West Pakistan Land Revenue Rules, 1968---

----R.17---Appointment of Lamberdar---Petitioner was appointed by District Officer (Revenue) after considering merits and demerits of all the candidates---Petitioner had already been collecting land revenue from the landowners and had been performing social duties in better way as compared to respondent, who was appointed instead of the petitioner---Court below did not give any cogent reason to appoint respondent as lambardar of the Chak concerned instead of the petitioner---Impugned order was set aside and case was remanded to Executive District Officer (Revenue), for deciding the matter afresh in accordance with the choice of inhabitants of the Chak and law.

Muhammad Irshad Chaudhry for Petitioner.

Ch. Muhammad Sharif for Respondent.

MLD 2009 BOARD OF REVENUE PUNJAB 862 #

Before Dr. Sajid Qureshi, J

ABDUL REHMAN---Petitioner

Versus

SULEMAN KHAN---Respondent

Civil Revision No.350 of 2004, decided on 15th October, 2008.

(a) Islamic Law---

----Pre-emption---Exercise of such right---Procedure---When fact of sale comes within the knowledge of pre-emptor through any source, he can and should make Talb-i-Muwathibat and once the same has been done, he should make Talb-i-Ishhad by sending notice in writing, attested by two truthful witnesses confirming his intention to exercise right of preemption---When a pre-emptor has satisfied the requirements of Talb-i-Muwathibat and Talb-i-Ishhad, he can make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption---Two demands of Talb-i-Muwathibat and Talb-i-Ishhad must precede institution of pre-emption suit and the last demand of Talb-i-Khusumat which is fulfilled by institution of salt itself---Talb-i-Muwathibat literally means "immediate demand" from pre-emptor on receiving information on sale, which comes about through knowledge passed through any source.

(b) Islamic Law---

----Pre-emption right, exercise of---Talb-i-Muwathibat---Delay of one day---Suit and appeal filed by pre-emptor were dismissed concurrently by Trial Court and Lower Appellate Court---Validity---Delay of one day indicated that requirement of Talb-i-Muwathibat was not fulfilled---Requirement of law was that once information of sale was received by pre-emptor, he should have made Talb-i-Muwathibat by declaring the pre-emption transaction with immediate effect, which pre-emptor had not done---Pre-emptor had not made Talb-i-Muwathibat at the spot and time, when knowledge of sale was gained, rather it was made after a delay of one day---Requirement of jumping demand in same sitting or meeting, where knowledge of sale was gained had not been complied with---Judgments and decrees passed by both the Courts below were maintained by High Court in exercise of revisional jurisdiction.

Haji Noor Muhammad v. Abdul Ghani 2000 SCMR 329; Ameer Jan v. Haji Ghulab Muhammad PLD 1997 SC 883; Jamil Ahmad v. Liaqat Ali 2003 CLC 229; Nadir Khan v. Ithebar Khan 2001 SCMR 539; Muhammad Sarwar v. Aashiq Ali PLD 1995 Lah. 133; Gul Hussain Shah v. Mulazim Hussain Shah 1996 SCMR 294 and Rashid Ahmad v. Basheer Ahmad 1995 CLC 1924 ref.

M. Ishfaq Ali Raja for Petitioner.

Mirza Muhammad Ansar for Respondent.

Date of hearing: 9th October, 2008.

MLD 2009 ISLAMABAD 481 #

2009 M L D 481

[Islamabad]

Before Dr. Sajid Qureshi, J

Sheikh MUHAMMAD SARWAR---Petitioner

Versus

ZAHEER AHMAD---Respondent

Civil Revision No.608-D of 2006, decided on 26th November, 2002.

Civil Procedure Code (V of 1908)---

----O. XVII, Rr. 2 & 3---Evidence, non-production of---Dismissal of suit-Despite six opportunities in a period of one year for production of plaintiff's evidence, resulted in no progress of trial---Trial Court closed the right of plaintiff to adduce evidence and suit was dismissed, judgment and decree passed by Trial Court was maintained by Lower Appellate Court---Validity---When parties failed to appear on the day fixed and time had been granted for production of evidence or to cause attendance of witness, the Court under O.XVII Rr. 2 and 3, C.P.C. could proceed to decide the suit---Trial Court had correctly interpreted O.XVII, Rr. 2 and 3, C.P.C. which was upheld by Lower Appellate Court---No error committed by Trial Court warranting interference by High Court---Judgments and decrees passed by both the Courts below were upheld by High Court in exercise of revisional jurisdiction---Revision was dismissed in circumstances.

Arifa Amjad v. Abbas Tayyab Dar 1990 CLC 1743; Pirzada Aamir Hassan v. Shamim Shah Nawaz 1984 CLC 3080; Nazeer Muhammad v. Islamic Republic of Pakistan 1990 CLC 729; Shahid Hussain v. Muhammad Akram 2000 SCMR 1135 and Siraj Din v. Lahore Development Authority 1992 CLC 102 ref.

Sardar Ilyas for Petitioner.

Zulfiqar Ali Abbasi, for Respondent.

Date of hearing; 20th November, 2008.

MLD 2009 ISLAMABAD 526 #

2009 M L D 526

[Islamabad]

Before Sardar Muhammad Aslam, C.J. and Raja Saeed Akram Khan, J

MUNDA HYDROPOWER LTD. through Habib H. Parach and 2 others---Appellants

Versus

FEDERATION OF PAKISTAN through Secretary Ministry at Water and Power and 2 others---Respondents

Intra-Court Appeal No. 68 in Civil Suit No. 2103 of 2008, decided on 17th November, 2008.

(a) Discretion---

----Exercise of---Duty of Courts---Courts are called upon to exercise their discretion in a manner to provide substantial justice and not be caught up in niceties and technicalities.

(b) Natural justice, principles of---

---Fault attributed or aspersion made stigmatizing one's performance---Validity---Violation of principle of natural justice in such case would not be seen with favour.

---O.XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S.56--Building contract---Temporary injunction, grant of---Scope---Injunction in such case would normally be refused for damages being an adequate remedy.

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

---Ss. 12, 21, 22, 54 & 56---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for specific performance of contract for construction of hydel project on Built-Own-Operator-Transfer basis between Government and plaintiff---Approval of feasibility study report of project prepared by plaintiff and issuance of Letter of Interest by Government---Subsequent decision of Government to raise height of such project on suggestion of WAPDA---Repeated requests made by plaintiff to Government to resolve such issue through experts for enabling them to negotiate tariff with NEPRA---Government's decision to complete such project through WAPDA due to plaintiff's failure to negotiate with NEPRA for tariff---Plaintiff's suit for specific performance of contract---Rejection of plaintiff's application for temporary injunction by Trial Court---Validity---Government was bound by conditions set down in Letter of Interest issued in favour of plaintiff---Government had not responded to plaintiff's requests---Government's decision to hand over such project to WAPDA was made without issuing any prior notice to plaintiff---Government's act to condemn plaintiff un-heard was illegal for being violative of principles of natural justice---Project was at initial stage as WAPDA had found out an investor---Plaintiff had incurred huge expenses and taken all steps to satisfaction of Government by preparing feasibility report---Negotiation for tariff could not be made without settling down issue of height of project---Government had snatched project without any fault attributable to plaintiff---Stage of awarding contract had not reached---Award of damages as an adequate remedy by way of some monetary compensation could not be a ground for refusing injunction when impugned order creating a stigma was ultra wires on its face---Impugned act of Government to shift such project to public sector lacked transparency, justice and fair play---Deviation from policy announced by Government without any basis could not be encouraged---Government should bestow its confidence to private sector spending huge amount---High Court accepted Intra-court appeal and granted injunction to restrain Government from creating any third party interest till decision in suit.

Jamil Ahmad v. Provincial Government of West Pakistan and 4 others PLD 1982 Lah. 49; Messrs H.A. Rahim and Sons (Pvt.) Ltd. v. Province of Sindh and another 2003 CLC 649; Arif Majeed Malik and another v. Board of Governors of Karachi Grammar School 2004 CLC 1029; Dewan Chand Sabbarwal v. Union of India and another, AIR (38) 1951 Punjab 426, Chaudhry Construction Company Ltd. v. Pakistan and others 1990 CLC 394; Union of India and others v. Hindustan Development Corporation and others (1993) 3 SC Cases 499; A.C. Roy Co. and others v. Union of India and others, AIR 1995 Calcutta 246; D. Wren International Ltd. and another v. Engineers India Ltd: and others, AIR 1996 Calcutta 424 Shahbazada Muhammad Umar Beg v. Sultan Mahmood Khan and another, PLD 1970 SC 139; Chiragh Din and another v. Chairman Thal Development Authority, 1970 SCMR 29; Imam Bux v. Province of West Pakistan through the Deputy Commissioner, Khairpur, 1970 SCMR 491 and Irshad Hussain v. Province of Punjab and 2 others PLD 2003 SC 344 ref.

(e) Administrative decision---

----Government actions should be transparent, fair and based on certain healthy standards and norms.

(f) Natural justice, principles of---

----Decision rendered without granting an opportunity of hearing to explain, would be violative of law.

Abdul Hafeez Pirzada for Petitioner.

Sikandar Bashir Mohmand Hamid Ahmad and Mustafa Aftab Sherpao for Appellants.

Riffat Saghir Qureshi for Respondents Nos. 1 and 2.

Gulzareen Kiyani and Barrister Masroor Shah for Respondent No.3.

Shehzad Asif Sheikh for Respondent No.3.

Qazi M. Jamil for Respondent No.4.

Date of hearing: 4th September, 2008.

MLD 2009 ISLAMABAD 552 #

2009 M L D 552

[Islamabad]

Before Sardar Muhammad Aslam, C. J.

Sheikh MURID HUSSAIN---Petitioner

Versus

SHAH JAHAN KHETRAN and another---Respondents

Civil Revision No.455 of 2007, heard on 22nd January, 2009.

Civil Procedure Code (V of 1908)---

----O. XVII, R.3---Resort to provisions of O.XVII, R.3, C.P.C.---Scope---Illustration.

In the present case plaintiff evidence was available on 25-3-2006 when one witness was examined while case was adjourned to 8-4-2006 by the court, not at the request of the plaintiff. Again, it was adjourned to 6-5-2006. On this date, the Presiding Officer was on leave resultantly the case was adjourned to 10-6-2006 and it was again adjourned, with last opportunity, for 17-7-2006. On 17-7-2006, plaintiff secured an adjournment with last opportunity at the cost of Rs.100 for 26-9-2006 on which date case was- transferred to another court. Plaintiff appeared before the transferee court on 25-1-2007. Case was again adjourned with last opportunity to 5-4-2007 and last opportunity was granted for 16-5-2007, on which date evidence was not available, hence provisions of Order XVII, Rule 3, C.P.C. were invoked.

The suit related to specific performance of an agreement involving valuable rights. The defendants in their written statement pleaded that no concluded agreement was executed, however, negotiations were carried and the plaintiff agreed to purchase for Rs.110,00,000 (Rupees one crore and ten lacs) and paid an amount of Rs.15,00,000 (Rupees fifteen lacs) and balance was to be arranged for payment within fortnight which he failed within the stipulated period. Admittedly, a portion of the amount had been paid to the defendant.

If a party by its conduct made it difficult for the court and compelled it to resort to the provisions of Order XVII, Rule 3, C.P.C., then no alternate was left for the court. However, in matters of valuable rights technical knock out was not recommended. Substantial justice had been the paramount consideration and desire of the courts to minimize the chances of injustice. Litigants were not to be allowed to have the leisure: and luxury of the court proceedings by sheer wastage of time and cause delay to prolong the agony of the other side. This practice could well be arrested by burdening the defaulting side with heavy cost.

The suit was yet at the stage of arguments, in spite of closure of evidence by the impugned order. It would be appropriate that one last opportunity be granted to the plaintiff to produce his evidence subject to payment of sum of Rs.20,000 (Twenty thousand only) cost to the other party. Impugned order was set aside. Plaintiff to produce his entire evidence, subject to payment of Rs.20,000, on 11-2-2009. No further opportunity would be granted on any count.

Irshad Ali and another v. Munawar Khan 2001 CLC 1899; Hadi Bakhsh v. Additional District Judge and others 1998 CLC 610; Zahoor Ahmad v. Mehra, through legal heirs and others 1999 SCMR 105; Allah Ditta and others v. Hafiz Zahoor Ahmad and another 1993 CLC 1359; Muhammad Asghar and another v. Muhammad Ashraf and 6 others 2006 YLR 166 and Riaz Hussain v. Sardar Riaz Hussain and others 2003 MLD 1252 ref.

Zaheer Bashir Ansari for Petitioner.

Sheikh Muhammad Ilyas and Mian Ishtiaq Hussain for Respondents.

Date of hearing: 22nd January, 2009.

MLD 2009 ISLAMABAD 648 #

2009 M L D 648

[Islamabad]

Before Syed Qalb-i-Hassan, J

ASIF SAEED KHAN---Appellant

Versus

SAEED-UZ-ZAFAR KHAN and 2 others---Respondents

F.A.O. No.39 of 2007, heard on 18th April, 2008.

Specific Relief Act (I of 1877)---

----Ss. 12 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for specific performance of sale agreement and permanent injunction---Defendant denied to have signed the agreement produced in Court---Report of hand-writing expert of FIA declaring his signatures to be forged---Filing of criminal case against plaintiff for forging defendant's signatures on such agreement---First application for temporary injunction to restrain alienation of suit land by defendant---Dismissal of such first application on basis of such report of MA---Second application for temporary injunction after plaintiff's acquittal from criminal case by alleging such report of FIA to have been discarded by Magistrate---Dismissal of second application by Trial Court for being not competent---Validity---Magistrate in his order had observed that civil court would be in a better position to adjudicate upon genuineness or forgery of such agreement---Magistrate had not discarded such report of FIA, but had referred matter to civil court for adjudication---Plaintiff had yet to prove such agreement by rebutting strong presumption raised against its genuineness by leading evidence in Trial Court---High Court dismissed appeal in circumstances.

Fazal Din v. Mst. Robina Aurangzeb and 2 others 1983 CLC 1280; Mashkoor Khan and others v. Province of Sindh and others 1971 SCMR 572 and Chairman Municipal Committee Taxila, District Rawalpindi v. Muhammad Jan and others 1987 CLC 2416 rel.

Muhammad Ilyas Sheikh for Appellant.

Mian Abdul Razzaq for Respondents.

MLD 2009 ISLAMABAD 699 #

2009 M L D 699

[Islamabad]

Before Syed Qalib-i-Hassan, J

MUHAMMAD SHAFI KHAN---Petitioner

Versus

Mst. SHABANA IRFAN and another---Respondents

Civil Revision No.316 of 2003, heard on 30th May, 2008.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Application against fraud and misrepresentation---Petitioner and respondent entered into an agreement to sell whereby petitioner was to purchase a piece of land along with incomplete bungalow at "M" against consideration---Out of consideration amount respondent had received some amount along with a house at "I"---Separate general power of attorney in respect of said house had also been executed by the petitioner/vendee in favour of respondent in consideration of amount as price of the said house and in that way amount including amount of said house was treated as part payment of land purchased by the petitioner---In pursuance of said general power of attorney executed by the petitioner in favour of respondent with respect to said house situated in "I" respondent further entered into an agreement to sell with another party in respect of said house and received amount of said house from the said party---Petitioner filed application under S.12(2), C.P.C. against both the respondent and other party which application was dismissed vide the' impugned order---Contentions raised by the counsel for the petitioner were supported by law and on the contrary stand taken by the other party that general power of attorney was executed by the petitioner without any reference of agreement to sell and paid consideration to the validly appointed attorney/respondent, were serious questions of law and fact which could not be decided without recording of evidence---Lower Court, in circumstances of the case, had committed material irregularity while passing impugned order without framing of issues and providing opportunity of leading evidence to both the parties to prove their respective contentions---Impugned order was set aside, with direction to the Trial Court to frame proper issues in application under S.12(2), C.P.C. and allow them to lead evidence in support of their respective contentions and then decide the same on merits.

Malik Riaz Ahmad v. Mian Inayat Ullah and others 1992 SCMR 1488; Rasool Bakhsh and another v. Muhammad Ramzan 2007 SCMR 85; Fida Muhammad's case PLD 1985 SC 341; Mst. Basri v. Abdul Hamid 1996 MLD 1123 and PLD 1973 Lah. 186 ref.

Syed Asghar Hussain Sabzwari for Petitioner.

Sheikh Zameer Hussain for Respondents.

Date of hearing: 30th May, 2008.

MLD 2009 ISLAMABAD 716 #

2009 M L D 716

[Islamabad]

Before Syed Qalb-i-Hassan, J

ARSHAD ALI KHAN---Petitioner

Versus

S. M. ISMAIL---Respondent

Civil Revision No.496 of 2006, decided on 17th April, 2008.

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

----O.XXXVII, Rr. 2 & 3---Suit for recovery of amount on basis of negotiable instrument---Grant of conditional or unconditional leave to appear and defend suit---Essential factors.

The governing factors to consider the question of grant of conditional or unconditional and terms of conditions imposed by the Court while granting leave to defend always depends on the ground taken and material placed before the Court in support of the application for grant of permission to appear and defend the suit. In absence of plausible defence, the Court may not even grant conditional leave and may pass the decree in the suit in exercise of powers under Rule 2(2) read with Rule 3 of Order XXXVII, C.P.C. If the Court in the light of pleadings of the parties forms an opinion that the defendant has a good or plausible answer to the claim of plaintiff, it may grant unconditional leave.

Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963 SC 163 rel.

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

----O.XXXVII, Rr.2 & 3---Suit for recovery of amount on basis of dishonoured cheque---Plaintiff's plea was that agreement between parties for establishment of Fuel Station on a plot of PAF could not mature due to refusal of PAF to lease out site to defendant; that out of invested amount promised to be paid to plaintiff, defendant had issued him cheque, which was dishonoured---Defendant's plea raised in leave application was that suit filed at place "I" had no jurisdiction, where neither cause of action had accrued nor was cheque issued nor was Bank situated; that defendants suit against plaintiff was pending at place "K", where cheque was issued and Bank was situated; and that plaintiff with help of named PAF Officers had got cheque from defendant under coercion---Trial Court granted leave to defendant to defend suit subject to furnishing of Bank guarantee equal to suit amount---Validity---Defendant had raised a plausible defence or shown a triable substantial question of law and fact---Trial Court was not justified in passing impugned order---High Court modified condition of impugned order by requiring defendant to furnish any solvent security to satisfaction of Trial Court.

Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963 SC 163 and Abdul Rauf Ghauri v. Mrs. Kishwar Sultana and 4 others 1995 SCMR 925 fol.

Barrister Qasim Ali Chowhan for Petitioner.

Mujeeb-ur-Rehman Kiani for Respondent.

Date of hearing: 10th April, 2008.

Karachi High Court Sindh

MLD 2009 KARACHI HIGH COURT SINDH 7 #

2009 M L D 7

[Karachi]

Before Ghulam Dastagir A. Shahani, J

KARACHI DEVELOPMENT AUTHORITY through Director General and another---Applicants

Versus

ABDUL RASHEED---Respondent

Civil Revision Application No.70 of 2008, decided on 3rd September, 2008.

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

---S.115---Limitation Act (IX of 1908), Ss. 5 & 12(2)---Revision---Oral request for condonation of delay---Exclusion of time consumed in obtaining certified copies of impugned judgment and decree---Judgment was passed on 28-5-2007---Decree was framed on 5-7-2007---Application for obtaining certified copy of judgment and decree was presented on 28-5-2007---Costs/fees of certified copies were deposited on 30-10-2007---Certified copies were supplied on 1-11-2007---Revision was filed on 29-1-2008---Validity---Applicant being aware of judgment and decree, was duty bound to deposit costs in time, but he remained careless and negligent in respect of his own interest---Applicant after receiving judgment and decree remained silent for a long time without any sufficient cause---No one could be blamed or burdened for such delay, except applicant himself---Oral request for condonation of delay could not be allowed and delay on its basis could not be condoned---Each and every day had to be explained and there must be a sufficient reason as to what were those circumstances due to which applicant could not approach Court in time---Revision petition was dismissed for being time barred.

Mullah Ahmed v. Assistant Commissioner Sibi and 7 others 1986 SCMR 1624; Noor Hussain v. Muhammad Salim 1985 SCMR 893 and Rafique Ali v. Kaleem Zia Khawaja and another 2000 CLC 1997 rel.

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

---S.5---Delay, condonation of---Scope---Duty of applicant to explain each and every day by showing sufficient cause as to what were those circumstances due to which he could not approach Court in time---Applicant had to prove his own case and he could not be benefited on weakness of other side, if any---Duty of applicant to be conscious in respect of his interests and approach to Court without any delay and in case of failure, he must suffer and no one could be made responsible therefor---Principles.

---S. 5---Oral request for condonation of delay---Validity---Such request could not be allowed and delay on its basis could not be condoned.

Mullah Ahmed v. Assistant Commissioner Sibi and 7 others 1986 SCMR 1624 rel.

Sultan Ahmed for Applicant.

Muhammad Yasin Azad for Respondent.

Date of hearing: 3rd September, 2008.

2009 M L D 30

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD ISMAIL----Applicant

Versus

THE STATE Respondent

Criminal Bail Application No.799 of 2008, decided on 1st September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.392/34---Bail, grant of---Further inquiry---Complainant, who was police constable, had not . bothered to appear before the court for recording his evidence---Only one witness who was also a police constable had been examined and not a single private witness was examined in the Investigation though area was surrounded by shops and houses---Accused received injuries at the hand of the police constable on his leg and was lying on the spot in the pool of blood---Date and time of incident as mentioned in the F.I.R. was different to one mentioned in medico-legal certificate---Police seemed to be hiding the actual facts of the incident and the present facts were fabricated and recoveries were foisted on the record---Case against accused required further inquiry under S.497(2), Cr.P.C.---Accused having made out a case for grant of bail, he was admitted to bail, in circumstances.

Akhtar Ali Mastoi for Applicant.

Ms. Naheed Naz, State Counsel.

MLD 2009 KARACHI HIGH COURT SINDH 37 #

2009 M L D 37

[Karachi]

Before Syed Mehmood Alam Rizvi, J

NASIR HAYAT---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.781 of 2008, decided on 28th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.201---Bail, grant of---After investigation challan had been submitted against the accused under S.201, P.P.C. in the Court---Section 201, P.P.C. though punishable with seven years' R.I. was a bailable offence---State counsel had acceded to the legal situation and counsel for the complainant had failed to make out a case otherwise---Accused was admitted to bail accordingly.

Mukhtar Ahmed Somar for Applicant.

Shamsher Abbas for Respondent.

Ms. Rehana Akhtar, Addl. Prosecutor General for the State.

MLD 2009 KARACHI HIGH COURT SINDH 41 #

2009 M L D 41

[Karachi]

Before Khalid Ali Z. Qazi, J

Mst. FARIDA NAEEM---Plaintiff

Versus

BAHADUR KHAN and 2 others---Defendants

C.M.A. No. 10228 of 2007 in Suit No.1346 of 2003, decided on 15th April, 2008.

Fatal Accidents Act (XIII of 1855)---

----S. 1---Civil Procedure Code (V of 1908), S.151---Fatal accident--Suit for recovery of amount of compensation---Attachment of vehicle---Reduction in surety amount---Application for---Defendant/the driver of the bus in question filed application for reducing the surety amount from Rs.10,00,000 to Rs.1,00,000 to enable him to get the bus released and earn his livelihood---Validity---Surety amount was quite high and defendant driver could not arrange such huge amount of surety---Since the attachment of the bus, it had not been properly maintained and the value of the bus thus had gone considerably low---All the tyres of the bus had worn out and the body and parts of the bus had become rusty and due to such attachment defendants had lost their earning and incurring loss and, damages---Amount of surety, in circumstances, was reduced to Rs.2,50,000 from Rs.10,00,000, accordingly.

None present for the Plaintiff.

Shafiq Ahmed for Applicant.

MLD 2009 KARACHI HIGH COURT SINDH 49 #

2009 M L D 49

[Karachi]

Before Khawaja Naveed Ahmed, J

GHULAM NABI and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.355 of 2005, decided on 26th August, 2008.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Benefit of doubt---Whole case depended upon evidence of three eye-witnesses, out of whom, one had not implicated accused persons.. No motive had been attributed to accused---Alleged recoveries were of no use to the prosecution as by withholding the case property for 21 months, the Investigating Officer had spoiled the entire prosecution case---Even the mashirs of recovery were not independent persons---Accused persons were arrested and recoveries were effected from thickly-populated area, but no private person from the area was associated and Investigating Officer had not explained as to why he had not associated private witnesses with him while making arrests and recoveries---Corroborative evidence was not confidence-inspiring and it was not safe to rely upon it for upholding the conviction and sentence of accused persons---Evidence collected by the prosecution and witnesses examined in the court were not confidence-inspiring and created doubt about the entire prosecution case---Case was of insufficient evidence, which, apart from being discrepant, was not confidence-inspiring--Accused persons were acquitted and released extending them benefit of doubt.

Abdul Qadir Halepota for Appellants.

Ms. Afsheen Aman for the State.

Date of hearing: 26th August, 2008.

MLD 2009 KARACHI HIGH COURT SINDH 61 #

2009 M L D 61

[Karachi]

Before Ghulam Dastagir A. Shahani, J

MUMTAZ ALI and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.S-10 of 2007, decided on 17th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 302/324/337-A(ii)/504/147/148/149---Suspension of sentence---Ground raised was that there were major contradictions in evidence and co-accused having similar role were acquitted by the Trial Court---Validity---When co-accused having similar role had been acquitted by the impugned judgment, the present accused at least could be considered for grant of bail and suspension of sentence during pendency of appeal---Petition was allowed in circumstances and the accused was released on bail after suspending his sentence.

Ghulam Nabi and others v. the State 1995 PCr.LJ 1606; Hussain Bux alias Husno v. The State 1997 PCr.LJ 942; Muhammad Iqbal v. The State 1999 PCr.LJ 948; Muhammad Sarwar and another v. State 1997 MLD 2925; Babar Ali v. Bashir Ahmed and another 2007 SCMR 184 and Muhammad Nawaz v. Muhammad Nawaz alias Naji and 4 others 1997 SCMR 1521 ref.

Shah Hussani v. The State PLD 1995 Kar. 209 and Abdul Hameed v. Mohammad Abdullah and others 1999 SCMR 2589 rel.

Khawaja Aaytullah for Appellants.

Moharram G. Baloch for Complainant.

Mashooq Ali Samo Assistant Advocate-General.

MLD 2009 KARACHI HIGH COURT SINDH 67 #

2009 M L D 67

[Karachi]

Before Ghulam Dastagir A. Shahani, J

Mst. ZAIRA KHATOON---Appellant

Versus

Mst. KISHWAR JAMAL---Respondent

Civil Miscellaneous Appeal No. 50 of 2008, decided on 18th October, 2008.

(a) Limitation---

----Void order---Limitation---Scope---When order is void, illegal, without jurisdiction and nullity in the eye of law, question of limitation does not arise.

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

----O.XLI, Rr.17 & 19---Appeal, restoration of---Principles---Appellant was a house wife who filed appeal before Lower Appellate Court, which was dismissed for non-prosecution---Plea raised by appellant was that counsel engaged by her died during pendency of appeal and she engaged another counsel who went to other city due to sudden death of his father-Validity-Request of appellant was genuine and she must be heard and matter be decided on merits instead of deciding the same on technical ground---Order passed by Lower Appellate Court, dismissing the appeal was set aside and the matter was remanded for disposal afresh on merits after providing full opportunity to the parties---Appeal was allowed accordingly.

1986 SCMR 362; Muhammad Amin and 4 others v. The Chief Administrator of Auqaf West Pakistan Lahore 1970 SCMR 537; Major Shaukat Ali Randhwa v. Mst. Zartaj Hamid and others 1985 CLC 3011 and and Ghulam Muhammad v. Altaf Hussain and others 1981 SCMR 533 ref.

Shahenshah Hussain for Appellant.

None present for the Respondent.

MLD 2009 KARACHI HIGH COURT SINDH 76 #

2009 M L D 76

[Karachi]

Before Khawaja Naveed Ahmed, J

RAZA MUHAMMAD BHUTTO----Applicant

Versus

THE STATE----Respondent

Criminal Miscellaneous Application No.142 of 2008, decided on 8th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.467/468/471/477-A/420/34---Prevention of Corruption Act (II of 1947), S.5(2)---Quashing of proceedings---Present proceedings against applicant/accused were based on impugned order, which order itself had been set aside by the High Court---Proceedings against accused would thus be an exercise in futility and accused could not be convicted in the case, unless in terms of order passed by the High Court, a fresh inquiry was held and in the light of findings of that inquiry, further proceedings were initiated---Accused was in his advance age---No likelihood of conviction of accused being in the case, same was fit for quashing of proceedings which otherwise would amount to sheer abuse of process of law---Proceedings were quashed in circumstances.

Maqbool Rehman v. The State and others 2002 SCMR 1076; Mst. Gul Reza and others v. The State and others 2002 PCr.LJ Kar. 9; Khalid Mehmood v. Fateh Khan and others NLR 2003 Cr. Lah. 663 and The State v. Asif Ali and another NLR 2001 SC 282 ref.

Mehmood A. Qureshi for Applicant.

Asadullah Baloch for the State.

MLD 2009 KARACHI HIGH COURT SINDH 82 #

2009 M L D 82

[Karachi]

Before Arshad Noor Khan, J

MUHAMMAD AFZAL---Appellant

Versus

EXECUTIVE ENGINEER and another---Respondents

IInd Civil Appeal No.26 of 2004, decided on 6th October, 2008.

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

----S.5---Condonation of delay--Principle---Delay caused by government---Scope---Authorities sought condonation of delay in filing of appeal on ground that before filing of appeal, sanction from government was to be obtained which caused delay in filing of appeal---Validity---Date on which. authorities moved to government for obtaining sanction to file appeal, was not specified in affidavit, nor letter by which authorities sought such permission was brought on record in support of the plea---Authorities not even produced alleged permission before the court so as to assess vigilance of authorities in filing of appeal---After expiry of limitation period, valuable right accrued in favour of opposite party, which could not be snatched or brushed aside leniently---Party guilty of limitation was under obligation to explain each day's delay in filing of appeal and in case each day's delay had not been explained satisfactorily, the delay could not be condoned---Government could not be given different or special treatment to a party than ordinary litigant and government was also required to explain delay reasonably so as to condone the same---Delay in absence of such explanation could not be condoned.

Government of N.-W.F.P. through Chief Secretary and 3 others v. Abdul Malik 1994 SCMR 833 rel.

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

----Ss.4, 6 & 18---Acquiring of land without acquisition---Compensation---Land allotted to plaintiff was included by authorities in public park without the same being acquired---Suit for recovery of compensation filed by plaintiff was decreed in his favour by Trial Court but Appellate Court allowed the appeal and dismissed the suit--Validity---No proceedings under Land Acquisition Act, 1894, were initiated or observed by authorities in order to acquire land of plaintiff---Proceedings for acquiring of land having not been taken nor any notification under Ss.4 and 6 of Land Acquisition Act, 1894, was published in official Gazette, therefore, authorities were not required to move under S.18 of Land Acquisition Act, 1894---Judgment and decree passed by Appellate Court suffered from material illegality and could not be sustained---High Court in exercise of appellate jurisdiction, set aside the judgment and decree passed by Appellate Court and restored that of Trial Court---Second appeal was allowed in circumstances.

Hassan Mehmood Baig for Appellant.

Mumtaz Alam Leghari for Respondents.

MLD 2009 KARACHI HIGH COURT SINDH 94 #

2009 M L D 94

[Karachi]

Before Ghulam Dastagir A. Shahani, J

NAWAB FEROZUDDIN---Petitioner

Versus

THE STATE and 5 others---Respondents

Criminal Miscellaneous 130 of 2008, decided on 29th September, 2008.

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

----S. 200---Examination of complainant---Duty of Court---Court had to apply its own mind and to pass an appropriate order based upon some material and there must be some reasons for agreement or disagreement with the complainant---Purpose of submission of report was to scrutinize the matter at the first instance and not only to forward the same or to act as a post office, because report of police submitted with the court was not binding upon it--Court had to be conscious at the time of passing of the order looking at the interests of the parties and such type of orders were not appropriate to be passed by court.

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

---Ss. 561-A & 200---Application under S.561-A,Cr.P.C.---Scope---Applicant, in the present case, had filed a direct complaint on same facts and cause of action and had appeared himself upto the level of Supreme Court---Powers under S.561-A, Cr.P.C. were to be used in special circumstances and not in each and every case----Once matter is decided and order passed by Supreme Court, same attained finality and direct complaint, under S.200, Cr.P.C. was sub judice before the competent court of law for final arguments, matter therefore would not be reopened on same facts and cause of action---Applicant also suppressed entire facts--Law did not support the litigant having unclean hands---Petition under S.561-A,Cr.P.C. was dismissed in circumstances.

Jamshed Ahmad v. Muhammad Akram Khan and another 1975 SCMR 149; Bahadur and another v. The State PLD 1985 SC 62; Hasan Din v. Muhammad Mushtaq and 2 others 1978 SCMR 49; Abdur Rashid v. Pakistan and others 1969 SCMR 141 and Shahadat Ali v. Mubarik Shah and another PLD 1986 SC 347 ref.

Applicant in person.

Muhammad Ashraf Kazi for Respondents Nos. 4 and 5.

Muhammad Iqbal Kalhoro, Addl. Prosecutor General.

Mohammad Bux Awan, State counsel.

MLD 2009 KARACHI HIGH COURT SINDH 103 #

2009 M L D 103

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD ZAHID---Applicant

Versus

THE STATE---Respondent

Bail Application No.798 of 2008, decided on 15th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Bail, grant of---Non compliance of directions by High Court---Effect---Direction given by High Court had not been complied with despite lapse of 10 months' period, the accused was in custody for the last two and half years without any progress in the case---Bail was granted, in circumstances.

Javed Ahmed Rajput for Applicant.

Zafar Ahmed, Additional Prosecutor General.

Fatima Jamila Jatoi for the State.

MLD 2009 KARACHI HIGH COURT SINDH 115 #

2009 M L D 115

[Karachi]

Before Dr. Rana Muhammad Shamim, J

BAZ MUHAMMAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1138 of 2008, decided on 6th October, 2008.

Criminal Procedure Code (Y of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 12, 13, 14, 15, 25 & 51---Bail, refusal of---Name of accused was mentioned in the F.I.R. with specific role attributed to him---Accused was the person who booked the consignment containing carpets in which more than 5 Kilograms of heroin powder was concealed and recovered by Anti-Narcotics Force---Accused had conscious knowledge of such concealment of huge quantity of heroin powder in the said carpets---Samples of heroin powder were rightly drawn---Narcotics Police had unearthed a racket involving in heroin smuggling and recovered huge quantity of heroin powder duly concealed in carpets---Case against all accused persons attracted the provisions of Ss.6, 7 & 8 of Control of Narcotic Substances Act, 1997, punishable under S.9(c) of said Act for which the punishment provided was death, imprisonment for life or 14 years' R.I.---Contention of counsel for accused that provisions of S.103, Cr.P.C. had been violated, had no force, in view of the fact that in narcotics case, same was excluded under the provisions of S.25 of Control of Narcotic Substances Act, 1997---Accused was not entitled to the concession of bail---Bail application was dismissed---Bail granted to co-accused was cancelled.

PLD 2001 Quetta 5; 2005 PCr.LJ 1558; PLD 2008 Kar. 374; 2003 SCMR 573; 2001 SCMR 299; 2002 SCMR 1837 and Muhammad Hashim v. The State (PLD 2004 SC 856) ref.

Abdul Karim Junejo for Applicant.

S. Ashfaque Hussain Rizvi, Special Prosecutor ANF for the State.

MLD 2009 KARACHI HIGH COURT SINDH 133 #

2009 M L D 133

[Karachi]

Before Ghulam Dastagir A. Shahani, J

DILDAR ALI, P.C.---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-340 of 2008, decided on 2nd August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c), 25 & 51---Police Order (22 of 2002), Art. 18(4)---Bail, grant of---Further inquiry---Chemical Analyzer's report had revealed that net weight of Charas, which was 130 grams was received by his office after more than two months of alleged incident---Presumption could be taken that sample was tampered with some mala fide intention---No private person from the locality was associated as Mashir in the case---Provisions of S.103, Cr.P.C. though would not be applicable in view of S.25 of Control of Narcotic Substances Act, 1997, but each case was to be seen on its own merits, nature and circumstances---Inspector himself registered the case and investigated same---Such act of Inspector was a violation of Article 18(4) of the Police Order, 2002---Concession of bail was extended to accused as his case was that of further inquiry.

Muhammad Farooq Khan v. The State 2007 PCr.LJ 89; Nadeem v. The State 2007 MLD 1092; Imtiaz Ali v. The State 2006 MLD 1961; Amir Bux v. The State 2007 PCr.LJ 1019; Noor Muhammad v. The State 2007 YLR 1973; Ali Murad v. The State PLD 2007 Kar. 555 and Syed Qamar Ali Shah v. The State PLD 2007 Kar. 562 ref.

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

----S. 9---Offence under S.9 of Control of Narcotic Substances Act, 1997, though would adversely affect the society, but in the present case, it was yet to be proved that accused was involved in adversely affecting the society---Even if accused was charged with indulging in activities, which were not approved by the society, the society which claimed to be looking after the law and order situation and as custodian of law should follow the law in toto, as no compensation was provided in the judicial system for accused detained, whether for a long or short time and ultimately acquitted.

Ali Nawaz Ghanghro and Safdar Ali Bhutto for Applicant.

Naimatullah Bhurgri for the State.

MLD 2009 KARACHI HIGH COURT SINDH 138 #

2009 M L D 138

[Karachi]

Before Syed Mehmood Alam Rizvi, J

ABDUL KHALIQUE---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-425 of 2007, decided on 12th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---West Pakistan Arms Ordinance (XX of 1965), S. 13(d)-Bail, refusal of---Counsel for accused after arguing the case, requested that if direction be given to the Trial Court to decide the case at the earliest, he would be satisfied---High Court directed the Trial Court to conclude the case within three months and that progress report be submitted after every fifteen days to the Additional Registrar of the High Court.

1990 SCMR 2147; 2000 SCMR 107; 2003 PCr.LJ 37; PLD 2004 Kar. 563; 2005 PCr.LJ 715 and Mundars and others v. The State PLD 1990 SC 934 rel.

Muhammad Aslam Sipyo for Applicant.

Muhammad Azeem Panhwar for the State.

MLD 2009 KARACHI HIGH COURT SINDH 144 #

2009 M L D 144

[Karachi]

Before Salman Ansari, J

MUHAMMAD DANISH RAFIQ---Petitioner

Versus

Mst. NAFISA SIDDIQUI and another---Respondents

Civil Petition No. S-207 of 2006, decided on 8th October, 2008.

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

----Ss. 16(1), 15, 19, 20 & 2(f)(j)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Relationship of landlord and tenant between parties---Denial of said relationship---Tentative rent order---Claim of petitioner was that respondent, on the basis of registered General Power of Attorney, offered the demised premises for sale; that petitioner had paid to respondent amount as earnest money and balance amount was to be paid at the time of registration of sale deed which was to be finalized within 90 days; respondent, instead filed ejectment application under S.15 of Sindh Rented Premises Ordinance, 1979 against the petitioner---Petitioner in his written statement denied execution of tenancy agreement or being in possession of any rented premises being part of the property in question and had specifically stated that amount paid to respondent was paid as earnest money and not as security deposit---Despite denial of relationship of landlord and tenant between parties, Rent Controller directed the petitioner to deposit arrears of rent and to deposit monthly rent under S.16(1) of Sindh Rented Premises Ordinance, 1979---Counsel for the petitioner had urged that impugned order was without jurisdiction as no relationship of landlord and tenant existed between the parties---Validity---Unless and until issue of relationship of landlord and tenant was established no tentative order under S.16(1) of the Sindh Rented Premises Ordinance, 1979 could be passed directing petitioner to pay arrears of rent or future rent of the premises in question---Order passed by the Rent Controller under S.16(1) of the Sindh Rented Premises Ordinance, 1979 being without lawful jurisdiction, its implementation would be unlawful till such time the issue of relationship of landlord and tenant was resolved by the Rent Controller---Tentative rent order passed by the Rent Controller being without jurisdiction; High Court could interfere in the matter under Article 199 of Constitution.

Iqbal and others v. Mst. Rabia Bibi PLD 1991 SC 242; Haji Juma Khan v. Haji Zarin Khan PLD 1999 SC 1101; Nazir Ahmed v. Mst. Sardar Bibi and others 1989 SCMR 912; Abdul Ghaffar v. Abdul Wahab 1989 CLC 1441; Baboo Din v. Nasroo 1995 MLD 1460 and Mirza Shamsul Arfin v. Mst. Abida Khatoon NLR 1990 SC 209 ref.

Khalilur Rehman for Petitioner.

Mazhar Jafri and Muhammad Sadiq for Respondent No.1.

Date of hearing: 23rd September, 2008.

MLD 2009 KARACHI HIGH COURT SINDH 151 #

2009 M L D 151

[Karachi]

Before Ghulam Dastagir A. Shahani, J

ABDUL WAHEED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-242 of 2008, decided on 30th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Out. of 5 kilograms of Charas recovered only 10 grams were sent for analysis---Only one Pati/rod of alleged Charas of 10 grams was separately sent for chemical analysis report---Effect---Such report would be conclusive only to the extent of 10 grams of Charas---Question whether entire recovered substance was covered by the definition of "narcotic" would be properly determined at the stage of trial; however, at bail stage, as a result of tentative assessment, prima facie accused was responsible for 10 grams, which were separated and sent for the chemical analyzer report and no expert opinion was available regarding remaining quantity of Charas---Bail was granted to accused in circumstances.

Nadeem v. The State 2007 MLD 1092; Pervaiz Ahmed v. The State PLD 2008 Kar. 14 and Imitaz Ali v. The State 2006 MLD 1961 rel.

Muhammad Azeem Panhwar for Applicant.

Mumtaz Alam Leghari, Asst. A.G. for Respondent.

MLD 2009 KARACHI HIGH COURT SINDH 156 #

2009 M L D 156

[Karachi]

Before Ghulam Dastagir A. Shahani, J

MATAHIR SHAH---Applicant

Versus

THE STATE and 4 others---Respondents

Criminal Miscellaneous Application No. 59 of 2008, decided on 16th October, 2008.

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

----S. 173---Submission of challan---Investigating Officer under law had to submit a report/summary under S.173, Cr.P.C. within a particular time to the concerned Magistrate, who had to scrutinize the matter on the basis of material submitted before him by the Investigating Officer and to pass an appropriate order and not to act as a Post Office.

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

----Ss. 561-A & 173---Penal Code (XLV of 1860), Ss.324 & 506-B/34---Inherent jurisdiction of High Court under S.561-A, Cr.P.C.---Scope---Matter as mentioned in the application was investigated by the Investigating Officer who submitted his report under S.173, Cr.P.C. to the Judicial Magistrate who declined to take cognizance vide impugned order, which order was upheld by the Trial Court and applicant/ complainant had filed application under S.561-A, Cr.P.C. against impugned order---Prima facie it appeared that entire material collected by the Investigating Officer, was considered by the Magistrate and then passed the order on merits and discussed all merits and demands of the case---Validity---Powers of High Court under S.561-A, Cr.P.C. were to be used not in each and every case, but rarely in appropriate cases and there must be a material on the basis of which orders passed by the courts below be set aside---When two courts below came to the conclusion that no fruitful result would be achieved, if matter proceeded, no interference was required---Magistrate was not to fill the lacuna left by the Investigating Officer and to act as Investigating Officer of the case or to be a party, but he had only to scrutinize the matter on available material and it would depend upon him to agree or disagree with police report---Counsel for applicant had failed to show any illegality which amounted to an abuse of the process of law---Orders passed by the two courts below were proper, legal and in accordance with law and no illegality or material irregularity was committed by the courts below.

PLD 2005 Karachi 375 ref.

Muhammad Rasheed for Applicant.

Sardaruddin Qureshi for the State.

MLD 2009 KARACHI HIGH COURT SINDH 159 #

2009 M L D 159

[Karachi]

Before Farrukh Zia G. Shaikh, J

AJEEB and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.337 of 2008, decided on 1st September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 19'79), Ss.17(2) & 17(3)---Penal Code (XLV of 1860), Ss.324/353/337-A(i)---Bail, refusal of---Snatching of mobile---Robbery---High Court, while declining the bail to accused observed that menace of mobile phone snatching and other robberies increasing day by day and this practice had to be stopped and reprehended.

2002 MLD 1474 ref.

Shewak Ram Valecha for Applicants.

Agha Ather Hussain, Asst. A.G. for the State.

MLD 2009 KARACHI HIGH COURT SINDH 161 #

2009 M L D 161

[Karachi]

Before Dr. Rana Muhammad Shamim and Ghulam Dastigir A. Shahani, JJ

GHULAM QAMBER PANHWAR----Petitioner

Versus

THE STATE through National Accountability Bureau (Sindh), through Director-General----Respondent

Constitutional Petition No. D-1154 of 2008, decided on 20th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---National Accountability Ordinance (XVIII of 1999), Ss.9, 10, 18 & 19---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bail, refusal of---Accused had not been able to point out any mala fide on part of NAB to involve him in false case for ulterior motives---Even otherwise no notice under Ss.18 & 19 of National Accountability Ordinance, 1999 having been issued to accused, present petition merited no consideration---In such circumstances, the inquiry proceedings initiated by NAB, could not be disturbed---Addl. Deputy Prosecutor-General NAB had categorically stated that during the inquiry proceedings, accused would not be arrested and that in case he was found involved, he would be treated in accordance with law---Accused, who obtained interim pre-arrest bail, had not appeared before the Enquiry Officer and inquiry was delayed due to his non-appearance, which amounted to misusing the concession of bail---Petition having no merits was dismissed with bail application.

Raza Hashmi for Petitioner.

Ch. Muhammad Iqbal, Addl. Dy. P.-G. NAB, Sindh for the State.

MLD 2009 KARACHI HIGH COURT SINDH 167 #

2009 M L D 167

[Karachi]

Before Khawaja Naveed Ahmed, J

MUSSARAT NAZIR---Plaintiff

Versus

MALIR DEVELOPMENT AUTHORITY through Director-General, Memon Goth, Malir and 4 others---Defendants

C.M.A. No. 2721 of 2008 in Suit No. 1567 of 1997, decided on 29th September, 2008.

Civil Procedure Code (V of 1908)---

----S.114 & O.XLVII, R.1---Review---Scope---Applicant sought review of orders dated 7-4-2008 and 7-4-2005, on the ground that order under litigation was issued by Chief Minister on wrong impression and misconception and documents were procured fraudulently---Validity---Applicant was seeking review of order dated 7-4-2005, which was never challenged by petitioner in appeal and had attained finality---Order dated 7-4-2008, was an order to implement order dated 7-4-2005, which order was not challenged and had attained finality---Applicant failed to make out a case for review of both the orders and review application was time barred and no application under Limitation Act, 1908, was filed for condonation of delay---Application was dismissed in circumstances.

Wajid Wyne and.Abdul Jabbar for Plaintiff.

Adnan A. Karim Asst. Advocate General.

MLD 2009 KARACHI HIGH COURT SINDH 174 #

2009 M L D 174

[Karachi]

Before Dr. Rana Muhammad Shamim and Farrukh Zia G. Shaikh, JJ

Syed NASIR HUSSAIN SHAH---Petitioner

Versus

ZILA NAIB NAZIM, DISTRICT GOVERNMENT, SUKKUR and 12 others---Respondents

Constitutional Petition No. D-151, C.M.As. 499, 426 and 476 of 2008, decided on 11th April, 2008.

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

----S.24---Constitution of Pakistan (1973), Art.199---Constitutional petition---No-confidence motion---Re-calling of Zila Nazim---Quorum--On the request of respondents session of Zila Council was summoned so that no-confidence motion could be moved against Zila Nazim---Due to incomplete quorum, the session was adjourned---Validity---No stage for such action had come as the condition of required presence of members was not fulfilled---No proof was available to show that notices were issued to all members of council---No proof existed to show that the notices had been received by all members of Zila Council---Council being not in session, the notices to the members of Zila Council were required to be served upon them enabling them to attend the session---Out of 65 members only 7 members attended the session of whom two were proposer and seconder---No minutes of such session were placed on record---Mandatory requirement under S.24(7) of Sindh Local Government Ordinance, 2001, was that Zila Nazim had the right to address the members in his defence---Mere attendance of 7 members out of 65 would not give rise to presumption that motion for recalling Zila Nazim had automatically failed---Mandatory legal requirements as provided under S.24 of Sindh Local Government Ordinance, 2001, for recalling of Zila Nazim had to be fulfilled which were lacking in the case---No illegality had been committed in adjourning the session of Zila Council---Constitutional Petition was dismissed in circumstances.

PLD 2005 Kar. 384; Roshan Din v. 2007 CLC 844 and 1993 CLC 931 ref.

Bhajandass Tejwani for Petitioners.

Respondent No.1 in person.

Shafqatullah I. Shaikh for Respondents No. 2 and 3.

Mokesh Kumar G. Karara for Intervenors.

Ali Azhar Tunio, Additional Advocate-General.

Shafi Muhammad Chandio, Standing Council.

MLD 2009 KARACHI HIGH COURT SINDH 186 #

2009 M L D 186

[Karachi]

Before Salman Ansari, J

MUHAMMAD FAYAZ---Petitioner

Versus

Mrs. WAHIDA SALAHUDDIN and 2 others---Respondents

Constitutional Petition No. S-532 of 2007, decided on 29th September, 2008

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

----Ss. 15(2)(ii). 16(1)(2) & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent--Tentative rent order---Non-compliance of tentative rent order---Striking off defence---Landlady filed ejectment application against petitioner/tenant on ground of default in payment of rent of premises in question---Landlady also filed application under S.16(1) of Sindh Rented Premises Ordinance, 1979 and Rent Controller passed order directing tenant to deposit arrears of rent for relevant period of default and future monthly rent on or before 10th of each Calendar month---Tenant having failed to comply with such tentative rent order, Rent Controller on filing application under S.16(2) of Sindh Rented Premises Ordinance, 1979, directed tenant to vacate the premises within specified period---Said order of Rent Controller having been upheld in First Appeal, tenant filed constitutional petition---Validity--Tenant not only deposited arrears of rent less than what was directed by the Rent Controller, but also deposited same long after specified date---Monthly rent was also deposited after a delay of six days from the date of the direction as given in the order---Defence of tenant, in circumstances was rightly struck off due to non-compliance of tentative rent order and tenant was rightly directed to hand over the vacant peaceful possession of premises to landlady within 90 days from the date of order---Impugned order concurrently passed by the Rent Controller and Appellate Court required no. interference of the High Court in constitutional petition---Constitutional petition was dismissed.

Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246; Saifullah v. Muhammad Bux and 2 others 2003 MLD 480; Messrs Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others 2003 MLD 1033; Hafiz Shafatullah v. Mst. Shamim Jan and another PLD 2004 Kar. 502; Messrs Muslim Commercial Bank Limited v. Tahir Edible Oil (Pvt.) Ltd., and others 2003 CLC 416 (Kar.); Muhammad Afzal Khan v. Ali Akbar and others 2005 CLC 988 (Pesh.); Secretary Government of Punjab Forest Department v. Ghulam Nabi and 3 others PLD 2001 SC 415; Muhammad Naeem v. Messrs Karimi Bidi Works 1992 CLC 2499 (Kar.); Aftab Ahmed Khan v. Mst. Zab-un-Nisa and another 1997 CLC 869; Dr. Abdullah Ghangro v. Mst. Tahira Begum 1984 CLC 3102 (Kar.); M.H. Mussadaq v. M. Zafar Iqbal and another 2004 SCMR 1453 SC; Messrs Bata Pakistan Limited v. Vth Addl.: District Judge, Karachi (S) and 14 others 2005 CLC 1318 (Kar.); Mst. Fatima Gul v. Malik Saeed Akhtar PLD 2005 SC 34; Safeer Travels (Pvt.) Ltd., v. Muhammad Khalid Shafi PLD 2007 SC 504; Mst. Fauzia Irfan v. Mst. Sabeeha Ishrat and 2 others 2008 CLC (Kar.) 1087; Sirajuddin v. Muhammad Usman 1986 CLC 550 (Kar.); Farooq Hussain v. Muhammad Salem Khan 1992 CLC 2276 (Kar.); Messrs Paramount Linen v. Mst. Shagufta Muzaffar 1997 CLC 221 (Kar.); Hotel Metropole (Pvt.) Ltd., v. IIIrd Additional District and Sessions Judge, South Karachi 2007 YLR 2224 (Kar.); Zubair Ahmed v. Syed Hassan Mehdi 1995 MLD 840; Sher Muhammad v. Mrs. Qudisa Bano 1999 MLD 3165 and Hafiz Shafatullah v. Mst. Shamim Jhana and another PLD 204 Kar. 502 ref.

Muhammad Khalil Dogar for Petitioner.

Iqbal Ahmed for Respondent No.1.

Date of hearing: 24th September, 2008.

MLD 2009 KARACHI HIGH COURT SINDH 197 #

2009 M L D 197

[Karachi]

Before Mrs. Yasmin Abbasey, J

EHSAN ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 2 of 2004, decided on 7th April, 2008.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Case of prosecution, somehow appeared to be doubtful as no direct evidence was on the record with reference to the commission of offence---Statements of first three prosecution witnesses who had seen accused keeping the bag in question near the wall of Masjid and those of police officers with reference to the reaching at the place of arrest and apprehension of accused, were different from person to person---Prosecution witness was silent about the place from where accused was arrested---Police officer as prosecution witness had made a different story---Case as pleaded by prosecution was improbable and irrational, because it did not have any direct evidence---Statements of most of witnesses were based on information received from each other and that too without any satisfactory evidence---In such circumstances, it was not safe to believe evidence which did not inspire any confidence---Motive behind the murder in the F.I.R. made on the basis of statement of complainant was that on account of grudge and enmity-accused had murdered deceased---No explanation of that enmity or grudge had been explained by the complainant---Even the Investigating Officer, who was led by accused at different places during investigation of case was also not able to bring anything from the mouth of accused as to the motive behind the murder---Few pieces of human body in spite of their examination through Medical Officer as well as Chemical Examiner had not been able to prove the case of prosecution against accused, because the post-mortem report submitted by the Doctor had shown that there was no head, face, neck and the rest of the pieces of body of deceased were fully decomposed---Medical Officer was not certain as to which particular sex the said pieces belonged---Even a single dent in prosecution evidence was sufficient to create doubt in favour of accused, whereas in the present case at each and every occasion uncertainty was appearing in the prosecution case---Chemical Examiner's report showed that no toxic or poisonous substances were found---Neither any eye-witness of the incident, nor motive to commit the offence was appearing nor the dead body of deceased in its full form was before the Investigating Officer or Medical Officer, to enable them to make definite statement that said recovered pieces were of the body of the deceased---None of the prosecution witnesses who claimed themselves to be the close relatives of deceased, had also deposed in definite terms that said pieces were of deceased---Even churry, which was said to be recovered on the pointation of accused, also appeared to be doubtful---Statement of accused under S.164, Cr.P.C., did not have his signature---In absence of any sufficient ground for conviction of accused, impugned judgment was set aside and accused was acquitted.

Mst. Shamim and 2 others v. The State and another 2003 SCMR 1466; Asghar Ali alias Sabah and another v. The State and others 1992 SCMR 2088; Waqar Nazir and others v. The State 2007 SCMR 661; Muhammad Khan and another v. The State 1999 SCMR 1220; Ali Khan v. The State 1999 SCMR 955; Ali Muhammad v. Bashir Ahmed and others 2003 SCMR 868 and 2006 SCMR 1432 ref.

Abdul Razzak for Appellant.

2009 M L D 246

[Karachi]

Before Salman Ansari, J

Mst. HUSSAINA BAI through attorney---Petitioner

Versus

Mst. SHIREEN BAI and 2 others---Respondents

Constitutions Petition No. S-442 of 2008, decided on 17th October, 2008.

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

----S.15---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Ejectment of tenant---Wilful default in payment of monthly rent---Change in structure---Eviction order passed in favour of landlady was maintained by Lower Appellate Court on the ground that no prior permission was ever sought by tenant for unauthorized construction and structure built in and outside the premises, which was in violation' of tenancy agreement furthermore deposit of rent, in favour of mother of landlady who had already died, was illegal and did not amount to be valid tender of rent in the eyes of law---Validity---Lower Appellate Court did not commit any error which could be considered unlawful exercise of jurisdiction committed by both Courts below nor any specific provisions of law had been violated---Tenant failed to point out any error or lack of jurisdiction or perverse finding in. the decisions passed by both the Courts below---High Court in exercise of its power under Art. 199 of the Constitution, declined to interference in the -matter---Petition was dismissed in circumstances.

Secretary Government of Punjab, Forest Department, Punjab, Lahore v. Ghulam Nabi and 3 others PLD 2001 SC 415; Saifullah v. Muhammad Bux and 2 others 2003 MLD 480 and M. Sharif and another v. M. Afzal Sohail and others PLD 1981 SC 246 ref.

Rao Liaquat Ali Khan for Petitioners.

Safdar for Respondent No.1.

2009 M L D 281

[Karachi]

Before Ghulam Rabbani and Zia Perwez, .JJ

ALLAH BACHAYO---Appellant

Versus

MANAGER, AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN, DADU BRANCH and another ---Respondents

Civil Appeal No.36 of 1999, decided on 4th September, 2001.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.96 & O.VII, R.11(b)---Suit for ,declaration, injunction and. settlement of accounts---Rejection of plaint for non-payment of required court-fee stamp---Application for review of said order, was also dismissed---Miscellaneous Application seeking recall of order of rejection of plaint was also dismissed by the Trial Court---Counsel for the plaintiff having not pressed into service any tangible ground in support of appeal, same was dismissed.

Khurshid Alam Khan for Appellant.

Khadim Hussain Shaikh for Respondents.

MLD 2009 KARACHI HIGH COURT SINDH 284 #

2009 M L D 284

[Karachi]

Before Munib Ahmad Khan and Rehman Farooq Pirzada, JJ

WASIMUL HAQ and 6 others---Petitioners

Versus

CITY DISTRICT GOVERNMENT through City Nazim, Karachi and 3 others---Respondents

Constitutional Petition No. D-1619 of 2007, decided on 21st November, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Allotment of plot and converting same as residential plot---Contention of the petitioner was that plot in dispute had wrongly been converted as residential plot and allotted to respondent---Petitioner had claimed that said plot had been created and used as Park in the past and that Authority had no power to convert said amenity into plot---Nothing was on record to support contentions of the petitioner, while the factual position relied upon by the respondents, had supported the versions of respondents---Plot in dispute was openly auctioned and sold out to respondent while it was a created plot and not amenity plot---Constitutional petition was dismissed in circumstances.

Mirza Sarfraz Ahmed for Petitioners.

Syed Abdul Rauf for Respondents.

Manzoor Ahmed for the CDGK.

MLD 2009 KARACHI HIGH COURT SINDH 289 #

2009 M L D 289

[Karachi]

Before Agha Rafique Ahmed Khan, J

MUHAMMAD SIRAJ MANSURI---Petitioner

Versus

Mst. MEHTAB---Respondent

S.M.A. No.99 of 2006, decided on 3rd March, 2008.

Succession Act (XXXIX of 1925)---

----S. 218---Civil Procedure Code (V of 1908), O.XXXII, R.3---Application for grant of Letter of Administration and appointment of guardian of minors---Limitation---Applicant claimed that their mother the widow of deceased owner of property died leaving behind legal heirs---Application was also filed for appointment of widow of one of the legal heirs of deceased as guardian of minors---Objections were filed by respondent/widow of one of the legal heirs of deceased owner of property in question to the effect that succession application was time-barred; that property in question was already gifted to her husband by her mother during her life time---Validity---No time limit was prescribed for filing application for grant of Letter of Administration under S.218 of Succession Act, 1925---No document had been produced by respondent/ objector to prove that property was gifted to her husband; even no date or year had been mentioned when the property was so gifted and it had also not been mentioned as to in whose presence property was gifted---Objections raised by objector were unnecessary and had no force---Application for appointment of guardian of minors was accepted---Application for grant of Letter of Administration was allowed as prayed for with direction to issue Letter of Administration as per Rules.

Naheed A. Shahid for Petitioner.

Farooq Rashid for Respondent.

Date of hearing: 24th March, 2008.

MLD 2009 KARACHI HIGH COURT SINDH 294 #

2009 M L D 294

[Karachi]

Before Munib Ahmad Khan and Abdur Rehman Farooq Pirzada, JJ

Shri MAHANT BAWA BAGU LAIGIR MAHARAJ---Petitioner

Versus

DIRECTOR PARKS AND HORTICULTURE, CITY DISTRICT GOVERNMENT KARACHI and 2 others---Respondents

Constitutional Petition No. D-120 of 2006, decided on 20th November, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Main grievance raised by the petitioner was against the Hidu Panchayat Committee, who was managing the affairs of temple, the subject-matter of the petition---Main cause being between the Hindu Panchayat and the petitioner to control and manage the affairs of temples and no material was available on record for the High Court to interfere with it under its constitutional jurisdiction, however to satisfy the petitioner, High Court observed that the concerned four plots which were going to be allotted by the Authority, would be property of the temple and would be utilized for religious purpose only, while the parties, who were contesting their entitlement to run the temple would be subject to the pending litigation.

Petitioner present in person.

Noor Muhammad Dayo holding brief for Mr. Jhamat Jethanad, Advocate for Hindu Panchayat along with Dr. Raj Ashok, Vice-President of Hindu Panchayat.

Manzoor Ahmed for the CDGK.

2009 M L D 341

[Karachi]

Before Salman Ansari, J

QAMAR ABBAS---Petitioner

Versus

Mst. KEHKASHAN SALAHUDDIN through Husband and Attorney---Respondents

Constitutional Petition No.S-435 of 2005, decided on 24th November, 2008.

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

----Ss. 15(2)(i) & 21---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction---Scope---Ejectment of tenant on ground of default in payment of rent---Both Rent Controller and Appellate Court concurrently accepted ejectment application of landlady and ordered ejectment of tenant on ground of default in payment of rent---Tenancy in the case had been initiated on the basis of a tenancy agreement in which period of payment of rent was fixed and the practice of payment of accumulated rent was not condoned by the landlady---Tenant was bound to ensure payment of rent on the terms and conditions and act upon them---Lump sum payment of rent was not accepted by the landlady in the case without protest, which was only due to the circumstances in which tenant had put the landlady into that she at that time accepted the lump sum amount of rent---Such practice, however was never acknowledged by the landlady and eventually she refused to accept the rents which were thereafter tendered only on receiving the notice given by the landlady for 6 months---Tenant could not, make payment of accumulated rent on the ground of practice---No reason was available for interfering with the findings of the two courts below---Decision of Appellate Court required no interference on the point that tenant had committed default in payment of rent---Constitutional jurisdiction of High Court should not be exercised in the case where the courts having jurisdiction over subject-matter had arrived at their respective judgments in which all controversial questions were decided on the basis of the record and in accordance with law---Courts below in the present case had not acted without jurisdiction nor they failed to exercise its jurisdiction nor acted erroneously in exercise of their jurisdiction---High Court, in circumstances could not go into disputed question of fact in exercise of its constitutional jurisdiction---Constitutional Petition was rejected.

Abbas Muhammad Ali and others v. Muhammad Shafi Puri 1998 MLD 1506 (Kar.); Taher Ali and 2 others v. Messrs Sh. Miran Bux, Karam Bux and another 1989 SCMR 403; Sheikh Anisur Rehman v. Muhammad Umer 1992 CLC 1652; Pervaiz Anwar Sajjad v. Ali Muhammad Rashid Fazal Trust PLD 1995 Karachi 361; Mst. Zohra Bai and another v. Messrs Standard Industries Ltd., PLD 1994 Kar. 209; Muhammad Humayun and others v. Member Board of Revenue and others 1997 CLC 363; Messrs Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others 2003 MLD 1033; Hafiz Shafatullah v. Mst. Shamim Jehan and another PLD 2004 Kar. 502; Muhammad Shafif v. Muhammad Afzal Sohail PLD 1981 SC 246; Secretary to Government of Punjab v. Ghulam Nabi and 3 others PLD 2001 SC 415; Amir Ali and others v. Messrs Burma Oil Mills Ltd. 1990 SCMR 1327; Mrs. Mumtaz Sultana Begum v. Mrs. Ishrat Jehan 1989 CLC 639; PLD 2001 SC 415; PLD 1981 SC 246; PLD 2004 Kar. 502 and 2003 MLD 1033 ref.

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

----Art. 199---Constitutional Jurisdiction of High Court---Scope---Constitutional jurisdiction of High Court should not be exercised in the case where the courts having jurisdiction over subject matter had arrived at their respective judgments in which all controversial questions were decided on the basis of the record and in accordance with law---Courts below in the present case had not acted without jurisdiction nor they failed to exercise its jurisdiction nor acted erroneously in exercise of their jurisdiction---High Court, in circumstances could not go into disputed question of fact in exercise of its constitutional jurisdiction.

Iftikhar Javed Kazi for Petitioner.

Moin Azhar Siddiqui for Respondent No.1.

Date of hearing: 22nd November, 2008.

MLD 2009 KARACHI HIGH COURT SINDH 367 #

2009 M L D 367

[Karachi]

Before Sajjad Ali Shah, J

SARFRAZ A. MALIK through Attorney---Petitioner

Versus

Mrs. ANJUM PERVAIZ and 3 others---Respondents

Constitutional Petition No. 33 of 2008, decided on 12th November, 2008.

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

----Ss. 10(2)(4) & 15(2)(i)---Modes of payment of rent---Default in payment of rent---Under provisions of subsection (2) of S.10 of the Sindh Rented Premises Ordinance, 1979 it was the duty of the landlord to acknowledge the payment of rent by issuance of receipt in writing; however, since by virtue of subsection (4) of S.10 of the Ordinance, the tenant had to produce such receipt 'acknowledging payment of rent in order to discharge the burden of proof as placed upon him---Where the landlord refused to issue receipt acknowledging payment of rent, tenant was at liberty to send the rent through money order to deposit the same with Rent Controller---Tenant who would pay the rent to his landlord without a written acknowledgment of rent, would do so at his own risk and would take upon himself burden to prove its payment---Non-payment of rent being a negative fact, if the landlord appeared and stated on oath that he had not received the rent for a certain period, it would be sufficient to discharge the burden that lay under the law upon him and would then shift to the tenant to prove affirmatively that he paid or tendered the rent---Only exception to such rule could be where the landlord admitted non-issuance of rent receipts---Proposition that in cases where the tenant denied issuance of receipt by the landlord, then the burden would be on the landlord to establish that such receipts were issued, did not appeal to mind as it would amount to shifting the burden of tenant upon the landlord; for the reason that the fact regarding issuance of receipt could not be proved by landlord, unless the landlord obtained an acknowledgment from the tenant at the time of issuance of receipt or to produce witnesses to dislodge the claim of tenant which would not only amount to placing the landlord in a disadvantageous position, but would give an unwarranted edge to the tenant upon the landlord, totally against the spirit of law which would further encourage the tenant to simply deny issuance of rent receipts in all cases of default in order to take advantage by shifting the burden of proof upon the landlord---Where the landlord accepted non-issuance of rent receipt, the tenant would be exonerated from the burden as placed upon him by subsection (4) of S.10 of Sindh Rented Premises Ordinance, 1979---In the present case even the tenant having acknowledged occasionally issuance of rent receipt, burden was upon the tenant to either establish payment of rent for the disputed period by adducing satisfactory evidence or to prove non-issuance of rent receipts and same was not upon the landlord.

Laeeq Ahmed v. Mst. Shamshad Anwar 1995 SCMR 214; Naseem Begum v. Mst. Raeesa Khatoon 1997 MLD 1030; Shabbir v. Mujeebur Rehman 1993 CLC 173; Mst. Sidiqua Begum v. Irshad Ali Shah PLD 1999 Kar. 311; Shah Wali v. Ferozuddin 2000 SCMR 718; Ali Muhammad v. Muhammad Aftab 2001 SCMR 1569; Haji M. Usman v. Yousaf Ali Muhammad Bhai 1986 CLC 380; Mst. Fayazai Begum v. Zakiuddin 1986 CLC 1280 and Safeer Travel (Pvt.) Ltd. v. Muhammad Khalid Shafi PLD 2007 SC 504 ref.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court, while exercising constitutional jurisdiction, could not resolve factual controversies, however in the present case, counsel for respondents had totally failed to point out as to what factual controversies were involved in the matter---Case hardly contained any factual controversy, on the contrary, it contained misapplication of law---High Court while exercising constitutional jurisdiction, ordinarily would not undertake to reappraise the evidence to disturb the findings of facts, but it would certainly interfere, if such findings were found to be based on non-reading or misreading of evidence, erroneous assumption of facts, misapplication of law, excess of abuse of jurisdiction and arbitrary exercise of power.

Muhammad Lehrasib Khan v. Mst. Hakim un Nisa 2001 SCMR 338 ref.

Mushtaq A. Memon for Petitioner.

Ghiasuddin Mirza for Respondent No.3.

MLD 2009 KARACHI HIGH COURT SINDH 375 #

2009 M L D 375

[Karachi]

Before Nadeem Azhar Siddiqi, J

SOHAIL FAROOQ SHAIKH---Applicant

Versus

THE STATE---Respondent

Execution Application No.48 of 2007, decided on 18th March, 2008.

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

----O. XXI, Rr.10, 23-A & 58---Application for execution of decree---Objection to sale of properties---Two objections were raised on execution application for the sale of the properties mentioned in execution application---Counsel for objectors had submitted that property owned by female objector had been leased in her favour in the year 1991 even before filing of the suit and same was acquired by her from her own resources without having any help and assistance from the decree-holder---Regarding other properties, counsel for the objectors had submitted that same were acquired by the judgment-debtor from the funds made available by his son and for that reason the said properties were gifted in favour of his son, who was second objector in the matter---Counsel for the decree-holder submitted that female objector was a house-wife and had no independent source of income---Validity---At execution stage question could not be gone into as to who had provided the funds for the purchase of property to the female objector---Title document produced by said objector, was sufficient to prove that property belonged to female objector---Property was leased in favour of female objector even before filing of the suit and it could not be said that judgment-debtor with intention to frustrate the decree had transferred said property in favour of the female objector---Property owned by the female objector was released from attachment, in circumstances---Regarding the properties allegedly owned by second (male) objector, who was son of judgment-debtor, counsel for the decree-holder had submitted that from the gift-deed submitted along with the application, it was clear that gift was made by the judgment-debtor in favour of his son (objector) after passing of the decree in the matter and that the gift was made after passing of the decree to defraud the decree-holder and to avoid execution of the decree---Counsel for objectors had produced certain documents to show that said second (male) objector had received amount through his son from aboard for purchasing the. said property---Contention of counsel for the objectors had no force for the reasons; firstly that the certificate issued by the Bank had not been mentioned the person who had remitted the said amount to the judgment-debtor; secondly that no supporting documents had been filed to link the certificate of the Bank from the transaction of acquiring the property in question; and thirdly the certificates were given after the date of acquiring the property by the judgment-debtor---Said objector was also party to the suit and it appeared that after dismissal of the suit against the objector, the property was transferred in his name to avoid execution of decree---Said objector was claiming the property attached through judgment-debtor who was his father and not independently---Objection application was partly allowed in respect of the property owned by female objector and partly dismissed in respect, of properties claimed by the other male objector.

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

----O. XXI, R.58---Investigation of claims and objection to attachment---For invoking the provisions of O.XXI, R.58, C.P.C., the objector had to prove that he acquired the title in good faith and for consideration subsequent to the date of first attachment.?

Zafar Alam Khan for Applicant.

Tariq Ghani Mansoori for Objector Naseem Akhtar and Arshad Mehmood Choudhry.

MLD 2009 KARACHI HIGH COURT SINDH 389 #

2009 M L D 389

[Karachi]

Before Gulzar Ahmed, J

IMDAD ALI and others---Plaintiffs

Versus

PROFESSIONAL BUILDERS through Attorney and 10 others---Defendants

Suit No.538, C.M.As. Nos. 3168, 3773 of 2002 and 4589 of 2003, decided on 7th November, 2008.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---Civil Procedure Code (V of 1908), O. VII, R.11---Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), Ss.6 & 14---Suit for cancellation of documents, declaration and perpetual injunction---Disposal of evacuee trust property---Rejection of plaint---Land in question, which was claimed by the plaintiffs to have been leased to them by the defendant (Trust) was an Evacuee Trust and its properties were evacuee trust properties---Two !eases of the land in question, did not appear to have any ground to stand on as the land in question being evacuee trust property, defendant (Trust) had no authority to sell or lease same to the plaintiffs and others---Nothing had been placed in the plaint to show as to how Trust became entitled to lease the suit land to the plaintiffs and others, which was an evacuee trust property---Evacuee Trust Properties (Management and Disposal) Act, 1975 had specifically stated that all evacuee trust properties would vest in the Federal Government and the Board had been constituted for the general supervision and control of evacuee trust properties and leases in question, in circumstances were contrary to the provision of said Act---Leases were void instruments and could not be allowed to remain in the field as in the terms of S.39 of the Specific Relief Act, 1877, both leases had to be cancelled---Transaction of the land claimed by the plaintiffs on the basis of two leases, being contrary to the provisions of the Evacuee Trust Properties (Management and Disposal) Act, 1975, the plaintiffs had no cause of action for the suit which was based upon leases which were patently illegal and not sustainable in law nor such leases would confer any right in the properties---Applications under O. VII, R. 11, C.P.C. were allowed and plaint rejected.

Madhavji Dharasibhai v. The Karachi Panjrapur Association PLD 1957 SC 83 and Shiri Mahant Bawa Manobhagir Managalgir v. Divisional Evacuee Trust Committee 1982 CLC 1175 ref.

Mirza Sarfraz Ahmed for Plaintiffs.

Sohail H.K. Rana and Suhail Zafar for Defendant No.1.

Khizar Askar Zaidi, A.A.G. and Ahmed Pirzada for Defendants Nos. 4 to 6.

Shehzad Shahani for Defendants Nos. 9 to 11.

MLD 2009 KARACHI HIGH COURT SINDH 397 #

2009 M L D 397

[Karachi]

Before Azizullah M. Memon and Abdur Rahman Faruq Pirzada, JJ

Messrs SHADAB DEVELOPERS through Managing Partner and another---Appellants

Versus

ABDULLAH through Attorney and 9 others---Respondents

High Court Appeal No.185 of 2007, decided on 4th February, 2009.

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

----Ss. 12, 42 & 54---Civil Procedure Code (V of 1908), O.XII, R.6---Contract Act (IX of 1872), S.29---Sindh Urban State Land (Cancellation of Allotments, Conversions and 'Exchanges) Ordinance (III of 2001), Ss.3 & 5---Suit for performance of agreement, declaration, injuntion and direction---Agreements for sale were executed between the plaintiffs and defendants wherein it was categorically mentioned that the property in question had been frozen by the Provincial Board of Revenue, and the vendor was under liability to pay the differential amount of Malkano for getting the said property released from the Board of Revenue---Said agreements also mentioned that the required amount shall be paid directly by the vendor to the Board of Revenue for the release of subject land after the issuance of challan from the Board of Revenue---Parties, in circumstances, admittedly had entered into a contingent agreement and the land in question was not entirely free from encumbrances, and having been frozen, was to be released after fulfilling certain conditions---Sale agreements, in such a situation, could be termed as void and not capable of being executed/enforced---Provisions of O.XII, R.4,, C.P.C. were not attracted in the present case, as the respective parties had entered into an agreement which was a contingent agreement, being subject to fulfilment of certain conditions and the subject land already stood cancelled at the time of making the sale agreements---Defendants, in circumstances, had not made any unequivocal and unconditional admission---Order under O.XII, R.6, C.P.C. could certainly be passed, provided the admissions of defendants were specific, clear, unambiguous, categorical and definite.

Amir Bibi through legal heirs v. Muhammad Khurshid and others 2003 SCMR 1261; Macdonald Layton and Company Pakistan Ltd. v. Uzin Export-Import Foreign Trade Co. and others 1996 SCMR 696 and Kassamali Alibhoy v. Shaikh Abdul Sattar PLD 1966 (W.P.) Karachi 75 fol.

Fazal Mahmood v. Sardar Khan and others PLD 1996 Kar. 475; H. Gharibullah v. Mst. Mumtaz Begum and others 1990 CLC 1609; Mrs. Haseena v. Mrs. Shafqat Malik PLD 2001 SC 1224; Amir Ali v. Indus Entertainment (Pvt.) Ltd. and others 2004 YLR 1576; and G.R. Syed v. Muhammad Afzal 2007 SCMR 433; Messrs Gerry's International (Pvt.) Ltd. v. Messrs Qatar Airways PLD 2003 Karachi 253; Amir Bibi through Legal Heirs v. Muhammad Khurshid and others 2003 SCMR 1261; Maconald Layton and Company Pakistan Ltd. v. Uzin Export-Import Foreign Trade Co. and others 1996 SCMR 696 and Kassamali Alibhoy v. Shaikh Abdul Sattar PLD 1966 (W.P.) Karachi 75 ref.

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

----O. XII, R.6---Applicability of Order XII, R.6, C.P.C.---Requirements---Held, in order to attract the provisions of O.XII, R.6, C.P.C. the requirement of law was that the admission should be unequivocal, clear, unconditional and unambiguous---Where the parties had entered into an agreement which was a contingent agreement, being subject to fulfilment of certain conditions, it could not be asserted that the party (vendor) had ever made an unequivocal and unconditional admission.

Dr. Muhammad Farogh Naseem for Appellants.

Mushtaq A. Memon for Respondents Nos.1 to 5.

Muhammad Sarwar Khan, Addl. A.G., also holding brief for Ahmed Pirzada, Advocate for Respondent Nos. 6 to 10.

Date of hearing: 16th January, 2009.

MLD 2009 KARACHI HIGH COURT SINDH 429 #

2009 M L D 429

[Karachi]

Before Nazim Hussain Siddiqui and Ghulam Rabbani, JJ

MURAD JALAL and others---Petitioners

Versus

PAKISTAN DEFENCE HOUSING AUTHORITY, KARACHI through Administrator---Respondent

Constitutional Petition No. D-1286 of 1998, decided on 8th February, 1999.

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

----Ss. 54 & 55---Constitution of Pakistan (1973), Art.199---Constitutional petition---Sale of property---Petitioners had claimed that they had purchased property in question from a lady who was owner thereof, through her attorney, by virtue of registered sale-deed---Petitioners had alleged that respondent by illegally exercising its power, got a Security Guard posted at said property---Petitioner had prayed to direct the respondent to remove its Security Guard from said property to enable them to enjoy the peaceful possession of the property in the interest of justice---Case of respondent was that said property was the property of Consulate General of Iraq who had purchased it through a registered conveyance deed---Petitioners had alleged that alleged sale-deed in favour of said Consulate General, was a forged document which was on simple plain paper and did not show that the stamp duty was paid thereon---Counsel for the petitioners had submitted that the Consulate General for the last 20 years did not take any interest in said property, nor paid any taxes during said period, nor deputed any Guard over that nor approached the respondent or any other Authority in Pakistan for looking after the same---Property in dispute was not shown to have been purchased by the Consulate after having obtained necessary permission from the Government of Pakistan---Counsel for the petitioner stated that. facts individually and collectively indicated that the property was never purchased by the Consulate General---Record neither showed that said Consulate Genera; nor Iraqi Embassy had ever approached any Authority in Pakistan in respect of said property---Validity---Held, it could not be believed that property in question was purchased only to be left unattended and as to when the said property was taken over by the respondent---Respondent, in circumstances, was directed that possession of the property be delivered back to the petitioner and the Guard posted there be removed.

Ilamdin Khattak for Petitioners.

Khalid Mehmood for Respondent.

Date of hearing: 29th January, 1999.

MLD 2009 KARACHI HIGH COURT SINDH 446 #

2009 M L D 446

[Karachi]

Before Gulzar Ahmed, J

HASHIM AHMED and another---Plaintiffs

Versus

AZAM QIDWAI KHAN---Defendant

Suit No. 770 of 2007, decided on 23rd September, 2008.

Arbitration Act (X of 1940)---

----S. 20---By consent of the advocates of the parties, sole Arbitrator was appointed to decide the dispute between the parties---Both parties agreed that until the arbitration was concluded they would maintain status quo in respect of properties in question---Arbitration would be undertaken by the Arbitrator in accordance with Arbitration Act, 1940.

Haidar Waheed for Plaintiffs.

Anwar Muhammad for Defendant.

2009 M L D 506

[Karachi]

Before Mushir Alam and Arshad Siraj, JJ

Messrs LISKO PAKISTAN (PVT.) LTD.---Petitioner

Versus

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

Constitutional Petition No.D-473 of 2006, decided on 5th October, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Petitioner had impugned the action of authorities whereby petitioner was declared qualified to undertake contract work of the authorities---Contract period was stated have been over---Constitutional petition was rendered infructuous---Petitioner, however, reserved its right, if not considered in accordance with law in subsequent tender---Constitutional petition was disposed of as infructuous along with pending applications.

Raja Qureshi for Petitioner.

Zafar Khan for Respondent.

MLD 2009 KARACHI HIGH COURT SINDH 510 #

2009 M L D 510

[Karachi]

Before Wajihuddin Ahmad and Agha Rafique Ahmed Khan, JJ

ABDUL MUJEEB PATEL---Petitioner

Versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY through Administrator and others---Respondents

Constitutional Petition No.2206 of 1995 and Miscellaneous No. 1589 of 1996, decided on 20th May, 1996.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Transfer of plot---Petition involved a dispute where the Authority was not entertaining a purported transfer of plot in favour of petitioner on the ground .that the transferor of said plot was not made available for doing the needful---Authority had further maintained that the purported 'transfer papers allegedly executed in 1975 were submitted not earlier than 1990---Contention of the petitioner was that a power of attorney was executed by the purported transferor in favour of brother of the petitioner---Authority had alleged that executant of said power of attorney did not present himself in the office of the Authority---Petitioner in relation to the address of alleged executant of power of attorney, had provided only the address of his own brother which was highly irregular---Taking a lenient view of the matter, the petitioner was required to provide the address of the alleged transferor himself---Such address was though provided, but that person was not served---Petitioner, in the interest of justice, was permitted by High Court to file fresh petition as and when proper address of the executant would be available.

Mumtaz Ahmed Shaikh for Petitioner.

Khalid Mehmood for Respondent. No.1.

MLD 2009 KARACHI HIGH COURT SINDH 515 #

2009 M L D 515

[Karachi]

Before Gulzar Ahmed, J

MUSHEER AHMED BHATTI and another---Plaintiffs

Versus

PROVINCE OF SINDH through Secretary to Government of Sindh and 3 others---Defendants

Suit No. 705 of 2007, decided on 22nd January, 2009.

Specific Relief Act (I of 1877)---

----S.12---Sindh Gothabad (Housing Scheme) Act (VII of 1987), S.3---Contract Act (IX of 1872), Ss.10, 23 & 24---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for specific performance of sale agreement in respect of 1340 sq. yard. plot situate in urban area---Vendor-original allottee's title claimed to be based on a Sanad issued by Mukhtiarkar, Sindh Gothabad---Running of marble factory on suit plot by plaintiff---Refusal of Government to act upon such Sanad for its being fake and illegal---Validity---Under S.3 of Sindh Gothabad (Housing Scheme) Act, 1987, maximum land to be alloted for construction of a house to a deserving person was two Ghuntas (240 sq. yards.) only---No justifiable claim of ownership of suit-land could be based on disputed Sanad for not being a legal Sanad exceeding two Ghuntas---Running of factory on suit-land was contrary to scheme of Sindh Gothabad (Housing Scheme) Act, 1987---Suit agreement for being based on such illegal Sanad was not only void on ground of mistake as to legal existence of its corpus, but was also void on ground that its object was illegal implying usurpation of State property---Suit agreement being not legally enforceable, no right could be based thereon and no cause of action on its basis could legally be founded to maintain a suit---Plaint was rejected under O.VII, R.11, C.P.C.

Younus Inayat for Plaintiffs.

Naheed Naz for the State.

Moazam Baig for Defendants No.3.

Ahmed Pirzada for Defendants Nos. 1 and 2.

Sami-ur-Rehman, for Defendant No. 4.

MLD 2009 KARACHI HIGH COURT SINDH 538 #

2009 M L D 538

[Karachi]

Before Gulzar Ahmed, J

GHULAM MUSTAFA---Plaintiff

Versus

RASHID AKBAR ANSARI and others---Defendants

Suit No. 1389 of 2008, decided on 19th January, 2009.

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

----Ss. 12, 42 & 54---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration, specific performance of sale agreement and permanent injunction---Rejection of plaint---Plaintiff claimed to have entered into an agreement to sell with defendant for purchase of suit property for consideration---Plaintiff had described the defendant as sole and absolute owner and sufficiently entitled to the suit property having authority to transfer/sell the same to the plaintiff---On the other hand counsel for the defendant had contended that agreement relied upon by the plaintiff was false and fabricated and that defendant was not the owner of suit property nor had authority to sell the same to the plaintiff---Plaintiff had annexed with plaint an agreement of sale arrived at between the original owner of the suit property and father of defendant---By said agreement original owner of suit property through his attorney had agreed to sell suit property to the father of defendant---Original owner having failed to transfer suit property to the father of defendant, a suit for specific performance of said agreement was pending between the original owner and the father of the defendant---Validity---No mention was in the alleged sale agreement arrived at between the plaintiff and the defendant that defendant was the attorney of his father nor such fact was at all pleaded in the plaint by the plaintiff---No authority, whatsoever, was either pleaded in the plaint or filed with the plaint to show that defendant was authorized by the original owner to sell the suit property to the plaintiff---Neither father of the defendant himself was a party to agreement allegedly arrived at between the plaintiff and defendant nor he was a party in the suit---Father of defendant would have no interest or charge in the suit property, merely on the basis of agreement of sale arrived at between him and the original owner, nor he would have any right and entitlement in law to sell suit property to the plaintiff either by himself or through his son/defendant---Plaint and its annexures, made it clear that defendant was neither the owner of suit property nor he had any authority from the original owner to transfer the same to the plaintiff---Relief of declaration and specific performance as sought in the suit by the plaintiff, could not be validly granted---Alleged agreement to sell, did not in law provide to the plaintiff a cause of action for maintaining the suit---Plaint was rejected under O.VII, R.II, C.P.C., in circumstances.

Burmah Eastern Ltd. v. Burmah Eastern Employees Union and others PLD 1967 Dacca 190; Rashid Ahmed v. Federation of Pakistan through Secretary Ministry of Communication (Communication Division) Islamabad and another 1998 SCMR 405; Rasheed Ahmed Khokar v. Sanaullah 1997 CLC 1159; Mst. Rasheeda Abdul Rehman Lahoor Hussain 2007 CLC 1372; Haji Adam Ali Agaria v. Asif Hussain 1996 MLD 322; Muhammad Sharif v. Noor Ilahi PLD 1994 Pesh. 255; Sajid Saeed v. Inam-ul-Haq 2007 MLD 1622; Prince Aziz-ur-Rasheed Abbasi v. Begum Katherine Abbasi 2005 MLD 1940 and Miss Gul-e-Rana v. Muhammad Mansoor Khan 2000 CLC 1673 rel.

(b) Power of Attorney Act (VII of 1882)---

----Ss.2 & 4---Qanun-e-Shahadat (10 of 1984), Art.95---Power-of-attorney---Execution of---Requirements---Sections 2 & 4 of the Power of Attorney Act, 1882, provided that power of attorney had to be created by an instrument---Article 95 of Qanun-e-Shahadat, 1984, required the courts to presume every document purporting to be a power of attorney which was executed before and authenticated by a Notary Public or any court or representative of the Federal Government---Power of attorney had to be a written document---Unless the power of attorney in the shape of written document was filed before the court, neither any assumption of its existence could be made nor the court would make any presumption as required under Art. 95 of Qanun-e-Shahadat, 1984.

----S. 54---Contract of sale---Section 54 of Transfer of Property Act, 1882 had provided that a contract for sale of immovable property was a contract exhibiting that sale of such property would take place on terms settled between the parties---It would not, by itself, create any interest in or charge on such property.

Mehmood Habibullah for Plaintiff.

Abrar Hassan for Defendant No.1.

MLD 2009 KARACHI HIGH COURT SINDH 556 #

2009 M L D 556

[Karachi]

Before Azizullah M. Memon and Abdur Rahman Faruq Pirzada, JJ

Mst. HAMEEDA SHAMIM and others---Appellants

Versus

DEPUTY COMMISSIONER and 7 others---Respondents

High Court Appeal No.5 of 2000 and C.M.As. Nos. 1887 and 1888 of 2008, decided on 4th February, 2009.

Civil Procedure Code (V of 1908)---

----O. XLI, R.17---Limitation Act (IX of 1908), S.5---Applications for restoration of appeal dismissed in default and for condonation of delay---Held, disputes between the parties pertaining to the pending litigation be heard and decided on merits instead of in summary manner and not on the basis of technicality, as such both restoration application as well as application for condonation of delay were allowed in High Court appeal; delay was condoned and the dismissal order was recalled and appeal was restored to file for disposal on merits, with the condition that the appellant/applicant shall pay cost of Rs.10,000 to the respondents within 30 days from the date of announcement of the present order, failing which both the applications shall be deemed to have been dismissed.

Muhammad Naimur Rehman for Petitioners.

Muhammad Sarwar Khan Advocate General Sindh along with Hafizullah Khan, Representative of Board of Revenue.

Nadeem Akhtar for Respondent No.6.

MLD 2009 KARACHI HIGH COURT SINDH 591 #

2009 M L D 591

[Karachi]

Before Syed Mahmood Alam Rizvi, J

Prof. Dr. ALI MUHAMMAD ANSARI---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.231 of 2007, decided on 20th October, 2008.

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

----S.497(5)---Penal Code (XLV of 1860), S.408---Cancellation of bail, refusal of---F.I.R. was lodged after three months of the occurrence---Nothing incriminating had been recovered from the accused and he was no more required for investigation---Bail in offences punishable with imprisonment for less than ten years was a rule and refusal thereof an exception---Earlier, bail application had been dismissed as at that time accused had sought pre-arrest bail---Impugned order passed by Sessions Court granting bail to accused was well elaborated and did not suffer from any illegality, hence the same needed no interference---Petition for cancellation of bail was dismissed accordingly.

PLD 1995 SC 34 ref.

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

----S.497---Bail in cases not falling within prohibitory clause of S.497, Cr.P.C.---Principle---Bail in offences punishable with imprisonment for less than ten years is a rule and its refusal is an exception.

PLD 1995 SC 34 ref.

Muhammad Waseem Samo for Applicant.

Asadullah Baloch for the State.

Nawaz Mirza for Respondent No.2.

MLD 2009 KARACHI HIGH COURT SINDH 594 #

2009 M L D 594

[Karachi]

Before Salman Ansari, J

MUHAMMAD FAISAL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1094 of 2008, decided on 9th October, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.392---Bail, grant of---No person had sustained any injury and trial had not been concluded while accused was in continued custody since 13-9-2006---Accused was released on bail, in circumstances.

Shahbaz Ali v. The State 2008 MLD 178; Walidino alias Guddo v. The State 2005 YLR 3219 and Muhammad v. The State 1998 SCMR 454 ref.

Kabeer Ahmed for Applicant.

Ms. Farah Naz for the State.

MLD 2009 KARACHI HIGH COURT SINDH 602 #

2009 M L D 602

[Karachi]

Before Munib Ahmad Khan and Farrukh Zia G. Shaikh, JJ

Messrs Moulana MUHAMMAD ALI JAUHAR MEMORIAL COOPERATIVE HOUSING SOCIETY LTD. through Honorary Secretary---Petitioner

Versus

CITY DISTRICT GOVERNMENT, KARACHI through the District Coordination Officer and 5 others---Respondents

C.P. No.D-265 and C.M.A. No. 979 of 2005, decided on 19th February, 2008.

Co-operative Societies Act (VII of 1925)---

----S. 17-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Approval and cancellation of building plan---Petitioner Society was objecting to the construction on a plot on the ground that there was no record of ownership of respondent but it was that of another person and the Karachi Building Control Authority had entertained proposed building plan and approved the same---Claim of respondent was that he was purchaser of the plot in dispute from some other two persons which was sold by said person to them and that he was holding the plot under the registered sale deed---No objection was raised on the part of said another person in that respect---No dispute was on record from the previous owner of the plot and respondent was holding the property in dispute under registered-deed---Petitioner Society would have acted in terms of its own Bye-laws as well as S.17-B of Co-operative Societies Act, 1925 and would have mutated the property in dispute in its record in the name of respondent, but it did not do so---Karachi Building Control Authority had wrongly cancelled the approved building plan without realizing the legal position that its approval was on the basis of proper and legal documents and it should have not yielded to the pressure of the petitioner Society---House on said plot was completed in all aspects in terms of the approved building plan without any violation and same had already been occupied---No reason in circumstances existed for filing constitutional petition and the issue could have been solved at the stage of officials of the petitioner Society adopting a proper and reasonable way and thus should have saved the time of the High Court---Constitutional petition was dismissed with heavy costs.

Aamir Aziz Khan for Petitioner.

Khawaja Shamas-ul-Islam for Respondent No.6.

Arif Bilal Sherwani.

Muhammad Shahid Jamiluddin for KBCA.

Zafar Ahmed Khan for CDGK.

MLD 2009 KARACHI HIGH COURT SINDH 605 #

2009 M L D 605

[Karachi]

Before Ghulam Dastagir A. Shahani, J

KAMRAN alias KAMI -Applicant

Versus

THE STATE---Respondent

Bail Application No.1139 of 2008, decided on 5th November, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.365/392/506---Bail, grant of---F.I.R. in the case was registered after about one month from the incident without any explanation of said delay---Accused was not arrested on spot, but his arrest was shown after about one month from registration of F.I.R. in an other case---Recovery of one mobile set and music player was alleged to have been recovered after about one month of registration of F.I.R.---Identification parade was also arranged after about one month of registration of F.I.R.---Person who was shown by the Police as an eye-witness of the case, did not appear before the court for identification parade---Police record was also silent and nothing was on record, to show whether complainant appeared and was examined by the Doctor in respect of alleged injury sustained by the complainant on his hand---Prima facie no one was the witness of the incident, except that when complainant was returning with his brother, he saw his motor car parked at the same place from where he was kidnapped by accused---All witnesses, except one were Police personnel, who according to prosecutions had not appeared in the court for the purpose of identification---Rule of lesser punishment in circumstances could not be over-ruled---Tentative assessment was to be made and no deeper appreciation was required at bail stage---Accused was admitted to bail, in circumstances.

Ahmed Khan Bugti for Applicant.

Ms. Fatima Jameela Jatoi for the State.

MLD 2009 KARACHI HIGH COURT SINDH 611 #

2009 M L D 611

[Karachi]

Before Salman Ansari, J

NAZAR MUHAMMAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 839 of 2008, decided on 27th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, refusal of----Accused was not entitled to bail on the ground of consistency as co-accused who was granted bail by the High Court was not named in the F.I.R., whereas accused had been named in the F.I.R.---Even though complainant had not supported the prosecution case and was declared hostile by the prosecution, so also the prosecution witness, but initial version of the case could not be wiped off where the F.I.R. was lodged immediately on the day of the occurrence; and the weapon being the hatchet was recovered from accused having allegedly caused multiple injuries in a brutal double murder---Material witnesses had yet to be examined and sufficient material was on record to connect accused with the offence, he was not entitled to the concession of bail even though he had been in custody since long.

Ghulam Nabi Shaikh for Applicant.

Muhammad Iqbal Kalhoro Special Addl. Prosecutor General for Respondent.

MLD 2009 KARACHI HIGH COURT SINDH 614 #

2009 M L D 614

[Karachi]

Before Afzal Soomro, C.J. and Khawaja Naveed Ahmed, J

HABIB-UR-REHMAN---Petitioner

Versus

THE STATE---Respondent

C.P. No.D-2431 of 2007, decided on 14th January, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Bail, grant of---Co-accused whose role was almost similar to that of accused had been granted bail and the prosecution had not moved any application for cancellation of his bail--Bail granting order passed by High Court had attained finality, in circumstances---Rule of consistency demanded that accused should also be extended same concession---Accused, in circumstances were entitled to the grant of bail on the rule of consistency---Bail was granted.

Ali Ahmed Junejo and Muhammad Asif Malik for Petitioner.

Ainuddin Khan, ADPG, NAB for Respondent/State.

Date of hearing: 14th January, 2008.

MLD 2009 KARACHI HIGH COURT SINDH 628 #

2009 M L D 628

[Karachi]

Before Muhammad Afzal Soomro and Syed Pir Ali Shah, JJ

HUMAN SAFETY FOUNDATION through Authorized Representative---Petitioner

Versus

GOVERNMENT OF SINDH through Chief Secretary, and 11 others and ---Respondents

Constitutional Petition No.D-1463, Misc. Nos.5880 and 5355 of 2007, decided on 19th March, 2008.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Sanctioning installation of large size of billboards by different authorities within their respective areas of the City---Petitioner's plea was that installation of such billboards were dangerous to human lives and violative of right to life as guaranteed by Constitution, 1973---Validity---Authorities in compliance of order of the High Court had removed all illegal billboards---Certain casualties had occurred due to falling of billboards installed unlawfully---High Court directed concerned authorities to remain vigilant and take preventive measures to avoid such casualties---High Court disposed of petition with observation that petitioner for recovery of compensation could seek separate remedy.

None present for Petitioner.

Muhammad Sarwar Khan, A.A.G. for Respondent No.1.

Manzoor Ahmed for Respondent No.2.

Muhammad Ali Mazhar for Respondent No.9.

Muhammad Sarfaraz Sulehri for Respondent No.10.

Ainuddin Khan for Respondent No.11.

None present for rest of the Respondents.

MLD 2009 KARACHI HIGH COURT SINDH 637 #

2009 M L D 637

[Karachi]

Before Farrukh Zia G. Shaikh, J

IRSHAD ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S.-646 of 2008, decided on 13 November, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Further inquiry---Counsel for accused in support of bail application had contended that deceased had contracted her marriage with accused on which complainant party was annoyed--Counsel had filed a copy of free will affidavit sworn by deceased, which had clearly indicated that she had contracted marriage with her own free will with accused by leaving house of her parents---Accused could not be believed to have murdered his wife as both had contracted love marriage---Prosecution witness who, according to the contents of the F.I.R., was said to be the eye-witness of the incident, in his statement under S.164, Cr.P.C. had exonerated accused and had stated in clear words that he had not seen the incident and that his name had falsely been mentioned in the F.I.R. by the complainant, which had created a serious doubt in the case---Case of accused fell under subsection (2) of S.497, Cr.P.C. as further enquiry was necessary for determining the guilt of accused---Accused was admitted to bail, in circumstances.

Allah Bakhsh v. Nazar Hussain Shah and another 1979 SCMR 137; Syed Amanullah Shah v. The State and another PLD 1996 SC 241; Payoo Khan and another v. The State and another 2004 PCr.LJ 869; Waris Khan v. The State 2001 SCMR 387; Mureed and 2 others v. The State 2003 SCMR 64; Nazir Ahmad v. Muhammad Ismail and another 2004 SCMR 1160 and Ehsan Akbar v. The State and 2 others 2007 SCMR 482 ref.

Maqbool Ahmed Awan for Applicant.

Amanullah G. Malik for the Complainant.

Agha Ather Hussain, Assistant Advocate General Sindh for the State.

MLD 2009 KARACHI HIGH COURT SINDH 645 #

2009 M L D 645

[Karachi]

Before Salman Ansari, J

NOOR JAHAN alias BHOORI through L.Rs.---Applicant

Versus

Mst. ANJUM MUGHEES and 3 others---Respondents

R. Appln. No.123 of 2008, decided on 4th February, 2009.

Limitation Act (IX of 1908)---

----Ss.5 & 12---Limitation, computation of---Condonation of delay---Principle---Failure to give date of preparation of copy---Appeal filed by petitioner was dismissed by Lower Appellate Court being time barred---Validity---Section 12 of Limitation Act, 1908, provided that only such period in obtaining certified copy of judgment was to be excluded which was consumed by copyist in preparation of copy---Any delay because of petitioner could not be taken for extension of period of limitation---As no receipt was furnished to petitioner showing date when copies were to be received after preparation and due to ailment of counsel of petitioner, therefore, delay in collection of certified copy was not due to gross negligence of petitioner or his counsel---Where dispute was regarding rights over property of parties closely related inter se, merely deciding appeal as time barred would not serve ends of justice, when no gross negligence was shown---Lower Appellate Court should have condoned delay in filing of appeal as sufficient cause for the same had been shown as envisaged under S.5 of Limitation Act, 1908---High Court set aside the order passed by Lower Appellate Court and remanded appeal for decision afresh on merits---Revision was allowed in circumstances.

Iftikhar Ali v. Sh. Abdul Rashid and others 2003 SCMR 1560 and Mst. Anisa Begum v. Atiq-ur-Rehman 2007 MLD 1385 ref.

Karamatullah for Applicant.

M. Ehsan-ul-Haq for Respondent.

MLD 2009 KARACHI HIGH COURT SINDH 652 #

2009 M L D 652

[Karachi]

Before Dr. Qamaruddin Bohra, J

Master MUHAMMADULLAH and 4 others---Plaintiffs

Versus

KARACHI ELECTRIC SUPPLY CORPORATION through Managing Director---Defendant

Suit No. 1272 of 2006, decided on 19th May, 2008.

Fatal Accidents Act (XIII of 1855)---

----S.1---Fatal accident---Amount of compensation---Distribution of amount among legal heirs of deceased---Cheque of amount of compensation as determined and received from defendant issued in the name of widow of deceased was handed over to her---Said amount was directed to be deposited in some profit bearing Government Scheme for the benefits of five minors of the deceased---Widow of deceased being mother of the minors and their natural guardian ad litem would be entitled to withdraw the profits accrued on the deposited amount for up keep of minor children on moving proper application before the High Court.

Nasir Maqsood for Plaintiffs.

Farhan Khan holding brief for K.A. Shirazoe for Defendant and stated that latter is an general adjournment.

Saleemur Rahman legal Advisor of KESC is present.

MLD 2009 KARACHI HIGH COURT SINDH 655 #

2009 M L D 655

[Karachi]

Before Abdul Rasheed Kalwar, J

KHALIL AHMED---Petitioner

Versus

Moulana Shaikh MUHAMMAD KHALIL and 2 others---Respondents

Constitutional Petition No.S-461 of 2008, decided on 4th March, 2009.

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

----Ss. 15 & 23---Criminal Procedure Code (V of 1898), S.476---Penal Code (XLV of 1860), Ss. 193 & 195---Ejectment proceedings---Application for awarding punishment to respondent for having committed perjury by making false statement against petitioner during such proceedings---Validity---Provision of Sindh Rented Premises Ordinance, 1979 did not find mention of S.476, Cr.P.C. except S.480, Cr.P.C. mentioned in S.23 of Sindh Rented Premises Ordinance, 1979---Offence of giving false evidence defined in S.193, P.P.C. fell within category of offences falling under Ss.476 and 195, Cr.P.C.---Sections 175, 178, 179, 180 and 228, P.P.C., falling under category of S.480, Cr.P.C. would not cover allegation of petitioner---Legislature had intentionally avoided to apply S.476, Cr.P.C. to proceedings under Sindh Rented Premises Ordinance, 1979---Such application was dismissed in circumstances.

Abdullah Tang v. Saleem 2001 PCr.L. 1976; Asad Mumtaz v. Naima Khanum 1973 Law Notes 548 Lah. And AIR 1923 Nagar 258 ref.

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

----Art. 199---Constitutional petition---Concurrent findings of Courts below---Validity---Constitutional petition has limited scope---High Court as a general rule would not substitute such findings with its own findings.

Khalil Ahmed in person.

Saleem Akhtar, Addl. P.G. for Respondent.

MLD 2009 KARACHI HIGH COURT SINDH 667 #

2009 M L D 667

[Karachi]

Before Salman Ansari, J

SHAFIQUR REHMAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.1011 of 2008, heard on 10th September, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss.6/9---Bail, refusal of--6.25 Kgs of charas Garda was alleged to have been recovered from accused; it would not appeal to mind that such a huge quantity of narcotics could be foisted against accused persons by the Police without previous enmity between the Police, witnesses and accused for false implication--Witnesses were yet to be examined by the prosecution whose presence was shown at the time of recovery---Delay, if any, in sending the narcotics for chemical examination, would not, in any way, prejudice the case of accused persons, as neither any mala fide act had been alleged against them nor same could be inferred----Delay per se should not prejudice case of accused persons---Considering that huge quantity of charas had been recovered from accused and the prosecution had yet to produce the evidence, no case of bail was made out.

Shaukat Mehmood and another v. The State 2000 PCr.LJ 1752 ref.

Muhammad Iqbal for Applicants.

Ms. Fatima Jameela Jatoi, State Counsel.

MLD 2009 KARACHI HIGH COURT SINDH 674 #

2009 M L D 674

[Karachi]

Before Sajjad Ali Shah, J

Syed AFZAL ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1350 of 2008, decided on 18th December, 2008.

Criminal Procedure Code (V of 1898)---

----Ss.497 & 103---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Bail, grant of---Crime was offshoot of main cases registered against accused under Ss.6/9(c) of Control of Narcotic Substances Act, 1997 and under Ss.353/324/34, P.P.C., wherein accused had been enlarged on bail upon observing violation of S.103, Cr.P.C.---Accused was admitted to bail, in circumstances.

Ubedullah Awan for Applicant.

Ms. Fatima Jameela Jatoi for the State.

MLD 2009 KARACHI HIGH COURT SINDH 679 #

2009 M L D 679

[Karachi]

Before Nadeem Azhar Siddiqi, J

ABDUL HADI and others---Plaintiffs

Versus

JAMIA MASJID EID GAH and another---Defendants

Suit No.1218 of 2003, decided on 16th September, 2008.

Civil Procedure Code (V of 1908)---

----S. 11, & O.VII, R. 11---Suit for declaration and permanent injunction---Rejection of plaint---Res judicata, doctrine of---Applicability---Scope---Doctrine of res judicata was of universal application and was based on principle that public policy demanded that one cause should not be tried for the second time between the same parties; and there must be an end to the litigation---Section 11, C.P.C., in fact prohibited a court from trying any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties, or between the parties under whom they or any of them claimed, litigation under the same title in a court competent to try such subsequent suit or the suit in which such issue had been subsequently raised and had been heard and finally decided by such competent court---Present suit had been filed with the same prayer, on the same subject matter and against the same parties as arrayed in two suits which had already been decided; and the judgments therein had attained finality and it was not open to the plaintiffs to again raise same cause before the court---Present suit, in circumstances, was hit by the principle of res judicata---Plaint was rejected, in circumstances.

K.A. Wahab for Plaintiffs.

Nazar Akbar for Defendant No.1.

Muqeem Alam for Defendant No.2.

2009 M L D 726

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Athar Saeed, JJ

ALL KARACHI MILK RETAILERS WELFARE ASSOCIATION, KARACHI through President and another---Petitioners

Versus

DISTRICT CO-ORDINATION OFFICER, KARACHI and 21 others---Respondents

Constitutional Petition No. D-225 of 2007, decided on 6th March, 2007.

Sindh Essential Commodities Price Control and Prevention of Profiteering and Hoarding Act, 2005 (IX of 2006)---

----Ss.2(a) & 7---Sindh Local Government Ordinance (XXVII of 2001), S.195---Constitution of Pakistan (1973), Art.199---Constitutional petition---Fixation of price of milk---Fixation of price having been regulated and controlled under the Sindh Essential Commodities Price Control and Prevention of Profiteering and Hoarding Act, 2005, petitioner and other stakeholders had unanimously contended that no meaningful deliberation took place between the retailers, wholesalers and producers of milk on the one, hand and the District Controller appointed/ notified in terms of S.2(a) of the said Act and other relevant state functionaries---High Court, to resolve the controversy, ordered that District Controller appointed by the Government would convene and chair a meeting to be attended by the petitioner and respondents who would nominate their representatives; that committee so constituted would deliberate on all the relevant factors to arrive at just and fair price of milk at the stage of production, and for wholesalers and retailers in case of fresh milk and tetrapack milk that all stakeholders would attend the office of District Controller as nominated by the Government; that on first date of meeting the committee would plan out the relevant factors to be taken into consideration for determining fair price of milk at all three levels i.e. production, wholesale and retail and that District Controller would issue notification of fair price; that exercise of arriving at a fair price within the contemplation of S.7 of Sindh Essential Commodities Price Control and Prevention of Profiteering and Hoarding Act, 2005, would be made within 60 days---Counsel for City District Government undertook to examine regulating price of the milk---City District Government could take action for non-compliance of the licensing provisions by milk sellers, in terms of the policy as framed under item 61 of the VI Schedule to the Sindh Local Government Ordinance, 2001 in terms of S. 195 Sindh Local Government Ordinance, 2001.

Niam-ur-Rehman for Petitioner.

Manzoor Ahmed for CDGK.

Kazim Hassan for Respondents Nos. 7 and 8.

Mirza Sarfraz Ahmed for Respondents Nos. 10, 17, 19 and 21.

MLD 2009 KARACHI HIGH COURT SINDH 732 #

2009 M L D 732

[Karachi]

Before Khilji Arif Hussain and Arshad Noor Khan, JJ

Messrs COMMERCIAL METAL through Manager---Appellant

Versus

M. KHURSHID ISLAM and 2 others---Respondents

H.C.A. 136 and C.M.A. No. 786 of 2008, decided on 12th February, 2009.

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

----O.XXI, Rr. 85 & 86---Non-payment of balance amount by purchaser within 30 days fixed by Court---Application for return of bid money deposited by purchaser before acceptance of his bid---Forfeiture of bid money by executing court---Validity---After confirmation of sale, court could forfeit bid amount deposited by purchaser on his failure to deposit balance amount within such time---Court while hearing such application could order that purchaser was not entitled to such withdrawal and could pass order for confirmation of sale and thereafter on his failure to deposit same, could order for forfeiture of bid money---Without acceptance of bid, purchaser was neither required to deposit balance amount nor could an order for forfeiture of bid money be passed---High Court directed for return of bid money to purchaser.

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

----O.XXI, Rr. 82, 84 & 85---Frustration of sale by withdrawal of bid money deposited by highest bidder before acceptance of his bid---Effect---High Court emphasized on incorporation of an additional condition in auction notice that highest bidder/lower bidder could not withdraw bid money before acceptance or rejection of bid---Principles.

Ishrat Zahid Alvi for Appellant.

None present from the Advocate General Office.

2009 M L D 747

[Karachi]

Before Agha Rafiq Ahmed Khan, J

MAZHAR HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos. S-531 of 2006 and S-420 of 2006, decided on 30th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.302/34---Bail before arrest, refusal of---Names of both accused persons appeared in F.I.R.; they were armed with pistols along with main accused, who was said to have committed the murder of his wife---Statement of two eye-witnesses had been recorded under S.164, Cr.P.C. in presence of co-accused; they had given full account of the incident in their statements---Said eye-witnesses had stated that accused were armed with pistols and were accompanying main accused in committing that heinous crime---Prosecution witness had stated that accused persons who were armed with pistols threatened the witnesses and thereafter left the place of wardat---Section 34, P.P.C. was very much attracted to the facts of the case---Accused persons as per evidence had facilitated main accused in committing the crime---Bail before arrest should not be granted to accused persons in ordinary circumstances---Accused persons had failed to establish the main ingredients of grant of bail before arrest as it could not be said that they had been falsely involved with mala fide intention in the case---Accused, in circumstances, were not entitled to bail before arrest---Interim pre-arrest bail already granted to accused, was re-called.

Abdul Haleem Lakho v. Abdul Karim and others 2005 SCMR 1539; Fakir Babar Khan v. The State 2007 PCr.LJ 352; Darya Khan and others v. The State 2006 MLD 1958; Attaullah and 3 others v. The State and another 1999 SCMR 1320 and Faraz Akram v. The State 1999 SCMR 1360 rel.

Syed Madad Ali Shah along with Manzoor Hussain and Mazhar Hussain for Applicants.

Mehmood Alam Abbasi for the Complainant.

Anwar H. Ansari for the State.

MLD 2009 KARACHI HIGH COURT SINDH 759 #

2009 M L D 759

[Karachi]

Before Khliji Arif Hussain and Arshad Noor Khan, JJ

Mst. UMM-E-ROMAN---Petitioner

Versus

REGULATORY AUTHORITY OIL & GAS, ISLAMABAD through Chairman and another---Respondents

C.P. No. D-1893 of 2008, decided on 14th March, 2009.

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

----Art. 199---Constitutional petition---Maintainability---Bill for value of gas consumed after partial passing of unregistered gas from meter---Report of Gas company finding petitioner's meter to be "jerky"---Validity---Question of quantum of bill or report regarding tampering of meter being disputed question of facts could not be examined in writ jurisdiction---High Court dismissed constitutional petition in circumstances.

PLD 1977 Lah. 852 and Nagina Bakery v. Sui-Southern Gas Co. Ltd. 2001 CLC 1559 ref.

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

----Art.199---Bill issued by Gas Company demanding value of gas consumed by petitioner after passing of unregistered gas through meter---Report of company finding meter to be "jerky"---Constitutional petition challenging such demand by company---Maintainability---Constitutional petition would not be maintainable against private limited company for not performing it duties under supervision and control of Federal Government, Provincial Government or any other body functioning with Government---Such company for being functioning under provisions of Companies Act, 1913 and Companies Ordinance, 1984 could not be treated as a company functioning under authority of Government or. State---High Court dismissed constitutional petition in limine.

Nagina Bakery v. Sui-Southern Gas Co. Ltd. reported in 2001 CLC 1559 and Maqsood Ahmed Toor v. Federation of Pakistan through Secretary to Government of Pakistan, Ministry of Housing and Works, Islamabad and another 2000 SCMR 928 rel.

S. Ansar Hussain for Petitioner.

Asim Iqbal for Respondent No 2.

None present for Respondent No.1.

MLD 2009 KARACHI HIGH COURT SINDH 765 #

2009 M L D 765

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

Mirza KHUSRO and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail No.298 of 2007, decided on 17th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Interim pre-arrest bail, confirmation of---Civil litigation between the parties was pending in the court of law and institution of F.I.R. was a counter-blast which was lodged after considerable delay which had not been explained properly---Documents showed that complainant was not owner of the property, but he left the rented premises after termination of tenancy; and a dispute was pending as accused had filed suit against landlord, whereas a counter-blast suit had been filed by the complainant---Interim pre-arrest bail was confirmed on the same terms and conditions---Accused persons were directed to associate with investigation as and when directed.

Fiaz H. Shah for Applicants.

Haji Abdul Majeed for the State.

MLD 2009 KARACHI HIGH COURT SINDH 769 #

2009 M L D 769

[Karachi]

Before Abdul Rasheed Kalwar, J

DHAROON through Attorney---Applicant

Versus

Mst. BACCHI through L.Rs. and 3 others---Respondents

Civil Revision Application No. 111 of 2007, decided on 20th. February, 2009.

Civil Procedure Code (V of 1908)---

----S.115---Limitation Act (IX of 1908), Ss. 5 & 29(2)---Revision---Application for condonation of delay of 28 days---Validity---Period of limitation for filing civil revision was not provided by Limitation Act, 1908, thus, provision of S.5 thereof would not apply due to embargo contained in S. 29(2) thereof---Revision was time-barred---High Court dismissed application and revision in circumstances.

None present for the Parties.

MLD 2009 KARACHI HIGH COURT SINDH 773 #

2009 M L D 773

[Karachi]

Before Ali Sain Dino Metlo, J

EJAZ ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.356 of 2008, decided on 29th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.8 & 9---Qanun-e-Shahadat (10 of 1984), Art.38---Bail, grant of---Allegation against accused was that he was Deputy Assistant Director in the Airport Security Force and was on duty at the airport on relevant day and was required to help the passengers in the clearance of their goods which he had failed to do---Investigating Agency could not collect any evidence, except confessional statements of co-accused, who allegedly stated before the Investigating Officer that accused was requested by them to help accused persons in the clearance of their goods---Special Prosecutor had conceded that except for the confessional statements of co-accused before the Investigating Officer, no evidence was available against accused---Article 38 of Qanun-e-Shahadat, 1984 provided that confessional statement of an accused before an Investigating Officer, was inadmissible in evidence and same could not be used even against its maker not to talk of any other person---Reasonable grounds, in circumstances, were not available to believe that accused was guilty of offence---Case being fit for the grant of bail to accused was directed to' be released on bail.

Muhammad Faisal Sail for Applicant.

Ashfaq Hussain Rizvi, Special Prosecutor.

MLD 2009 KARACHI HIGH COURT SINDH 779 #

2009 M L D 779

[Karachi]

Before Abdur Rehman Faruq Pirzada, J

MUHAMMAD HAYAT---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.389 of 2007, decided on 9th October, 2008.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 337-H(ii), 147 & 148---Bail, grant of---Further inquiry---Accused, as per prosecution, being armed with gun T.T. Pistol and allegedly made ineffective firing upon the complainant party, whereas co-accused directly fired with Kalashnikov upon deceased, who died due to such fire-arm injuries---At bail stage, it could not be ascertained as to whether accused could be held vicariously liable for the commission of alleged offence---Said question could be appropriately determined at the stage of trial, when sufficient material would be brought forth on record---Incident, according to the prosecution, occurred at night time and the identification of accused was made in the torch light only---Identification in the light of torch was a weak piece of evidence and implicit reliance could not be placed on it, especially when the torch in question was never produced during investigation---Background of previous enmity existed between the parties---Simple abscondence of accused should not come in the way of grant of bail as accused would be entitled to bail under S.497(2), Cr.P.C. as a matter of right and not as a matter of , concession---Case of accused requiring further enquiry to establish his guilt, as envisaged by S.497(2), Cr.P.C., he was entitled to the concession of bail.

Qalib Abbas v. The State 2000 PCr.LJ 464; Laiq Muhammad v. The State 2000 PCr.LJ 1229; Muhammad Sadiq and another,v. The State 1996 SCMR 1654; Sharbat and another v. The State 2003 MLD 1191; Muhammad Saeed Mehdi v. The State 2002 SCMR 282; Mubashir Ahmed v. The State 1989 PCr.LJ 244; The State v. Mukhtar Ahmed Awan 1991 SCMR 322; Jam Sadiq Ali v. The State 1989 PCr.LJ 1910; Abdul Wahab v. The State 2003 YLR 1915; Sirajuddin v. Kala PLD 1964 SC 26; Nasij Gul v. Khalid Khan 1989 SCMR 899; Sher Ali v. The State 1998 SCMR 190; 2004 PCr.LJ 1785 and 1995 PCr.LJ 1316 rel.

(b) Criminal trial---

----Abscondence---Categories of abscondence: Two categories of abscondence viz., the persons who escape and become absconders with a guilty mind; and the persons who could be innocent, but they abscond being scared of the repercussions of a criminal case lodged against them.

Asif Ali Abdul Razzak Soomro and Asif Safdar Ghauri for Applicant.

Altaf Hussain for the State.

MLD 2009 KARACHI HIGH COURT SINDH 785 #

2009 M L D 785

[Karachi]

Before Amir Hani Muslim, J

IMTIAZ HUSSAIN---Plaintiff

Versus

MUHAMMAD ANWAR KHETANI---Defendant

Suit No. 453 and C.M.As. Nos. 11914 and 11915 of 2008, decided on 29th January, 2009.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of sale agreement---Plaintiff had failed to place on record any material to show that the amount which, as per Schedule was agreed in the sale agreement between the parties, was offered on or before stipulated date---In a suit for specific performance of a contract, the party approaching the court had to show that it was ready and willing to perform its part of the contract, and that other side was either avoiding or had refused to perform his part of the contract---Plaintiff had failed to show from his conduct that he was ready and willing to perform his part of the contract---Plaintiff in the court had made a statement that he did not have money to pay balance sale consideration---Defendant in the given circumstances was justified to forfeit the amount received from the plaintiff on cancellation of the sale agreement in terms of the agreement---Plaintiff had further lost his right to institute suit seeking specific performance as he himself had failed to perform his part of contract within the stipulated period by not making payment within the Schedule----Relief of specific performance was a discretionary relief and the plaintiff had to establish that he was ready and willing to perform his part of the contract and had taken positive measures to fulfil the same, which fact was not reflected either in the pleadings or in the documents annexed with the plaint coupled with the statement of the plaintiff in court---Equity demanded that continuance of proceedings, which were discretionary in nature, exposing the defendant to recurring losses, must come to an end----Suit was dismissed, in circumstances.

Muhammad Sadiq for Plaintiff.

Masood Khan Ghory for Defendant No.1.

Izhar Muhammad for Defendant No.2.

MLD 2009 KARACHI HIGH COURT SINDH 796 #

2009 M L D 796

[Karachi]

Before Khawaja Naveed Ahmad, J

SULTAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.84 of 2007, decided on 29th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Bail, grant of---Further inquiry---Counter cases 'existed between the parties and one side had already been granted bail---All co-accused had been granted bail by the High Court as well as by the Trial Court and only the accused was left confined in jail---State Counsel had stated that in the cases of counter-version, both the parties were to be kept at par and did not oppose grant of bail to accused---High Court refrained from making any comments on the merits of the case as that could prejudice the case of either party---Keeping in view the said principle to be exercised in the case of counter-version it was yet to be determined at the trial as to which party was aggressor---Accused was admitted to bail under S.497(2), Cr.P.C. holding the case as one of further inquiry.

Siraj Ahmed Chandio for Applicant.

Asif Ali Abdul Razzak Soomro for the Complainant.

Naimatullah Bhurgri for the State.

MLD 2009 KARACHI HIGH COURT SINDH 810 #

2009 M L D 810

[Karachi]

Before Mushir Alam and Muhammad Afzal Soomro, JJ

Capt. MUHAMMAD IQBAL---Petitioner

Versus

FEDERATION OF PAKISTAN, through Secretary and another---Respondents

Constitutional Petition No.D-1224 of 2005, decided on 2nd February, 2007.

Pakistan Defence Officers Housing Authority Order (7 of 1980)---

----Art. 17(h)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Allotment of plot made by the Society before its dissolution---Cancellation of allotment of such plot---Foundation of allotment of plot to the petitioner rested on misrepresentation---One could not be allowed to retain ill-gotten gain---Lease/allotment in favour of petitioner being illegal void ab initio, was of no effect and would not create any right or privilege in favour of petitioner in respect of said plot---Authorities were quite competent to cancel the allotment of plot under proviso (1) of Art.17(h) of Pakistan Defence Officers Housing Authority Order, 1980---Court would not come to aid of a person to retain a benefit or privilege to which he was not entitled at the very inception---Constitutional jurisdiction was a discretionary jurisdiction which could only be invoked in aid of justice and not to perpetuate injustice---Constitutional petition was dismissed.

Mustafa Lakhani v. Pakistan Defence Officers Housing Authority Karachi PLD 2005 Kar. 188; Pakistan Defence Officer Housing Authority Karachi v. Munir Ahmed Ghulam Mustafa Akhtar 2006 SCMR 178 and Yousaf Ali Case PLD 1958 SC 104 rel.

Muhammad Saleem Mangrio for Petitioner.

Khalid Jawaid for Respondent No.3.

MLD 2009 KARACHI HIGH COURT SINDH 818 #

2009 M L D 818

[Karachi]

Before Muhammad Athar Saeed, J

Syed KAMRAN and another---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1287 of 2006, decided on 7th May, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Bail, application for---Counsel for accused persons had submitted that he would be satisfied if the directions were issued to the Trial Court to complete hearing of the case and dispose of the same within a period of two months after the vacancy in the court had been filled in---Eight witnesses having already been examined and five more were required to be examined, request of counsel for accused persons appeared to be reasonable---To meet the ends of justice, directions were issued to the Trial Court to ensure that as soon as the vacancy in the court concerned was filled in, he would be directed to conduct the case on day to day basis and dispose of the case preferably within a period of three months from the date of filling of such vacancy.

Ali Jaffar for Applicant.

Ms. Afsheen Aman, State Counsel.

MLD 2009 KARACHI HIGH COURT SINDH 823 #

2009 M L D 823

[Karachi]

Before Salman Ansari, J

Mst. MUMTAZ BANO and 6 others---Petitioners

Versus

ABBAS HASSAN and 3 others---Respondents

Constitutional Petition No. S-325 and C.M.A. No. 3114 of 2008, decided on 13th February, 2009.

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

----S.15---Civil Procedure Code (V of 1908), Ss. 114, 151 & O. XLVII, R.1---General Clauses Act (X of 1897), S.21---Constitution of Pakistan (1973), Art. 199---Ejectment order passed by Courts below---Disposal of constitutional petition by High Court without notice to landlord giving two years time instead of 60 days time given to tenant by Appellate Court for vacating premises---Application for recalling such order of High Court under S.21 of General Clauses Act, 1897 read with Ss.114, 151 & OXLVII, R.1, C.P.C.---Validity---No party could be condemned unheard by Court in exercise of its powers---Where basic norms of justice had not been adhered to, then Court could review its order causing grave miscarriage of justice to one of the parties---High Court in order to avoid any injustice being caused could exercise power to review impugned order even under S.21 of General Clauses Act, 1897---Courts below had given concurrent findings in favour of landlord, thus, decision of case without hearing him would cause prejudice to his case---High Court disposed of such application by reducing period granted for vacating premises from two years to one year.

Khawaja Muhammad Razzaq v. Dr. Sultan Mehmood Ghouri and another 2007 SCMR 1866; Masood Jan v. Muhammad Shaban PLD 1984 (Kar.) 139; Mst. Allah Rakhi v. Mst. Raj Bibi and others PLD 1957 (W.P.) Lah. 70; N.Q. Industries v. Mrs. Bapai Kaikhusro PLD 1968 (Kar.) 589; Muhammad Shafi v. Messrs Bambino Ltd. and another 1983 CLC 985; Messrs Bambino Ltd. v. Messrs Selmor International Ltd. and another PLD 1983 SC 155; Haseen Ahmed Khan v. Irshad Khan PLD 1987 (Kar.) 16; Sultan Mahmood v. Anwar Ahmed 1986 SCMR 118; Rahim Jan v. Mrs. Z. Ikram Gardezi and others PLD 2004 SC 752 and Ch. Ijaz Sarwar v. Nadeem Farooq and another 2004 CLC 1525 ref.

S.A. Jalib Choudhry for Petitioners.

S.M. Akhtar Rizvi for Respondent No.1.

MLD 2009 KARACHI HIGH COURT SINDH 833 #

2009 M L D 833

[Karachi]

Before Mrs. Qaiser Iqbal, J

AQIL MIAN---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Applications Nos. 119 and 127 of 2007, decided on 5th September, 2007.

Penal Code (XLV of 1860)---

----Ss.420/468/471/109---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal Procedure Code (V of 1898), S.561-A---Quashing of proceedings, application for---Co-accused had been acquitted on the ground that no evidence was available against him with the prosecution showing his involvement in collusion with other co-accused in the occurrence---Role of accused was that he had put endorsement on the case that the original documents were seen and returned---Criminal case could not be decided on the basis of a civil suit---Question of loss caused to the complainant, did not arise as he had already proceeded to record compromise in a civil suit---Complainant seemed to have no interest to pursue the F.I.R. lodged against applicants/accused as he did not appear before the Trial Court despite the lapse of six years---Statements of material witnesses recorded by the Trial Court did not implicate the applicants in the commission of the crime---Inordinate delay in disposal of the case having resulted in abuse of the process of law, charges levelled against accused persons/applicants were groundless-Accused were acquitted from the charges levelled against them, and they being on bail, bail bond stood cancelled and sureties stood discharged.

Ali Ahmed Junejo and Abdul Ghafoor Khan for Applicants.

Ms. Afsheen Aman for the State.

MLD 2009 KARACHI HIGH COURT SINDH 846 #

2009 M L D 846

[Karachi]

Before Sarmad Jalal Osmany and Ali Sain Dino Metlo, JJ

SHEHRI CBE---Petitioner

Versus

CITY DISTRICT GOVERNMENT, KARACHI through District Coordination Officer and 3 others---Respondents

Constitutional Petition No. D-1221 of 2004, decided on 8th August, 2007.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Supplying of approved building plan---Prayer in constitutional petition was general in nature basically confining to supplying of approved building plan by the Building Control Authority to the citizens as well as other bodies---Constitutional petition was disposed of by the High Court with the direction to the. authorities to provide copies of the approved building plans etc. to any citizen of the country as well as N.G.Os. regarding the buildings which were being constructed within their jurisdiction upon payment of requisite fees.

Abdur Rehman for Petitioner.

Manzoor Ahmed for the CDGK.

Dilawar Hussain for KBCA.

MLD 2009 KARACHI HIGH COURT SINDH 850 #

2009 M L D 850

[Karachi]

Before Muhammad Afzal Soomro, C.J.

SHARMILA FAROOQUI---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.137 of 2007, decided on 7th December, 2007.

Illegal Dispossession Act (XI of 2005)---

----Ss.3 & 5---Criminal Procedure Code (V of 1898), Ss.200 & 439---Complaint---Locus standi of proposed accused in complaint case---Proposed accused had no locus standi in a criminal complaint, unless the Trial Court would take cognizance of the case---Person complained against had no right of participation, until cognizance of the matter was taken by Court---Issuance of notice to accused by the Trial Court was out of boundaries settled in a complaint case---Trial Court should have adopted the procedure as envisaged in S.5 of Illegal Dispossession Act, 2005---All the documents relied upon by the proposed accused were unregistered---Case, in circumstances, had to proceed on the enquiry report submitted by the Police---Impugned order was set aside and case was remanded to the Trial Court with direction to proceed with the matter by adopting the procedure as envisaged in S.5 of Illegal Dispossession Act, 2005 and conduct the trial according to law Riaz Ahmed v. The Additional Sessions Judge Gujrat and another 1995 PCr.LJ 14; Mushtaque Ahmed v. Muhammad Saleem and 2 others 1995 PCr.LJ 1900; Azmat Bibi and another v. Asifa Riaz and 3 others PLD 2002 SC 687; Lt. Col. (Ret) Tariq Latif v. Mst. Jamila Sultana and another 2006 PCr.LJ 476; Jassumal and others v. The State and another PLD 1962 (W.P.) Kar. 326; Syed Muhammad Ahmed v. The State 1972 SCMR 85; Sajjad Hussain v. The State PLD 1997 Kar. 165; Mst. Nasreen Bibi v. Sub-Registrar/M.I.C. Model Town, Lahore 2000 YLR 47; Haji Muhammad Ashiq v. The State and another 2006 MLD 491; Mirza Shaukat Baig and others v. The State PLD 2005 SC 530; Captain S. M. Aslam v. The State PLD 2006 Karachi 221; Noor Zada v Muhammad Khalid and 6 others 2007. PCr.LJ 891 and Hafiz Muhammad Siddiqui Anwar v. Faisalabad Development Authority and others 2007 SCMR 1126 rel.

Amir Mansoor Qureshi for the Proposed Accused.

Abdul Jabar Lakho, Asstt. A.-G. for the State.

MLD 2009 KARACHI HIGH COURT SINDH 856 #

2009 M L D 856

[Karachi]

Before Munib Ahmad Khan, J

GHULAM ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.344 of 2008, decided on 20th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)(c)---Bail, grant of---Further inquiry---Though there was alleged recovery of 1 Kg and 90 grams of Charas, but it had not been mentioned as to what was position of packets/parcels or pieces when those were recovered nor it was mentioned in F.1. R. that any piece was taken from it for sending it to the Chemical Examiner---Version of prosecution, that entire property was sealed, its identity as Charas, in circumstances was very much doubtful---State counsel had also noted said serious defects on the part of prosecution and was unable to point out as Jo how the substance was sent to the Chemical Examiner----Factual position in respect to detaching the part of the substance for Chemical Examination was missing---F.I.R. had been lodged by A.S.-I. and not the S.I.P. as per requirement of law---Case of accused was on the border line of Ss.9(b) & 9(c) of Control of Narcotic Substances Act, 1997 as only 1 Kg. and 90 grams had been recovered---In view of the fact that no effort had been made towards ascertainment as to whether recovered substance was Charas or not, case of accused having become of further inquiry, he was admitted to bail.

Jai Jai Veshno Mange Ram for Applicant.

Nisar Ahmed Abro, State Counsel.

MLD 2009 KARACHI HIGH COURT SINDH 858 #

2009 M L D 858

[Karachi]

Before Sarmad Jalal Osmany and Ali Sain Dino Metlo, JJ

MUHAMMAD SAEED REHMANI---Petitioner

Versus

CITY DISTRICT GOVERNMENT, KARACHI through District Coordination Officer and 2 others---Respondent

Constitutional Petition No. D-366 of 207, decided on 28th August, 2007.

Constitution of Pakistan (1973)---

----Art.199 Constitutional petition--- Allotment of plot---High Court disposed of the petition by directing the Authority to allot the petitioner an alternate plot as the one allotted to him, in the Colony was an amenity one which could not be converted for residential use per settled law---Petitioner was willing to surrender the documents of the plot in the colony and Authority was willing to restore the original plot, allotted to his son in another Scheme---Petitioner though had no vested right to get the alternate plot of his choice; whereas the Authority was willing to restore the original plot allotted to the petitioner---Petitioner could not say that he would not accept that offer---Petition and all the listed applications were disposed of by directing the petitioner to surrender the documents of the plot whereafter the original plot, allotted to the petitioner's son in the other Scheme, would be restored to the petitioner's son.

Petitioner present in person.

Muhammad Anwar Tariq and Manzoor Ahmed (EDO) Law.

MLD 2009 KARACHI HIGH COURT SINDH 864 #

2009 M L D 864

[Karachi]

Before Munib Ahmad Khan, J

SIKANDAR ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 70 of 2007, decided on 4th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Bail, grant of---Unexplained delay of thirty four days in lodging F.I.R.---Trial Court had not given explicit reason for rejecting bail and that was no ground that if accused was granted bail, then recovery of the crime property would become difficult; or that the absconding accused would not be arrested---Accused was behind the bars for the last more than eight months---State counsel had conceded to the bail due to fact that of abnormal delay with no recovery---Accused was admitted to bail, in circumstances.

Muhammad Aslam Jatoi for Applicant.

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

MLD 2009 KARACHI HIGH COURT SINDH 865 #

2009 M L D 865

[Karachi]

Before Ghulam Dastagir A. Shahani, J

GULBAHAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.103 of 2008, decided on 25th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149---Bail, grant of---Though active role was assigned to accused of firing upon deceased, but complainant as well as prosecution witnesses and the widow of deceased had sworn their affidavits exonerating accused---Possibility of compromise could not be ruled out in view of said affidavits ---Statements of prosecution witnesses were recorded after delay of about 8 months without any plausible explanation---Accused was admitted to bail, in circumstances.

Ali Muhammad and another v. The State PLD 2002 Kar. 125 and Muhammad Nawaz v. The State 1991 SCMR 111 ref.

Ali Gul Shaikh for Applicant.

Mushtao Ahmed Abbasi, Assist, A.G. for the State.

MLD 2009 KARACHI HIGH COURT SINDH 876 #

2009 M L D 876

[Karachi]

Before Kh. Naveed Ahmed, J

MUHAMMAD TAHIR KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. 26 of 2008, decided on 3rd November, 2008.

Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1860), Ss.365-A, 392, 393 & 395/34---Quashing of order---Application for---Accused was booked in F.I.R. under S.392/34, P.P.C. and Police had registered the case under Ss.365-A, 395 & 393, P.P.C.---Police, after investigating the case, found it false and had submitted their report in the court of Judicial Magistrate, who had taken its cognizance and had issued non-bailable warrants against accused persons and sent the case to the Sessions Court concerned---Offence under S.365-A, P.P.C. was a Scheduled offence and was exclusively triable by the Anti-Terrorism Court; its challan or report was required to 'be submitted before the Administrative Judge/ Anti-Terrorism Court, who was always a sitting High Court Judge---Administrative Judge registered the case and then transferred the same to the Anti-Terrorism Court for disposal according to law---Impugned order of the Judicial Magistrate was without jurisdiction and was set aside---Investigating Officer was directed to withdraw the papers from the Court of Judicial Magistrate/Sessions Judge and submit the same before Administrative Judge Anti-Terrorism Court for disposal according to law.

Aamir Mansoob Qureshi for Applicant.

None present for the State.

MLD 2009 KARACHI HIGH COURT SINDH 892 #

2009 M L D 892

[Karachi]

Before Salman Talibuddin, J

PAKISTAN INSULATIONS (PVT.) LTD.---Plaintiff

Versus

Messrs RANHILL ENGINEERS AND CONSTRUCTORS DDFC GROUP OF COMPANIES through General Pakistan Operations Manager and 2 others---Respondents

Suit No.403 and C.M. A. No.2230 of 2008, decided on 29th April, 2009.

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

----Ss. 20 & 41(b)---Limitation Act (IX of 1908), Art.181---Civil Procedure Code (V of 1908), Ss.15 & 20---Grant of application under S.20, Arbitration Act, 1940---Conditions---Territorial jurisdiction of court-Extent-Limitation-Principles.

The conditions that have to be met before an application under S. 20 Arbitration Act, 1940 may be granted are as follows:---

(a) That there should be a pre-existing arbitration agreement between the parties;

(b) That the parties should not have taken any steps under sections 3 to 19 of the Arbitration Act, 1940 prior to the institution of the section 20 application;

(d) That the section 20 application is not barred by limitation; and

(e) That the court to which the section 20 application has been made has jurisdiction in the matter to which the agreement relates.

Within the context of an application under section 20 of the Arbitration Act, 1940 all that the plaintiff needs to establish is the existence of an arbitration agreement between the parties and prima facie existence of a dispute between them that is capable of being referred to arbitration in accordance with their agreement. If this burden has been discharged, and provided the other conditions set out above have been met, an order granting the application will follow.

"A court having jurisdiction in the matter to which the agreement relates" can only mean that an application under section 20 of the Arbitration Act, 1940 is competent if it is filed in a court that has jurisdiction to entertain a suit the subject-matter of which is the subject-matter of the arbitration agreement. In other words, before entertaining a section 20 application the court must be satisfied that the disputes referred to arbitration are such as can be made the subject of a suit, and if a suit were filed in respect of the subject-matter, it would lie in it.

Question of jurisdiction has to be determined with reference to the provisions of sections 15 to 20, C.P.C. Of these, the provision that is relevant for the present case is section 20(c) of the Code pursuant to which a suit is competent if it is filed in a court within the local limits of whose jurisdiction the whole or a part of the cause of action arose. If a cause of action has arisen within the territorial jurisdiction of a court, then an application under section 20 can be filed in that court.

In the present case, the dispute raised by the plaintiff was a breach by the Consortium of its obligation to make payment under the subcontract. Clearly this was a dispute that could be made the subject of a suit.

In a suit on a contract the cause of action will consist of the making of the contract and of its breach at the place where it is to be performed. Therefore, an action for breach of contract can at the option of the plaintiff be brought either at the place where the contract was made or the place where the breach was committed.

Accordingly, a part of the cause of action arose at place and court had jurisdiction to entertain the suit.

The time within which an application under section 20 of the Arbitration Act, 1940 must be filed is Article 181 of the Limitation Act, 1908, which provides that such an application should be filed within three years from the date on which the right to apply accrues.

Where a section 20 application has been filed and is maintainable, the court is empowered by section 41(b) of the Arbitration Act, 1940 to make orders in respect of any of the matters set out in Second Schedule of the Act.

While there can be no doubt that in appropriate cases the court may make an order in respect of any of the matters set out in the Second Schedule to the Arbitration Act, 1940 including an order securing the amount in difference in the reference, such an order is within the discretion of the court and will not be passed unless the person seeking such relief establishes a strong prima facie case; establishes that the balance of convenience is in his favour; and also that he would suffer irreparable injury if the relief sought was not granted.

Being equitable in nature, it is also imperative that the person seeking such relief comes before the court with clean hands and does not seek to obtain the order on the basis of a misstatement.

When order to refer the matter to the arbitration was obtained on the basis of a misrepresentation of the facts this alone disentitles the plaintiff from confirmation of that order.

Ali Muhammad v. Muhammad Shafi PLD 1996 SC 292; Pir Sabir Shah v. Shad Muhammad Shah, Member Provincial Assembly, N.-W.F.P. PLD 1995 SC 66; Dr. Salahuddin v. Revenue Commissioner, Balochistan PLD 1978 Quetta 61; Mian Nawaz Sharif v. Sardar Farooq Ahmad Khan Laghari 1996 CLC 1714; State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393; Kadir Motors (Regd.) Rawalpindi v. National Motors Ltd., Karachi 1992 SCMR 1174; Chaudhry Mehtab Ahmed v. Mir Shakeel-ur-Rehman 2004 MLD 662; Das Consultants Private Ltd. v. National Mineral Development Corporation Ltd. AIR 1981 Cal. 202; Fauji Foundation v. Yousaf 1985 CLC 2799; Salem Chemical Industries v. Bird & Co. (P) Ltd. AIR 1979 Mad. 16; Ratan Lalji Gulab Chand v. Dali Chand AIR 1954 Hyd. 39; Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. 2003 CLD 309 and Commodities Trading International Corporation v. Trading Corporation of Pakistan Ltd. 1987 CLC 2063 ref.

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

----O. XXI, R.46 & O.XXXVIII, R.5---Application seeking garnishee order---Attachment of property before judgment---Scope---Garnishee order could be passed in execution proceedings under O.XXI, R.46, C.P.C. but only after the debt had been judicially determined---Where the plaintiff had a disputed claims, the order sought fell within the purview of O.XXXVIII, R.5, C.P.C. which empowered the court to order attachment of property before judgment---Such an order, however, could not be passed lightly and the person seeking the same must satisfy the court, by affidavit or otherwise, that there was imminent danger of the defendant disposing of the whole or any part of his property or of the defendant removing the whole or any part of his property from the local limits of the jurisdiction of the court--Under O.XXXVIII, R.5, C.P.C. it was not only this that the court must be satisfied about but also that the defendant was about to do so with the intention of obstructing or delaying the execution of any decree that may be passed against him---Attachment before judgment could not be claimed merely on the ground that the defendant was a foreigner and did not own any assets in Pakistan---Where there was nothing on the record to show that any property was about to be disposed of or taken away with intent to obstruct or delay the execution of any decree that may be passed in favour of the plaintiff---Application seeking garnishee order was declined.

Balagamwala Oil Mills (Pvt.) Ltd. v. Shakarchi Trading A.G. 1990 Kar. 1; New Bengal Shipping Company v. Eri Lancaster Stump PLD 1952 Dac. 22; H. Nizam Din & Sons Ltd., Karachi v. M. V. "Oroomee" and 4 others PLD 1977 Kar. 722 and Associated Drillers Ltd. Karachi v. Dirk Verstoop B.V. PLD 1979 Kar. 734 ref.

Muhammad Ali Mazhar for Plaintiff.

Asad Abbas Zaidi for Defendants Nos.1 and 2.

Nemo for Defendant No.3.

MLD 2009 KARACHI HIGH COURT SINDH 911 #

2009 MLD911

[Karachi]

Before Munib Ahmad Khan, J

Messrs OCEANIC INTERNATIONAL (PVT.) LTD.---Petitioner

Versus

Messrs LALAZAR ENTERPRISES, and others---Respondents

C.P. No.S-352 of 2008, decided on 20th April, 2009.

(a) Evidence---

----Recording of evidence---Purpose---Knowledge of Judge---Judicial notice---Scope---By bringing evidence on particular issue, purpose of evidence of parties is that exact factual position as well as relevancy of connected material be brought to the knowledge of Court to enable it to pass an order---In certain situations Judge has his own knowledge in respect to facts or material which is connected with issue involved in case, e.g. environmental condition, pollution in country, poverty and increase in prices etc.---If knowledge of Court itself is beneficial towards decision of one issue then there is no restriction under law that such knowledge was not to be exercised.

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

----Ss.8 & 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Fair rent---Determining factors---Increase in labour charges---On application filed by landlord, Rent Controller increased rent of premises from Rs. 1.25 per square foot per month to Rs.12/- per square foot, which rent was further increased to Rs.17/- per square foot by Lower Appellate Court---Validity---Lower Appellate Court also considered increase in labour charges though the same was not factor given in S.8 of Sindh Rented Premises Ordinance, 1979, but overall situation going on in country could be apprehended by Court itself to visualize overall impact of inflation and increase on existing rent and rent could be enhanced accordingly---Keeping in view evidence of witnesses recorded by Rent Controller and taking notice of general increase in every item, High Court maintained order of increase by Lower Appellate Court to the extent of Rs.17/- per square foot per month from the date of application with further 10% annual increase---All four factors given in S.8 of Sindh Rented Premises Ordinance, 1979, were not necessary to be available at one time but rent could be increased on the basis of factors available---High Court declined to interfere with the order passed by Lower Appellate Court but modified the same to the extent that increase in fair rent so fixed would be implemented in terms of S.9 of Sindh Rented Premises Ordinance, 1979, i.e. after three years from date of fixation of fair rent---Petition dismissed accordingly.

2000 SCMR 1242; PLD 2005 Kar. 554; 2001 SCMR 671 and 2001 SCMR 1103 ref.

Khalid Javed Khan for Petitioner.

Raja Qasit Nawaz Khan for Respondent No.1.

MLD 2009 KARACHI HIGH COURT SINDH 935 #

2009 M L D 935

[Karachi]

Before Nadeem Azhar Siddiqi, J

Syed MAZHAR IMAM RIZVI---Petitioner

Versus

Mst. YASMIN BANO and 2 others---Respondents

Constitution Petition No. S-499 of 2008, decided on 30th April, 2009.

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

----S.15---Ejectment of tenant---Landlord and tenant relationship---Determination---Jurisdiction of Rent Controller---Dispute with regard to ownership and title of property cannot be decided by Rent Controller and the same exclusively falls within the jurisdiction of Civil Court---Mere denial of relationship of landlord and tenant does not result in automatic dismissal of ejectment application, which can only he dismissed on such ground if from averments made and documents filed by parties in rent case it cannot be ascertained as to whether relationship of landlord and tenant exists between the parties or not.

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

----S.15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Ejectment of tenant---Landlord and tenant relationship---Electricity bill whether a proof of ownership---Scope---Eviction order was passed by Rent Controller against tenant and the same was maintained by Lower Appellate Court---Tenant assailed both the orders on the ground that no relationship of landlord and tenant existed between both the parties---Validity---Tenant did not file any title document in respect of premises before Rent Controller and had thought it prudent to rely on electricity bill which was not a title document---Tenant also filed a copy of purported allotment order issued by a private construction company which was also not a title document---Even if such allotment order was document issued by government agency like KDA, CDGK etc. it would have been given due consideration but allotment order issued by private party without subsequent' documents like payments made to construction company, lease deed / sale deed etc. the same was of no help to petitioner---Constitutional jurisdiction of High Court could be invoked if it was shown that order was perverse and suffered from some illegality and irregularity---Constitutional jurisdiction of High Court could not be used as a substitute of second appeal---Tenant failed to demonstrate to such effect---High Court in exercise of Constitutional jurisdiction declined to interfere with concurrent orders passed by two Courts below---Petition was dismissed in circumstances.

Abdul Hameed v. Abdul Rasheed 1981 SCMR 527; Abdul Razzak v. Muhammad Yasin 1993 MLD 224; Fariduddin and another v. Mehboob Ali 1994 SCMR 1485; Rahmat Khan v. Mst. Hamida 1993 SCMR 1685; Amir Ahmed v. Irshad Ahmed 1993 CLC 1074 and Baboo Din v. Nasroo 1995 MLD 1460 ref.

----Each party to litigation has to succeed on the strength of its own case and not on weakness in the case of other party.

S.M. Salam Kazmi for Petitioner.

Khursheed Ahmed Qureshi for Respondent.

Date of hearing: 3rd April, 2009.

MLD 2009 KARACHI HIGH COURT SINDH 948 #

2009 M L D 948

[Karachi]

Before Khilji Arif Hussain and Dr. Qamaruddin Bohra, JJ

NATIONAL LOGISTIC CELL through Commanding Officer NLC---Appellant

Versus

ABDUL QAYYUM KHAN and 2 others---Respondents

H.C.As. Nos.336 to 338 of 2005, decided on 20th November, 2008.

(a) West Pakistan Civil Courts Ordinance (II of 1962)---

----S. 7 [as amended by Sindh Civil Courts (Amendment) Ordinance (XXX of 2002)], S.2---Original jurisdiction of the Courts in Karachi Districts in civil suits and proceedings was increased up to thirty lac rupees from 18th September, 2002 by Sindh Civil Courts (Amendment) Ordinance, 2002---All proceedings of value not exceeding original or appellate pecuniary jurisdiction of District Court pending in High Court immediately before the commencement of the Amendment Ordinance, stood transferred to concerned District Courts for disposal---Plaintiff, in the present case, filed three suits on the date when the suits were instituted, same were rightly presented in the High Court, but after amendment of S.7 of Sindh Civil Courts Ordinance, 1962 by S.2 of Sindh Civil Courts (Amendment) Ordinance, 2002, being the value of two suits less than rupees three Million, same were to be transferred to concerned District Courts for disposal---Court of higher grade, however, in appropriate cases, to avoid conflict of orders, could call the file of suit pending before Court of lower grade to dispose of the same along with suit pending in a court of competent jurisdiction---Out of said three suits one suit was valued for Rs.68,14000---Even after promulgation of Sindh Civil Courts (Amendment) Ordinance, 2002, same was not required to be transferred to District Court---High Court office instead of transferring the other two suits to District Court in compliance with order passed to tag all the three suits together, retained the file in High Court--After amendment in S.7 of Sindh Civil Courts Ordinance, 1962, evidence was recorded in all the three matters and suits were decreed---Validity---Defendant at no point of time raised any objection about the pecuniary jurisdiction of court---To avoid the contradictory judgments, files of other two suits were rightly retained along with third suit in which High Court had pecuniary jurisdiction and proceedings together without specific order of consolidations, was just irregularity which did not invalidate the decree.

PLD 1981 SC 210; 2004 CLC 1797; PLD 1992 SC 822; PLD 1967 Dacca 216; 1984 SCMR 573; 2007 SCMR 206; 2006 MLD 521; 1999 SCMR 1149; 2004 MLD 1696; PLD 1991 SC 811; Mst. Chaghi and 4 others v. Bachoo PLD 1984 Quetta 92; Shahzada Sultan Humayun v. Nasiruddin 1984 CLC 3090 and Malik Jehangir Khan v. Banking Tribunal No.1, Karachi Division, Karachi and 4 others 2002 CLC 1466 ref.

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

----S.15---Court in which suits to be instituted---Every suit would be instituted in the court of lowest grade competent to try the same---Section 15, C.P.C. was a rule -f procedure, not of jurisdiction and whilst it laid down that a suit should be instituted in the court of lowest grade, it would not oust the jurisdiction of higher grades Courts which they possessed under the Acts constituting them.

----S.1---Fatal accident---Law Reforms Ordinance (XII of 1972), S.3---Suit for compensation---High Court appeal---After admission of accident, heavy burden lay upon the defendant to prove that accident was not caused due to his or his employee's negligence, which defendant had failed to discharge-Merely because examination report of the vehicle was not produced, F.I.R. was registered in the matter giving details of the accident, was duly exhibited---Non-production of site report etc. would not affect merits of the case in any manner to disentitle the plaintiffs from the relief granted to them---Grant of Rs.10,000 on account of funeral expenses of deceased, could not be said unjustified---Evidence on record, showed that Van in which deceased were travelling on the National High Way, was running on an average speed and accident was caused all of a sudden when defendant's trailer was running on a high speed and driver of the trailer/defendant lost his control on the trailer-Trailer hit the van in question on the other side of the road---Evidence on record further showed that accident was caused due to negligence of driver of the trailer and no evidence was in rebuttal that driver of the van in which deceased were traveling contributed towards the accident---Suit was rightly decreed by the High Court and High Court appeal against order of the court was dismissed.

KESC v. Syed Iqbal Hassan 2004 MLD 1969 rel.

Muhammad Sarfaraz Sulehry for Appellant.

Nasir Maqsood for Respondent No.1.

Umar Hayat Sandhu, learned DAG.

MLD 2009 KARACHI HIGH COURT SINDH 976 #

2009 M L D 976

[Karachi]

Before Muhammad Iqbal Mehar, J

MUHAMMAD RIAZ---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.75 of 2008, decided on 11th May, 2009.

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

----S.13(d)---Appreciation of evidence---Benefit of doubt---Incharge of Police Check Post concerned received pistol from applicant/accused and took accused and case property to Police Station where he acted as complainant, registered F.I.R. himself and after completing investigation submitted challan of the case which had clearly shown his interest in prosecution case, otherwise he had to give information of the offence to S.H.O. or Incharge of Police Station, who was duty bound to incorporate the statement of complainant into S.154, Cr.P.C. and to investigate the case, but that had not been done---Both mashirs of recovery were of same Police Check Post and subordinates of the complainant and none from the passengers of the bus in question was associated to witness the recovery from accused---Record showed that neither of the case property was sealed at Wardat or at Police Station, nor same was sent to Ballistic Expert for its report-Material contradictions existed between deposition of prosecution witnesses with regard to the place of arrest, manner of arrest and personal search of accused---Said circumstances had created doubt as to the truthfulness of witnesses of the prosecution case and benefit of said doubt would go to accused and it was not necessary that there must be multiple circumstances to create doubt, even a single circumstance would entitle accused to such benefit---Conviction recorded in the case could not be sustained-Both the impugned judgments were set aside and accused was acquitted from the charge.

Tariq v. The State 1995 SCMR 1345; Sajan v. The State 1998 PCr.LJ 1399; Long v. The State 1999 PCr.LJ 595 and 1986 SCMR 46 rel.

Pervaiz Ahmed Qureshi for Applicant.

Ms. Ghulam Nabi Semair for the State.

Date of hearing: 7th May, 2009.

MLD 2009 KARACHI HIGH COURT SINDH 982 #

2009 M L D 982

[Karachi]

Before Khalid Ali Z. Qazi, J

HAMEEDULLAH KHAN PARACHA and 3 others---Plaintiffs

Versus

KARACHI AMERICAN SCHOOL and 2 others---Defendants

Suit No. 1226 of 2008, decided on 30th April, 2009.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss. 52 & 53---Educational institution---Expulsion of student from school, who had not been able to clear discipline within the permitted attempts as per the school rules contained in the Students' Handbook---Ceiling of number of attempts in the present case, was not found on any statutory dispensation---Application seeking temporary injunction in a mandatory form requiring directions to be given to the school so as to allow the student to attend classes at the school and further to restrain the school authorities from harassing, interfering, prohibiting or indirectly refraining the student from attending classes at the school---Validity---High Court declined to grant the application as prayed, seeking a mandatory injunction, to permit the student to attend the school---High Court, having regards to all the facts and circumstances of the case disposed of the application in the manner that school shall permit the student to retake in May, 2009 English 10 and other examinations, if any, for grade 10, which he might have earlier flunked, in case the student was able to perform satisfactorily as per the review of school authorities, he may be accommodated in grade 11 in the next year; if the student was not able to perform, that would be the end of the matter---Order accordingly.

Arif Majeed Malik v. Board of Governors Karachi Grammar School 2004 CLC 1029; Goss v. Lopez, 419 US 565 (1975); Ardeshir Cowasjee v. CCB 1998 MLD 1818; Arts Council of Pakistan v. Riazuddin Prizada PLD 1969 Kar. 349; Najma Rana v. S.M. Maroof 1989 MLD 1317; Humayun Nizami v. Govt. of Sindh PLD 1989 Kar. 343; Chairman Board of Intermediate v. Ali Mir 1984 SCMR 433; Jawaharlal Nehru University v. B.S. Narwal AIR 1980 SC 1666; Omer Nassar Muhammad v. Principal Nishtar Medical College 2006 SCMR 695; Ali Yousuf v. Chairman of Academic Council 2000 SCMR 1222; Al-Amaria Masooma Zainab v. Principal Allama Iqbal Medical College PLD 2006 Lah. 500; Muhammad Faisal !lased) Khan Baloch v. Vice-Chancellor, Bahauddin Zakariya University 2006 YLR 413; Muhammad Ilyas v. Bahauddin Zakariya University 2005 SCMR 961; Awais Javed v. Principal Punjab Medical College 2008 CLC 1449; Beenish Abbasi v. Province of Sindh PLD 2003 Kar. 487; Rukhsana Soomro v. Board of Intermediate and Secondary Education. Larkana 2000 MLD 145; The Chairman, Board of Mining Examination v. Ramjee AIR 1977 SC 965; Azhar Ali v. Punjab Public Service Commission PLD 2004 SC 4; Hussain Aamer v. Tchsil Municipal Officer Narowal 2004 PLC (CS) 486; Kashif Anwar v. Agha Khan University 2006 CLC 1621; Zubair Azam v. Pakistan Medical and Dental Council 2005 YLR 1462; "Administrative Law" by Sir William Wade, 6th Edition page 524; Salman Javed v. S.M. Arshad PLD 1983 Kar. 303; Balagam Wala Oil Mills (Pvt.) Ltd. v. Shakarchi Trading AG PLD 1990 Kar. 1; Aga Saifuddin Khan v. Pak-Suzuki Motors Co. Ltd. 1997 CLC 302 and Amina Begum v. Ghulam Dastgir PLD 1978 SC 220 ref.

Messrs Abdul Hafeez Mirzada, Abdul Sattar Pirzada, Usman Hadi and Rana Ikramullah for Plaintiffs.

Ms. Sana Akram Minhas for Defendants.

MLD 2009 KARACHI HIGH COURT SINDH 995 #

2009 M L D 995

[Karachi]

Before Maqbool Ahmed Awan, J

AYAZ ALI---Applicant

Versus

Ti IE STATE---Respondent

Criminal Bail Application No. S-805 of 2008, decided on 23rd April, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.324/504---Bail, refusal of---Co-accused, who was also armed with pistol, had caused the injury to wife of the complainant on her foot, which was non-vital part of the body, whereas accused caused injury to prosecution witness on his back-side of chest which was vital part of the body---Case of accused, in circumstances, could not be said to be at par with co-accused---Offence said to have been committed by accused would thus fall under S.337-D, P.P.C. which was punishable for 10 years and fell within the prohibition contained under S.497, Cr.P.C.---Recovery of weapon had been effected from accused and one bullet was also secured by Police from the place of occurrence---All that had shown that reasonable grounds were available to connect accused in the commission of offence---Application for bail was rightly dismissed, in circumstances.

Parial v. The State 2006 PCr.LJ 1212; Muhammad Mumtaz v. The State 2004 PCr.LJ 1875; Noor-ur-Rehman v. The State 2000 PCr.LJ 1603; Muhammad Ahmed v. The State 2005 YLR 661; Dildar Baig v. The State 1998 SCMR 358; Arshad v. The State and another 1996 SCMR 1270 and Amjad Jawed v. The State PLD 2007 Kar. 336 ref.

Mir Ahmed Mangrio for Applicant.

Muhammad Azeem Panhwar for the State.

Manzoor Ahmed Siddiquie for the Complainant.

MLD 2009 KARACHI HIGH COURT SINDH 998 #

2009 M L D 998

[Karachi]

Before Munib Ahmad Khan, J

REHAN IQBAL BALOOCH---Petitioner

Versus

PRESIDING OFFICER and 2 others---Respondents

Constitutional Petition No.S-120 and C.M.A. No.694 of 2009, decided on 2nd April, 2009.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Items owned by wife---husband sought amendment of issues on the ground that value of jewelry items, claimed by wife exceeded Rs.5000 and did not fall within the meaning of gifts under Dowry and Bridal Gifts (Restriction) Act, 1976---Validity---Husband could not put up his claim over items which did not fall within the meaning of Schedule to West Pakistan Family Courts Act, 1964---Family Court under S.5 of West Pakistan Family Courts Act, 1964, had specific jurisdiction in respect to items provided in Schedule (Part-I)---Keeping in view Schedule of West Pakistan Family Courts Act 1964, High Court declined to interfere in the order passed by Family Court---Petition was dismissed in circumstances.

PLD 2007 Kar. 344 ref. PLD 2002 Lah. 410 fol.

Raja Qureshi for Petitioner.

Iqbal Haider and Malik Muhammad Ijaz and Syed Amir Hyder Naqvi for Respondents No.2.

MLD 2009 KARACHI HIGH COURT SINDH 1015 #

2009 M L D 1015

[Karachi]

Before Nadeem Azhar Siddiqi, J

ABDUL GHAFOOR and another---Appellants

Versus

MIR MAQBOOL and 11 others---Respondents

Civil Miscellaneous Appeal No.39 of 2007, decided on 23rd April, 2009.

(a) Administration of justice---

----Technicalities in dispensation of justice should be avoided and as far as practicable the cases are to be decided on merits.

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

----O.IX, R.8---Dismissal for non-prosecution---Scope---Court would be justified to dismiss a case for non-prosecution if it is satisfied that defaulting party is trying to avoid to proceed with the case and is trying to linger on the proceedings.

----O.XLI, R.19---Restoration of appeal dismissed for non-prosecution---Administration of justice---Direction of superior Court---Effect---Contention of appellants was that their appeal was dismissed for non prosecution by Lower Appellate Court only due to their absence for one day---Validity---Dismissing appeal for one day's absence on the part of appellants and refusal to readmit was harsh order---Court had to strike balance between two extremes i.e. neither it should allow endless chances to a party to proceed with case and thus delay justice nor a party was to be dealt with in such a harsh way by penalizing it for one day's absence---Lower Appellate Court was influenced by High Court's decision to dispose of the appeal within three months---High Court did not visualize such disposal of appeal which was strangulation of justice and it was not mentioned as to when period of three months was going to expire---Lower Appellate Court was to have adjourned the case to a fixed date to provide chance to appellants to proceed with the case---Lower Appellate Court was not justified in dismissing appeal due to absence of parties and their counsel only on one day and thereafter for dismissing restoration application again on the same grounds on which appeal itself was dismissed without considering cause shown by appellants for their non-appearance on date in question---High Court found it appropriate to provide another chance to appellants to proceed with the case---Appeal was allowed in circumstances.

Abdul Ghafoor v. Mst. Amtual Saeeda, 1994 MLD 1463; Nabi Bakhsh v. Mohammad Aslam 1998 MLD 1830; Pirzada Niaz Ahmed Farooqi v. Muhammad Bux, 2004 SCMR-862; Jane Margrete William v. Abdul Hamid, 1994 SCMR 1555; Sardar Begum v. Mohammad Anwar Shah 1993 SCMR 363 and Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382 rel.

Dhanjishaw Bahramji Ghadialy v. Abdul Latif, PLD 1983 Karachi 121 and Ghulam Rasool v. Mohammad Ramzan, 2001 MLD 1091 distinguished.

Raja Basantani for Appellants.

K.B. Bhutto for Respondents.

Date of hearing: 14th April, 2009.

MLD 2009 KARACHI HIGH COURT SINDH 1033 #

2009 M L D 1033

[Karachi]

Before Nadeem Azhar Siddiqi, J

Mrs. FATIMA and another---Petitioners

Versus

ORIENT TRAVELS (PVT.) LTD. Through Chief Executive Tenant and 2 others---Respondents

Constitution Petition No.S-532 of 2008, decided on 21st April, 2009.

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

----Ss. 2(1) & 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Default in payment of monthly rent---Non-payment of water and conservancy charges---Proof---Ejectment petition filed by landlords was concurrently dismissed by Rent Controller and Lower Appellate Court---Validity---Rent for month of July had become due and payable on 5-7-1998 and could be paid to landlord by 20-7-1998, whereas the same was tendered through money order dated 25-8-1998 after committing default as provided under the statute---Such default was irrespective of dispute with regard to rate of rent thus tenant was bound to pay the rent as agreed under tenancy agreement---No evidence was produced by tenant to show that before tendering rent through money order any efforts had been made by him to tender pay the rent to landlords within time prescribed in agreement as well as in relevant statute---Both the Courts below did not properly consider such aspect of the case and dismissed ejectment application ignoring tenancy agreement available on record---Both the Courts below failed to exercise the jurisdiction vested in them properly and in accordance with law---Written agreement between parties did not show that landlords had taken responsibility to pay water and conservancy charges upon themselves and in absence of any proof to the contrary, it was the duty of tenant to pay such charges---Landlords did not produce any bills of such charges before Rent Controller to show that what. amount tenant was liable to be paid and in absence of such finding recorded by Rent Controller, the same could not be challenged by filing constitutional petition--Photo copies of bills which were produced before Lower Appellate Court were also of no help to landlords as no permission had been sought form Court for producing additional evidence---Tenant was liable to pay charges in terms of definition of `rent' provided in S.2 (i) of Sindh Rented Premises Ordinance, 1979---Tenant was liable to pay charges but default could not be claimed unless landlords had raised demand and provided bills to tenant for his satisfaction---No bills were provided to tenant and no proper demand had been raised, therefore, merely mentioning the dues in counterfoil of rent receipt was not sufficient to show that demand had been raised---Landlords failed to prove by cogent evidence that tenant had committed such acts which amounted to impairing value and utility of premises, mere statement of landlords was not sufficient in such regard---Tenant having not paid rent from July, 1998 onwards, therefore, ejectment application was allowed to that extent and High Court passed eviction order against tenant---Petition was allowed accordingly.

Shezam Ltd. v. Abdul Ghaffar 1992 SCMR 2400; Abdul Ghafoor v. Mst. Amtul Saeeda 1999 SCMR 28 = PLD 1999 Kar. 54; Badruddin v. M. Yousuf 1994 SCMR 1900 and Asif Ali Zardari v. Federation of Pakistan PLD 1999 Kar. 54 rel.

Muhammad Safdar for Petitioners.

Shaikh Liaquat Hussain for Respondent No.1.

MLD 2009 KARACHI HIGH COURT SINDH 1047 #

2009 M L D 1047

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

SAEED AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.215 of 2009, decided on 25th May, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 379, 511, 148 & 149---Bail, grant of---Further inquiry---F.I.R. in the case was registered after more than 9 hours of the alleged incident---Complainant had stated in the F.I.R. that out of five unidentified persons three were armed with guns and two were armed with hatchets---Complainant had further stated that he did not identify the culprits at that time---Even in statement recorded under S.161, Cr.P.C. the name of accused did not transpire---Marks of identification of culprits were neither mentioned in the F.I.R. nor in 161, Cr.P.C. statements of the prosecution witnesses---No specific role had been assigned to any accused as to who caused the injury to the deceased---Accused later on was apprehended as suspect and thereafter his identification parade was not held immediately on the same day or on the next day---Police kept accused in the Police Station and his identification parade was held jointly after eight days---Accused had remained in jail for more than four years and no one could be confined in jail as punishment---Separate case was registered against accused with regard to recovery of gun under S.13(d) of West Pakistan Arms Ordinance, 1965 and was challaned in the court, but he stood acquitted in said case---Case of accused, in circumstances, had come within ambit of S.497(2), Cr.P.C.---Accused having successfully made out a case of further inquiry, he was admitted to bail, in circumstances.

Ali Nawaz Ghanghro for Applicant.

Miss Rubina Dhamrah for the State.

MLD 2009 KARACHI HIGH COURT SINDH 1053 #

2009 M L D 1053

[Karachi]

Before Arshad Noor Khan, J

Capt. Syed HASHAMMUDDIN GHAZI---Plaintiff/Applicant

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Managing Director ---Defendant/Respondent

C.M.A. No.5408 of 2009 in Suit No. 740 of 2009, decided on 9th June, 2009.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Application for grant of interim order---Plaintiff/applicant was retired from service on attaining age of superannuation, but after his retirement his services were re-hired by the defendants/Airline by way of employment agreement---After re-employment, the plaintiff was performing his duties as pilot, but during that period when he suffered from serious illness he remained on sick leave for a long period and defendants were not scheduling him for operational flights on the ground that plaintiff was suffering from severe ailment and the nature of job of the plaintiff did not demand that the lives of about 400 passengers of Boeing 747 might be put to risk because of the ailment of the plaintiff---In the re-employment agreement there was no condition binding the defendants for training of the plaintiff and also for ground and simulator training so as to keep the APTL of the plaintiff alive---In absence of such condition in the employment agreement, the plaintiff could not plead for enforcement of such condition which was not available in the agreement---Ailment/sickness of the plaintiff duly confirmed by the Medical Board, had disentitled him for operational flight---Plaintiff, in circumstances, had not made out any case for issuance of any writ thereby directing the defendants to assign him the requisite flight---Directions regarding assigning of the flights to the plaintiff/applicant could not be issued to the defendants to detail him on the flight of Jumbo 747.

Kashif Anwar v. Agha Khan University 2006 CLC 1621; Malik Siddiq Ahmad and 11 others v. Wapda through Chairman 1991 MLD 1044; A.M. Fabric (Pvt.) Ltd. v. I.D.B.P. and others 2003 CLC 1321; Muhammad Naseeruddin v. Mst. Hashmat Bibi PLD 1993 Kai. 300; Syed Waqar Hussain v. Messrs National Refinery Ltd. 1993 CLC 2397; Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhruy PLD 1961 SC 531; Haji Abdul Karim v. Builders Incorporated and others 1993 MLD 269; Messrs Arrow Trading Company v. Hyosung Corporation 1997 MLD 55; Messrs Qasimabad Enterprises v. Province of Sindh 1998 CLC 441 and Royal Foreign Currency v. The Civil Aviation Authority 1998 CLC 374 ref.

Salman Hamid for Plaintiff.

Khalid Javed, for Defendant.

2009 M L D 1082

[Karachi]

Before Khalid Ali Z. Qazi, J

JAMIL UR REHMAN---Plaintiff

Versus

ANISUR REHMAN---Defendant

Civil Suit No.63 of 2006, and C.M.As. Nos. 4639 of 2006, 694 of 2007, decided on 22nd May, 2009.

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

----O. VI, R.17---Amendment of pleadings---Principles---Plaintiff sought amendment of plaint claiming that nature and complexion of suit would not be changed by proposed amendment---Validity---Amendment in plaint could be allowed at any stage, even by first and second appellate Court or in revision or even in appeal before Supreme Court---Amendment sought in plaint would not change nature and complexion of suit and amendment in prayer clause was a consequential relief and was arising out of same cause of action---To avoid multiplicity of proceedings and to do substantial justice, amendments as proposed in application were necessary for the purpose of determining real matter in controversy---Application was allowed in circumstances.

1991 Law Notes (Karachi) 645; 1945 Mad. 248; PLD 1984 Kar.97; 1995 MLD 397; PLD 2003 Kar. 598; 2001 MLD 1037; PLD 2003 Kar. 598; 2001 MLD 1037; PLD 1985 SC 153; 1988 MLD 552; 2000 SCMR 1305; PLD 1985 SC 133; 1980 CLC 1866; 1977 SC 284; PLD 1995 Quetta 5; PLD 1996 Lah. 429; 2008 CLC 946 and PLD 1985 SC 345 ref.

2003 SCMR 379 fol.

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

----Ss.8, 42 & 54---Civil Procedure Code (V of 1908), O.XL, R.1---Receiver, appointment of---Pre-conditions---Plaintiff claimed to be the real owner of suit property and alleged defendant to be his Benamidar---Plaintiff sought appointment of receiver to collect rent and look after the suit property---Validity---For the purpose of O. XI, R.1 C.P.C. party seeking appointment of receiver over property involved in suit, had to prove at such interlocutory stage of suit itself by means of cogent evidence that property involved was at great risk and danger of getting destroyed at the hands of other party, which was likely to cause irreparable loss to the party and, therefore, it was most essential that a receiver should be appointed to take over possession of such property---Validity---Until and unless plaintiff could prove his case satisfactorily to entitle him to decree of declaration to the effect that he was actual and original owner of suit property and he had paid entire amount in respect of suit property and transaction in favour of defendant was Benami, plaintiff could not claim any right, title or interest in rental amount being earned by defendant from disputed property---High Court declined to appoint receiver under O. XL, R.1 C.P.C. over suit property---Application was dismissed in circumstances.?

PLD 1987 SC 145; PLD 1975 Kar. 26; 1991 Law Notes (Karachi) 645; 1945 Mad 248 (Full Bench); PLD 1984 Kar. 97; 1995 MLD 397; PLD 2003 Kar. 598; 2001 MLD 1037; PLD 1985 SC 153; 1988 MLD 552; 2000 SCMR 1305; 1997 MLD 181 (186) (SC AJ&K); 2000 YLR 2424 (2425) (SC (AJ&K); PLD 1977 Kar. 442 (43); 1992 CLC 2469; 2003 CLC 1333; 2000 MLD 729; 1998 MLD 1844; 2005 YLR 3265; PLD 1997 Kar. 409; PLD 1965 Kar. 584; 2001 MLD 1905; 1974 SCMR 54; 2001 MLD 1905; 1980 CLC 494; 1974 SCMR 54; 1975 PLD 492; PLD 1992 Quetta 59 and 1981 CLC 685 ref.

Muhammad Jameel for Plaintiff.

Muhammad Saleem Ibrahim for Defendant.

MLD 2009 KARACHI HIGH COURT SINDH 1093 #

2009 M L D 1093

[Karachi]

Before Khilji Arif Hussain and Syed Mehmood Alam Rizvi, JJ

PROVINCE OF SINDH and another---Appellants

Versus

SHAMS-UL-HASSAN and others---Respondents

High Court Appeal No.21 of 2001, decided on 20th February, 2009.

Fatal Accidents Act (XIII of 1855)---

----S.1---Penal Code (XLV of 1860), S.304-A---Law Reforms Ordinance (XII of 1972), S.3---High Court Appeal---Fatal accident---Suit for compensation---Single Judge of High Court, after careful scrutiny of evidence produced by the plaintiffs, duly supported with documentary evidence, came to the conclusion that accident had occurred due to negligence of defendant driver of the bus and in circumstances other defendants were jointly responsible to pay compensation to the plaintiffs/ legal heirs of deceased---Main defence of the defendant was that one defendant had been acquitted by the Trial Court from the criminal case---Validity---Fate of criminal proceedings had no relevance for the purpose of determination of the civil liability; as in civil cases, judge of facts must find for the party in whose favour there was preponderance of probability, though evidence be not entirely, free froth doubt; while in criminal cases the factum of incident should be proved beyond any reasonable doubt---Even the acquittal finding of guilt in the criminal case did not carry bearing for adjudication of civil cases in any manner, whatsoever---Evidence of eye-witness of the. case had not been challenged and could not be shaken---Non-rebuttal of evidence of the plaintiff by the defendant and non-production of driver of the bus for evidence in the court, were sufficient enough to saddle the defendants with the liability of the compensation---Single Judge had rightly held that defendants were jointly liable for payment of compensation to aggrieved family of deceased.

1988 CLC 1408; PLD 1971 Kar. 129; PLD 1965 Kar. 127 ; 1982 CLC 1120; 1992 CLC 1228; 1981 CLC 1341; 1987 MLD 883; PLD 1980 Kar. 78 and PLD 1971 Kar. 64 ref.

Saifullah A.A.-G., for Appellants.

Nasir Maqsood for Respondents.

MLD 2009 KARACHI HIGH COURT SINDH 1100 #

2009 M L D 1100

[Karachi]

Before Sajjad Ali Shah, J

BARRETT HODGSON PAKISTAN (PVT.) LTD. through Company Secretary and another---Plaintiffs

Versus

PAKISTAN REFINERY LTD. and 2 others---Respondents

Suits Nos. 694, 1063 and C.M.As. Nos. 4295, 7673 of 2008, decided on 31st October, 2008.

Civil Defence (Special Powers) Rules, 1951---

----R. 10---Key Point Installations---Key Points' andVulnerable Points Installations'---Definition---Where the Key Point Installation enforces the maintenance prohibited parameters for its own safety and security then construction within the prohibited parameters may give a cause of action to Key Point Installation, however, in cases where the Key Point Installation has no threat to its own safety and security but brings an action against a construction if raised within the prohibited parameters for the safety and security of such construction then it hardly gives a cause of action to Key Point Installation but it would be taking upon itself the function of the Provincial or Central Government---Principles.

Zahid F. Ebrahim for Plaintiffs (in Suit No. 694 of 2008 and for Defendants Nos.1 and 2 in Suit No.1063/2008).

Rashid Anwar for Defendant No.1 (in Suit No.694 of 2008 and for the Plaintiffs in Suit No.1063/2008).

MLD 2009 KARACHI HIGH COURT SINDH 1106 #

2009 M L D 1106

[Karachi]

Before Maqbool Ahmed Awan, J

MUHAMMAD ALI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-474 of 2008, decided on 23rd April, 2009.

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

----S.497---Penal Code (XLV of 1860), Ss.302/148/149---Bail, refusal of-'--General allegations had been made against all the accused persons named and not named in the F.I:R of having murdered the deceased after forming an unlawful assembly---However, present accused had chosen to remain absconders and surrendered before the Trial Court after acquitted of co-accused, which had apparently indicated their participation in the commission of the offence---Deceased had allegedly been killed by the accused in day light---Appeal against acquittal of co-accused had been admitted for regular hearing by High Court---Fugitives from law and Courts would lose some of their normal rights granted by the procedural and substantive law---Unexplained noticeable abscondence would also disentitle the accused to concession of bail notwithstanding the merits of the case---Accused were refused bail in circumstances.

State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Muhammad Khan v. State 1999 SCMR 1220; Akhtar Ali v. State 2008 SCMR 6; Mitho Pitafi v. State 2009 SCMR 299; Inayatullah v. State PLD 2003 Karachi 416; Sharbat v. State 2003 MLD 1191; Warris v. State 2005 PCr.LJ 373; Muhammad Hayat v. State 2008 YLR 72; Anwar Ali Handio v. State 2008 PCr.LJ 1453; Gulab Dahri v. State 2009 YLR 181; Naimat Ali v. State 2009 YLR 367; Suhrab v. State 2001 PCr.LJ 366 and Ch. Javaid Riaz v. State 2007 PCr.LJ 1332 ref.

Awal Gul v. Zawar Khan PLD 1985 SC 402 rel.

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

----Ss.497/498---Bail---Abscondence---Effect---Some of the normal rights granted to the accused by procedural and substantive 'law are 'lost by the fugitives from law and the Courts---Unexplained noticeable abscondence deprives the accused of concession of bail despite the merits of the case.?

Awal Gul v. Zawar Khan PLD 1985 SC 402 ref.

S. Madad Ali Shah for Applicants.

Anwar Hussain Shaikh for the Complainant.

Bahadur Ali Baloch, State counsel.

MLD 2009 KARACHI HIGH COURT SINDH 1111 #

2009 M L D 1111

[Karachi]

Before Bin Yamin, J

MUMTAZ alias KUKAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.406 of 2008, decided on 20th November, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/148/149---Bail, grant of---Process server as well as Sessions Judge concerned had clearly stated that complainant of the case had shifted to some unknown place and presently his whereabouts were not known---No possibility of conclusion of the case in the near future existed, in circumstances---Co-accused against whom similar allegation was levelled had been granted bail---Under the rule of consistency, accused was also entitled for the concession of bail---Accused was admitted to bail, in circumstances.

Aftab Ahmed Gorar for Appellant.

Muhammad Akram Shaikh for the State.

MLD 2009 KARACHI HIGH COURT SINDH 1124 #

2009 M L D 1124

[Karachi]

Before Abdul Rasheed Kalwar, J

Mst. SHAHEEN BEGUM---Petitioner

Versus

ZAKAULLAH KHAN GHOURI and others---Respondents

C.P. No.583 of 2008, decided on 4th February, 2009.

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

----S.5, Sched. S. 14---Muslim Family Laws Ordinance (VIII of 1961), S.6(5)(a)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of maintenance and dower amount---Plaintiff filed suit with prayer of maintenance at the rate of Rs.5000 per month and dower amount Rs.2,00,000---Family Court partly decreed the suit to the extent of maintenance at the rate of Rs.1500 per month, but dismissed prayer of the plaintiff of dower observing that such amount was payable either on the death of the party or on divorce---Appellate Court also concurred with such finding of Family Court in respect of dower amount---Both judgments of two courts below had completely avoided to address the issue in the light of S.6(5)(a) of Muslim Family Laws Ordinance, 1961 as the defendant (husband) had contracted two subsequent marriages---Both courts below were expected to decide the matter according to S.6(5)(a) of the Muslim Family Laws Ordinance, 1961, whereby the defendant should pay immediately entire amount of dower due to the existing wife---Provisions of law could not be done away with for any compulsive reason---Concurrent judgments of the courts below were set aside to the extent of findings and operative part in respect of dower---Matter was remanded to the Family Court for deciding issue of dower in the light of S.6(5)(a) of Muslim Family Laws Ordinance, 1961.

Sami-ud-Din for Petitioner.

Muhammad Bakhsh Awan for Respondent No.1.

MLD 2009 KARACHI HIGH COURT SINDH 1129 #

2009 M L D 1129

[Karachi]

Before Anwar Zaheer Jamali, C. J. and Syed Pir Ali Shah, J

Miss NAHEED ABBAS and others---Appellants

Versus

IFTIKHAR HASAN KIZILBASH and others---Respondents

H.C.A. No. 246 of 2008, decided on 15th October, 2008.

Partition Act (IV of 1893)---

----S.4---Law Reforms Ordinance (XII of 1972), S.3---High Court Appeal---Appellant had challenged the impugned order while referring the provisions of S.4 of Partition Act, 1893---Contention raised by the appellant needed consideration, appeal was admitted to regular hearing and in the meantime, operation of impugned order would remain suspended.

Haradhone Haldar v. Usha Charan Karmakar and others AIR 1955 Cal. 292 ref.

Ishrat Zahid Alvi for Appellants.

MLD 2009 KARACHI HIGH COURT SINDH 1145 #

2009 M L D 1145

[Karachi]

Before Muharrem G. Baloch, J

FARM SERVICES SYNDICATE---Plaintiff

Versus

RAJBY INTERNATIONAL (PVT.) LTD.---Defendant

Suit No. 1588 of 2008, decided on 29th May, 2009.

Arbitration Act (X of 1940)---

----S.20---Application for filing of arbitration agreement---Distribution Agreement containing arbitration clause, termination of---Termination of agreement by defendant-supplier with immediate effect without allowing plaintiff (sub-distributor) time specified therein to liqudate his stocks in trade---Validity---Defendant had not performed his part of obligation while terminating agreement---High Court accepted such application and directed plaintiff to file original agreement in Court within seven days.

House Building Finance Corporation v. Shahinshah Humayun Cooperative House Building Society 1992 SCMR 19; Port Qasim Authority v. Al-Ghurair Group of Companies PLD 1997 K4r; 636; Hashmi Can Company, v. Hysong Corporation of Karachi PLD' 1999 Kar. 25; Time N Visions International (Pvt.) Ltd. v. Dubai Islamic Bank Pakistan Ltd. PLD 2007 Kar; 278; Dar Okaz Printing and Publishing Ltd. v. Printing Corporation of Pakistan PLD 2003 SC 808; 2001 CLC 419; Allan Saz Contractors v. Pak Chromical Limited 1999 MLD 1781; Inayatullah Khan v. Obaidullah Khan 1999 SCMR 2702; West Pakistan Tanks Terminal (Pvt.) Ltd. v. Collector (Appraisement) 2007 SCMR 1318; M.A. Majeed Khan v. Karachi Water and Sewerage Board PLD 2002 Kar. 315 and Muhammad Anwar v. Messrs Associated Trading Co. 1989 MLD 4750 ref.

Osman Ali Hadi for Plaintiff.

Tahir Mehmood for Defendant.

Date of hearing: 21st May, 2009.

MLD 2009 KARACHI HIGH COURT SINDH 1151 #

2009 M L D 1151

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

ABDUL WAHID---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 196 of 2009, decided on 25th May, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.6/9---Bail, grant of---Further inquiry---Out of 1500 grams of charas allegedly recovered from accused in the shape of pieces, only 200 grams were taken out of the entire recovered material for the purpose of chemical analysis; however, it was not mentioned whether the sample was taken from each piece or only from one of the pieces---No conclusive finding, in circumstances, could be recorded that all the pieces were of contraband narcotics and proper and final finding was yet to be recorded at the trial---Number of pieces had not been mentioned either in the F.I.R. or in the mashirnama---Sample was sent to chemical laboratory, with delay of nine days which had created doubt in the case of prosecution---Since out of the entire contraband allegedly recovered from accused only 200 grams were sealed separately for sending it to Chemical Analyzer, case against accused at the most would fall under S.9(b) of Control of Narcotic Substances Act, 1997, which carried punishment for 7 years---Case of accused fell within the purview of subsection (2) of S.497, Cr.P.C.---Accused was granted bail, in circumstances.

Muhammad Farrukh Khan Zai v. The State 2008 MLD 608; Nadeem v. The State 2007 MLD 1092; Imtiaz Ali v. The State 2006 MLD 1961 and Muhammad Nawaz v. The State 2007 MLD 1846 ref.

Asif Ali Abdul Razzak Soomro for Applicant.

Miss Rubina Dhamrah for the State.

MLD 2009 KARACHI HIGH COURT SINDH 1155 #

2009 M L D 1155

[Karachi]

Before Amer Raza Naqvi, J

HAIDER ALI alias ASHIQUE---Petitioner

Versus

Mst. IRFANA and 3 others---Respondents

Constitutional Petition No. S-345 and C.M.A. No.962 of 2009, decided on 22nd April, 2009.

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

----S.5; Sched. & S. 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for jactitation---Suit for jactitation having concurrently been decreed by the Trial Court and Appellate Court, defendant had filed constitutional petition against said concurrent judgments and decrees---Contention of defendant that courts below had failed to discuss the evidence adduced by the parties, was repelled---Both the courts below for cogent reasons, did not believe the statement of Nikah Registrar---Besides said facts and circumstances, relief claimed, could not be granted in constitutional petition, which was discretionary relief and could only be granted in appropriate cases for the ends of justice---Constitutional petition being not maintainable, was dismissed.

Ghulam Mustafa Sahito for Petitioner.

MLD 2009 KARACHI HIGH COURT SINDH 1162 #

2009 M L D 1162

[Karachi]

Before Ali Sain Dino Metlo, J

HABIBULLAH and another---Petitioners

Versus

THE STATE and 9 others---Respondents

Constitutional Petition No. S-526 of 2008, decided on 30th March, 2009.

(a) Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 7---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Illegal dispossession---Complaint against--Trial Court directed office-in-charge of the Police Station to investigate the matter--Said Police Officer, reported after investigation that the petitioners were in possession of land in dispute under some agreement to sell executed by the co-owners---Trial Court, however, disposed of the complaint by directing the petitioners and others to hand over possession of the land in dispute to the complainant/respondent and other co-owners, without recording evidence and conducting trial---Procedure adopted by the Trial Court for disposal of the complaint, was not warranted by law---Complaint was to be either dismissed under S.203, Cr.P.C., if no sufficient ground was available for proceeding, or brought on record, if sufficient ground for proceeding and appropriate process was to be issued under S.204, Cr.P.C. to secure presence of accused for the purpose of conducting the trial--Trial was to end either in conviction or acquittal of accused---In the present case no order was made either of dismissal of complaint or bringing same on record, or of conviction or acquittal of accused---Method of disposing of complaint simply by ordering restoration of possession; was unsustainable in law.

(b) Illegal Dispossession Act (XI of 2005)---

----Ss.3, 5, 7, 8 & 9---Illegal dispossession---Restoration of possession---Scope---Restoration of possession, could be ordered, either under S.7 of Illegal Dispossession Act, 2005 as an interim measure during trial, or under S.8 thereof at the time of pronouncing punishment on the conclusion of the trial---Order passed under S.7 of Illegal Dispossession Act, 2005, would be subject to the final order, which could be passed on the conclusion of trial---Order under S.7 of Illegal Dispossession Act, 2005 could be passed only when a prima facie case of illegal dispossession was made out against accused and the Court had decided to proceed with the trial---Order of restoration of possession could not be passed without bringing the complaint on record---In the present case, the complaint was not brought on record and it was not given any number.

----Ss. 3, 5, 7 & 9---Constitution of Pakistan (1973), Art.199---Criminal Procedure Code (V of 1898), Ss.410 & 439---Constitutional petition---Illegal dispossession---Restoration of possession---Complaint was disposed of by the Trial Court directing the petitioners to hand over possession of land in dispute to respondent without recording evidence and conducting trial and the petitioners had filed constitutional petition and the respondent had challenged maintainability of the petition---Counsel for the petitioners had contended that Illegal Dispossession Act, 2005 did not contain any provision for filing appeal or revision and that in absence of any other remedy, resort had to be made to the filing of the constitutional petition---Contention was without any force as. Criminal Procedure Code, 1898 contained provisions of appeal and revision which dealt with offences not only under the Pakistan Penal Code, 1860, but also under other laws, of course, subject to any contrary provisions contained in those laws---Section 9 of Illegal Dispossession Act, 2005, provided that unless otherwise provided in the Act provisions of Code of Criminal Procedure would apply to the proceedings under the Illegal Dispossession Act, 2005, which Act did not contain any provision barring right of appeal or power of revision to High Court---Right of ' appeal was very important right and the statutes denying right of appeal to the aggrieved persons were repugnant to the injunctions of Islam---Offence under S.3 of Illegal Dispossession Act, 2005 was punishable which could extend to 1.0 years---In absence of any express provision in the statute barring right to appeal, it could not be assumed that legislature intended to deny right of appeal to the convicts awarded such a high punishment---Repugnancy to the Constitution or Injunctions of Islam could not be assumed in respect of a legislature---Supervisory or reversionary power of High Court over the performance of subordinate Courts, was very necessary for effective and clean administration of justice---Court of Session being subordinate to the High Court, orders passed by it, irrespective of fact whether or not those were passed in proceedings relating to the offences under the Penal Code, or under other laws, including Illegal Dispossession Act, 2005, were amenable to the revisional jurisdiction of High Court---In the present case Session Judge having acted in utter disregard to the law, case was fit for the exercise of revisional jurisdiction of High Court---Constitutional petition was converted into revision and order of Sessions Judge, was set aside and case was remanded to it for proceeding with it in accordance with law.

Federation of Pakistan v. Public at large PLD 1988 SC 202 and Pakistan through Secretary Ministry of Defence v. The General Public PLD 1989 SC 6 ref.

Saeed Ahmed B. Bijarani for Petitioners.

Lachhmandas H. Sachdevani for respondents Nos. 2, 3 and 6.

Abdul Hamid Bhurgri, Addl. Advocate General.

Date of hearing: 30th March, 2009.

MLD 2009 KARACHI HIGH COURT SINDH 1172 #

2009 M L D 1172

[Karachi]

Before Amir Hani Muslim and Maqbool Ahmed Awan, JJ

MISBAHUDDIN KHAN and 16 others---Petitioners

Versus

BOARD OF REVENUE, SINDH through Member (Land Utilization), Hyderabad and 5 others---Respondents

C.P. No. D-11 of 2006 and M.A. No. 40 of 2007, decided on 28th May, 2009.

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

----S.42---West Pakistan Board of Revenue Act (XI of 1957), S.7---Constitution of Pakistan (1973), Art.199---Constitutional petition-Maintainability---Petitioners were aggrieved of order passed by Member Board of Revenue-Validity--Revenue officials who were guilty of tampering with revenue record, should have been taken to task, in order to ensure that in future no revenue official would have courage to tamper with revenue record---High Court expected Senior Member Board of Revenue to hold inquiry against such officials and to award or recommend appropriate punishment---Order passed by Member Board of Revenue was a speaking order and petitioners had remedy to approach same Member in revision, which remedy had not been availed by them and instead they approached High Court in constitutional jurisdiction---High Court declined to interfere in the order passed by Member Board of Revenue---Petition was dismissed in circumstances.

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

----S.42(2)---West Pakistan Land Revenue Rules, 1968, R.72---Constitution of Pakistan (1973), Art.199---Constitutional petition---Revenue record---Maintenance---High Court in exercise of constitutional jurisdiction issued directions to Revenue Authorities for proper maintenance of revenue record.

Muhammad Ismail and others v. CDGK C.P. No.D-265 of 2004 ref.

None present for Petitioners.

Allah Bachayo Soomro, learned Addl: A.-G. along with Abdus Subhan, Member/Secretary Land Utilization, Nazar Muhammad Leghari, Special Secretary (Land Utilization) Department, Muhammad Qasim Lashari, Member (Judicial-I), Board of Revenue, Suhail Adeeb Bachani, EDO (Revenue) Jamshoro and Badruddin Mangi, Mukhtiarkar, Thana Bula Khan for Respondents.

2009 M L D 1237

[Karachi]

Before Arshad Noor Khan and Amer Raza Naqvi, JJ

LIAQAT ALI---Petitioner

Versus

MUHAMMAD NISAR and 4 others---Respondents

C.P. No. D-135 of 2006, decided on 28th April, 2009.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), ), O.I., R.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Proper and necessary party---Agreement to sell---Petitioner sought to be impleaded as party in declaratory suit on the ground that after execution of agreement to sell in his favour regarding suit property, he had become proper and necessary party---Validity---After execution of sale agreement, petitioner became proper and necessary party to declaratory suit---Petitioner was very much within his right to defend his right, therefore, he was necessary and proper party in declaratory suit---Both the Courts below did not decide application .under O. I, R.10 C.P.C. filed by petitioner in its true perspective---Orders passed by two Courts below suffered from legal infirmity and could not be sustained, therefore, the same were set aside---High Court directed the Trial Court to implead petitioner as party to the suit---Petition was allowed in circumstances.

Javaid Akhtar v. IIIrd Additional District Judge (South) and 2 others 1996 CLC 1300 and Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 distinguished.

Sarfraz A. Akhund for Petitioner.

Abdul Qadir Shaikh for Respondents.

MLD 2009 KARACHI HIGH COURT SINDH 1246 #

2009 M L D 1246

[Karachi]

Before Muharram G. Baloch, J

Messrs ILYAS MARINE & ASSOCIATES LTD. through Managing Director and another---Plaintiffs

Versus

MUHAMMAD AMIN LASANIA---Defendant

Suit No.397 and C.M.A. No.8309 of 2007, decided on 19th May, 2009.

(a) Words and phrases---

----Res'---Meaning---TermRes' signifies claim, thing, right and interest which is enforceable at law being issue as disputed point of fact or law.

(b) Words and phrases---

----Judicata---Meaning---Word `Judicata' means question of dispute already adjudicated upon by competent Court of law.

---S.11---Res judicata---Meaning---Phrase `Res judicata' signifies the matter which has already been determined and adjudicated upon by Court of competent jurisdiction.

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

---S. 11 & O.VII, R.11---Rejection of plaint---Principle of res judicata---Applicability---After filing of previous suits there was improvement of case as defendant made admission in previous suit that he was in possession of a portion of suit property---Effect---As such plaintiff had fresh cause of action, therefore, principle of res judicata was not applicable and suit was not' hit by res judicata as pleaded by defendant---Suit was based on various facts which constituted fresh cause of action including admission of defendant that he was in possession beyond the area which was in his possession as tenant---Plaint disclosed cause of action and so also with fresh cause not barred by time---Plaint could not be rejected in parts but it was either to be accepted in whole or rejected as such---High Court declined to reject the plaint---Application was dismissed in circumstances.

Adalat Khan v. Mst. Begum Bibi 1991 SCMR 1381; Sheodan Singh v. Daryao Kunwar AIR 1966 SC 1332; Pakistan Tobacco Co. Ltd. v. Pak Cigarette Labour Union PLD 1964 Karachi 337; Custodian of Evacuee Property, v. Tariq Mehmood Butt 2001 YLR 3139; Pakistan Steel Mills Corporation v. Muhammad Ishaque 1995 CLC 1000; Hafiz Muhammad Qasim v. Mst. Soorat Bibi 2000 YLR 2606; Tajuddin Khan v. Habib Bank (b) Ltd. 1998 CLC 563; Mst. Barkat Bibi v. West Pakistan Province 1984 CLC 2314; Nooruddin v. Pakistan and others 1997 CLC 1971; Babu Lal and another v. Hari Bakhsh AIR 1918 Lahore 250; Mustafa Kamal v. Daud Khan PLD 2004 SC 178; Muhammad Ashraf v.. Muhammad Latif 2005 YLR 756; Pakistan Industrial Promoters Ltd. v. Nawazish Ali Jafri 2003 YLR 1277; Ghulam Ali v. Asmat Ullah 1990 SCMR 1630 and Mrs. Zaibunnisa v. Muhammad Sajid 2007 CLC 1757 rel.

Zahid Hamid for Plaintiffs.

Muhammad Shafi Siddiqui for Defendant.

MLD 2009 KARACHI HIGH COURT SINDH 1259 #

2009 M L D 1259

[Karachi]

Before Khalid Ali Z. Qazi, J

HAMEED A. HAROON---Plaintiff

Versus

YOUSUF A. HAROON and 10 others---Defendants

Suit No.264 and C.M.As. Nos.4047, 4223, 1777 and 1778 of 2007, decided on 8th July, 2009.

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

----S.2 (2)---Decree---Binding effect---Scope---Decree passed in a case is only binding on parties of the lis---Consent decree or consent order only binds those parties or persons who gave consent to the order or decree.

Sarwar Khan v. Mir Ali 1980 CLC 110; Abdur Razzaq v. Abdul Aziz 1991 MLD 889; Sher Muhammad v. Barkat Bibi 1993 MLD 692; Muhammad Yar v. Sawan Mai 1993 SCMR 251; Ahmed Khan v. Irshad Begum 2007 MLD 331 and Muhammad Kalim Khan v. Muhammad Farouk Khan PLD 1987 Kar 38 rel.

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

----S.12(2)---Fresh suit---Bar---Principle---Person who did not give consent to undertaking in earlier suit, bar under S.12(2) C.P.C. to filing of fresh suit was not applicable to subsequent suit filed by that person.

----S.11---Res judicata, principle of---Applicability---Principle of res judicata was applicable to consenting parties to undertaking and withdrawal application in earlier suit.

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

----Ss.39 & 42---Declaring agreement void---Scope---Agreement can be declared to be void without the need of having to cancel the same.

Mst. Halimah Bibi v. Muhammad Bashir 1989 CLC 1588 rel.

(e) Trusts Act (II of 1882)---

----S. 3---Object of trust---Doctrine of Cypres---Applicability---Doctrine of Cypres is applicable where although original object to charitable trust cannot be achieved but object as nearly as possible similar to original objective can be achieved---Where neither original purpose nor a purpose similar thereto may be achieved, doctrine of Cypres cannot save the trust---Doctrine of Cypres cannot be employed without permission of Court.

Salibai v. Bai Safiabeen ILR Vol. 36 Bom. 111; Halsbury's Laws of India Butterworths, New Delhi at paras. 290-280, 290-281 and 290-282; Balkrishna Vishvanathv. Vinayak Narayan AIR 1932 Bom. 191; Commissioner Lucknow v. Deputy Commissioner of Partabgrah AIR 1937 PC 240; S.B. Ajaib Singh v. Smt. Harnam Kaur AIR 1954 Punjab 150; Kusum Bibee v. Golam Hossain (1905) 10 CWN 449; Nawab Syed M. Hashim Ali v. Iffat Ara Hamidi AIR 1942 Cal 180; Hillier's case (1954) 2 All ER 59; White's Trusts (1886) 33 ChD 449; Biscoe v. Jackson (1887) 35 ChD 460; Burton's Charity (1938) 3 All ER 90; Murray v. Thomas (1937) 4 All ER 545; Dominion Students' Hall Trust (1947) Ch 183 and Woodhams (1981) 1 All ER 202 rel.

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

---Ss. 39, 42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Interim injunction, grant of---Waqf property---Original purpose of Waqf---Third party interest---Plaintiff claimed that defendants were violating terms of Waqf in using property in question---Validity---Lease of property in question had expired and third party contributed by paying money to seek restoration of lease---Third party had substantially expended on trust property thus prima facie the property was not capable of being employed for original purpose of Waqf as contemplated in Waqfnama---Injunction application was hit by laches and equities were not in favour of plaintiff for grant of injunction in view of contribution made by third party---High Court declined to grant injunction to plaintiff against defendants---Application was dismissed in circumstances.

Hussain A. Haroon and others v. Laila Sarfraz 2003 CLC 771; Muhammad Salim Ullah and others v. ADJ PLD 2005 SC 511; S.M. Shafi Ahmed Zaidi v. Malik Hassan Ali Khan (Moin) 2002 SCMR 338; Mst. Hamida Begum v. Mst. Murad Begum PLD 1975 SC 624; Shamshad Ali Shah v. Syed Hassan Shah PLD 1964 SC 143; Abdul Karim v. M. Akram 1995 CLC 130; Habibullah v. Aziz Bibi 1998 CLC 2125; M. Naser v. Chairman Pakistan Eastern Railway PLD 1965 SC 83; Alavi Sons Ltd v. Government of East Pakistan PLD 1968 Karachi 222; Karsaz Construction Co. v. Pakistan 1999 CLC 1719; Burmah Eastern Ltd. v. Burmah Eastern Employees Union PLD 1967 Dacca 190; PIAC v. Muhammad Izharul Ahsan PLD 1979 Karachi 640; Shaukat Ali v. Liaquat Ali 2005 CLC 1042; Saleem Rashid v. Pak-Libya Holding Company 2004 CLD 1088; Amina Bibi v. Nasrullah 2000 SCMR 296; Sharif Haroon v. Province of Sindh PLD 2003 Karachi 222; Muhammad Abid v. Nasir Ahmed 2000 SCMR 780; Zeenat Begum v. Jan Mir Khan 1986 CLC 2923; Marghoob Siddiqui v. Hamid Ahmed Khan 1974 SCMR 519; Faizanul Haq v. Irfan ul Haq 1986 MLD 2750; Aril Majeed Malik v. Board of Governors, Karachi Grammar School 2004 CLC 1029; Abdul Hameed v. Mahmood 1993 SCMR 1334; H.A. Rahim v. Province of Sindh 2003 CLC 649; Pir Bakhsh v. Chairman, Allotment Committee PLD 1987 SC 145; Atta Muhammad v. Member BOR 2003 CLC 149; Ikram Bibi v. N.B.P. 2005 SCMR 100 and Tara Chand v. KWSB 2005 SCMR 499 ref.

Asghar v. Creators 2001 SCMR 279 and Abdul Ghafoor Memon v. Muhammad PLD 1975 Kar. 464 rel.

Adnan Chaudhry for Plaintiff.

Naimur Rehman and Khurshid Javed for Defendants Nos.2, 3, 5 and7.

Rasheed A. Razi and Haider Imam Rizvi for Defendant No.8.

Rao Muhammad Sharif for Defendant No.10.

Ms. Saba Siddiqui for Defendant No.11.

MLD 2009 KARACHI HIGH COURT SINDH 1279 #

2009 M L D 1279

[Karachi]

Before Khilji Arif Hussain and Ms. Soofia Latif, JJ

Mst. ANWARI BEGUM-through Attorney---Appellant

Versus

Mst. ASGHARI KHANUM and 7 others---Respondents

H.C.A. No. 429 of 2006, decided on 28th May, 2009.

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

----O.VII, R.14, O.XIII, Rr.1 & 2---Production of documents---Effect of non-production---Suit was filed by the plaintiff for declaration, possession," partition, mesne profits and permanent injunction claiming therein that the plaintiff and her brother-in-law had purchased the joint property and were in possession of the same---Disputed property became evacuee property after enactment of Pakistan Administration of Evacuee Property Act, 1957 and was transferred in the name of plaintiff's brother-in-law after payment of the consideration---Single Judge of the High Court dismissed suit of the plaintiff---Photocopies of documents produced by plaintiff were objected to by defendants and evidence of the plaintiff was recorded by commissioner. on the ground that the documents produced by the plaintiff were neither filed with the plaint nor were produced along with the affidavit in evidence-Plaintiff had neither filed the documents along with the plaint nor any list of documents was annexed with the plaint and affidavit-in-evidence---Plaintiff could not be allowed to produce the documents at a belated stage without the permission of the court---Judgment delivered by single Judge was based on proper appreciation of law---Intra Court Appeal filed by plaintiff was dismissed.

Aswar Muhammad and others v. Sharif Din and others 1983 SCMR 626; Dr. Hasan Ara and others v. Mian Tajammal Hussain and others 1982 CLC 653; Naimuddin Sheikh and another v. Moulvi Shahed Ali and others PLD 1967 Dacca 811; Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and PLD 2005 Kar. 1 ref.

Muhammad Aslam v. Manager United Bank Ltd. 1990 AJ & K 29; Jamal Din and others v. Additional District and Sessions Judge, Jhang and others 1990 MLD 1934; Mutali v. Nazeeruan PLD 1994 Lah. 248; American Express Travel and others v. Muhammad Nasrullah Baig 2001 YLR 1185 and Jawad Rafat Khali v. Messrs Shabbir Tiles and Ceramics Ltd. PLD 2005 Kar. 1 rel.

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

----Arts.75 & 76---Photocopies of the documents---Validity---Plaintiff had produced Photostat copies of documents in evidence recorded by the commissioner---No explanation had been furnished by the plaintiff as to why she did not produce the original of such documents---Photostat copies of documents were received in evidence improperly without the production of their originals and without complying with conditions pre-requisite for permitting secondary evidence---Mere consent or omission to object to the reception of any inadmissible evidence would not be treated as a valid and legal piece of evidence---Plaintiff had failed to prove that her case fell within the exception of Art. 76 of Qanun-e-Shahadat, 1984 to allow secondary evidence in true photocopies of the documents---Single Judge of High Court was justified for not considering/exhibiting the photocopies of documents---Intra court appeal filed by plaintiff was dismissed.

Mukhtar Ahmed through legal heirs v. Muhammad Younas and others 2001 CLC 1796; Sher Baz Khan v. Mir Adam Khan PLD 2002 Pesh. 1; Mehmooda Begum and others v. Additional District Judge and others 2004 YLR 1113 and Naik Muhammad v. Bagh Ali PLD 1987 Lah. 208 rel.

----Art. 114---Title document of disputed property---Not challenged before any forum---Waiver---Scope---Defendants had produced a letter issued by Additional Settlement Commissioner confirming that the disputed property had been permanently transferred in the name of defendant's predecessor-in-interest which was not challenged by plaintiff before any forum---Plaintiff had acquiesced into the existence of such title document which she could not subsequently deny, particularly at belated stage after filing the suit---Silence of plaintiff for a considerable period, regarding her interest in the disputed property would amount to waiver on her part---No exception could be taken to the judgment delivered by Single Judge which was well reasoned and was in accordance with the provisions of law---Intra court appeal was dismissed.

Faqir Taj and others v. Mst. Shamsi 2003 YLR 894 rel.

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

----Art.120---Law Reforms Ordinance (XII of 1972), S.3---Limitation---Suit for declaration---Scope---Plaintiff alleged that cause of action had accrued in the year 1978 when the disputed. property was constructed but the suit filed was in the year 2007---Effect---Plaintiff has sought relief for declaration, possession, partition, mesne profits and permanent injunction---No limitation period had been provided in the schedule of Limitation Act, 1908--Relief claimed would be governed by Art.120 of the Act---Suit for declaration with prayer for consequential relief could be filed within six years from the date when the right to sue accrues and the current suit should have been filed upto 1982---Single Judge had rightly taken the view that the suit was hopelessly time barred in respect of the relief claimed by plaintiff---Intra-court appeal was dismissed.

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

----Art.142---Limitation---Suit for possession---Scope---Cause of action according to the plaint had accrued in the year 1978 and the suit was filed in the year 2001 after more than 23 years---Plaintiff contended that limitation period would start for filing such suit when the plaintiff was accommodated on the top of the roof of the building but the plaintiff had not disclosed such specific date in the plaint---Plaintiff further contended in the plaint that after migration she had settled along with her brother-in-law on the disputed property---Plea of the plaintiff was contradicted from the death certificate of her son which bore different address---Single Judge had rightly taken the view that the suit was hopelessly time barred---Intra court appeal was dismissed.

Mrs. Sheraz Iqbal Choudhry for Appellant.

Ali Lahooti for Respondent.

Date of hearing: 20th May, 2009.

MLD 2009 KARACHI HIGH COURT SINDH 1290 #

2009 M L D 1290

[Karachi]

Before Arshad Noor Khan, J

ABDUL MAJEED through his Legal Heirs and 3 others---Applicants

Versus

VTH ADDITIONAL DISTRICT JUDGE, SUKKUR and 3 others---Respondents

Civil Revision No. 47 of 2008 and C.M.A. No.67 of 2009, decided on 6th April, 2009.

Court Fees Act (VII, of 1870)---

----S.13---Civil Procedure Code (V of 1908), O.XLI, R.23---Refund of court-fee---Remand of case---Scope---Contention of petitioner was that as Lower Appellate Court remanded the case to Trial Court for decision afresh after recording the evidence, therefore, court-fee affixed by him should be returned---Validity---Condition imposed by S.13 of Court Fees Act, 1870, was that matter envisaged under O.XLI, R.23 C.P.C. should be disposed of upon a preliminary point and decree was reversed in appeal by appellate Court---In case, where appellate Court thought fit, while passing order of remand, it could further direct decision on issue involved in the suit---Condition precedent by virtue of O.XLI, R.23 C.P.C. was decision of suit on preliminary point---Since judgment and decree were not passed by Trial Court on any preliminary point but the same was passed after considering each and every issue in the light of evidence available on record, therefore, provision of O.XLI, R.23 C.P.C. was not attracted---Lower Appellate Court had rightly refused to issue certificate in favour of petitioner, directing Collector to refund court-fee to petitioner---Revision was dismissed in circumstances.

Fateh Khan and others v. Province of Punjab and others 1995 Civil 597 and Malik Nayyar Hussain v. Muhammad Saeed 1993 MLD 1788 distinguished.

Nabi Bux Khan Bhurghari v. National Bank of Pakistan PLD 1988 Kar. 24; Malayath Veetil Reman Nayar and others v. C. Krishnan Nambudripad and another AIR 1922 Mad. 505 and Riaz Ahmad v. Muhammad Ismail and 2 others PLD 1976 Lah. 1320 rel.

Mian Mumtaz Rabbani for Applicants.

Ali Haider Dareshani for the State.

MLD 2009 KARACHI HIGH COURT SINDH 1294 #

2009 M L D 1294

[Karachi]

Before Muharrem G. Baloch, J

Mrs. FARASAT UMER---Plaintiff

Versus

Messrs ORIENT ELECTRONICS (PVT.) LTD.---Defendant

Suit No.1324 of 2007, heard on 15th May, 2009.

(a) Companies Ordinance (XLVII of 1984)---

----Ss. 7, 8, 9 & 283-Territorial jurisdiction of Court---Arbitration matter---Defendant company had its registered office at "L" while registered office of plaintiff company was at "K" and agreement was also entered into by the parties at "K"---Provisions of Ss.7, 8, 9 & 283, Companies Ordinance, 1984, were not applicable to the case of the parties and jurisdiction of Court at "K" was not barred.

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

----S. 8---Appointment of arbitrator by court---Agreement between the parties did not contain arbitration clause, but defendant had accepted the arbitration through its conduct and correspondence---Suit of the plaintiff to the effect that arbitrator appointed by defendant having declined to work" as such, defendant be directed to appoint another person as arbitrator and refer the case to arbitration for resolution of the issue between the parties, was decreed by High Court.

Mst. Shamim Akhtar v. Najma Baqai and 3 others PLD 1977 SC 644; Messrs Tribal Friends Co. v. Province of Balochistan 2002 SCMR 1903; Messrs Ahmed Constructions through Sole Proprietor v. Messrs Nepture Textile Mills and another PLD 1990 Kar. 216; Province of Punjab and another v. Messrs Industrial Machine Pool, Lahore PLD 1978 Lah. 829; Shan Muhammad v. Nawab and 3 others PLD 2001 Lah. 239; (Jugal Kishore Rameshwardas v. Mrs. Goolbai Hormusji AIR 1955 SC 812; Haji Ilyas Haji Issa and others v. Haji Ahmed and others NLR 1980 UC 181; Firm Manga Chand Banawari Lal v. Fir Pyare Lal AIR (36) 1949 East Punjab 199; Ram Chandra Ram Nag Ram Rice 7 Oil Mills Ltd. v. Howrah Oil Mills Ltd. AIR 1958 Calcutta 620; Muhammad Hussain and others v. Ghulam Rasool 1983 SCMR 231; Karachi Cooperative Housing Societies Union Ltd. v. Safia Bai PLD 1970 Kar. 379; Messrs Valika Textile Mills Ltd. v. Messrs Sh. Mian Mahmood Allah Bakhsh PLD 1963 (W.P) Kar. 813; Haji Soomar Haji Hajjan v. Muhammad Amin Muhammad Bashir Ltd. 1981 SCMR 129 and Karachi Catholic Cooperative Housing Society Ltd. v. Mirza Jawad .Baig PLD 1994 Kar. 194 fol.

Messrs Macdonald Layton & Co. Ltd. v. Messrs Associated Electrical Enterprises Ltd. PLD 1982 Kar. 786; Mst. Hukumzada v. Samandaroon Khan PLD 1988 Pesh. 133; Noor Sahib Khan v. Mir Jananson 1989 CLC 1666 and Messrs Badri Narayan Agarwala v. Messrs Pak Julie Balers Ltd. PLD 1970 SC 43 distinguished.

Raja Qasit Nawaz Khan for Plaintiff.

Kashif Hanif for Defendants.

Date of hearing: 15th May, 2009.

MLD 2009 KARACHI HIGH COURT SINDH 1305 #

2009 M L D 1305

[Karachi]

Before Khilji Arif Hussain and Arshad Noor Khan, JJ

GHULAM MUSTAFA---Appellant

Versus

RASHID AKBAR ANSARI and others---Respondents

High Court Appeal No. 22 of 2009, decided on 27th February, 2009.

Specific Relief Act (I of 1877)---

----Ss.12 & 42---Contract Act (IX of 1872), S.230---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for declaration and specific performance of sale agreement against agent---Rejection of , plaint---Defendant though had entered into agreement of sale in his personal capacity, but in the preamble it was stated "for self and on behalf of his father"---Defendant had no title/interest of any nature in respect of property for specific performance of which suit was filed, not in the memo of plaint the plaintiff alleged that defendant had any authority for the sale of the property in question on behalf of his father---Under 5.230 of the Contract Act, 1872, suit was not maintainable against an agent, on that score itself the plaint was liable to be rejected---Agreement of sale by itself would not create any right, title or interest in the property, even if there was an agreement of sale between father of defendant and vendor, such agreement did not create any interest in the ,property to entitle plaintiff to seek relief of specific performance.

Pakistan Insurance Corporation v. Pakistan National Shipping Corporation Karachi and others 1994 MLD 667; Muhammad Ashraf and another Mst. Kokab Benazir Fatima and 2 others 2008 CLC 1398 and Muhammad Sohrab Khan v. Muhanm ad Begum and 3 others PLD 2005 Kar. 280 ref.

Mahmood Habibullah for Appellant.

Abrar Hassan for Respondent No.1.

MLD 2009 KARACHI HIGH COURT SINDH 1307 #

2009 M L D 1307

[Karachi]

Before Munib Ahmad Khan and Nadeem Azhar Siddiqi, JJ

KARACHI PEACE AND JUSTICE SOCIETY---Petitioner

Versus

KBCA and others---Respondents

C.P. No.D-74 of 2007, decided on 27th Mach, 2008.

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

----Ss.4-B, 6, 7-A & 10-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Illegal construction action against---Counsel for the Authority had submitted that previously there was an oversee committee constituted under S. 4-B of Sindh Buildings Control Ordinance, 1979 which was looking after the affairs of illegal construction as well as watching the functions of Karachi Building Control Authority in implementation of law, but at the moment there was no oversee committee---Counsel had also pointed out that S. 10-A of Sindh Buildings Control Ordinance, 1979 bestowed due power to the Authority to appoint committee or sub-committee---In view of past experience of oversee committees under S. 4-B of Sindh Buildings Control Ordinance, 1979 it would be more proper if the Authority itself was put to correct its own illegalities or irregularities by resorting to S.10 of said Act and appoint committee, or sub-committee as could be required consisting of technical experts to control and oversee the functions of the officials of the authority in a summary way---Said committees, besides looking after the matters of construction, should also see that documents falling within the meaning of `public documents' be supplied to the applicants and it would be more viable and proper that the grievance of the aggrieved person in respect of the violation of the Building Control be sorted out and settled by the Authority itself as well as at the level of its committee or subcommittee.

None present for the Petitioner.

Shahid Jamiluddin Ahmed Khan for Respondent No.1 along with DCB Abdul Rehman Ansari.

None present for the Respondents Nos. 2 and 3.

Sarwar Khan, Addl. A.G.

MLD 2009 KARACHI HIGH COURT SINDH 1311 #

2009 M L D 1311

[Karachi]

Before Gulzar Ahmed, J

BASHIR QURESHI---Plaintiff

Versus

KARACHI BUILDING CONTROL AUTHORITY and others---Defendants

Civil Suit No.48 of 2003, decided on 20th September, 2005.

Civil Procedure Code (V of 1908)---

----S.11, O.IX, R.9 & O.VII, R.11---Rejection of plaint---Objection was raised by defendants about the maintainability of the suit filed by the plaintiff on the ground that there were already two orders of two Division Benches of the High Court in two constitutional petitions---Plaintiff apparently had suppressed the fact that on the same subject matter two constitutional petitions were already filed and orders in those petitions had been passed---Where controversy had been competently brought before the High Court in its constitutional jurisdiction, subsequent suit raising all questions previously decided in the constitutional petition, would be barred under provisions of O.IX, R.9, C.P.C. as well as on the principle of res judicata---Operation of order was stayed for a period of seven days on the application of the plaintiff.

Mehdi Hassan v. Zulfiqar Ali PLD 1960 Lah. 451; Asif Jah Siddiqui v. Government of Sindh PLD 1983 SC 46 and Ali Muzaffar v. Mst. Aktul Begum 1998 SCMR 678 ref.

Syed Sarfraz Ahmed for Plaintiff.

Shahid Jamil and Mansoor Ahmed for KBCA.

MLD 2009 KARACHI HIGH COURT SINDH 1330 #

2009 M L D 1330

[Karachi]

Before Mrs. Qaiser Iqbal, J

Master HAMMAD---Plaintiff

Versus

SALIM MIRZA and 2 others---Defendants

Suit No. 44 of 2002, decided on 17th April, 2007.

Fatal Accidents Act (XIII of 1855)---

----S.1---Fatal accident---Suit for compensation---Evidence adduced by the parties had proved that accident took place in the manner as alleged by the plaintiff; and it had also been ,proved that driver of Coach in question was rash and negligent in plying such Coach when accident occurred in which the plaintiff was seriously injured---No evidence was available to demonstrate the consciousness, care, caution and sense of duty on the part of the driver-:-Plaintiff had suffered traumatic injuries---Ample evidence was on record that said injuries were caused to the plaintiff on account of rash and negligent driving of driver who was serving as agent and servant of the defendants during the course of event---Case of the plaintiff was covered by vicarious liability of driver and defendants---Plaintiff, in circumstances, was entitled .to compensation for the injury sustained by him at the hands of the driver who purportedly drove the vehicle rashly and negligently, culminating in ' vital accident which resulted into the injuries caused to the plaintiff in which his left leg was amputated---Suit filed by the plaintiff against the defendants was decreed jointly and severally in the sum of Rs.8,00,000 with 14% interest from the date of decree till its realization, with costs.

Muhammad Moosa v: Karachi Water and Sewerage Board 1997 CLC 927; Syed Iqbal Hussain Jafferi v. KESC 1994 CLC Kar. 1903; Abdul Qadir v. S.K. Abbas Hussain and 2 others PLD 1997, Kar. 566; Heaven v. Pender (1883) 2 QBD 503; Mst. Zahra Ziadi v. M. Anwar Khan Ghori 2004 CLC 223 and Muhammad Sharif v. Nawab Deen and another PLD 1957 West Pakistan Lah. 283 ref.

Nasir Mahmood for Plaintiff.

S. Nasir Hussain Jafri for Defendants.

Date of hearing: 8th March, 2007.

MLD 2009 KARACHI HIGH COURT SINDH 1368 #

2009 M L D 1368

[Karachi]

Before Amir Hani Muslim and Maqbool Ahmed Awan, JJ

Haji BASHIR AHMED BABBAR---Petitioner

Versus

EXECUTIVE ENGINEER, IRRIGATION NORTHERN JAMRAO DIVISION MIRPURKHAS, SINDH and 9 others---Respondents

Constitutional Petition No. D-206 of 2004, decided on 28th May, 2009.

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

----Art.199---Civil Procedure Code (V of 1908), O.II, R.2---Constitutional petition---Amendment of petition---Scope---Counsel for respondent had contended that petition was not. maintainable as the prayer in the amended petition was different than the prayers in the original petition which had by itself brought the relief sought in the petition within the mischief of O.II, R.2, C.P.C.---Contention was repelled as general principles of C.P.C. apply to constitutional petition and the amendment in the petition was allowed by High Court---Even . otherwise provisions of O.II, Rs.2, C.P.C., did not apply to constitutional petition---In the original petition the prayer clauses were not happily worded and by amendment in the prayer clause, the defect was cured, which, in no way, would change the complexion of the petition---Moreover, High Court, in exercise of constitutional jurisdiction, was competent, even to grant any relief, which had not been prayed for.

(b) Sindh Irrigation Act, 1879---

----Ss.22, 23, 24, 25 & 91---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transferring or changing the source of water---Section 91 of Irrigation Act, 1879, fully applied to the cases where the water courses were sought to be changed or transferred---Section 91 was mandatory provision and could not be bypassed by the authority to extend favour to any party---Withdrawal of magisterial powers of the Deputy Commissioner had no bearing---Before applying S.91 of Irrigation Act, 1879, law required that Irrigation Department would seek consent of the owners of the water course, if they intended to transfer the lands of any person on a water course in terms of Ss.22 to 25 of the Irrigation Act, 1879---In case of dispute, procedure was provided, which included S.91 of Irrigation Act, 1879---In the present case said mandatory provisions had been overruled while transferring the water course no consent from the petitioner and other khatedars, who were the owners, was sought---Such act of the Irrigation Department was violative of the Irrigation Act, 1879---Transferring the source of water from the water course of the petitioner, was illegal, ex facie and that action of Irrigation Department was unwarranted and was nullity in the eye of law---Petition was allowed with direction to Irrigation Authorities to immediately take steps to redress the grievance of the petitioner and other khatedars, accordingly.

Hassan Mehmood Baig for Petitioner.

Allah Bachayo Soomro; Addl. A.-G. along with Gopaldas, XEN Jamrao Division and Ali Nawaz Memon, AXEN, Mirpur Sub-Division.

Muhammad Hashim Memon for Respondent No.4.

MLD 2009 KARACHI HIGH COURT SINDH 1378 #

2009 M L D 1378

[Karachi]

Before Sajjad Ali Shah, J

IZHAR MUHAMMAD---Plaintiff

Versus

Messrs MEMON HOUSING SERVICES through Partner and another---Defendants

Suit No.813 of 2006 and C.M.A. No. 9235 of 2007, decided on 15th May, 2009.

Specific Relief Act (I of 1877)---

----Ss.12 & 21(g)---Civil Procedure Code (V of 1908), O.VII, R.11 & O.VI, Rr.4, 5---Suit for specific performance of agreement---Rejection of plaint---Scope---Existence or absence of a cause of action was to be discovered from the recital of plaint or the documents on which such plaint was based; and where a cause of action was disclosed in the plaint, plaintiff had a right to have a fair trial notwithstanding the defence taken in the written statement---Plaint could only be rejected where all the reliefs claimed by the plaintiff were barred by any law, however, where some of the reliefs claimed were barred, the plaint could not be rejected as a plaint could only be rejected as a whole and not in piecemeal---Non-compliance of rule 4 of O.VI, C.P.C. did not envisage the rejection of plaint, on the contrary rule 5 of O.VI, C.P.C. provided remedy by directing parties to furnish further and better particulars.

S.M. Shafi Ahmed Zaidi v. Malik Hasan Ali Khan (Moin) 2002 SCMR 338 and Mehar Ali v. Noor Mohammad and others 2007 SCMR 1965 ref.

Ishrat Alvi for Plaintiff.

Haroon Ishaq Jangda for Defendant.

MLD 2009 KARACHI HIGH COURT SINDH 1383 #

2009 M L D 1383

[Karachi]

Before Khalid Ali Z. Qazi, J

MUHAMMAD BABAR---Plaintiff

Versus

AL-ASR ENTERPRISES through Administrator---Defendant

Suit No.723 of 2007, decided on 29th May, 2009.

Karachi Building and Town Planning Regulations, 2002---

----Regln. 5.1.4--Escalation charges, demand of---Developer raised such demand from allottee of flat after receiving its full offered price as per payment schedule---Validity---Developer had neither taken permission from Karachi Building Control Authority for escalation of price of flat; nor had filed in court completion certificate of flat---No evidence was produced by the developer to justify its claim for escalation of price of flat---No document was produced in court by the developer in respect of inflation from Ministry of Finance or comparative statement of costs of different building materials---Developer in support of its claim had not examined any witness from concerned department or construction industry---Agreement between parties for sale of flat contained a clause requiring developer not to enhance its price---Allottee was not liable to pay escalation charges in circumstances.

Aminullah Siddiqui for Plaintiff.

Raza Muhammad Raza for Defendant.

Date of hearing: 19th May, 2009.

MLD 2009 KARACHI HIGH COURT SINDH 1399 #

2009 M L D 1399

[Karachi]

Before Zafar Ahmed Khan Sherwani, J

RAZO (PVT.) LTD.---Plaintiff

Versus

PAKISTAN STEEL MILLS CORPORATION (PVT.) LTD.---Defendant

Suit No. 542 of 2008, decided on 12th March, 2009.

Arbitration Act (X of 1940)---

----Ss.14, 15 & 30---Sindh Chief Court Rules, R.282---Submitting award in the court---Power of court to modify award---Scope---Application for setting aside the award---Application filed by the umpire under R.282 of Sindh Chief Court Rules, for submitting award was registered as suit---Defendant filed objection in the form of an application under Ss.15 & 30 of Arbitration Act, 1940 praying therein to set aside the award and to pass a judgment according to law on merits---Main objection of the defendant was that evidence brought on record by the defendant during arbitration proceedings had not been appreciated by the umpire and the award was liable to be set aside---Defendant had not alleged any infirmity/irregularity or defect in terms of S.15 of Arbitration Act, 1940 or any illegality or misconduct in terms of S.30 of said Act; on the basis of which either the award be modified or set aside as prayed by the defendant in his application---Court examining the validity of any award, would not act as a court of appeal---Court hearing the objection to the award could not undertake reappraisal of evidence recorded by the arbitrator/umpire in order to discover the error or infirmity in the award---Error or infirmity in the award which rendered the award invalid, must appear on the face of award and should be discoverable by reading the award itself---Where reasons recorded by the Arbitrator were challenged as perverse, the perversity in the reasoning had to be established with reference to the material considered by Arbitrator in the award---Award passed by Umpire in the case could not be interfered because no perversity in the reasoning with reference to the material considered by the Umpire had been established by the defendant---Only objection of the defendant with regard to non-appreciation of evidence produced before the Umpire was out of scope of High Court as provided in Ss.15 & 30 of Arbitration Act, 1940---Award was made rule of the court, in circumstances.

Messrs Khan Brothers and Associates v. Director General Food, Government of Pakistan 1998 CLC 1671; Messrs Quality Builder Ltd. v. Karachi Metropolitan Corporation 1999 CLC 1777 and Messrs Joint Venture Kd/Rist through D.P. Giesler G.M., Bongard Straese 3, 4400, Dusseldori 30, Federal Republic of Germany, C/o 15-Shah Charagh Chambers, Lahore and 2 others v. Federation of Pakistan, through Secretary Food, Agricultural and Coop; and another PLD 1996 SC 108 ref.

Shahid Ali Ansari and Mr. Ishtiaq A. Memon for Plaintiff.

Syed Amanullah Agha for Defendant.

MLD 2009 KARACHI HIGH COURT SINDH 1407 #

2009 M L D 1407

[Karachi]

Before Nadeem Azhar Siddiqi, J

SAEED CHANDIO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-759 of 2008, decided on 12th January, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---F.I.R. was lodged against three unknown persons after funeral of the deceased with unexplained delay of 'about twenty one hours---Prosecution witnesses were named in F.I.R., but their statements were recorded after eight days without any explanation---Name of accused was disclosed in the statements without mentioning the source through which the prosecution witnesses came to know about the name of accused-Fact that F.I.R. was lodged after delay of twenty one hours and the prosecution witnesses statements were recorded after eight days without explanation had created doubt about the involvement of accused in the offence---No reasonable grounds was available for believing that accused had committed an offence falling under the prohibitory clause of S.497, Cr.P.C.---Accused having made out a case of further inquiry, he was entitled to concession of bail which was allowed.

Abdul Khaliq v. State 1996 SCMR 1553; S. Amanullah Shah v. State PLD 1996 SC 241 and Irshad v. State 2004 PCr.LJ 1246 ref.

Asif Ali Abdul Razzak Soomro for Applicant.

Miss Robina Dhamra for the State.

MLD 2009 KARACHI HIGH COURT SINDH 1424 #

2009 M L D 1424

[Karachi]

Before Faisal Arab and Khilji Arif Husain, JJ

RAMZAN ALI HEMANI---Petitioner

Versus

HABIB BANK LTD. and another---Respondents

C.P. No.D-2355 of 2008, decided on 4th May, 2009.

National Accountability Ordinance (XVIII of 1999)---

----Ss.9 & 18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Reference in Accountability Court---Suspension and termination of service---Entitlement to salary dues etc.---Respondent/ Bank got registered F.I.R. against the petitioner complaining that petitioner in his capacity as manager had misappropriated millions of rupees from the Bank's funds---Petitioner was suspended and Reference was filed against the petitioner in the Accountability Court which was pending adjudication---For the period of suspension the petitioner demanded salary as admissible to him but same was denied by the respondent/Bank---Subsequently petitioner was terminated from service on basis of service policy---Petitioner was claiming salary for the period of suspension and also impugned the order of his termination---Validity---No lawful justification was present to deny the petitioner his salary during his suspension, notwithstanding the fact that he was in jail---Petitioner was in jail because of registration of case against him by the respondent .on account of allegations of embezzlement---Mere allegation of commission of an offence and registration of F.I.R., ipso facto, would not make a person guilty of the offence for which he was charged---Person was to be presumed innocent unless found guilty by a competent court of law---In the present case reference against the petitioner was still pending---Petitioner, in circumstances, was entitled to his salary from the date of his suspension till the transfer of controlling-shares of the employer Bank in favour of an other organisation---As to the petitioner's grievance with regard to his termination from service, that happened at the time when the controlling shares and management of respondent/Bank stood already vested in the other organization---Petitioner was not entitled to invoke the constitutional jurisdiction of High Court for such grievance in circumstances---Constitutional petition was allowed only to the extent that the petitioner was entitled to claim from the respondent Bank his salary dues from the date of his suspension till the transfer of controlling shares.

Shafat Nabi Sherwani for Petitioner.

Shahid Anwar Bajwa for Respondent No.1.

Date of hearing: 26th February, 2009.

MLD 2009 KARACHI HIGH COURT SINDH 1432 #

2009 M L D 1432

[Karachi]

Before Khadim Hussain M. Shaikh, J

MEER MUHAMMAD---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application Nos. 18 and 20 of 2009, decided on 9th April, 2009.

Criminal Procedure Code (V of 1898)---

----S.514---Penal Code (XLV of 1860), Ss.302/147/148---Forfeiture of bail bond---Accused for whom applicant stood surety, jumped the bail and thereafter never appeared before the Trial Court and became fugitive from law---On failure of applicant to secure the availability of said accused, surety was proceeded against under provisions of S.514, Cr.P.C. and his surety bond was forfeited in full---Nothing was available on record that applicant/ surety had gained any monetary benefit by standing surety for accused---Financial position of surety was also stated to be unsound---In view of the principles of keeping balance between undue leniency and undue severity, amount of surety bonds of the applicant was reduced from Rs.300,000 to Rs.1,50,000---Application was partly allowed.

Ahmed Ali M. Shaikh for Applicant.

Nisar Ahmed G. Abro. for the State.

MLD 2009 KARACHI HIGH COURT SINDH 1438 #

2009 M L D 1438

[Karachi]

Before Munib Ahmed Khan, J

MUHAMMAD ATIF NIZAMI and others---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.62 of 2009, decided on 9th April, 2009.

Criminal Procedure Code (V of 1898)---

----Ss.265-K & 561-A---Penal Code (XLV of 1860), S.324/34---Application for acquittal and quashing of F.I.R.---Witness had not been named in F.I.R., while he being a vegetable vendor, his presence at the place of incident was to be supported by corroborative evidence---F.I.R. was silent regarding the presence of any other person, except the person named in F.I.R.---Witness had not given any identification of accused persons, nor motorcycle number etc.---Evidence which had been brought on record was so remote that it was difficult for the prosecution to connect accused persons with the crime---Evidence of witness hardly linked accused persons with the alleged crime and even they had not been named in the F.I.R.---No probability was available in such situation to connect accused persons with the commission of crime---Proceedings of F.I.R. were quashed and accused were acquitted.

Syed Nadeem-ul-Haq, for Applicants.

Saleem Akhtar for the State.

MLD 2009 KARACHI HIGH COURT SINDH 1443 #

2009 M L D 1443

[Karachi]

Before Khilji Arif Hussain and Ms. Soofia Latif, JJ

MIR HASSAN---Appellant

Versus

MASTER HAMMAD through his next friend and another---Respondents

High Court Appeal No.188 of 2007, decided on 27th July, 2009.

Fatal Accidents Act (XIII of 1855)---

----S.1---Civil Procedure Code (Amendment) Ordinance (X of 1980), S.15---Fatal accident---Suit for compensation---Appeal---Plaintiff, who was a minor and had become permanently disabled on account of traumatic injuries in road accident filed suit through his father/next friend for recovery of Rs.5,500,000 against defendants---Defendant driver was alleged to be driving the vehicle rashly and negligently resulting in causing plaintiff serious traumatic injuries---Trial Court, after recording evidence, decreed suit in the sum of Rs.8,00,000 with 14% annual interest from the date of decree till realization---Defendant being aggrieved 'by said judgment of the Trial Court had preferred appeal---Evidence on record had proved that defendant/driver of the Coach wrongfully dashed against the minor plaintiff pedestrian in excessively high speed and dragged the minor pedestrian for about a dozen feet ahead along with the wheel of the Coach causing serious injuries to the minor plaintiff---Defendant had failed to bring on record any evidence that due care had been taken by him while driving heavy vehicle on public road to avoid accident---Jurisprudence of compensation for motor accidents must develop in the direction of no-fault liability and the determination of the quantum must be liberal, not niggardly since the law values life and' limb in free country in generous scales---Suit having rightly been decreed by the Trial Court, appeal against judgment and decree of the Trial Court having no merits was dismissed in circumstances.

Sardar Khan Bahadur Khan v. Returning Officer Constituency LA-18, Poonch-2, Civil Judge, Hajira, AK & 2 others 2003 MLD 284; Muhammad Azam and 5 others v. Abdullah and 15 others, 1999 CLC 200; Syed Muhammad Saleem v. Ashfaq Ahmed Khan and another 1989 CLC 1883; Niamatullah Shah v. Farmanullah and another, 1980 SCMR 953; Federation of Pakistan v. Hafiza Malika Khatoon Begum and others 1996 SCMR 406; Pakistan Steel Mills Corporation Ltd. Karachi and another v. Ehteshamuddin Qureshi 2005 SCMR 1392; Punjab Road Transport Board v. Abdul Wahid Usmani and others PLD 1980 Lah. 584 and Amul Ramchandra Gandhi v. Abhasbhai Kasambhai Diwan and others AIR 1979 Gujarat 14 rel.

S. Nasir Hussain Jafri for Applicant.

Nasir Maqsood and Amir Maqsood for Respondent No.1.

Date of hearing: 13th May, 2009.

MLD 2009 KARACHI HIGH COURT SINDH 1465 #

2009 M L D 1465

[Karachi]

Before Sajjad Ali Shah, J

Mst. RUKHSANA BANO and 3 others---Plaintiffs

Versus

ABDUL QADIR and 2 others---Defendants

Suit No.1051 and C.M.A. No. 8483 of 2008, decided on 10th February, 2009.

Civil Procedure Code (V of 1908)---

----O. VII, R.2---Arbitration Act (X of 1940), Ss.6 & 34---Suit for rendition of accounts---Stay of proceedings to have recourse to arbitration---Application for---Predecessor-in-interest of the plaintiffs and defendant being real brothers were carrying on business in partnership---Predecessor-in-interest of the plaintiffs having died, plaintiffs filed suit for rendition of accounts, pleading that after the death of their predecessor-in-interest defendant had excluded them from the management of the dissolved partnership and was not rendering the accounts---Defendants had contended that as partnership agreement contained an arbitration clause, present suit could not be proceeded and the dispute be referred to the arbitration---Counsel for the plaintiffs, on the other hand had contended that no dispute existed between the partners during the life time of predecessor-in-interest of the plaintiffs and the present suit being for rendition of accounts, after the dissolution of partnership, question of referring the matter to the arbitration did not arise---Validity---Only two partners were in the firm, one was the predecessor-in-interest of the plaintiffs and other the defendant and there was no dispute between them during the life time of predecessor-in-interest of the plaintiffs---Defendant had conceded that nothing was on record to show that after the death of the plaintiffs' predecessor-in-interest, the plaintiffs were admitted to partnership or they consented to such status---One partner could not, by his own contract, impose a partnership upon his heirs or legal representatives---Partnership was not a matter of status, it being a :matter of contract, arbitration clause on that count could not be enforced against them---As the plaintiffs were just enforcing their ,personal right, acquired upon the death of their predecessor-in-interest, and they being legal heirs of deceased partner could not be forced to arbitration---Application filed by the defendant was dismissed.

Mst. Sughra and others v. Babu AIR 1952 Allah Abad 506;

M.A. Zawar and Co. (Regd.) and 5 others v. National Bank of Pakistan 1970 SCMR 234 and Ramjee v. Aligram 11 LC. 481 ref.

Nadeem Akhtar for Plaintiffs.

Haroon Ishaque Jangda for Defendants Nos. 1 and 3.

Khalid Jawed Khan for Defendant No.2.

Lahore High Court Lahore

MLD 2009 LAHORE HIGH COURT LAHORE 1 #

2009 M L D 1

[Lahore]

Before Hasnat Ahmad Khan, J

KHALID MAHMOOD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 5594-B of 2008, decided on 17th October, 2008.

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

----S. 498---Penal Code (XLV of 1860), Ss.420, 468, 471 & 506---Pre-arrest bail, grant of---While lodging the F.I.R., no date and time of the occurrence was given by the complainant---Sale-deed in respect of property in question was duly registered and on basis of said sale-deed, mutation was duly sanctioned in favour of the complainant---Prima facie, it appeared that after keeping mum for a period of about two years, the complainant got a rectification deed, which however, could not be registered---Investigation of the case was still in progress---Was yet to be determined as to whether said rectification deed was executed by accused or the same was prepared and forged by the complainant---Question of applicability of offence under Ss.468/471, P.P.C., in the peculiar circumstances of the case, required further probe---Offence under S.420, P.P.C. was bailable---Accused was found innocent during the first investigation and allegations levelled against him were found false, but report for cancellation of F.I.R. which was prepared could not mature---Investigating Officer submitted that he did not require physical custody of accused for effecting recovery of any document as all the relevant documents were already in his possession---Interim pre-arrest bail already granted to accused, was confirmed, in circumstances.

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

----Ss. 497 & 498---Pre-arrest bail and post arrest bail---Considerations for---Considerations for pre-arrest bail, were entirely different from that of post-arrest bail---Law of bail, however was not a static law and while deciding the pre-arrest bail application, the court could not be oblivious of the merits of the case.

Meeran Bux v. The State and another PLD 1989 SC 347 and Muhammad Ismail v. Ghous Bux and another 1990 PCr.LJ 2013 rel.

Ch. Babar Waheed for Petitioner.

Shahid Mehmood Khan, DPG for the State with Muhammad Younis with record.

Muhammad Ayub Lodhi for the Complainant.

MLD 2009 LAHORE HIGH COURT LAHORE 13 #

2009 M L D 13

[Lahore]

Before Zafar Iqbal Chaudhry, J

Mst. SUGHRAN BIBI---Petitioner

Versus

SAJJAD HUSSAIN and 4 others---Respondents

Criminal Revision No. 652 of 2006, decided on 21st October, 2008.

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

----Ss. 202 & 227---Penal Code (XLV of 1860), Ss.452, 354, 354-A, 337-A(i), 337-F(i) & 337-F(v)--- Framing and changing the charge---Complainant had called in question the impugned order passed by the Trial Court, whereby application of accused persons for deletion of offence under S.354-A, P.P.C. and for sending the case to Judicial Magistrate, had been accepted---Preliminary evidence produced by the complainant, showed that prima facie S.354-A, P.P.C. was applicable---No doubt a charge once framed did not become rigid and could be subjected to alteration or change and that was why a power under S.227, Cr.P.C. had been given to the court in said section, which empowered it to alter or add to any charge at any time before a judgment was pronounced, but that was always subject to evidence on record against accused persons---In the present case charge was framed and the evidence was yet to be recorded by the Trial Court and the witnesses were also to be cross-examined by the accused persons---Trial Court, after recording complete evidence, could form its opinion on the basis of evidence produced by the parties---Without recording further evidence and charge, the amendment of charge was not justified, at that stage---Impugned order passed by the Trial Court was set aside and the case was remanded by High Court to be proceeded further in accordance with law.

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

----Ss. 201, 202, 227 & 265-D---Framing of charge---Object---Framing of charge would not per se mean that accused was held guilty---Accused was only made aware about the case of the prosecution borne out on the record referred to S.265-D, Cr.P.C., upon which he had to be Prosecuted--Object of the charge was to enable accused to know about the precise accusation against him and nothing more---Such would not Preclude him from advancing his version, neither a charge had ever constrained a court nor would place any clog on it to arrive at a judgment of conviction or otherwise---That just would enable the court to start with the trial and after recording evidence would decide whether a charge had been established beyond reasonable doubt against accused---Ultimate conclusion reached by the court would determine as to what offence, an accused had committed or whether at all a case had been made out against him.

Zahid Sultan Khan Minhas for Petitioner.

Ch. Muhammad Idrees and Ch. Imran Ahmad for Respondents.

Mian Ismat Ullah, DPG for the State.

Date of hearing: 24th September, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 19 #

2009 M L D 19

[Lahore]

Before Khurshid Anwar Bhinder, J

MUHAMMAD ARIF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 8724/B of 2008, decided on 13th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.376/511---Bail, grant of---Further inquiry---Accused though was nominated in the F.I.R. with specific role of commission of heinous offence, but, evidence available on record was not confidence inspiring for the reason that it was clearly mentioned in the F.I.R. that two eye-witnesses of the occurrence, who had categorically stated in F.I.R. that they had seen the occurrence with their own eyes and one of them being real brother of the victim stated that he had seen accused dragging his sister and tried to commit Zina-bil-Jabr with her---Said part of the story of the F.I.R. seemed implausible, irrational and unbelievable because it was practically not possible for a brother to stand like a silent spectator when modesty of her sister was being outraged---Another eye-witness, being also present at the place of occurrence and both eye-witnesses could have easily apprehended accused when he was empty handed---It would not appeal to ones mind that occurrence had ever taken place---Simply recovery of broken string, shalwar and shirt could not connect accused with the commission of an offence until and unless same was corroborated by the independent witnesses---No medical examination of the victim was conducted in order to establish the marks of violence on her body---Argument advanced by the counsel for accused was more plausible regarding the previous enmity between the parties---Accused could have been involved in the case because of the enmity---Offences under Ss. 376 & 511, P.P.C., in circumstances, were not made out against accused---Case of accused being that of further inquiry into his guilt, he was admitted to bail, in circumstances.

Atta Muhammad v. The State 2007 PCr.LJ 1149; Muhammad Asif alias Muhammad Ilyas v. The State 2004 YLR 378 and Tahir Abbas alias Babar Ali v. The State 2001 MLD 1559 ref.

Ch. Tanveer Ahmed Hanjra for Petitioner.

Shafqat Ullah Butt, DPG for Respondent.

MLD 2009 LAHORE HIGH COURT LAHORE 25 #

2009 M L D 25

[Lahore]

Before Kazim Ali Malik, J

RASHID MIRZA---Petitioner

Versus

REGIONAL DIRECTOR and 2 others---Respondents

Writ Petition No. 7166/Q of 2008, heard on 30th July, 2008.

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

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Quashing of F.I.R.---Practice and procedure---High Court is always reluctant in quashing the F.I.R. in exercise of constitutional jurisdiction and inherent powers, but at the same time it is high time for taking effective legal steps to keep the government functionaries, departments, institutions and agencies within their allotted sphere.

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

----Ss. 420/4671468/471---Prevention of Corruption Act (II of 1947), S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Respondent complainant had sold his owned property to petitioner accused through a mutation of sale entered by the Revenue Patwari in the daily diary and the Register of Mutations---Two co-owners of the complainant had identified him before the Revenue Officer at the time of attestation of the mutation---Revenue Officer by way of abundant caution had also got affixed on the mutation a photograph of the complainant vendor duly attested by a Naib Nazim, Union Council---Petitioner, accused vendee, had paid consideration of Rs.3,00,000 to the complainant vendor against a proper receipt bearing his signature and thumb impressions---Complainant had neither filed an appeal before the District Collector against the order is question of the Revenue Officer, nor challenged the validity and legality of the said mutation before the Civil Court by way of a suit for declaration---Controversial points fell within the exclusive domain of Civil Court, whereas the case was being investigated by the Anti-Corruption Establishment---No offence whatsoever was made out against the petitioner---Anti-Corruption Establishment was not the competent forum for resolution of such like disputes and it could not be allowed to assume the role of a Civil Court or District Collector---By allowing the criminal investigating agency to investigate the case would amount to abuse of process of law---Case therefore warranted the exercise of constitutional jurisdiction and inherent powers---F.I.R. registered against the accused petitioner was quashed accordingly.

----Preamble---Scope of West Pakistan Anti-Corruption Establishment Ordinance, 1961---Anti-corruption Establishment have very limited and special functions and powers---Only object of the creation of such special criminal investigating agency was to combat corruption, bribery and embzzlement of public money and, therefore, the main focus of the Anti Corruption Establishment should have been eradication of corruption, and not encroachment upon the functions and powers of other Government Departments.

Imtiaz Hussain Balooch for Petitioner.

Rai Tariq Saleem A.A.-G with Rizwan-ul-Haq, Circle Officer for Respondents Nos. 1 and 2.

Nisar Ahmad Dogar for Respondent No.3.

Date of hearing: 30th July, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 33 #

2009 M L D 33

[Lahore]

Before Maulvi Anwarul Haq, J

TAHIRA BIBI---Petitioner

Versus

MUHAMMAD SAEED and another---Respondents

Writ Petition No. 2895 of 2005, decided on 29th August, 2008.

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

----Ss. 17(3) & 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minors---Welfare of minors---Determination---Preference of minors---Family Court allowed application for custody of minors in favour of mother but Lower Appellate Court, relying upon preference of minors to live with their father, set aside the order passed by Family Court---Validity---Court was authorized under S.17 (3) of Guardians and Wards Act, 1890, to consider an intelligent preference of minor in the matter of custody---Lower Appellate Court recorded statements of minors on the date of judgment, when parties had already been in Court for the last two years, and minors had come along with their father---High Court only relied upon statement of the eldest son who was of the age and had grown a beard as well, but statements of remaining two children were not intelligent preference in the matter---Mother of minors had not re-married after divorce and was constantly fighting for custody of her children, while father of minors had contracted marriage and had three children from new wedlock---Daughter and younger son were of tender age and required care which only a mother could provide---High Court in exercise of constitutional jurisdiction declared judgment passed by Lower Appellate Court to be without lawful authority and set aside the same to the extent of daughter and younger son, who would remain with their mother---Petition was allowed accordingly.

Tahir Jamil Butt along with petitioner in person.

Sh. Azfar Amin for Respondent.

Muhammad Javed along with Respondent No.1 in person.

Date of hearing: 26th, 27th and 29th August, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 42 #

2009 M L D 42

[Lahore]

Before Ali Akbar Qureshi, J

ALI USMAN FAIZ and 8 others---Petitioners

Versus

CHAIRMAN, B.I.S.E. and 5 others---Respondents

Writ Petitions Nos. 1112.2232, 226t and 3245 of 2008, decided on 27th August, 2008.

Constitution of Pakistan (1973)---

----Art. 199-Constitutional petition---Educational institution---Evaluation of answer books---Guidelines provided by Education Board---Petitioners appeared in intermediate examination and their grievance was that according to instructions on questions papers and guidelines provided by Education Board for evaluation, the examiners awarded one mark instead of two marks for each correct answer---Validity---Such was deviation from the guidelines/instructions by examiners, who were obliged to adhere to the instructions, and in case of violation or non-observance thereof, constitutional jurisdiction of High Court could be exercised---Board being statutory body was primarily responsible for efficient conduct and to regulate mechanism of examinations and to exercise its supervisory control over examiners by providing guidelines to ensure foolproof checking of answer books of students---Board as well as examiners were statutorily bound to act in accordance with the provisions of Calendar of Board of Intermediate and Secondary Education and instructions framed thereunder---Examiners appointed by the Board checked/examined answer books of petitioners in the most perfunctory and arbitrary manner rather in total defiance and violation. of categorical instructions issued by the Board on the subject---Decision taken by Education Board regarding rechecking of answer books of petitioners was not sustainable in the eye of law and was accordingly set aside---High Court remanded the matter to Board of Intermediate and Secondary Education and directed the Chairman of the Board to decide applications filed by petitioners afresh in the light of findings of High Court, in line with provisions of Calendar of the Board and instructions circulated to examiners---Petition was allowed accordingly.

Board of Intermediate and Secondary Education Lahore through Chairman v. Mst. Salma Afroz and 2 others PLD 1992 SC 263 ref.

Sardar Usman Khosa for Petitioners.

Allah Bakhsh Kalachi for Respondent.

MLD 2009 LAHORE HIGH COURT LAHORE 54 #

2009 M L D 54

[Lahore]

Before Tariq Shamim and Muhammad Ahsan Bhoon, JJ

MUHAMMAD ANWAR alias BILLA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.630 and Murder Reference No. 337 of 2003, heard on 9th September, 2008.

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

----S.302(b)---Appreciation of evidence---Widow of deceased had given very natural and confidence-inspiring ocular account of occurrence, whose presence on the spot at the relevant time was even admitted by the accused in his statement recorded under S.342, Cr.P.C. as well as by the defence witnesses-Ocular testimony was corroborated by medical evidence---No crime empty having been secured from the spot, recovery of gun was of no consequence, but it would not affect the probative force of the confidence-inspiring ocular account given by the widow of the deceased---Defence version seemed to be very absurd and the defence witnesses instead of supporting the same had rather supported the prosecution version qua the mode and manner of occurrence and presence of the widow of the deceased at the time of incident and involvement of accused in the crime---Motive behind the murder alleged in the F.I.R. had been proved through cogent evidence---Although eye-witness account furnished by two other prosecution witnesses had been disbelieved, yet quality of evidence and not the quantity of evidence had to be considered for a just conclusion of the matter---Solitary statement of the widow of the deceased was sufficient to maintain the conviction and sentence of accused---Partial compromise in a murder case was not permissible---Accused had murdered an innocent person in daylight without any legal and plausible justification---No mitigating circumstance existed in favour of accused---Conviction and sentence of accused were upheld in circumstances.

Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others 1997 SCMR 1307 ref.

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

----S.302(b)---Appreciation of evidence---Principle---Not the quantity of evidence, rather it is the quality of evidence which is to be considered for just conclusion of a matter.

----S.302(b)---Criminal Procedure Code (V of 1898), S.345---Compromise---Partial Compromise in a murder case is not permissible.

Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others 1997 SCMR 1307 and Hamid v. The State 2003 SCMR 416 ref.

S.D. Qureshi for Appellant.

Qazi Zafar Iqbal Addl. P.G. for the State.

Kh. Awais Mushtaq for the Complainant.

Date of hearing: 9th September, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 71 #

2009 M L D 71

[Lahore]

Before Ali Akbar Qureshi, J

Messrs AMAS CNG through Managing Partner---Petitioner

Versus

ZILA NAZIM, LAHORE and others---Respondents

Writ Petition No. 12623 of 2006, decided on 17th September, 2008.

Constitution of Pakistan (1973)---

----Arts. 25 & 199---Constitutional petition---Equality of citizens---Petitioner, in the present case, had intended to establish a CNG Dispensing Station and approached the Development Authority for issuance of "No Objection Certificate"---All the concerned departments had issued "No Objection Certificate" to the petitioner but the Development Authority refused to commercialize the site of the petitioner on the ground that the site proposed to do used to establish a CNG Station fell within 1143 meter prohibited radius range as per Government of Pakistan Notification dated 17-9-1989---Validity---Constitution guarantees all the citizens to do lawful business and all the legislations were subject to Art.25 of the Constitution---Principles for application of equality clause enumerated---Where the Authority had not pointed out any other illegality or irregularity committed by the petitioner in making the request of commercialization of his property, he was also entitled for the same treatment as offered to other persons/landowners for getting their properties commercialized within the radius of same area---Constitutional petition was allowed by High Court and letters of refusal to commercialize the property were declared to be illegal, unlawful and unjustified and were set aside with directions that application filed by the petitioner for commercialization of his Property/site to establish the CNG Dispensing Station, shall be deemed to be pending to be decided in the light of findings of the High Court---Petitioner shall pay all the dues demanded by the Development Authority for the purpose.

Naseem Mahmood v. Principal, King Edward Medical College, Lahore and others PLD 1965 Lahore 272; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341 and 1991 MLD 1988 ref.

Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341 fol.

Aftab Gull for Petitioner.

Mian Iftikhar Ahmad along with Muhammad Faheem DDTP(C), LDA for Respondent.

Date of hearing: 17th September, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 88 #

2009 M L D 88

[Lahore]

Before Zafar Iqbal Chaudhry, J

JAVED AKHTAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 9021-B of 2008, decided on 22nd October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.324/34---Bail, grant of---Further inquiry---Accused though was named in the F.I.R. with specific role, but during investigation he produced a large number of persons in support of his innocence and relying on the statements of said persons, the first Investigating Officer positively opined that case against accused was false---Investigation was then transferred to the another Investigating Officer, who opined that accused was guilty---Oath offered by accused was not accepted by the complainant---Difference of opinions between the two Investigating Officers, one in favour of accused and the other in favour of the complainant being on record, case of accused fell within the purview of further inquiry---Accused was admitted to bail, in circumstances.

Kh. Mohsin Abbas and Ahsan Naveed Farooqi for Petitioner.

Mian Ismat Ullah, DPG for the State.

Mushtaq Ahmad A.S.-I. with record.

MLD 2009 LAHORE HIGH COURT LAHORE 99 #

2009 M L D 99

[Lahore]

Before Hasnat Ahmad Khan, J

Mst. ALLAH RAKHI---Petitioner

Versus

D.P.O. GUJRANWALA and 5 others---Respondents

Writ Petition No. 11455 of 2007, decided on 31st July, 2008.

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

----Art. 199---Constitutional jurisdiction---Adequate remedy, not absolute bar---Availability of adequate remedy is not an absolute bar against the exercise of constitutional jurisdiction---High Court in exceptional cases can entertain the constitutional petition directly.

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

----S.302---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Registration of F.I.R.---Case was of two versions---On the one hand respondent Inspector claimed that the son of the petitioner was killed in a police encounter, but on the other hand petitioner asserted that to avenge the murder of two police officials when the said Inspector arrested her son, he eliminated him with the active connivance, help and assistance of other respondents, who also had a background of enmity against her deceased son---Said respondents had allegedly provided a car to the police in which the son of the petitioner was gunned down and as a part of the said plan a false case of robbery regarding the said car was got registered by the respondent Inspector after conniving with another police officer---Petitioner had sought registration of the case on the basis of entirely different facts---Respondent S.H.O., therefore, was bound under S.154, Cr.P.C. to register the case and while refusing to register an independent F.I.R. he had committed an illegality---S.H.O. concerned was consequently directed to entertain the application of the petitioner and register a case against the respondents Constitutional petition was accepted accordingly.

Wajid Ali Durani and another v. Government of Sindh and others 2001 SCMR 1556; Muhammad Bashir v. Station House Officer Okara Cantt. and others PLD 2007 SC 539; Muhammad Azam v. Inspector General of Police Islamabad and 2 others PLD 2008 Lahore 103; Mst. Malka Jan v. Inspector-General of Police N.-W.F.P. Peshawar and 2 others 2000 PCr.LJ 320; Sakina Bibi v. Sessions Judge, Gujrat and 10 others 2007 PCr.LJ 1939 and Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Karachi 119 rel.

----S.154---Information in cognizable cases---Second F.I.R., registration of---Registration of second F.I.R. regarding the same occurrence is not barred.

Sakina Bibi v. Sessions Judge, Gujrat and 10 others 2007 PCr.LJ 1939 and Wajid Ali Durani and another v. Government of Sindh and others 2001 SCMR 1556 ref.

Ch. Muhammad Rafiq Jathol for Petitioner.

Tahir Mehmood Gondal, Assistant Advocate-General with Riaz, S.-I. and Qurban, S.-I. For Respondents Nos.1 and 2.

Ch. Liaquat Ali Sandhu, for Respondents Nos. 4 to 6.

MLD 2009 LAHORE HIGH COURT LAHORE 106 #

2009 M L D 106

[Lahore]

Before Syed Hamid Ali Shah, J

MASOOD RAHIM and 7 others---Petitioners

Versus

ABDUL MAJEED and 9 others---Respondents

Writ petitions Nos. 2911 of 2005, and 2912 to 2916 of 2006, decided on 11th July, 2008.

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

----O. XLI, R.23---Remand---Court or authority trying the lis, has to regulate proceedings and proceed with the matter, according to order of remand, passed by High Court/higher forum---Any attempt to sidetrack issue or decision in a manner, not directed by High Court, would be defiance of remand order---Where the lower Authority had ignored the terms of remand orders passed by High Court, such order passed by the Authority being erroneous, was not sustainable in the eyes of law.

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

----O. XLI, R.23---Remand---Scope---Case cannot be remanded either for the resolution of legal issues or on technical ground.

---S. 42---Mutation---Determination of validity of mutation attested on the basis of sale deed by revenue authorities---Scope---Held, it was not an absolute rule that whenever a mutation is attested, on the basis of registered sale deed, revenue authorities are not required to look into its validity; it is within the competence of revenue authorities to disallow or refuse mutation, when the alienation of land is made by a person who has no valid title (subject matter of alienation).

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

----S. 42---Civil Procedure Code (V of 1908), O.XLI, R.23---Constitution of Pakistan (1973), Art.199---Constitutional petition---Alienation of land in excess of their entitlement by joint share holders---"Chant" prepared by revenue staff under the direction of the Collector was not objected to at any stage---Mutations, through which the land in excess, had been alienated, were required to be cancelled, as, per orders of remand by High Court---Collector, therefore, was under the obligation to cancel the last Mutation, same was a void transaction---Officials, in the revenue hierarchy, instead of proceeding to cancel the mutation, had proceeded to resolve the matter on technical grounds i.e. competency of proceedings and limitation, which was not the intent of the remand order---`Chant' had since been prepared by the field staff which reflected that land over and above the entitlement of respondents had been alienated, the alienations to that extent carried no value in the eyes of law---Share of each joint holder having since been determined, sale from joint Khata by respondents in excess of their entitlements which were mentioned in the "Chant" was void---Constitutional petitions were allowed.

Amjad Pervaiz for Petitioners.

Respondents Nos. 1, 2 and 4 proceeded ex parte.

Muhammad Ibrahim for Respondent No.3.

Muhammad Ghani for respondent No.5.

Najeeb Faisal, Ch., Addl. A.G. for Respondent No.6 to 10.

Ijaz Feroz, Advocate.

Date of hearing: 14th March, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 120 #

2009 M L D 120

[Lahore]

Before Saghir Ahmad, J

IRFAN KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2224-B of 2008, decided on 4th August, 2008.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149---Bail, refusal of---Ipsi dixit of police was not binding on the Court unless the same was based on solid and cogent grounds---Accused had been placed in Column No.3 of the Challan---Despite the fact that examination-in-chief of eight prosecution witnesses had been recorded, the accused was not cross-examining them and he could not take the plea of protracted trial---Alleged discrepancy in ocular and medical evidence required deep and premature appraisal of evidence which was not permissible at this stage, because trial had already made quite a substantive headway and any observation by High Court might cause prejudice to either party---Bail was refused to accused in circumstances with a direction issued to the Trial Court to conclude the trial expeditiously, preferably within a period of four months.

Muhammad Ashraf and 2 others v. The State 2007 PCr.LJ 560; Muhammad Jahangir Badar v. The State and others PLD 2003 SC 525 and Muhammad Nawaz v. The State 2002 SCMR 1381 ref.

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

----S.156---Investigation into cognizable case---Police opinion---Effect on Court---Ipsi dixit of police is not binding on the Court unless the same is based on solid and cogent reasoning.

----S.497---Penal Code (XLV of 1860), Ss.302/324/148/149---Bail after commencement of trial---Guide-lines---Where trial of the case has commenced, then instead of releasing the accused on bail Trial Court should be directed to dispose of the case expeditiously by adopting certain modalities to ensure that he was not detained further for indefinite period.

Muhammad Jahangir Badar v. The State and others PLD 2003 SC 525 and Muhammad Nawaz v. The State 2002 SCMR 1381 ref.

Zahid Hussain Malik and Khawaja Waseem Abbas for Petitioners.

Shahid Hameed Dar for the Complainant.

Miss Azra Israr, Deputy Prosecutor-General with Muhammad Muneer Sub-Inspector.

MLD 2009 LAHORE HIGH COURT LAHORE 127 #

2009 M L D 127

[Lahore]

Before Hasnat Ahmad Khan, J

MUSHTAQ HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 9461-B of 2008, decided on 23rd October, 2008.

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

----S. 497---Penal Code (XLV of 1860), Ss.337-A(i), A(ii), F(i), L(ii) & 34---Bail, grant of---Enmity existed between the parties due to matrimonial dispute which arose between the complainant and his wife, who was sister of accused---No incriminating material was recovered at the instance of accused during the investigation---Investigation revealed that accused was not armed with pistol at the time and place of occurrence---Prosecution's allegation to the extent of co-accused had also been found false---Opinion of the police though was not binding on the courts, but while deciding bail applications, same could be validly taken into consideration by them---Offence allegedly committed by accused being punishable with a maximum sentence of five years, did not fall within the prohibitory clause of S.497, Cr.P.C.---Granting of bail was a rule, while refusal was an exception; in cases falling outside the prohibitory clause of S.497, Cr.P.C.---Bail could be refused to accused, in exceptional cases, despite the fact that offence allegedly committed by him did not fall within the prohibitory clause of S.497, Cr.P.C.---Number of F.I.Rs., though were registered against accused, but most of the cases registered against him had already been found false---Everybody was presumed to be innocent till proved to be otherwise---Accused being a government servant, was not likely to abscond in case of grant of bail in his favour---Accused was suffering pre-trial punishment since 23-8-2008---Accused was admitted to bail, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 rel.

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

----S. 497---Bail, grant of---Purpose---Allowing of bail, would not mean the acquittal of accused, but meaning and purpose of bail was handing over the custody of accused to surety, who would take the responsibility of producing accused before the Trial Court as and when accused would be summoned or required by it.

Ghulam Farid Sanotra for Petitioner.

Shahid Mehmood Khan, Deputy Prosecutor General for the State with Mian Nadeem Ahmed, A.S.-I.

Kh. Abrar Majal for the Complainant.

MLD 2009 LAHORE HIGH COURT LAHORE 149 #

2009 M L D 149

[Lahore]

Before Zafar Iqbal Chaudhry, J

MUHAMMAD JAFAR and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 9211-B of 2008, decided on 22nd October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(ii), 337-F(i) & 337-L(ii)---Pre-arrest bail, confirmation of---Accused though were named in F.I.R., but general allegation was against them for causing injuries to the injured person---Litigation between parties was admitted in the F.I.R.---Medico-legal Report revealed that no injury had been declared as grievance---One of accused had been found innocent during investigation and the version given in the F.I.R. also did not appear to be in line with medical evidence; because the injured had received only three injuries which had created doubt in the version of the complainant as according to him he received so many injuries---Accused persons had joined the investigation and were not required by the police any further---Case of accused persons fell within the purview of further inquiry and sending them in jail at such stage would not serve any useful purpose to the prosecution---Ad interim bail already granted to accused persons, was confirmed, in circumstances.

Muhammad Arif Awan for Petitioners.

Mian Ismat Ullah, DPG for the State along with Abid Hussain A.S.-I. with record.

Abid Hussain A.S.-I. with record.

2009 M L D 215

[Lahore]

Before Maulvi Anwarul Haq, J

Messrs KASHMIR RICE MILLS and 2 others---Applicants

Versus

JUDGE BANKING COURT NO.1, GUJRANWALA and another---Respondents

Transfer Application No. 27-C of 2008, decided on 15th October, 2008.

Civil Procedure Code (V of 1908)---

----S. 24---Transfer of suit---Application for---Suit filed by the Bank in Banking Court at place "G", had been sought to be transferred to High Court---Counsel for plaintiff Bank had contended that suit filed was earlier in time; and that the parties and issues were not common and mortgagors/guarantors were not party to the suit---Bank had sued on the basis of finance, while applicants had sued inter alia for damages---Held, it would not be appropriate to transfer the suit to the High Court as common or consolidated trial because of the absence of the said parties in the suit filed by the applicants, would not be possible---Transfer application was dismissed.

Asghar Khan and Rana Qadeer Ahmad for Applicants.

M. Qamar uz Zaman for Respondent.

MLD 2009 LAHORE HIGH COURT LAHORE 216 #

2009 M L D 216

[Lahore]

Before Ali Akbar Qureshi, J

Mst. FATIMA---Petitioner

Versus

Mst. BUDHAI and 29 others---Respondents

Writ Petition No. 3476 of 2007, decided on 22nd September, 2008.

Civil Procedure Code (V of 1908)---

----O.XII R.2---Constitution of Pakistan (1973), Art.199---Constitutional petition--Application for comparison of thumb impressions was dismissed by trial Court---Plea raised was that in a pending suit by putting forged thumb impressions of the petitioner, the suit was got decreed by consent---Petitioner moved an application under O.XII R.2, C.P.C. on the said ground and during the pendency of the said application he moved another application for comparison of thumb impressions by the expert, which was dismissed by the trial Court---Validity---Evidence was yet to be recorded by the parties and if needed the trial Court could itself pass an order for the comparison of the thumb impression/signatures---Petitioner failed to point out any jurisdictional defect, legal infirmity, material irregularity with the concurrent conclusion drawn by the courts below---Petition was dismissed in circumstances.

Mian Aman Ullah Chaughata for Petitioner.

Muhammad Saeed Ahmad for Respondent.

MLD 2009 LAHORE HIGH COURT LAHORE 224 #

2009 M L D 224

[Lahore]

Before Syed Asghar Haider, J

Mst. GHULAM ZOHRA---Petitioner

Versus

REHMAT ALI---Respondent

Civil Revision No. 1713 of 2006, heard on 9th September, 2008.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Suit for possession and declaration---Both the Trial Court and Appellate Court had concurrently dismissed suit for possession and declaration filed by the plaintiff against the defendant---Pivotal document was deeply examined, appraised and deciphered by both the courts below---Courts below had given detailed findings upon the same, discussed material evidence and thereafter concurrently non-suited the plaintiff---Evidence of the plaintiff had made it clear that material contradictions were found in the testimony of two of the witnesses produced by the plaintiff and also that possession of the entire property was not handed over to the plaintiff and that alleged gift in respect of suit property in favour of the plaintiff was incomplete---No material irregularity, misreading or glaring non-reading of evidence had been pointed out---All points argued at the bar had been comprehensively taken .care of and answered by both the courts below---Concurrent findings of fact recorded by the courts below against the plaintiff, did not warrant any interference by the High Court, in revision.

Ch. Sadaqat Ali for Petitioner.

Gohar Nawaz Sandhu for Respondent.

Date of hearing: 9th September, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 229 #

2009 M L D 229

[Lahore]

Before Muhammad Khalid Alvi, J

MUHAMMAD SHUMAIL GHAZI---Petitioner

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, DERA GHAZI KHAN through Chairman and 3 others---Respondents

Writ Petition No. 5339 of 2008, decided on 29th October, 2008.

Educational Institution---

----Examination---Rechecking of papers---Candidate feeling dissatisfied with his result of the examination, sought re-checking of his papers and he also deposited necessary fees for the purpose but re-checking was not allowed on the pretext that according to Rule 19 of the relevant Rules prescribed period for such an application was 40-days for the filing of application for re-checking, whereas according to amended Rule 11 of Chapter-5, the prescribed period was 15 days after the declaration of result---Said twp Rules had provided limitation for entertaining an application for re-checking the papers---Said Rules in ordinary course could not be bypassed; however peculiar circumstances of the case i.e. glaring mistakes in the result issued by the Board for annual examination 2008, would definitely raise serious apprehension in the mind of candidate with regard to his previous result---Candidate immediately moved an application for re-checking of his papers---Authorities were directed to re-check the papers, however, that finding was limited to the extent of present case on account of peculiar circumstances of the case otherwise the rules could not be bypassed in the ordinary course.

Malik Muhammad Tariq Rajwana for Petitioner.

Allah Bakhsh Khan Kulachi for Respondents.

MLD 2009 LAHORE HIGH COURT LAHORE 239 #

2009 M L D 239

[Lahore]

Before Ali Akbar Qureshi, J

Malik MUZAHIR HUSSAIN---Petitioner

Versus

TESNEEM AHSAN and 2 others---Respondents

C.R. No. 1157 of 2008, decided on 13th October, 2008.

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

----S.115---Revision---Maintainability---Limitation---Order assailed in revision was passed on 8-1-2008---Petitioner obtained certified copy of the order soon after it was passed and filed revision before Lower Appellate Court on 29-5-2008 but the same was withdrawn on 8-6-2008---Second certified copy of order in question was obtained by petitioner on 20-6-2008, whereas revision was filed on 30-6-2008---Effect---Revision was barred by time in circumstances.

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

----O.VII, R.11, O.VIII, R.10 & S.115---Written statement, non-filing of---Striking off defence---Defendant, despite specific direction by Trial Court, instead of filing written statement, only preferred application under O.VII, R.11 C.P.C., thus his defence was struck off---Plea raised by defendant was that written statement was not filed as copy of plaint was not provided to him---Validity---Conduct of defendant was relevant in the case as from the very first day, defendant had tried to linger on the matter and frustrate proceedings of Trial Court firstly by filing application under O.VII, R.11 C.P.C. and thereafter taking many adjournments for filing written statement---Contention of defendant if not raised earlier, could not be raised before High Court---Defendant failed to point out any jurisdictional defect, legal infirmity or material irregularity with the order passed by Trial Court---High Court, in exercise of revisional jurisdiction under S.115 C.P.C., declined to interfere with the order passed by Trial Court---Revision was dismissed in circumstances.

Shabbir Hussain and 2 others v. Sh. Abdul Jabbar PLD 2006 Lah. 18; Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 and Muhammad Ramzan and 9 others v. Farhat Hussain and 3 others 1980 CLC 1449 ref.

Syed Kazim Bukhari for Petitioner.

Rao Muhammad Faisal Iqbal for Respondents.

MLD 2009 LAHORE HIGH COURT LAHORE 244 #

2009 M L D 244

[Lahore]

Before S. Ali Hassan Rizvi, J

Malik ZULFIQAR---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Communication Islamabad and 8 others---Respondents

Writ Petition No. 3920 of 2008, decided on 5th November, 2008.

Land Acquisition Act (I of 1894)---

----S. 4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dispute regarding Khasra number of acquired land---Petitioner claimed ownership of two Kanals and one Marla from rectangle No.54 which was entered in revenue record as 54/26---Nature of dispute in question was without Khasra No.54 was different from Khasra No.54/26 falling in the same rectangle---Record revealed that Khasra No.54 was acquired in the year 1972, in entirety with full measurement given in the notification---Such disputed question could only be resolved through measurement and enquiry, which could only be done through the suit---Land Acquisition Act, 1894 also had provided mechanism for resolution of disputes arising out of the process---Said number as a whole was shown in record to have been acquired and compensation paid---No finding could be recorded that the disputed Khasra number was not acquired and the same was different to that given in the notification---Grievance of the petitioner thus could not be redressed by exercise of constitutional jurisdiction of High Court---Petition was dismissed.

Mian Ghulam Jillani for Petitioner.

Malik Muhammad Tariq Rajwana for Respondent.

MLD 2009 LAHORE HIGH COURT LAHORE 252 #

2009 M L D 252

[Lahore]

Before Ali Akbar Qureshi, J

Malik BASHIR AHMAD and 24 others---Petitioners

Versus

PROVINCE OF PUNJAB through D.C.O., Khushab and 20 others---Respondents

Civil Revision No. 723 of 2008, decided on 19th September, 2008.

Specific Relief Act (I of 1877)---

----Ss.42 & 55---Civil Procedure Code (V of 1908), O.XXXIX, R.1 & 2---Suit for declaration and permanent Injunction---Application for temporary injunction was filed along with the suit praying. therein that the authorities may be temporarily restrained from converting the status of the park, which was dismissed by the trial Court and appeal was also dismissed by the appellate Court---Plea raised by petitioner was that the defendant/authorities were trying to change the status of the children park and they were to be restrained from such act---Validity---Record of the ease revealed that admittedly the open space had been allotted to the different persons, whereas on the other hand the authorities had submitted that, in fact, in the master plan the area in dispute had been shown as public park and was not liable to conversion---High Court directed the trial Court to dispose of the case expeditiously and ordered that status quo with regard to the land in question be maintained till the final order---Petitioner was disposed of accordingly.

Sh. Naveed Shahryar for Petitioners.

Mian Tariq Ahmad, Addl. A.-G.

Ms. Asma Bilquees, for Respondents Nos.4 to 6, 11 to 13 and 15 to 18.

MLD 2009 LAHORE HIGH COURT LAHORE 260 #

2009 M L D 260

[Lahore]

Before Ali Akbar Qureshi, J

LIAQAT KHAN---Petitioner

Versus

NASREEN BIBI and 5 others---Respondents

Writ Petition No. 11215 of 2008, decided on 30th September, 2008.

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

----S. 5 & Sched.---Limitation Act (IX of 1908), S.5---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for recovery of maintenance by wife and children against husband/father---Delay in filing of appeal---Effect---Suit for recovery of maintenance allowance was decreed by trial Court in favour of the plaintiff---Appellate Court dismissed the appeal filed by the defendant on ground of limitation---Plea raised by the defendant was that Appellate Court had wrongly non-suited him on the ground of limitation---Validity---Defendant, who was very well aware of passing of the judgment and decree, remained silent for more than five months and thereafter filed an application for obtaining the certified copy of the judgment---Defendant could not explain delay as required by law occurring firstly in filing the application for obtaining die certified copy and thereafter in filing the appeal before the Court---Delay of each and every day was to be explained as per law, whereas in the present case the defendant failed to explain the delay even for one day---Defendant, who was husband and father of the plaintiffs, was bound by law to maintain them---Petition was dismissed in circumstances.

Zia Ullah Khan Niazi for Petitioner.

Amir Abdullah Khan Niazi for Respondents.

MLD 2009 LAHORE HIGH COURT LAHORE 269 #

2009 M L D 269

[Lahore]

Before Ali Akbar Qureshi, J

MOMIN AYUB and 2 others---Petitioners

Versus

LAHORE DEVELOPMENT AUTHORITY through Director General, Lahore and 3 others---Respondents

Writ Petition No.6456 of 2007, decided on 16th October, 2008.

Punjab Acquisition of Land (Housing) Act (VIII of 1973)---

----S. 6---Constitution of Pakistan (1973), Art, 199---Constitutional Petition---Acquisition of Land for Housing Scheme---Petitioners had sought invalidation of letter, whereby the Development Authority had directed the petitioners to remove the structure/encroachment created by them--Plea raised by the petitioners was that the Authority was estopped by its' own conduct and behaviour to dispute the adjustment of the entitlement of the petitioners and authorities had themselves made an offer of the adjustment of the house of the petitioners, which was constructed after getting approval by the authorities---Validity---Suit property was acquired by Development Authority to establish a housing scheme and after completion of all the formalities, the award was finally announced and the petitioner till today had neither challenged the award before the concerned Authority nor before any Court of law---Constitutional petition was dismissed in circumstances.

Quetta Textile Mills Limited, Nadir House, G/F-1, I.I. Chundrigar Road, Karachi v. Pakistan through Secretary, Ministry of Finance, Government of Pakistan, Islamabad and 2 others 2000 YLR 2683; Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; Federation of G-6, Welfare Association, Islamabad through its President v. Government of Pakistan through Secretary Housing and Works Islamabad and 2 others 2001 MLD 643 and Pakistan through Secretary, Ministry of Commerce and 2 others v. Salahuddin and 3 others PLD 1991 SC 546 ref.

Ch. Masood Ahmad Ghumman for Petitioner.

Iftikhar Ahmad Mian for Respondent-LDA along with Mudasar Majeed, Asstt: Director, (Examination), Phase-I, M.A. Johar Town.

Ms. Shaista Habib, Advocate for Applicant (in C.M. 1544/2008 under Order I Rule 10, C.P.C.).

MLD 2009 LAHORE HIGH COURT LAHORE 278 #

2009 M L D 278

[Lahore]

Before Fazal-e-Miran Chauhan, J

REHANA YASMIN---Petitioner

Versus

ALLAMA IQBAL OPEN UNIVERSITY through Vice-Chancellor, and 2 others---Respondents

Writ Petition No. 10946 of 2008, decided on 3rd September, 2008.

Constitution of Pakistan (1973)---

---Arts. 199 & 37(c)---Constitutional petition---Petitioner contended that there was no need for GAT/GRE for M.Phil or Ph.D in Urdu and that condition of passing GAT/GRE examinations by obtaining 50% marks for doing Ph.D in Urdu was unfair and discriminatory to assess the ability of a student passing her education in Urdu through a test which was totally in English language and was mathematically based---Validity---Neither such additional condition had been imposed for the first time nor it had been pointed out that any student had been given admission in M. Phil leading to Ph.D program in Urdu, who had not passed GAT/GRE with 50% marks to show that she had been discriminated---Petitioner failed to demonstrate as to which of the fundamental rights guaranteed under the Constitution had been violated; clause (c) of Art. 37 of the Constitution provided that State should make technical and professional education generally achievable and higher education equally accessible to all on the basis of merit---Condition so imposed by the authorities was not only for those students who were applying for Ph.D in Urdu but also who were applying for Ph.D in Mass Communication, Iqbal Studies, Chemistry, Food and Nutrition, Islamiat, Pakistan Language and Literature, thus, no discrimination appeared to have been caused---High Court dismissed the petition in circumstances.

Naeem Mirza v. Government of Sind and others 1987 CLC 1487; PLD 1976 Lah. 501; PLD 1971 Lah. 641 and PLD 1985 Lahore 300 rel.

Mubeen-ud-Din Qazi for Petitioner.

MLD 2009 LAHORE HIGH COURT LAHORE 282 #

2009 M L D 282

[Lahore]

Before Khalil Ahmad, J

MUHAMMAD RAFIQUE---Petitioner

Versus

Mst. SHAFIQUE FATIMA---Respondent

C.R. No. 505 of 2008, decided on 15th September, 2008.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Suit for declaration and permanent injunction---Trial Court decreed the suit in favour of the plaintiff---Plea raised was that Iqrarnama in question was prior in time to incorporation of mutation of inheritance---Validity---Mutation of inheritance was entered on 15-8-2003 and attested on 18-8-2003, copy of Roznamcha Waqiati had been placed on record; Iqrarnama, dated 6-8-2003 mentioned the entry of mutation, dated 15-8-2003, which spoke volumes for itself---High Court while accepting the petition, remanded the case to trial Court for consideration of this aspect of the case by giving opportunity to the parties to lead evidence on the point.

Rana Muhammad Anwar for Petitioner.

Muhammad Akram Javed for Respondent.

MLD 2009 LAHORE HIGH COURT LAHORE 286 #

2009 M L D 286

[Lahore]

Before M.A. Zafar, J

NADEEM-UD-DIN MALIK---Petitioner

Versus

FAROOQ BUTT---Respondent

C.R. No. 165 of 2008, decided on 24th September, 2008.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), O.I, R.10 & O.XXI, R.36---Suit for specific performance---Application for impleading the respondent/tenant as necessary party in the suit was accepted by the trial Court---Plea raised was that tenant in possession of the suit property was neither a necessary nor a proper party in a suit for specific performance of agreement---Validity---Trial Court had acted in excess of jurisdiction vested in it and had committed material irregularity---Even in case of decree for possession through specific performance of agreement, a tenant could not be ousted- from the premises straightaway and the rights of the tenant were protected under O.XXI, R.36, C.P.C. and he would become tenant of a person in whose favour decree was passed and who would become owner of the same---Tenant held partially on his own behalf and partially on behalf of a person from whom he derived title, the result would be to the extent that he held on his own behalf, he would not be dispossessed and tenant could not be physically dispossessed as according to the terms of his tenancy he had right to continue his possession as tenant but the decree-holder would get what was called ownership of property and constructive possession---Petition was allowed in circumstances.

Aziz Muhammad and others v. Neka and others 1986 MLD 1936 Lah. and Miss Naghmana Roohi v. Messrs UBL 1988 CLC 2014 ref.

Pir Abdullah Shah and 8 others v. Humayon and 5 others PLD 1957 (W.P.) Lah. 1054 rel.

Ch. Muhammad Naeem for Petitioner.

Pervaiz I Mir for Respondents.

MLD 2009 LAHORE HIGH COURT LAHORE 292 #

2009 M L D 292

[Lahore]

Before Mian Saqib Nisar, J

SHAHNAZ KAUSAR---Petitioner

Versus

TALAT MEHMOOD and 5 others---Respondents

Civil Revision No.544 of 2007, heard on 6th October, 2008.

Suit for partition---

----Suit for partition of property was decreed in favour of the plaintiff, lower appellate Court accepted the appeal and while framing two additional issues remanded the case for fresh decision---Plea raised by the plaintiff was that defendants in their written statement had taken up the plea that the father of the parties had paid a substantial amount to the plaintiff as her would be share in his estate and she had accordingly relinquished such share, but the trial Court had failed to frame any issue on such point---Validity---Trial Court, while giving its finding on the said issue had dealt with the question/the plea of the defendants about the payment of amount by the father of the plaintiff and had found that the facts had not been proved by the defendants---Defendants even at no point of time during the trial had asked for the framing of any issue in that behalf, when the decree was passed against them, in the memo. of appeal it was not a ground that on account of non-framing of the said issue any prejudice had been caused---Defendants had also led evidence deeming it to be the issue covering their plea about the payment of amount to the plaintiff and alleged relinquishment of her share---Revision was allowed in circumstances.

Muhammad Rafique Chaudhry for Petitioner.

Pervaiz I Mir for Respondent.

Date of hearing: 6th October, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 296 #

2009 M L D 296

[Lahore]

Before Syed Asghar Haider, J

KHUSHI MUHAMMAD---Appellant

Versus

REHMAT ALI through legal heirs and others---Respondents

Regular Second Appeal Case No.105 of 1996, heard on 17th September, 2008.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), S.100---Suit for specific performance on the basis of agreement was decreed in favour of plaintiff---Second appeal---Scope---Plea raised by the defendant was that there were material contradictions in the evidence of the plaintiff and both the lower Courts did not apply their judicial mind---Validity---Collateral evidence was available on record to substantiate that the agreement was duly executed, the solitary statement of Notary Public affirmed that the transaction was enough to prove it, because the witness was independent, although the same was proved in accordance with legal requirements of law by other witnesses---Nothing substantial could be extorted from witnesses in the cross-examination, therefore, the agreement stood proved---Parameters of second appeal were limited and confined only to procedural deviation, non-answering of any material issue or decision being contrary to law and on this touchtone also the appeal was not maintainable---Appeal was dismissed in circumstances.

Muhammad Yaqoob and others v. Naseer Hussain and others PLD 1995 Lah. 395; Mst. Safyya and another v. Muhammad Rafique and 6 others PLD 1993 SC 62; Malik Haji and others v. Abdul Razzaq and others 2001 MLD 1925; Mst. Ferozi v. Muhammad Aslam and another 2001 MLD 401;, Manzoor Hussain and 3 others v. Muhammad Siddique 2000 CLC 623; Habib Khan v. Mst. Taj Bibi and others 1973 SCMR 227; Asa Ram and another v. Sukha Singh AIR 1921 Lah. 336; Ahmad Baldish v. Mst. Zeb Illahi PLD 1981 BJ 60; Muhammad Yaqub v. Muhammad Nasrullah Khan and Others PLD 1986 SC 497; Abdul Hameed v. Shariq Mehmood and 7 others 2001 MLD 25; Mir Abdullah v. Muhammad Ali and 2 others 1977 SCMR 280; Mst. Murrian and others v. Suleman and 4 others PLD 1984 SC (AJ&K) 63 and Muhammad Zaman Khan v. Sher Afzal Khan and 8 others PLD 1984 SC (AJ&K) 138 ref.

Ch. Riasat Ali for Appellant.

Abdul Qudoos Rawal for Respondents.

Date of hearing: 17th September, 2008.

2009 M L D 312

[Lahore]

Before Muhammad Akram Qureshi, J

MUHAMMAD ZAMAN and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.430 of 2007 and Criminal Miscellaneous No.460-M of 2008, decided on 13th May, 2008.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 337-C---Criminal Procedure Code (V of 1898), S.45---Appreciation of evidence--Compromise---During pendency of appeal against conviction and sentence awarded to accused, petition was moved by accused seeking permission from the court to allow the compromise arrived at between the legal heirs of the deceased and accused---Sessions Judge to whom said petition was transmitted for necessary verification about the genuineness and authenticity of the compromise, reported that legal heirs of the deceased had unanimously deposed that they had pardoned accused with their free will and consent in the name of God Almighty and had waived their right of Qisas and Diyat; and had no objection, if accused were acquitted of the charge---For share of Diyat amount of minor legal heir of deceased, Defence Saving Certificates had been purchased in her name---Compromise effected between the parties proved to be genuine and arrived at between the parties without any duress and coercion---Petition for compromise was partially accepted---Conviction and sentence awarded to accused were set aside to the extent of S.302(b), P.P.C; injured having not compromised appeal to the extent of Ss.324 & 337-C, P.P.C., would remain pending.

Munir Ahmad Khan Zai for Appellants.

Adeel Aqil Mirza, D.P.G. for the State.

Malik Muhammad Akram Awan for the Complainant.

MLD 2009 LAHORE HIGH COURT LAHORE 314 #

2009 M L D 314

[Lahore]

Before Ali Akbar Qureshi, J

GHULAM ABBAS and others---Petitioners

Versus

MUNIR HUSSAIN alias MUHAMMAD MUNIR and others---Respondents

C.R. No.764 of 2008, heard on 27th October, 2008.

Specific Relief Act (I of 1877)---

----S.12---Qanun-e-Shahadat (10 of 1984), Arts.17 (2) & 79---Civil Procedure Code (V of 1908), O.XVII, R.13---Specific performance of agreement to sell---Execution of agreement---Proof---Failure to produce marginal witnesses---Concurrent findings of fact by two Courts below---Despite many opportunities, plaintiffs could not produce evidence, therefore, Trial Court under O.XVII, R.13 C.P.C. closed their evidence and suit was dismissed---Validity---Plaintiffs failed to prove alleged agreement to sell executed in their favour---Plaintiffs, despite availing sufficient opportunities to lead evidence, could not produce even a single marginal witness of agreement to sell, although requirement of law to prove a document was at least two marginal witnesses---One of the plaintiffs himself appeared in witness box but thereafter ran away and even did not come back for cross-examination, therefore, Trial Court had rightly closed evidence of plaintiffs---Plaintiffs failed to point out any jurisdictional defect, legal infirmity, material irregularity, misreading and non-reading of evidence with concurrent conclusion drawn by courts below while non-suiting plaintiffs---Concurrent findings of facts based on evidence were not liable to be interfered with in exercise of jurisdiction under S.115 C.P.C. and were maintained by High Court--Revision was dismissed in circumstances.

Jan Muhammad v. Mst. Hashmat Bibi through L.Rs. 2005 MLD 657; Madan Gopal and 4 others v. Maran Bepari'and 3 others PLD 1969 SC 617; Muzaffar Javed v. Haji Noor Bakhsh, and others 2002 MLD 1474; Mst. Baswar Sultan v. Mst. Adeeba Alvi 2002 SCMR 326; Abdul Rahim and, another v. Mst. Janatay Bibi and others 2000 SCMR 346; Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431; Rana Abdul Rasheed v. Iqbal Hussain 2008 CLC 1 ref.

Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Abdul Qayyum through legal heirs v. Mushk-e-Alam and another 2002 SCMR 798 and Abdul Mateen and others v. Mst. Mustakhia 2006 SCMR 50 rel.

Khalid Ikram Khatana for Petitioner.

Date of hearing: 27th October, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 325 #

2009 M L D 325

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

KHIZAR HAYAT and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No. 1103 and 1293 of 2001 and M.R. No.528 of 2001, heard on 20th November, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt-Delay of 13 hours in lodging F.I.R. was not natural and explanation for such delay stood falsified through the statements of the Investigating Officer, which cast doubt on the prosecution story---Complainant was son of deceased while other prosecution witness was real brother of deceased---Both said eye-witnesses were not only related inter se and with the deceased closely, but they were also not residents near the place of incident and their presence at the spot was per chance---Even counsel for the State had conceded that the eye-witnesses had not. been able to establish their presence at the spot---Possibility could not be ruled out that it was an un-witnessed occurrence and after recovery of the dead body, the prosecution story was concocted, otherwise there was no reason to withhold first aid to the deceased who remained alive as per opinion of the Doctor for two hours at least---Circumstances of the case had belied the presence of the prosecution witnesses at the spot---Statements of the eye-witnesses were not confidence inspiring and they were capable of making false statements as the acquitted accused according to the prosecution were armed with guns and were present at the spot, but they allegedly only raised a Lalkara and did not use their arms during the incident, when said acquitted accused were directly connected with the motive---Place of incident was being used by the people, but no witness from the locality, except for close relatives of the deceased were produced by the prosecution---Was not safe to rely upon the statements of the close relatives of the deceased for maintaining the conviction in a murder case---Prosecution had not been able to prove the motive against accused for the commission of the offence and also had not been able to prove the recovery of hatchet from accused beyond any shadow of doubt---Case against accused therefore, was not proved against him beyond doubt---Impugned judgment of conviction and sentence recorded by the Trial Court was set aside and he was acquitted of the charge by extending him benefit of doubt and was released---Murder Reference was answered in negative.

Inayat Ullah Cheema and Syed Imdad Hussain Hamdani for Appellant.

Hafiz Khan Muhammad Mahal for Appellant (in Criminal Appeal No. 1293 of 2001).

Hafiz Khan Muhammad Mahal, Advocate for the Complainant (in Criminal Appeal No.1103 of 2001).

M. Aslam Malik for the State (in Murder Reference No.528 of 2001).

Malik Muhammad Suleman Awan for the State (in Criminal Appeal No.1103 of 2001).

Miss Naima Parveen for the State (in Criminal Appeal No.1293 of 2001).

Date of hearing: 20th November, 2006.

MLD 2009 LAHORE HIGH COURT LAHORE 337 #

2009 M L D 337

[Lahore]

Before Kazim Ali Malik, J

LIAQUAT ALI---Petitioner

Versus

DIRECTOR GENERAL ANTI-CORRUPTION ESTABLISHMENT PUNJAB, LAHORE and 7 others---Respondents

Writ Petition No.4543 of 2008, heard on 5th September, 2008.

Punjab Anti-Corruption Establishment Rules, 1985---

----R. 19---Penal Code (XLV of 1860), Ss.420/467/468/471---Prevention of Corruption Act (II of 1947), S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Re-investigation--Under R.19 of Punjab Anti-Corruption Establishment Rules, 1985, the Governor, the Chief Secretary and Director could suo motu or otherwise, cats for the record of any case pending investigation with the Establishment; and give such direction as might be necessary for the speedy,. fair and just disposal of the same---In the present case, the Governor had not passed any order or direction---Chief Secretary also neither summoned nor examined the record---Additional Chief Secretary also did not call for the record and simply sought a report from the Investigating Agency---Director General, Anti-Corruption Establishment, vide impugned order opened the chapter of investigation, which had already been closed by him with a direction to the Investigator to submit challan in the court---No factual and legal justification existed for the Director General, Anti-Corruption Establishment to sit in appeal against his own order and action---Two orders by the Director were in field; at one time he endorsed and approved the investigation against accused persons after having examined the record, but on reconsideration he chose to review and changed his earlier order---No rule or provision of law existed which could empower or authorize the Director to sit in appeal against his own order---Order of re-investigation passed by the Director General being not in line with the earlier one whereunder judicial action had been proved, was not sustainable in the eyes of law---Impugned order, was declared as illegal, without jurisdiction and of no legal effect.

Muhammad Ramzan Khalid Joya for Petitioner.

Mian Abbas Ahmad, Addl. A.G. for Respondents.

Date of hearing: 5th September, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 348 #

2009 M L D 348

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD SHEHZAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 652-B of 2008, heard on 10th July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/34/337-L(ii)/337-F(ii)---Bail, grant of---Complainant had received the fire-arm injury on his left thigh which was a non-vital part of the body---Seat of the injury selected by accused and the fact that he did not repeat the same reflected that he had no intention to kill the injured/complainant---Accused was behind the bars for a considerable period and was no more required for any further investigation---Accused was admitted to bail, in circumstances.

Muhammad Afzal v. The State 2004 YLR 94; Qurban Hussain v. The State 2004 YLR 13 and Muhammad Yousaf alias Kalay Khan v. The State 2004 PCR.LJ 1862 rel.

Mrs. Sarkar Abbas for Petitioner.

Sh. M. Munir DPG for the State.

MLD 2009 LAHORE HIGH COURT LAHORE 356 #

2009 M L D 356

[Lahore]

Before M. Bilal Khan, J

KHYALI KHAN and 2 others---Petitioners

Versus

THE STATE through Superintendent Customs (ASO), Lahore---Respondent

Criminal Miscellaneous No.8263-B of 2007, decided on 13th November, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Customs Act (IV of 1969), Ss.156(1)(89), 16 & 178---Bail, grant of---Further inquiry---Role ascribed to accused persons, was that they were carrying the smuggled items, whereas one of accused persons had claimed the ownership of the seized cloth, whose bail had been dismissed as having been withdrawn---Offence under S.156(1)(89) of the Customs Act, 1969 with which accused persons had been charged, entailed maximum punishment of six years' imprisonment---Prohibitory clause of S.497(1), Cr.P.C., was not attracted, in circumstances---Alleged smuggled cloth had been seized by the authority concerned and it was yet to be determined during the trial whether the stuff recovered from accused persons was smuggled and whether the provisions of S.156(1)(89) of the Customs Act, 1969 were attracted---Even otherwise, it also needed to be determined as to whether accused were merely drivers of the vehicles or had any other interest in the cloth---Case of accused persons, in circumstances fell within the purview of further inquiry, entitling them to the concession of bail---Accused were admitted to bail, in circumstances.

Umar Ahmad Khan for Petitioners.

Muhammad Khalid Chaudhry, Legal Advisor to Customs Department assisted by Nasir Saeed Inspector Customs, Lahore with record.

MLD 2009 LAHORE HIGH COURT LAHORE 359 #

2009 M L D 359

[Lahore]

Before Maulvi Anwarul Haq, J

BASHIR AHMAD and 3 others---Petitioners

Versus

MUHAMMAD HASSAN and 2 others---Respondents

Civil Revision No. 898 of 1990, heard on 10th November, 2008.

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

----S. 8---Limitation Act (IX of 1908), S. 27 & Art. 144---Civil Procedure Code (V of 1908), O.XXVI, R.9---Suit for possession of land---Petitioner's claim was that defendant had dispossessed him from suit-land despite stay order passed in previous suit for permanent injunction; and that such stay order was later on vacated on basis of report of Local Commission showing defendant to be in possession of suit-land for last 25 years---Defendant's plea was that suit-land was either evacuee or Shamilat or Abadi deh, which was in his possession for more than 12 years---Defendant produced in evidence such order of vacation of stay passed in pervious suit on basis of report of Local Commission---Dismissal of suit by Trial Court and Appellate Court on basis of such previous order---Validity---Defendant' had not pleaded adverse possession by dispossessing plaintiff or his predecessor from suit-land---Suit-land was neither evacuee nor Shamilat or Abadi Deh, but courts below, on basis of evidence on record, had found same to be owned by plaintiff---Adverse possession had to be proved as open and hostile with a declared denial of title of real owner and to his knowledge---Courts below had ignored point of commencement of limitation, which was a point of time when possession of defendant became adverse to plaintiff---Neither there was any plea nor any evidence of facts constituting adverse possession---Courts below could not have relied upon on such report for not having proved in previous suit or present suit---Such report of Local Commission not produced in evidence had to be proved like an opinion---Local Commission had no jurisdiction to form or give such opinion as his mandate was only to report the situation existing on spot on date of his inspection---Courts below, after returning finding of valid title in favour of plaintiff, had acted without jurisdiction while denying him relief of possession on basis of such previous order---High Court set aside impugned judgments/ decree and decreed plaintiff's suit with costs throughout including counsel's fee of Rs.10,000.

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

----S.28 & Art. 144---Adverse possession---Proof---Such possession had to be proved as open and hostile with a declared denial of real owner's title and to his knowledge.

Abdul Wahid Chaudhry for Petitioners.

Sardar Mohabbat Ali Dogar for Respondents.

Date of hearing: 10th November, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 366 #

2009 M L D 366

[Lahore]

Before Malik Saeed Ejaz, J

MUHAMMAD AWAIS---Appellant

Versus

THE STATE and another---Respondents

C.M. No. 1 of 2008 in Crl. A. No. 83 of 2008, decided on 23rd May, 2008.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), S.319---Suspension of sentence--Sentence awarded was short (one year) and accused was juvenile---Sentence was suspended and he was admitted to bail.

Altaf Ibrahim Qureshi for Appellant.

Zulfiqar Ali Sindhu, Addl. Prosecutor-General on Court's call.

MLD 2009 LAHORE HIGH COURT LAHORE 373 #

2009 M L D 373

[Lahore]

Before Hafiz Tariq Nasim, J

SULTAN BIBI---Petitioner

Versus

MUHAMMAD SARFRAZ and 2 others---Respondents

Writ Petition No. 7204 of 2008, decided on 16th July, 2008.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for recovery of dower had concurrently been dismissed by the Family Court and Appellate Court---Contention of respondent was that petitioner, who had not come to the court with clean hands, was not entitled for any relief and that petitioner had entered into a third marriage posing herself virgin in the Nikah Nama and being her third marriage she did not bring any dowry articles, and she was trying to blackmail respondent---Validity---Petitioner did not disclose in her Nikah Nama that it was her third marriage, which was sufficient to disentitle her from claiming discretionary relief in the form of constitutional petition---Constitutional petition was dismissed.

Malik M. Azam Awan for Petitioner.

Nasimullah Khan Niazi for Respondents.

MLD 2009 LAHORE HIGH COURT LAHORE 382 #

2009 M L D 382

[Lahore]

Before M. Bilal Khan, J

IMTIAZ HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1277-B of 2007, decided on 26th March, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497--Customs Act (IV of 1969), Ss.156(1)(8), 2(s), 16, 139 & 157--Bail, refusal of---Recovery of 42543 US Dollors had not been denied by accused---Passport of accused did not contain any endorsement to the effect that he was in possession of any American currency at the time of his entry into Pakistan---While deciding bail applications, High Court was to restrict itself to tentative assessment of the material available on record---Contentions raised by the counsel for accused in support of his plea for bail, touched intricacies of the case which could not be gone into at bail stage---Bail was refused in circumstances.

Mian Abdul Ghaffar for Petitioner.

M. Khalid Chaudhry, Legal Advisor for Customs Department with Tariq Qayyum, Inspector Customs with record.

MLD 2009 LAHORE HIGH COURT LAHORE 387 #

2009 M L D 387

[Lahore]

Before M.A. Shahid Siddiqui and Hasnat Ahmad Khan, JJ

MUHAMMAD FAYYAZ---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Revision No. 133 of 2007, decided on 25th April, 2007.

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

----S. 9(c)---Obtaining the handwriting of police officials for comparison---Petitioner/accused had challenged the validity of the order whereby the Trial Court declined to obtain the handwriting of two police officials for comparison with the record prepared by said two officials pertaining to F.I.R. registered at Police Station---Counsel for the petitioner had submitted that in fact the record of the case had been fabricated by said two police officials at the Police Station; and no recovery was effected from the possession of the petitioner, but said police officials having made false statements at the trial, it was essential for the just decision of the case that specimen of their handwritings should be obtained and sent for comparison---One of said two officials had admitted that complaint on the basis of which formal F.I.R. was registered was not in his handwriting; that he had, in fact, summoned another official at the relevant time at Police Station to scribe the complaint; that formal F.I.R. had been drawn by said official and in his handwriting; and that it was written by some of his subordinates whose name he did not remember-In view of said statements of said Police Officials, it was necessary to order comparison of the record with the handwriting of those two police officials and was just and proper to allow the petitioner to further cross-examine said witnesses/officials for the purpose of confrontation with the record in the light of the statements of said officials in the Court---Order accordingly.

Mian Qamar-ud-Din Safeer for Petitioner.

Bashir Ahmed Bhatti, Deputy Prosecutor General for the State.

MLD 2009 LAHORE HIGH COURT LAHORE 410 #

2009 M L D 410

[Lahore]

Before Ali Akbar Qureshi, J

SAFDAR ALI---Petitioner

Versus

AKBAR ALI---Respondent

Civil Revision No. 1264 of 2006, decided on 8th September, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Suit for declaration filed by the plaintiff, having concurrently been decreed by the courts below, defendant had filed revision against said concurrent judgment and decree---Both the parties were legal heirs of deceased landowner, who died in advanced age---Plaintiff in his suit had questioned the validity of alleged gift deed which allegedly was executed in favour of defendant---To prove said document, the defendant adduced scribe and one marginal witness, whereas the plaintiff had adduced five witnesses---Most important material witness who was the widow of deceased landowner and being life partner of donor was well conversant with the affairs of the deceased---Said witness stated in the court that at the time of death of her husband he was 100 years of age and was not a person of sound mind---Widow also stated that he was unable to walk and he never gifted the suit property in favour of defendant---Other witnesses appearing on behalf of the plaintiff also supported the fact of mental ailment and general health of the alleged donor---Halqa Patwari had stated that possession of the suit property was partially with the plaintiff---Evidence produced by the defendant, was not confidence-inspiring---At least two witnesses were required to prove execution of document, wherein the defendant had failed to fulfil that requirement of law---Evidence produced by the defendant did not specify as required by law or indicated delivery of possession of land in question to defendant-Courts below had concurrently concluded that alleged gift-deed was the result of fraud and misappropriation---Said concurrent findings of the courts below were not liable to be interfered with by the High Court, in exercise of its revisional jurisdiction when such findings were arrived at after appreciation of evidence on record and were not suffering from any misreading, non-reading of evidence.

City Education Board (Registered), Sialkot through Director v. Mst. Maqbool Nasreen PLD 2008 Lahore 51; Abdul Hameed through L.Rs. and others v. Shamasuddni and others PLD 2008 SC 140; Mst. Sakina Bibi and another v. Muhammad Anwar alias Mujahid PLD 2007 Lahore 254; Muhammad Boota v. Mst. Rashidan Bibi and others 2008 SCMR 343; Rana Abdul Rasheed v. Iqbal Hussain 2008 CLC 1 and Abdul Ghafoor and others v. Kallu and others 2008 SCMR 452 ref.

Khalique Ahmad Ansari for Petitioner.

Allah Wasaya Malik for Respondent.

MLD 2009 LAHORE HIGH COURT LAHORE 421 #

2009 M L D 421

[Lahore]

Before Muhammad Ashraf Bhatti, J

Mst. KALSOOM BIBI---Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, BAHAWALPUR and another---Respondents

Criminal Revision No. 18 of 2008/BWP, decided on 5th June, 2008.

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

----S. 164---Qanun-e-Shahadat (10 of 1984), Art. 140---Power of Magistrate to record statement and confession---Scope and nature---Powers given to Magistrate under S.164, Cr.P.C. were of discretionary nature and if such a statement was recorded by him it would become admissible in evidence at the trial under Article 140 of Qanun-e-Shahadat, 1984, whereby the maker of the statement, complainant or a witness, could exonerate or implicate a person with regard to commission of an offence---Said discretion had to be exercised judiciously according to the facts and circumstances of each, case and based upon good reason that the grant of such permission would advance the cause of justice---If Magistrate, prima facie, would find that some mala fide was behind seeking such permission, he was under no obligation to record the statement.

Fateh Shah v. Muhammad Hassan and two others 1983 PCr.LJ 1893; Muhammad Sarfraz Khan v. The Crown PLD 1953 Lah. 495; Fateh Shah v. Muhammad Hassan and others 1983 PCr.LJ 1893; Gul Ghameer v. Jene Alam and others 1999 Cr.LJ 388; Mst. Shehnaz v. The State 1995 PCr.LJ 868 and Nahar Singh v. Emperor AIR 1921 Allahabad 61 ref.

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

----Ss. 12, Ch. XIV, (Ss.154 to 176) & 164---Magistrate, territorial jurisdiction of---Power of Magistrate to record statements and confession, etc.---In view of appointment of a Magistrate by competent authority under S.12, Cr.P.C., exercise of his jurisdiction with regard to his powers, was limited to his local area---If same was not defined, it was exercisable in the whole of the District of his appointment/posting---Power of recording confession or other statements under S.164, Cr.P.C., was directly related to the investigation of case to be governed and regulated by Chapter XIV of Cr.P.C.---Jurisdiction of the Magistrate regarding such statement would have to be construed in the same context---Ordinarily, statements under S.164, Cr.P.C. were to be recorded by a Magistrate of the District, where the case was registered and preferably by a Magistrate having territorial jurisdiction in the matter in terms of S.12 of Cr.P.C., unless it was beyond the control of the maker of such a statement or confession to get it recorded in the District concerned.

----S. 439---Constitution of Pakistan (1973), Art.199---Revision petition---Maintainability---Constitutional petition---Where impugned order was passed by the Sessions Judge on administrative side, same could only be challenged through a constitutional petition as no right of revision was available thereagainst---Revision petition was not maintainable in circumstances.

Umair Mohsin for Petitioner.

Syed Masood Ahmad Gillani for Respondent No.1.

Aftab Ahmad Goraya, Additional Prosecutor General for State.

Date of hearing: 2nd June, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 433 #

2009 M L D 433

[Lahore]

Before Zafar Iqbal Chaudhry, J

MUHAMMAD HAYAT KHAN---Petitioner

Versus

DIN MUHAMMAD---Respondent

Civil Revision No.11-D of 2007, heard on 11th September, 2008.

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

----Ss. 6 & 13---Suit for pre-emption---Demand of Talbs---Proof---Plaintiff pre-empted the suit-land being co-sharer in the Khata---Trial Court dismissed suit on the ground that plaintiff had failed to fulfil the requirements of Talabs as prescribed by law---Appeal filed against the judgment and decree passed by the Trial Court was also dismissed by the Appellate Court below---Mutation of suit land was attested ten days prior to making of Talb-i-Muwathibat despite the fact that the plaintiff had knowledge of sale of suit land right from the day of mutation in question was sanctioned---Talb-i-Muwathibat made after ten days of mutation appeared to be concocted story---No notice of Talb-i-Ishhad was even received by the defendant in original sent by the plaintiff---In presence of specific denial of the. defendant about the receipt of notice of Talb-i-Ishhad, it was obligatory for the plaintiff to prove the factum of delivery of said notice---Original notice was neither got produced in the court nor procedure for production of secondary evidence was adopted---Postman or other witness was not produced to prove the factum of delivering the notice---Appellate Court, in circumstances had rightly concurred with the finding of the Trial Court---No illegality or irregularity having been found in the judgments and decrees passed by both the courts below, revision petition against said concurrent judgments and decrees was dismissed.

Zia Ullah Khan Niazi for Petitioner.

Ijaz Khalid Niazi for Respondent.

Date of hearing: 11th September, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 437 #

2009 M L D 437

[Lahore]

Before Muhammad Muzammal Khan, J

PETROSIN CORPORATION PVT. LTD. and 2 others---Petitioners

Versus

MOL PAKISTAN OIL AND GAS CO. B.V. and 5 others---Respondents

Amended Civil Revision Petition No. 530 of 2007, decided on 23rd January, 2008.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), S.54---Injunction, grant of---Scope---Injunction can only be issued restraining the defendant from committing breach of some concluded contract---Where there is no contract in favour of the applicant, question of breach of contract does not arise hence he cannot maintain any application for grant of injunction---Provision of S.54, Specific Relief Act, 1877 mandates that an injunction may be issued to prevent breach of an obligation existing in favour of the applicant, whether express or implied---Plaintiff, according to S.54, Specific Relief Act, 1877 can maintain a cause before the court when defendant invades or threatens to invade his right---In the present case, neither any contract was entered with the applicant nor any of his rights was invaded or threatened by the defendant, consequently relief of injunction was correctly refused as in case the injunction prayed was issued same would have hampered the interest of public at large.

Messrs Ittehad Cargo Service and 2 others v. Syed Tasneem Hussain Naqvi and others PLD 2001 SC 116 ref.

Mian Gul Hassan Aurangzaib and Hamid Ahmed, for Petitioners.

Messrs Khaliq-uz-Zaman Khan and Muhammad Faisal Khan, for

Respondents Nos. 1 to 5.

Syed Zafar Ali Shah, for Respondent No.6.

MLD 2009 LAHORE HIGH COURT LAHORE 444 #

2009 M L D 444

[Lahore]

Before Saif-ur-Rehman, J

DAWOOD---Petitioner

Versus

DISTRICT POLICE OFFICER, D.G. KHAN and 6 others---Respondents

Writ Petition No.6069 of 2007, decided on 29th January, 2008.

Penal Code (XLV of 1860)---

----Ss. 302 & 324/34---Constitution of Pakistan (1973), Art.199---Constitutional petition---Arrest of accused---F.I.R. recorded on 19-8-2007 under Ss.302, 324/34, P.P.C. showed that two persons were injured and two lost their lives when attacked by the desperate accused---Neither accused had been arrested nor report under S.173, Cr.P.C. had been submitted---Same accused committed murder of family members of the petitioner in the years 1992 and 2004 and since accused were still at large, they had again committed trespass into the house of a family members of the petitioner---Accused, in circumstances were a source of constant threat and danger to the petitioner and that was happening because of slackness on the part of police---District Police Officer was directed to ensure arrest of accused who were found guilty and completion of investigation in accordance with law and submit report under S.173, Cr.P.C. along with the report about cause of delay in submission of the said report within specified period.

Mrs. Saeeda Asif for Petitioner.

MLD 2009 LAHORE HIGH COURT LAHORE 447 #

2009 M L D 447

[Lahore]

Before Zafar Iqbal Chaudhry, J

MUHAMMAD IQBAL---Petitioner

Versus

Mst. SABIHA IQBAL---Respondent

Civil Revision No. 1719 of 2007, heard on 25th September, 2008.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Plaintiff as ex-wife of defendant pleaded that she purchased suit plot and constructed thereon a house with her money, which defendant later on fraudulently got transferred in his name by getting her signatures/thumb impressions over blank stamp paper on pretext of getting power of attorney from her for repayment of loan; and that she came to know later on that defendant got prepared gift deed in his favour on such stamp paper and registered same in office of Sub-Registrar---Proof---Plaintiff and her witnesses supported her case---Plaintiff produced in evidence receipts of sale of her jewelry, receipts issued by Cantonment Board and utility bills---Plaintiff remained in possession of suit house since its construction---Defendant had not brought any suit against plaintiff for declaring her as benamidar of suit house---Defendant as beneficiary of gift deed had failed to prove its valid execution---Defendant had not examined any witness in whose presence plaintiff had made alleged gift---Gift deed had no marginal witness---Suit was decreed accordingly.

Noor Muhammad Sheikh for Appellant.

Muhammad Tanzeem Khan Sherwani for Respondent.

Date of hearing: 25th September, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 457 #

2009 M L D 457

[Lahore]

Before Rana Zahid Mehmood and Malik Saeed Ejaz, JJ

Mian MUHAMMAD WAHEED AKHTAR---Appellant

Versus

SPECIAL JUDGE (OFFENCES IN BANKS), LAHORE and 2 others---Respondents

Criminal Appeal No.833 of 2004, decided on 24th July, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 417 & 249-A---Penal Code (XLV of 1860), Ss.420/409/477-A/418/109---Appeal against acquittal---Special Court (Offences in Banks) having acquitted co-accused persons under S.249-A, Cr.P.C., appellant had filed appeal against said acquittal order---Validity---No illegality had been committed by the Trial Court by passing order under S.249-A, Cr.P.C., because; firstly the element of mens rea in sharing common intention for the commission of offence by the co-accused persons with principal accused was altogether lacking; secondly nothing was on record to hold that co-accused persons in any manner had the knowledge that the consideration paid to them for their performance as artists in the drama to be made by the principal accused was from the amount involved in the case and was stolen amount; and was criminally misappropriated or withdrawn from the Bank through fraud---Co-accused in due performance of their professional skill had agreed to perform their role in the drama to be staged or released on T.V. by the principal accused---Co-accused in circumstances had not committed any offence in absence of any incriminating material against them---No justification existed for interference in the impugned order, in circumstances.

Mian Muhammad Waheed Akhtar for Appellant.

MLD 2009 LAHORE HIGH COURT LAHORE 461 #

2009 M L D 461

[Lahore]

Before Maulvi Anwarul Haq, J

NAZIR AHMAD---Petitioner

Versus

BARKAT MASIH---Respondent

Civil Revision No.973 of 2008, heard on 7th November 2008.

Civil Procedure Code (V of 1908)---

----S.2(2)(9) & O.XXII, R.1---Judgment against dead person in a case filed against him would be void ab initio.

Nemo for Petitioner.

Muhammad Nawaz for Respondent.

Date of hearing: 7th November, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 470 #

2009 M L D 470

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD AMIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.613 and Murder Reference No.606 of 2001, heard on 25th January, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Matter was reported to the police after about twenty four hours of the occurrence---Distance between the place of occurrence and the Police Station was only nine miles---Out of three accused persons, two were acquitted by the Trial Court---Only one injury was caused by accused on the person of deceased---Both parties resided adjacent to each other---No previous background of enmity existed---Incident was a daylight occurrence and eye-witnesses had fully implicated accused, however, there were three mitigating circumstances in favour of accused; i.e. that abuses were exchanged between the deceased and accused before occurrence; that 8/10 days prior to occurrence, fight took place between the children of both the parties, but due to the intervention of the respectables, the matter was patched up between the parties and no untoward incident took place between the parties though they were neighbourers to each other and that it was a case of single blow---Maintaining conviction of accused under S.302(b), P.P.C. his death sentence was converted to imprisonment for life with benefit of S.382-B, Cr.P.C.

Sahibzada Farooq Ali and Waseem Mumtaz for Appellant.

Waseem Khan Babar for State.

Mian Qamaruddin Safeer for Complainant.

Date of hearing: 25th January, 2006.

MLD 2009 LAHORE HIGH COURT LAHORE 476 #

2009 M L D 476

[Lahore]

Before Maulvi Anwarul Haq, J

Sh. RIAZ AHMED and 2 others---Appellants

Versus

ATTA MUHAMMAD QURESHI and 6 others---Respondents

S.A.O. No.97 of 2006, heard on 30th October, 2008.

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

----S.13---Ejectment petition---Bona fide personal need of disputed shop for son of landlord---Plea of tenant was that disputed shop was not required for use of landlord's son; and that purpose of ejectment petition was to enhance rent---Unchallenged deposition of landlord and his son that out of six shops rented out by landlord, none was possessed by any of them---Sale of another rented shop by landlord during ejectment proceedings---Effect---Landlord was required to explain his position over a shop owned as well as possessed by him---Tenant had neither alleged nor brought on record any proof that shop sold was in possession of landlord or his son, thus, landlord was not required to explain such sale---Electment petition was accepted in circumstances.

Allies Book Corporation through L.Rs. v. Sutlan Ahmad and others 2006 SCMR 152; Muhammad Inayat v. Saleh Muhammad 2001 SCMR 599 and Ghulam Haider v. Abdul Ghaffar and another 1992 SCMR 1303 ref.

Abdul Aziz and another v. Muhammad Ibrahim PLD 1977 SC 442 fol.

Ch. Khurshid Ahmed for Appellants.

Ahmad Waheed Khan for Respondents.

Dated of hearing: 17th, 22nd, 23rd, 27th, 29th and 30th October, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 501 #

2009 M L D 501

[Lahore]

Before Fazal-e-Miran Chauhan, J

SHAH HALI and others---Petitioners

Versus

MEMBER (JUDICIAL) BOARD OF REVENUE, PUNJAB and 5 others---Respondents

Writ Petition No.1465 of 2008, decided on 5th November, 2008.

(a) Punjab Tenancy Act (XVI of 1887)---

----Ss. 12, 40 & 43---Suit for recovery of Hissa Batai (share in produce) and ejectment of tenant---Ground of non-payment of hissa batai by tenant despite passing of several decrees against him---Validity---Nothing on record to show that tenant had offered or paid hissa batai to landlord for disputed period---Conduct of tenant was evident from such decrees showing that every time landlord had to approach Revenue Officer for recovery of hissa batai---Such decrees passed against tenant had rendered him to be a chronic defaulter---Tenant on his failure to offer or pay hissa batai had rendered himself to be ejected---Suit was decreed in circumstances.

LUCAS alias LUCI, and others v. S.M. Nasim, Member (Revenue), Board of Revenue Punjab, Lahore and another 1984 PSC 379; Akbar v. Faizullah Khan and others 1992 CLC 1355; Samar Khan and others v. Safdar and others PLD 1989 Pesh.102; Niaz Ahmad and others v. Allah Diwaya, and others 1983 CLC 401; The Commissioner and another v. Mian Sher Muhammad 1972 SCMR 395; Habib Khan v. Additional Settlement Commissioner, Multan and others 1980 SCMR 84; Irshad Ahmad v. The Settlement Authority, Punjab 1981 SCMR 758; Ali Muhammad and others v. Deputy Commissioner/District Collector, Vehari and others 1988 CLC 1981; Nusrat v. Assistant Commissioner, Vehari and others 1986 CLC 2347; Hashim Ali and others v. Mst. Bhirawan and others 2002 YLR 1700; Kaniz Bibi v. Muhammad Ashraf and another 2008 YLR 159 and Enayat Sons (Pvt.) Ltd. v. Government of Pakistan through Secretary, Finance and others 2007 SCMR 969 ref.

(b) Punjab Tenancy Act (XVI of 1887)---

----Ss. 12, 40 & 43---Suit for recovery of arrears of rent and ejectment of tenant---Maintainability---Both such relief could be joined in one suit.

LUCAS alias LUCI and others v. S.M. Nasi, Member (Revenue) Board of Revenue Punjab, Lahore and another 1984 PSC 379 and Sarwar Khan v. Muhammad Basharat PLJ 1992 Revenue 69 rel.

----No order against law can be passed.

(d) Appeal (Civil)---

----Judgment of Appellate Court, if not violative of principles of administration of justice or arbitrary or fanciful, should be preferred.

Muhammad Siddique Awan for Petitioner.

Syed Husnain Ibrahim Kazmi, Asst. Advocate-General, for Respondents Nos. 1 to 4.

Chaudhary Hafeez Ullah Yaqoob or Respondents Nos.5 to 6.

MLD 2009 LAHORE HIGH COURT LAHORE 507 #

2009 M L D 507

[Lahore]

Before Zafar Iqbal Chaudhry, J

IMTIAZ AHMED CHATTA---Petitioner

Versus

SALAH-UD-DIN SIDDIQUI, ADDITIONAL DISTRICT JUDGE, FAISALABAD and others---Respondents

Writ Petition No. 14464 of 2008, decided on 24th October, 2008.

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

----S.13(6)---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Petitioner did not deposit rent as directed by Rent Controller under S.13(6) of West Petition Urban Rent Restriction Ordinance, 1959, therefore, his defence was struck off and eviction order was passed---Petitioner assailed eviction order by filing application under S.12(2) C.P.C., and Rent Controller suspended operation of eviction order but Lower Appellate Court, in exercise of revisional jurisdiction, set aside the order passed on application under S.12(2) C.P.C.--Validity---Order of revisional court, even if erroneous on facts or law, could not be interfered in Constitutional jurisdiction, as writ against such order was incompetent---Lower Appellate Court, in exercise of revisional jurisdiction, had judiciously exercised its jurisdiction and passed a well-considered order---Petitioner failed to show that Lower Appellate Court had exercised jurisdiction not vested in it by law or had failed to exercise a jurisdiction so vested in it or had acted in exercise of its jurisdiction illegally or with material irregularity---Lower Appellate Court in exercise of revisional jurisdiction, on the basis of proper reading, consideration and appreciation of evidence, had passed reasoned order, which could not be upset---High Court, in exercise of jurisdiction under Art. 199 of the Constitution, declined to interfere with the order passed by Lower Appellate Court---Petition was dismissed in circumstances.

Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362; Qamar-ud-Din v. Muhammad Din and others PLD 2001 SC 518; Muhammad Asghar v. District Judge, Siakot and 3 others 1984 SCMR 1225; Mst Sardar Begum v. Malik Khalid Mahmood and others 1986 CLC 2342; Muhammad Munir v. Munir Ahmad 2002 YLR 3196; Mst. Sarwar Jan and 8 others v. District Judge, Bagh and others 2006 MLD 12; The Administrator-General of Auqaf, Government of Pakistan and another v. The District Judge, Sargodha 2001 Ch C 218 and Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322 distinguished.

Muhammad Khan and 6 others v Mst. Ghulam Fatima and 12 others 1991 SCMR 970; Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131 and Hassan Din v. Hafiz Abdus Salam PLD 1991 SC 65 rel.

Syed Nisar Ali Shah for Petitioner.

MLD 2009 LAHORE HIGH COURT LAHORE 512 #

2009 M L D 512

[Lahore]

Before Khurshid Anwar Bhindar, J

Messrs WAK LTD. through Manager Finance---Petitioner

Versus

PROVINCE OF PUNJAB through Home Secretary and 7 others---Respondents

Writ Petition No.12270 of 2007, decided on 13th January, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Penal Code (XLV of 1860), Ss.489-F/420/468/471---Quashing of F.I.R.---Complainant had lodged F.I.R. against the petitioner company for issuing him cheque worth Rs.10 million, which was dishonoured by the Bank---Counsel for the petitioner had submitted that petitioner did not issue any cheque to the complainant, rather it had lodged F.I.R. under Ss.420/468/471, P.P.C. regarding the loss of cheque book from which cheque in question was issued---Cheque in question was neither signed by any of the Directors of the petitioner company nor it was issued to the complainant for the fulfilment of any liability---In order to constitute an offence under S.489-F, P.P.C. all necessary ingredients mentioned in the language of said section were to be fulfiled---Petitioner had neither issued cheque for the purposes of fulfilment of any outstanding liability nor was it dishonoured on presentation for want of insufficient fund---When the basic ingredients as mentioned in the language of S.489-F, P.P.C. were not fulfilled as per the facts and circumstances of the- case, offence under said section was not made out against the petitioner which had already lodged F.I.R. for the loss of the cheque book and had also made written request to the Chief Manager of the Bank for stopping payment on the presentation of stolen cheque book---No mala fide intention of the petitioner was established, whereas the petitioner had taken precautionary measures by lodging F.I.R. regarding the loss of cheque book---When no criminal case was made out against accused, then F.I.R. could sufficiently be quashed---Since none of the necessary ingredients constituting an offence under S.489-F, P.P.C. were made out against the petitioner company, all the offences under which the petitioner was liable to be tried were not made out against the petitioner---Case against the petitioner under S.489-F, P.P.C. or other relevant provisions of law in the F.I.R., having not been made out, F.I.R. registered against the petitioner was quashed which was registered against the petitioner with mala fide intentions.

Messrs Sardar Khurram Latif Khan Khosa and Syed Iqbal Hussain Shah Gillani for Petitioner.

Sarfraz Ali Khan, A.A.G. with Ghulam Nabi A.S.-I.

Pir S.A. Rashid for the Complainant.

MLD 2009 LAHORE HIGH COURT LAHORE 521 #

2009 M L D 521

[Lahore]

Before Maulvi Anwarul Haq, J

ISRAR AHMED and 3 others---Petitioners

Versus

Haji MUHAMMAD MUMRAIZ KHAN and another---Respondents

C.R. No. 477 of 2005, heard on 24th September, 2008.

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

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Market value of suit property---Plaintiffs claimed to be Shafi Sharik, Khalit and Jar---Plaintiffs pleaded performance of Talbs and disputed amount of purchase of land as claimed by the defendants/vendees---Trial Court dismissed suit, but Appellate Court decreed the same subject to deposit of amount of suit land as claimed by the defendant---With regard to making of Talb-i-Muwathibat, plaintiffs had themselves deviated from their pleadings in the plaint and both the other witnesses had also made discrepant statements in that respect which did not tend to corroborate the basic statement made in the plaint---Trial Court, in circumstances, had rightly held that plaintiffs had failed to perform Talb-i-Muwathibat---Plaintiffs had also failed to prove making of Talb-i-Ishhad---Appellate Court had failed to read the evidence on record while reversing findings of the Trial Court with regard to making of Talbs---Findings of the Appellate Court on the issue pertaining to Talbs were set aside and those of the Trial Court were restored---Trial Court had rightly determined market value of suit land observing that same was near the road and Abadi area---Findings of the Trial Court in that respect could not be interfered with.

Muhammad Zafarullah Khan and others v. Hasan Muhammad and others PLD 2004 Lah. 43; Abdul Qayyum v. Muhammad Rafique 2001 SCMR 1651; Ikram ud Din and others v. Ghulam Ahmad Khan and others 1995 MLD 1689 and Sikandar Khan and 6 others v. Muhammad Nawaz and 2 others 2004 YLR 865 ref.

Muhammad Ilyas Sheikh for Petitioner.

Muhammad Younis Bhatti for Respondents.

Dates of hearing: 15th, 23rd and 24th September, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 544 #

2009 M L D 544

[Lahore]

Before S. Ali Hassan Rizvi, J

NAZIM---Petitioner

Versus

IMTIAZ and others---Respondents

Criminal Revision No.12 of 2006, decided on 15th January, 2009.

Criminal Procedure Code (V of 1898)---

----S. 200---Penal Code (XLV of 1860), Ss.302/324/337-F(vi)/337-L(ii)/337-F(v)/337-F(iii)/449/148/149---Private complaint---Petitioner had called in question order passed by the Trial Court wherein the private complaint filed by him was dismissed---Petitioner was one of accused in case about which F.I.R. was registered at Police Station concerned---Three persons were murdered in the occurrence---Cross-version on the application of the petitioner was recorded---Petitioner was challaned in the said case, while his cross-version was found false---Statements of the petitioner and his witnesses in private complaint were recorded but the Trial Court dismissed the same---Cross-version of the petitioner was recorded and accused nominated in said cross-version were found innocent and were placed in Column No.2 of the challan, who were summoned by the Trial Court and even charge was framed---Ground for filing the private complaint was that accused of the cross-version had been found innocent---Said ground was not available because his version in writing was already on record---Validity---Accused of the cross version were already on record with specific role---Material relevant to the case could have also been produced in prescribed manner and opinion of the police could not have affected the merits of the case as the Court had to arrive at its own conclusion---Request to restart the matter by filing afresh private complaint would definitely result in delay and hamper the course of trial---No illegality having been painted out in this behalf impugned order could not be said to have been passed arbitrarily, calling for interference in exercise of revisional jurisdiction of High Court.

1990 PCr.LJ 713 Lah.; 1984 PCr.LJ 1266 Kar. and 1995 PCr.LJ 1900 Lah. rel.

Rai Salah-ud-Din Kharal for Petitioner.

MLD 2009 LAHORE HIGH COURT LAHORE 549 #

2009 M L D 549

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD AJMAL KHAN---Petitioner

Versus

MUHAMMAD YOUNIS KHAN---Respondent

Civil Revision No.548 of 2005, heard on 26th November, 2008.

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

----S.13---Qanun-e-Shahadat (10 of 1984), Art.129 (e)---General Clauses Act (X of 1897) S.27---Right of pre-emption, exercise of---Notice of Talb-e-Ishhad---Proof---Postman, evidence of---Vendee declined to have received notice of Talb-e-Ishhad posted by pre-emptor---Effect---In view of the denial of vendee on oath, presumption arising under Art.129 of Qanun-e-Shahadat, 1984 and S.27 of General Clauses Act, 1897, stood rebutted necessitating production of postman who had taken notice to addressee---Failure to do so by pre-emptor was violative of dictum laid down by Supreme Court---Both the courts below had rightly dismissed suit and appeal filed by pre-emptor---High Court declined to interfere in judgments and decrees passed by two courts---Revision was dismissed in circumstances.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 fol.

Zia Ullah Khan Niazi for Petitioner.

Ijaz Khaild Khan for Respondent.

Date of hearing: 26th November, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 561 #

2009 M L D 561

[Lahore]

Before Maulvi Anwarul Haq, J

JAVAID MAJEED and 9 others---Petitioners

Versus

SOHALA MUSSARAT and 29 others---Respondents

Writ Petition No.10766 of 2006, heard on 19th November, 2008.

Civil Procedure Code (V of 1908)---

----O.XX, R.13, Ss. 151 & 152---Partition Act (IV of 1893), Ss.2 & 3---Administration suit---Preliminary decree after recording evidence of parties---Final decree for sale of suit property---Application by plaintiff under Ss.151 & 152, C.P.C., for amendment of final decree to include therein other properties of deceased already admitted by defendant and also established on record---Defendant's plea was that plaintiff might file separate suit with regard to such omitted properties---Dismissal of such application by Trial Court---Validity---Trial Court, in exercise of its powers under O.XX. R.13, C.P.C., could make an inquiry regarding estate of deceased---Such inquiry could be made at any time before passing final decree---Under provisions of Partition Act, 1893, order of sale of joint property would be treated and implemented as final decree---Such order of sale would not debar court from continuing with such inquiry---Such inquiry could be conducted without interfering with process of sale already ordered---Plaintiff through such application had prayed for such inquiry with reference to evidence on record---High Court directed Trial Court to consider such application as an application for inquiry to determine assets of deceased and fix separate dates for sale proceedings and such inquiry.

Mian Nisar Ahmad for Petitioners.

Mian Iqbal Hussain Kalanori for Respondents.

Date of hearing: 19th November, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 568 #

2009 M L D 568

[Lahore]

Before Tariq Shamim and Zafar Iqbal Chaudhry, JJ

LIAQAT ALI and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1785 of 2002, heard on 6th November, 2008.

Penal Code (XLV of 1860)---

----Ss. 302(b)/149 & 148/149---Appreciation of evidence---Benefit of doubt---Private complaint had been filed by the complainant after 2-1/2 years of the occurrence without justifying the delay, naming all the accused including those who had been declared innocent by the police---Trial Court had acquitted 12 co-accused and convicted present nine accused---Majority of accused having been acquitted by Trial Court, evidence of eye-witnesses could not be safely relied upon against the present accused without corroboration from unimpeachable source, which was not available on record---Complainant had made material contradictions and improvements in her statements---Complainant, an illiterate woman, and other eye-witness had furnished details of each and every injury suffered by both the deceased at the hands of sixteen assailants armed with different fire-arms who were firing at the deceased simultaneously, so much so that a grazing injury caused by an accused with a 7MM rifle to a deceased on his back was also noticed by the complainant--Ocular account made by eye-witnesses was lightly unnatural---None of the eye-witnesses, despite being aware of hatching of the conspiracy several days before the occurrence had reported the matter to anyone--Conspiracy part of prosecution case had been disbelieved by the police in successive investigation and even at the trial the accused of conspiracy had been acquitted by Trial Court disbelieving a significant part of prosecution story---Deceased were not "Masoom Uddam" who were involved in a number of criminal cases including those of murder---Medical evidence was in conflict with ocular testimony on material particulars---.Motive behind the murders of the deceased was not proved by the prosecution---Crime empties secured from the spot having been dispatched to Forensic Science Laboratory along with the weapons recovered from the accused, possibility of the empties having been manipulated could not be ruled out---Accused were acquitted on benefit of doubt in circumstances.

Syed Zahid Hussain Bokhari, Rai Tufail Ahmad Khan Kharal, Muhammad Faisal Malik and Muhammad Ali Khan for Appellants.

Amjad Iqbal Sindhu, defence counsel.

Ahmad Rasool Chattha, Deputy Prosecutor-General for the State.

Abdul Qudus Rawal for the Complainant.

Date of hearing: 6th November, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 581 #

2009 M L D 581

[Lahore]

Before Ali Akbar Qureshi, J

BAZ KHAN---Petitioner

Versus

NASREEN and 2 others---Respondents

Writ Petition No. 14304 of 2008, decided on 19th November, 2008.

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 dowry articles---Trial Court, after recording evidence of the parties, finally dismissed suit for recovery of dowry articles tiled by the plaintiff, but Appellate Court set aside judgment and decree of the Trial Court and the plaintiff was found entitled to recover Rs.40,000 as alternate of dowry articles---Validity---Record had shown that dowry articles were given to the plaintiff at the time of. her marriage and same were brought into the' house of the defendant which fact was admitted by the defendant in his written statement as well as in his evidence before the court, but it was stated that dowry articles were returned to the plaintiff---Defendant could not produce even a single witness in support of his assertion that said articles were returned to the plaintiff---Appellate Court having already sufficiently decreased the claim of the plaintiff from Rs.1,27,000 to Rs.40,000, hardly any reason existed to interfere with the well-reasoned judgment and decree---Counsel for the defendant having failed to point out any jurisdictional defect, material irregularities, misreading and non-reading of evidence in the judgment passed by the Appellate Court same was upheld.

Malik Muhammad Azam for Petitioner.

Nasim Ullah Khan Niazi for Respondents.

MLD 2009 LAHORE HIGH COURT LAHORE 583 #

2009 M L D 583

[Lahore]

Before Saghir Ahmed and Muhammad Ashraf Bhatti, JJ

GHULAM MUSTAFA and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.159 of 2001 and Murder Reference No.38 of 2001, heard on 27th May, 2008.

Penal Code (XLV of 1860)---

----S.302---Appreciation of evidence---Sentence, reduction in---Evidence with regard to motive part of occurrence brought by the prosecution during the course of the trial, had not been established despite both eye-witnesses were subjected to lengthy cross-examination---Trial court had very appropriately appreciated the evidence of he prosecution to that effect---Immediate cause for the occurrence was the direct result of the jokes cut by accused with the deceased female few days before the occurrence---Trial court had rightly concluded that complainant and other prosecution witnesses could not have gone so far to set up a false motive against accused that could destroy their family honour---Case was not that of mistaken identity of accused who belonged to area of the prosecution witnesses was well known to them and also a frequent visitor to their Dera---Occurrence also took place in a broad daylight in view of the prosecution witnesses---No benefit of any kind of doubt, as to muffling the face could be extended to Accused---Small discrepancies, were brushed aside in the presence of strong, confidence-inspiring material, consistent and unshaken ocular account provided by the complainant and other prosecution witnesses, fully corroborated by medical evidence and other circumstantial evidence, like recovery of empties from the place of incident and recovery of pistol the pointation of accused and sent to the Forensic Science Laboratory with confirmation report as to existence of similarity with the test empties---In the absence of any previous enmity between the parties, no importance could be given to the statement of accused recorded under S.342, Cr.P.C. that he was falsely involved in the case---Trial Court had rightly believed the ocular account---Prosecution, in circumstances, had established motive, proved recoveries and furnished ocular account in line with medical evidence, which was reliable and confidence inspiring and thus prosecution case against accused was established beyond any reasonable doubt---Accused though knew that injuries he was going to cause upon the body of the deceased, were likely to cause death, but nature of the wounds that developed later on, after treatment, in the intervening period of causing injuries and till the death of deceased when the wounds had gone septicemia, punishment of extreme penalty under S.302, P.P.C. of death was not warranted---Case was the one where conviction had to be recorded under S.324, P.P.C. and accused was convicted under that section and was sentenced to imprisonment for ten years' R.I. with payment of Arsh.?

Zahid Rehman Tayyab for Appellants.

Aftab Ahmed Goraya, Addl. P.-G. for the State.

Date of hearing: 27th May, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 596 #

2009 M L D 596

[Lahore]

Before Muhammad Ahsan Bhoon, J

GHAFOOR AHMED alias FLATOO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.409 of 1998, heard 17th December, 2008.

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

----S. 302(b)---Appreciation of evidence---Presence of eye-witnesses was disbelieved by the Trial Court and ultimately the conviction and sentence of accused was recorded on the basis of report under S.173, Cr.P.C.---Validity---When the prosecution evidence was disbelieved and the statement of accused was taken into consideration for recording his conviction and sentence, that was to be believed in toto and not in isolation from the exculpatory part of statement of accused---Report under S.173, Cr.P.C. was never tendered in evidence by the prosecution, nor the contents of same were proved in accordance with the provisions of Art.74 of Qanun-e-Shahadat, 1984; same, therefore, could not be relied upon by the Trial Court for the purpose of conviction and sentence of accused---Presence of two prosecution witnesses, who were son and nephew of the deceased, was disbelieved by the Trial Court---If all the three eye-witnesses had been present on the spot they must have come forward to save their father from accused who was armed with Churri and was aged 55 years, whereas all the three eye-witnesses were young and able-bodied, according to the observation of the Trial Court---Defence plea was more plausible---When the defence plea was proved, then the prosecution case would stand shattered and discredited; and if the defence plea was substantiated to the extent of creating doubt in the credibility of prosecution case that would be enough and if it was not established, no benefit would go to the prosecution on that account---Prosecution was bound to prove its case beyond doubt and that burden of prosecution would not diminish, if the defence plea was not proved or was found false---In the present case accused, while proving the plea, had discharged his onus---Accused was well within his rights to cause injuries to the deceased to save his nearer and dearer---Conviction and sentence of accused were set aside, in circumstances.

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

----Ss. 100 & 102---Right of self-defence---Starting point of---Right of self-defence would start the moment apprehension to body would arise and would continue till the danger was over and it was not necessary that one received any injury, as apprehension of body injury or death could not be measured at golden scale.

Sultan Ahmad Khawaja for Appellant.

Adeel Aqil Mirza, DPG for the State.

Munir Ahmad Bhatti for the Complainant.

Date of hearing: 17th December, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 608 #

2009 M L D 608

[Lahore]

Before Syed Hamid Ali Shah, J

PAKISTAN OIL FIELDS LTD.---Petitioner

Versus

DISTRICT GOVERNMENT, ATTOCK---Respondent

Writ Petition No. 2791 of 2005, decided on 13th October, 2008.

Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----S. 23---Punjab Local Government Ordinance (XIII of 2001), Ss.141, 144 & 145---Constitution of Pakistan (1973), Art.199 & Fourth Schedule, item No.2, Part, II---Constitutional petition---Petroleum exploration---Licence fee, demanding of---Petitioner company was engaged in exploration and production of petroleum products and District Government demanded licence fee from petitioner for the purpose--Validity-Power to grant licence for transmission, installation and distribution or sale of natural gas was conferred upon Oil and Gas Regulatory Authority (OGRA), under the provisions of Oil and Gas Regulatory Authority Ordinance, 2002---Activities of exploration and production of petroleum could be undertaken only when a license was granted by the Authority---Issuance of license or charging any tax or levy on Liquid Petroleum Gas (L.P.G.) was a federal subject, within the meaning of para. 2, Part II of Fourth Schedule of the Constitution and Local Government could not stretch its jurisdiction and claim license fee---High Court, in exercise of Constitutional jurisdiction, declared imposition of fee on L.P.G. without lawful authority and of no legal effect---Petition was allowed accordingly.

Foundation Gas Ltd. and 4 others v. Government of Punjab and 2 others 1992 MLD 499 and Zila Council, Jhang, District Jhang through Administrator and others v. Messrs Daewoo Corporation, Kot Ranjeet, Sheikhupura Director Contract and others 2001 SCMR 1012 fol.

Saleem Zulfiqar Khan for Petitioner.

S.M. Ayub Bukhari for Respondent No.1.

Syed Husnain Kazmi, A.A.-G.

MLD 2009 LAHORE HIGH COURT LAHORE 612 #

2009 M L D 612

[Lahore]

Before Abdul Sattar Goraya, J

AAMER RASHID and others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.313-B of 2009, decided on 11th March, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.324/148/149---Ad-interim pre-arrest bail, confirmation of---Further inquiry--Two of accused persons had been challaned under S.109, P.P.C. and third accused caused simple injury and according to the medical evidence said injury hat! been declared as "Shaja Khafifa"---Another co-accused was not nominated in the F.I.R. and during the police investigation he had been found guilty of the charge---Motive part explained in the F.I.R. had shown that some previous scuffle and dispute existed between the parties and according to the counsel for accused persons registration of the present case was outcome of the mala fide---Mala fide in the case of pre-arrest bail, was simply to be alleged and not to be proved---Case of accused persons being one of further inquiry as envisaged under subsection (2) of S.497, Cr.P.C. ad-interim pre-arrest bail already granted to accused persons, was confirmed.

Mian Muhammad Tayyib Wattoo for Petitioners.

Mirza Mukhtar Baig, DPG, with Muhammad Nawaz A.S.-I. for the State.

Mirza Muhammad Azam, for the Complainant.

MLD 2009 LAHORE HIGH COURT LAHORE 616 #

2009 M L D 616

[Lahore]

Before Saghir Ahmad and Muhammad Ashraf Bhatti, JJ

NIAZ AHMAD---Appellant

Versus

THE STATE -Respondent

Criminal Appeal No.375 of 2003 and Murder Reference No.72 of 2003, heard on 5th November, 2008.

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

----S.295-C---Appreciation of evidence---Allegation against accused was that when he, along with about twelve persons, was sitting in a tea stall, a person who was cited as witness, offered `SALAAM' and in answer accused used derogatory remarks and also allegedly hurled abuses towards Holy Prophet Muhammad (P.B.U.H.)---Said person who offered SALAAM and other person who allegedly heard said remarks, who were star witnesses in the case, were given up by the prosecution---While appearing in the court as defence witnesses, said persons unanimously deposed that as person who offered SALAAM had no relations with accused and accused instead of replying SALAAM in a decent manner, used filthy language against said person and did not utter any derogatory remarks against Hazrat Muhammad (P.B.U.H.)---Evidence of complainant as well as other prosecution witnesses who were chance witnesses was not worthy of credence---Complainant, even otherwise was highly interested witness as he already was not on good terms with accused as he allegedly had tried to commit sodomy with son of accused which was resisted, therefore in order to take revenge he was trying to falsely implicate accused with such a charge which was far from even mere imagination of a Muslim---Prosecution story was doubtful whereas conviction or sentence could neither be recorded nor maintained on simple hypothesis and assumption---To prove a charge carrying capital punishment, the prosecution was required to prove its case up to hilt, which element was totally missing in the case---Prosecution, in circumstances, had not been able to bring home the guilt against accused---Conviction and sentence awarded to accused by the Trial Court were set aside and he was acquitted and released, in circumstances.

Shamoon's case 1995 SCMR1377 and Ayub Masih v. The State PLD 2002 SC 1048 ref.

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

----S.161---Statement made under S.161, Cr.P.C.---Value and applicability-Statement under S.161, Cr.P.C. could only be used to get a witness contradicted from his previous statement and not for any other purpose.

----S.295-C---FATWA document, though was brought on file and also got exhibited by the prosecution, but unless its author or even signatory was produced in the court and was subjected to cross-examination enabling accused to explain the entire circumstances prevailing at the relevant time, such FATWA, even by some Mufti or religious scholar, could not be considered and read in evidence---Quran and Sunnah being the best, complete and comprehensive code of life was always sufficient, was plenty and would ever remain more than enough to cater all sorts of eventualities in the past, in the present as well as in the future---Courts in such situation, were guided by the principle laid down by Holy Prophet Hazrat Muhammad (P.B.U.H.) to the effect that mistake of Qazi (Judge) in releasing a criminal, was better than the mistake in punishing an innocent.

Talat Mehmood Kakezai for Appellant.

Aftab Ahmad Goraya, Addl. P.-G. for the State.

Date of hearing: 5th November, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 625 #

2009 M L D 625

[Lahore]

Before Khurshid Anwar Bhinder, J

MUHAMMAD SALEEM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 10888-B of 2008, decided on 18th February, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11---Penal Code (XLV of 1860), Ss.471, 467 & 468--Bail, grant of---Further inquiry---Accused was no doubt nominated in the F.I.R. with a specific role, but High Court had to make tentative assessment on the basis of the available record----Serious allegations had been levelled against accused, but minute perusal of the record had revealed that the case against accused was doubtful for the reason that complainant/alleged victim had filed constitutional petition before the High Court, according to which she had refuted all the allegation levelled against accused; and had submitted before the court that she being sui juris, had contracted marriage with accused with her free will and consent; but subsequently she had resiled from her statement; and had put up an application for registration of a criminal case in the Court of Justice of Peace; which would mean that she had changed her earlier stance---No reliance could be placed on the statement of the complainant as her statement before the High Court was in direct conflict with her application which she subsequently made before the Justice of Peace regarding registration of a criminal case against accused---Delay of eight months was in lodging the FIR., which had not been sufficiently explained---Had the occurrence actually taken place then there was no reason for the family members of the complainant not to get the case registered against accused or any body else regarding abduction of complainant---Case of accused clearly falling within the ambit of further inquiry, accused was admitted to bail, in circumstances.

Ch. Muhammad Yousaf for Petitioner.

Fayyaz Ahmad DPG for the State with Tanveer S.-I.

MLD 2009 LAHORE HIGH COURT LAHORE 629 #

2009 M L D 629

[Lahore]

Before Saghir Ahmad, J

SHAUKAT IQBAL and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.771 of 2004, heard on 7th August, 2008.

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

----S.302/34-Appreciation of evidence---Fact of previous enmity between the parties had been admitted by the complainant and such enmity had been shown to be the motive---Motive, however was a double-edged weapon and while it could be a cause to commit the offence, it could also be a cause to falsely implicate a person---Merely on the basis of motive part, neither the conviction could be sustained or upheld, nor could same be set aside, unless the surrounding circumstances would contribute to establish the motive---Injury which had been attributed to accused was only a superficial injury and was simple in nature, whereas the other injury attributed to main accused, who had since died, was declared fatal and was sufficient to cause death in ordinary course of nature---Despite direction of Medical Officer, the X-ray report was not produced before him to form an opinion about such injury---Benefit of such omission on the part of the prosecution was also to be given to accused---Contents of the F.I.R. as well as the alleged eye-witnesses were unanimous on the point that fatal shot at the forehead of deceased was fired by main accused, since dead, and thereafter, other shot was being attributed to accused, which injury was found a superficial wound---Complainant was father of deceased and other eye-witness was also closely related to the complainant being his son-in-law---Evidence of prosecution, in circumstances, required to be seen with extra caution, especially when previous enmity between the parties was admitted; and also that main accused to whom the fatal shot was attributed, had also been murdered---Alleged recoveries of crime weapon was effected about one month after the occurrence at the instance of accused and his co-accused and no independent person was associated with recovery proceedings---When co-accused was not attributed any injury and was shown to be present at the spot and having made only indiscriminate firing without proving motive against him, it was not justified for the Trial Court to have convicted him under S.302/34, P.P.C. and then extended sufficient doubt about his false involvement---While following the rule of abundant caution, conviction and sentence as recorded by the Trial Court, against said co-accused, were set aside.

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

----S. 302/34---Appreciation of evidence---Accused was attributed a simple superficial injury on the eye of the victim and motive to the extent of accused had not been satisfactorily proved---Conviction of accused under S.302/34, P.P.C. would not be justified, in circumstances---Accumulative effect of all said facts, had led High Court to conclude that at the most the case against accused was one covered by the definition under S.324, P.P.C.---While partly allowing appeal to the extent of accused, his conviction under S.302/34, P.P.C. was altered to one under S.324, P.P.C. and his sentence was altered to the period already undergone by him.

Sardar Latif Khan Khosa for Appellants.

Rana Iqbal Hussain, Dy. P.-G. for the State.

Date of hearing: 7th August, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 635 #

2009 M L D 635

[Lahore]

Before Maulvi Anwarul Haq, J

SALEEM-UD-DIN and others---Petitioners

Versus

GOVERNMENT OF THE PUNJAB through Secretary Education and others---Respondents

Civil Revision No.1942 of 2007, heard on 20th January, 2009.

Civil Procedure Code (V of 1908)---

----O.XVI, R.1 & O.XVII, R.3---Summoning of witness---Closing of evidence---Plaintiffs regularly deposited diet money and other expenses for attendance of witnesses summoned by court on application filed under O.XVI, R.1 C.P.C. by defendants---Despite lapse of five years, evidence of summoned witnesses could not be recorded, therefore, Trial Court closed the evidence of plaintiffs---Validity---No fault attributable to plaintiffs in the matter of non-appearance or presence of witnesses was found by High Court---No objection was ever raised by office that diet money or process fee had not been deposited---Plaintiffs did their duty and they were not to be burdened any further and it was for the court 'to ensure presence of witnesses---High Court, in exercise of revisional jurisdiction, set aside the order passed by Trial Court, whereby evidence of plaintiffs was closed---Revision was allowed in circumstances.

Mian Israr-ul-Haq, for Petitioners.

Tahir Munir Malik, Addl. A.-G. Respondents Nos.3, 4 and 5 in person.

Date of hearing: 20th January, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 641 #

2009 M L D 641

[Lahore]

Before Kazim Ali Malik, J

MANSABDAR-Petitioner

Versus

THE STATE through A.-G., Punjab---Respondent

Criminal Miscellaneous No. 152-B of 2009, decided on 9th February, 2009.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/34/148/149---Bail, grant of---Further inquiry---Six accused persons including accused, were arrested and lodged in judicial lock up in a case in which deceased received only one fire shot---Only one firearm injury suffered by deceased had not been specifically attributed to any one of said six accused persons---Complainant and prosecution witnesses made a vague and general allegation that six accused persons, including accused resorted to firing in the darkness of night as a result of which the deceased suffered one fire shot, which proved fatal; in other words six accused persons including accused had been lodged in judicial lock-up for having caused one injury to the deceased---Trial Court did not take into consideration the mode and manner of the incident set up in the F.I.R.---Accused was extremely old man---Senior Medical Officer, Jail Hospital found accused patient of "Parkinsonism" and his whole body was shivering uncontrollably and as a result the iron handcuff injured his wrist joint---Section 497, first proviso Cr.P.C. had clearly laid down that any sick or infirm person, accused of an offence punishable with death or imprisonment for 10 years, could be released on bail---Trial Court withheld the benefit of the Ist proviso to S.497, Cr.P.C. which accused was entitled on account of his extreme old age and bad state of health on the only ground that he was an accused of murder case---Investigator found evidence deficient to the extent of accused and placed in Column No.2 of final report under S.173, Cr.P.C.---Opinion of the Investigator in favour of accused though was neither relevant nor admissible in evidence, but it made the allegation qua accused doubtful and of further inquiry---Accused was admitted to bail, in circumstances.

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

----S. 497---Post arrest bail, grant of---Valid grounds---Valid grounds for post arrest bail were that accused was extremely old man that accused was sick and infirm that accused had been placed in Column No.2 of the challan that deceased received only one firearm shot, which had not been attributed specifically to any of the co-accused persons and that co-accused were behind the bars and were not petitioners before the High Court.

Ch. Afrasaib Khan for Petitioner.

Ch. Muhammad Tariq, Addl. P.G. for the State.

Khurshid, S.H.O. and Qamar ul Islam, S.-I.

MLD 2009 LAHORE HIGH COURT LAHORE 653 #

2009 M L D 653

[Lahore]

Before Syed Asghar Haider, J

AKHTER ALI---Petitioner

Versus

ANJUMAN-E-ANSAR AHLE BAIT (Regd.) through President and 4 others---Respondents

Civil Revision No.1030 of 2008, and C.M. No.8-C of 2009 decided on 23rd January, 2009.

Civil Procedure Code (V of 1908)---

----S.12(2) & O.VI, R.4---Decree, assailing of---Plea of fraud---Failure to give details of fraud---Effect---Judgment and decree was assailed by petitioner on the plea of fraud and misrepresentation, which application was dismissed by Trial Court---Validity---From application under S.12(2) C.P.C. filed by petitioner, it was clear that it was a ploy and instrument to prolong and drag on the proceedings, which were collusive, as one of the respondents and petitioner were hand in glove to take over suit property in violation of law and evidence---Matter was adjudicated earlier by High Court and was never challenged in the Supreme Court, which judgment had attained finality---Provision of S.12(2) C.P.C. was restricted to fraud, misrepresentation and error of jurisdiction---Provision of O.VI, R.4 C.P.C., had enjoined, mandated and stipulated that ingredients of fraud committed were required not only to be mentioned but were to be elucidated and detailed, which was conspicuously missing in the application---As no details of any fraud were mentioned, therefore, application under S.12(2), C.P.C. was not maintainable and was rightly dismissed by Trial Court---Revision was dismissed in circumstances.

Ch. Shameem Ahmad for Applicant.

Ali Abid Tahir for Respondents Nos. 1, 2 and 5.

Jameel Zahid for Respondents Nos. 3 and 4.

MLD 2009 LAHORE HIGH COURT LAHORE 665 #

2009 M L D 665

[Lahore]

Before Khurshid Anwar Bhinder, J

MUHAMMAD ARSHAD IQBAL BUTT---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 812-B of 2009, decided on 4th February, 2009, Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.381-A---Ad-interim pre-arrest bail, confirmation of---Accused was involved in the supplementary statement after the lapse of two months which cast doubt in one's mind regarding his involvement because prior to that F.I.R. was also lodged one month after the occurrence---Had the occurrence genuinely been taken place, then there was no reason for the complainant not to lodge F.I.R. instantly when his car was stolen---Five suspected persons who were involved in the theft case by the complainant prior to involvement of accused, had already been granted bail by the Trial Court which showed that the complainant was not sure regarding the identity of the thief---Mala fides on the part of the complainant as well as police were quite evident as they had involved so many people merely on suspicion and same thing had happened with accused as well---Accused was previous non-convict and had no criminal record---Case of the accused in circumstances, was that of further inquiry into his guilt---Ad interim pre-arrest bail, already granted to accused, was confirmed.

Muhammad Javed v. The State 1995 PCr.LJ 1181; Aqeel v. The State 1997 PLR 575; Charles Peter v. The State 1979 PCr.LJ 25; Khalid Javed and another v. The State 2003 SCMR 1419; 2006 PCr.LJ 494 and 2008 PCr.LJ 1604 ref.

Ch. Zulfiqar Ali, for Petitioner.

Sardar Muhammad Khalil for the Complainant.

2009 M L D 689

[Lahore]

Before Abdul Sattar Goraya, J

ABDUL RAZZAQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1716-B of 2008, decided on 12th March, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/34/109---Bail, grant of--Further inquiry---prosecution built up the case that death of the deceased was the result of strangulation---Medical Officer who conducted post-mortem, stated in his report that four abrasions were observed around the neck and on front of left arm of the deceased---Medical officer had opined that cause of death could be due to esphyxia/suffocation as abrasions were around the neck of the deceased---Even the doctor was not certain about the cause of death and the medical report also created suspicion---Delay of 13 days had taken place in lodging the F.I.R.---Contradiction exited between the ocular account given in the F.I.R. and the Rappat---Case of accused being' of further inquiry within the parameters of law provided in subsection (2) of S.497, Cr.P.C., accused was admitted to bail, in circumstances.

Mian Muhammad Tayyib Wattoo for Petitioner.

2009 M L D 724

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD FAISAL---Petitioner

Versus

MUHAMMAD HAFEEZ-UL-REHMAN KHAN and 3 others---Respondents

Writ Petition No. 15224 of 2008, decided on 15th January, 2009.

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

----S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Interim maintenance---Duty of father---Plea raised by petitioner was that his wife was living separately without any justification and he did not have enough sources to provide interim maintenance fixed by Family Court---Validity---Minors had their independent right to ask maintenance from their father, which right of minors could not be declined merely on the ground that father was not having sources to provide maintenance---Father was legally obliged to provide maintenance---Petitioner asserted that he was a cancer patient whereas he had entered into second marriage---Petitioner, in application, filed under S.25 of Guardians and Wards Act, 1890, for the custody of minors, raised the ground that he had sufficient financial resources to maintain and nourish his son and daughter---Such grounds raised stood belied from petitioner's own version and his conduct for non-compliance of the orders could entail penal action---Interim maintenance to the tune of Rs.2000 per month per child was justified and was maintained by High Court in exercise of constitutional jurisdiction--Petition was dismissed in circumstances.

2004 MLD 794; 2006 YLR 1708; 2007 YLR 1401 and 1972 PCr.LJ 1286 ref.

Saqib Gardner for Petitioner.

Nadeem Iqbal Malik for Respondents.

MLD 2009 LAHORE HIGH COURT LAHORE 729 #

2009 M L D 729

[Lahore]

Before Zafar Iqbal Chaudhry, J

AKHTAR IQBAL---Petitioner

Versus

MEMBER (JUDICIAL-III) BOARD OF REVENUE PUNJAB and 4 others---Respondents

Writ Petition No. 3237 of 2008, heard on 14th January, 2009.

West Pakistan Land Revenue Rules, 1968---

----R.19---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Lamberdar, appointment of---Orders passed by subordinate court---Petitioner, who was grandson of deceased Lamberdar, was a young man of 28 years of age having 8 Kanal of land and was involved in a criminal case---District Officer (Revenue) recommended respondent for appointment of Lamberdar on the ground that he was owner of more land, older in age and was an influential person---Validity---Order for recommendation of respondent had been passed on valid reasons while considering each and every aspect of the case---Petition under Art.199 of the Constitution could not be heard as an appeal from the orders of subordinate courts---Petitioner failed to show any illegality or improbability or jurisdictional defect in the order passed by authorities regarding appointment of respondent as Lamberdar---Petition was dismissed in circumstances.

Maqbool Ahmad Qureshi v. Islamic Republic of Pakistan PLD 1989 SC 484 and 1992 CLC 612 ref.

Syed Muhammad Mumtaz Hussain Sh. for Petitioner.

Rana Luqman Ali Khan for Respondent No.3.

MLD 2009 LAHORE HIGH COURT LAHORE 736 #

2009 M L D 736

[Lahore]

Before Ali Akbar Qureshi, J

BASHIR AHMAD through Special Attorney---Petitioner

Versus

SHAZIA KAUSAR and others---Respondents

Writ Petitions Nos. 11847, 11848 and 11849 of 2008, decided on 2nd December, 2008.

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

----S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintenance, past and future---Entitlement---Wife was forced to leave foreign country and thereafter husband did not make any effort to rehabilitate her along with minors---Effect---Wife did not refuse to perform her matrimonial part with husband---Lower Appellate Court had rightly found wife entitled to receive past maintenance---Father was a natural guardian of minor and was bound by all canon of law to maintain the minors irrespective of the fact as to place where they were living---Lower Appellate Court rightly concluded that husband was man of means and could easily pay maintenance allowance to the minors at the rate of Rs.5000 per month---High Court declined to interfere with the findings of fact recorded by Lower Appellate Court----Petition was dismissed in circumstances.

Hameed Ahmad v. Ghulab Khan 2006 SCMR 895 and Muhammad Aslam v. Mst Zainab Bibi, and others 1990 CLC 934 ref.

(b) Guardians and Wards Act (VIII of 1890)---

----S.25---Custody---Welfare of minor---Scope---After divorce between parents of minors, their father contracted second marriage and was living abroad, whereas their mother had still not contracted marriage---Minors were living with their mother and were getting education in good institution and were also being looked after carefully---Welfare of minors was in the custody of their mother, in circumstances.

Mian Abdul Saeed for Petitioner.

Syed Waqar Abbas Kazmi for Respondents.

MLD 2009 LAHORE HIGH COURT LAHORE 745 #

2009 M L D 745

[Lahore]

Before Abdul Sattar Goraya, J

MUHAMMAD ASGHAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1805 of 2008, decided on 12th March, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.411/458/380---Bail, grant of---Co-accused, who was female had been granted bail---Trial Magistrate in his order had recorded observation that ingredients of S.458, P.P.C. did not exist in the case, whereas the sentence involved under S.380, P.P.C. was short of 10 years or imprisonment for life---Accused was behind the bars from 16-9-2008---Person of accused, was not required for investigation---If accused was allowed bail and ultimately strong evidence would become available on the record at the stage of trial, remedy was that he could be convicted and sentenced; and if ultimately he was acquitted of the charge, then, his detention and loss occasioned, could not be compensated by any scale---Accused was admitted to bail, in circumstances.

Nasir Mehmood Khan v. The State 1985 PCr.LJ 159 and Hakim Ali Zardari v. The State PLD 1988 SC 1 rel.

Tariq Mehmood Khan for Petitioner.

Mirza Mukhtar Baig, DPG, with Nizam Ahmad S.-I. with record.

MLD 2009 LAHORE HIGH COURT LAHORE 750 #

2009 M L D 750

[Lahore]

Before Ali Akbar Qureshi, J

DAEWOO PAKISTAN MOTORWAY SERVICE LTD. through Chief Executive---Petitioner

Versus

MUHAMMAD AKRAM---Respondent

Civil Revision No.2139 of 2006, heard on 14 November, 2008.

(a) Words and phrases---

----`Fraud'---Meaning.

(b) Words and phrases---

----'Misrepresentation'---Meaning.

----Ss.12 (2) & O.VI, R.4---Decree, setting aside of---Plea of fraud and misrepresentation---Pre-conditions---Petitioner was defendant in suit filed by respondent and sought setting aside of judgment and decree passed against it on the plea of fraud and misrepresentation---Trial Court after framing of issues dismissed application filed by petitioner under S.12 (2) C.P.C.---Validity---If any party wanted to question validity of any order on the basis of fraud and misrepresentation, particulars of fraud along with date and time should have been mentioned in pleadings so that other party could meet with or rebut the same in his own way---Law required that if fraud and misrepresentation was alleged, the same had to be proved by person who was alleging the same---Petitioner having failed to point out or mention any ingredients or particulars of fraud in its pleadings and also failed to prove the same in evidence, therefore, petitioner did not meet the requirement of S. 12 (2) C.P.C.---Petitioner failed to point out any jurisdictional defect, legal infirmity, material irregularity, misreading and non-reading of evidence with judgment passed by Trial Court---Each -case had to be decided on its own merits, , therefore, High Court in exercise of revisional jurisdiction declined to interfere with the findings recorded by Trial Court.

Abdul Khaleq v. Province of East Pakistan and another PLD 1964 Dacca 166; Meer Muhammad Sharif v. Mirza Muhammad Ashraf and 4 others 1980 CLC 1984; Syed Naeem Naqi v. Syed Zameer Haider and 2 others 2000 YLR 386; Muhammad Iqbal v. P.I.D.C. 2000 CLC 876; Sh. Din Mohammad v. Jan Mohammad and another PLD 1971 Quetta 30; Punjab Province through Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and another v. Messrs Chaudhan and Company through Managing Partner PLD 2000 Lah. 314 and Mrs. Anis Haider and 3 others v. Additional District Judge, Lahore and 6 others 2003 CLC 462; Baqir v. Mst. Shamim Bibi and others 2001 SCMR 946; Machin Khan v. Sher Muhammad Khan 2003 YLR 742; Chiragh Bibi and another PLD 1958 SC (Pak.) 209; Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050 and Monazah parveen v. Bashir Ahmad and 6 others 2003 SCMR 1300 distinguished.

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

----S.12(2) & O.IX, R.13---Judgment and decree setting aside of--Procedure---Petitioner sought setting aside of judgment and decree simultaneously under S.12---(2) C.P.C. and O.IX, R. 13 C.P.C.---Validity---Both the provisions of Civil Procedure Code, 1908, had no nexus with each other as requirement of both the provisions of law were different.

Ch. Muhammad Saleem for Petitioner.

Aurangzeb Mirza for Respondent.

Date of hearing: 14th November, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 766 #

2009 M L D 766

[Lahore]

Before Khawaja Farooq Saeed, J

KHURRAM ZULIFQAR---Petitioner

Versus

Mst. BENISH MUBARAK and another---Respondents

Writ Petition No. 17463 of 2008, decided on 4th February, 2009.

(a) Administration of justice---

----Every Judicial Officer understands as to what procedure should be adopted by him while deciding an issue before him---Prime purpose had always been to provide substantial justice and the present judicial system having a long history of progressive changes in law of jurisprudence administratively and on the basis of the judgments of the Superior Courts was rich enough to take care of the same.

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

----Arts.72, 73, 74 & 90---West Pakistan Family Courts Act (XXXV of 1964), S.5, Sch & S.7---Documentary evidence---Presumption of document---Law of evidence was not strictly applicable on family matters, but, one needed to look into the correctness of the documents after due application of mind, as the effect of acceptance or rejection of the same would either deprive or grant of right to persons---Presentation of document by one person and exhibiting it would not always mean acceptance of its contents especially in family case---Law of evidence and Civil Procedure Code not being applicable the concept of exhibiting a document in a civil case, would not apply in a family matter either---Even otherwise, the permission to allow to exhibit a document even in civil case would not amount to its acceptance as an alternate evidence---It was only a receipt and the acknowledgement and the permission to make it part of record---One could always challenge its validity, correctness or genuineness during the cross-examination; or thereafter at the time of final argument---If some body wanted to bring on record certain piece of evidence, he should not be deprived from doing so---Every Authority, as far as possible, should not refuse to entertain the evidence produced by the parties before it in support of their claim; however, it would not mean acceptance of the same without checking its veracity as well as correctness and justification---Authority, in circumstances needed to be benevolent in receiving, however, prudent in accepting its evidentionary value.

Shafqat Ali v. Nighat Perveen and others 2008 CLC 806 ref.

----Art.199---Constitutional petition against interlocutory order---Scope---Constitutional petition did not lie against interlocutory order through which the matter had not been decided finally.

Rao Muhammad Owais Qrani v. Mst. Tauheed Aisha and 2 others 1991 MLD 1097 ref.

Naveed Aslam for Petitioner.

Mian Rafaqat Ali for Respondent No. 1.

MLD 2009 LAHORE HIGH COURT LAHORE 774 #

2009 M L D 774

[Lahore]

Before Maulvi Anwarul Haq, J

ALLAH DITTA SHAHEEN---Appellant

Versus

KHALID SHAFIQ and others-Respondents

Regular Second Appeal No. 62 of 1985, heard on 18th November, 2008.

Specific Relief Act (I of 1877)---

----S.12---Contract Act (IX of 1872), S.208---Specific performance of agreement to sell---Transfer by attorney---Defendants raised the plea that there was no express power given by owner of land to attorney to enter into agreement to sell---Validity---Power of attorney was couched in a manner which left no manner of doubt as to the purpose for which attorney was appointed i.e. obtaining alternate land and then to alienate the same---Earnest money was received by owner of land himself through receipt duly exhibited and otherwise power to receive consideration was given expressly to attorney and it included part of consideration---Plaintiff admitted that owner of land was personally known to him and that his son was his class fellow---Both of them lived in the same village and sale having taken place after institution of the suit, plea of absence, of knowledge was of no avail---Judgments and decrees passed by both the Courts below were set aside and suit filed by plaintiff was decreed---Second appeal was allowed accordingly.

Muhammad Nawaz Khan v. Muhammad Khan and 2 others" 2002 SCMR 2003; Qadir Bukhsh and 10 others v. Kh. Nizam ud Din Khan and 4 others 1997 SCMR 1267 and Bashir Ahmad and others v. Mst. Nasim Fatima and others 2001 CLC 1447 ref.

Rana Muhammad Anwar for Appellants.

Malik Noor Muhammad Awan and Ishfaq Qayyum Cheema for Respondents No.1.

Nemo for Respondents Nos. 2 and 3.

Dates of hearing: 12th and 18th November, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 790 #

2009 M L D 790

[Lahore]

Before S. Ali Hassan Rizvi, J

Dr. SHARJEEL IQBAL MIRZA---Petitioner

Versus

Mst. ALIA YASMEEN and 2 others---Respondents

Writ Petition No. 4157 of 2009, decided on 9th April, 2009.

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

----S.5, Sched. & S.17-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Grant of interim maintenance--Family Court in suit for maintenance allowance, granted interim maintenance to the plaintiffs at the rate of Rs.7,000 each per month---Validity--- No appeal lay against the order passed by the Judge, Family Court in terms of S.17-A of the West Pakistan Family Courts Act, 1964---Legislature in its wisdom having not provided any appeal against the order relating to the interim maintenance, constitutional petition filed by the defendant, would not be maintainable at all.

(b) Administration of justice---

----Right of hearing---Litigant had a right of hearing only, if in obedience of the order of court, he would attend and pursue his case with serenity, otherwise, court would not be debarred from passing any lawful order.

Rana Muhammad Zahid for Petitioner.

MLD 2009 LAHORE HIGH COURT LAHORE 802 #

2009 M L D 802

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD NASEER---Petitioner

Versus

FATIMA through her mother and 2 others---Respondents

Writ Petition No. 613 of 2009, heard on 8th April, 2009.

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 allowance---Appeal, competency of---Suit for recovery of maintenance allowance filed by the minor and his mother was decreed by the Family Court granting maintenance allowance to each plaintiff at the rate of Rs.1,000 per month---Minor plaintiff was held entitled to recover fixed maintenance allowance till attaining the age of puberty or her marriage, whichever was earlier and 20% annual increase was also allowed to him from date of institution of suit---Mother of minor was held entitled to recover fixed maintenance allowance till her "Iddat" period of three months---Defendant preferred appeal against judgment and decree of the Family Court only to the extent of minor and did not challenge judgment and decree passed in favour of the mother of the minor---Said appeal was dismissed by the Appellate Court holding that no appeal lay against the judgment and decree for maintenance of Rs.1,000 or less---Contention of defendant was that as appeal was filed against judgment/decree which was for Rs.1,000+1,000 (one thousand for minor and Rs. 1000 for mother of the minor), same was competent---Validity---Defendant had himself accepted judgment and decree to the extent of mother of the minor and had challenged in appeal judgment and decree only to the extent of minor for Rs.1,000---Had the defendant challenged the entire decree passed by the Family Court for Rs.2,000 (Rs.1000+ 1000) his appeal would have been competent because S.14(2)(c) of West Pakistan Family Courts Act, 1964, speaks of the decree in toto and not as to the amount per head---Appeal was incompetent---Increase of rate of Rs.20% per year, as granted by the Family Court, was not excessive in view of inflationary trends of price hike---When appeal filed by the defendant was incompetent, constitutional petition filed by the defendant, was also incompetent---Petition was dismissed in circumstances.

Khawaj Muhammad v. District Judge Mansehra and others 1999 MLD 2723 rel.

Rana Nasrullah Khan for Appellant.

Muhammad Saleem Khan Chichi for Respondent.

Date of hearing 8th April, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 816 #

2009 M L D 816

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD SHARIF---Petitioner

Versus

DISTRICT JUDGE, TOBA TEK SINGH and 3 others---Respondents

Writ Petition No. 6139 of 2009, decided on 6th April, 2009.

(a) 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 allowance---Increasing the amount of maintenance by Appellate Court---Family Court, after full-dress trial decreed suit allowing maintenance amount---Appellate Court modified decree passed by the Family Court and increased amount of maintenance allowance and defendant challenged said increase in constitutional petition---Validity---Father was bound to maintain his children, irrespective of his financial position, whether tight or easy---Rate of maintenance as fixed by the Appellate Court was neither excessive nor in travesty of evidence---Appellate Court being the final court of facts, its findings were based on evidence---Judgment and decree were rendered by the Appellate Court with lawful authority, in circumstances---No case having been made out for interference in the judgments/decree rendered by the final court of fact, petition was dismissed.

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

----Art.199---Constitutional jurisdiction---Scope---Before striking down the orders of the courts having exclusive jurisdiction, the High Court in its constitutional jurisdiction must explore every possible explanation for their validity and examine the entire field of power; and all efforts should be made to uphold them---Where the orders were reasonable, just' and proper, the High Court should not allow a situation to arise, which would amount to deflecting the normal powers mandated by law---High Court, while sitting in constitutional jurisdiction, should not substitute judgments, which otherwise were reasonable, just and proper.

Ch. M. Shabbir Ahmad for Petitioner.

MLD 2009 LAHORE HIGH COURT LAHORE 868 #

2009 M L D 868

[Lahore]

Before Abdul Shakoor Paracha and Raja Muhammad Shafqat Khan Abbasi, JJ

BOARD OF REVENUE, PUNJAB, through Secretary, Government of the Punjab Colonies Department and others---Appellants

Versus

Messrs SETHI STRAW BOARDS MILLS LTD. and others---Respondents

I.C.A No.102 of 2007 in W.P. No.12474 of 2006, decided on 23rd April, 2009.

Government Grants Act (XV of 1895)---

----Ss. 2 & 3---Grant of State land---Such grant would not, in strict sense, be a case of ordinary contract or agreement of sale of land under general law between the parties---General principles of ordinary contract could not be invoked nor question of filing suit of specific performance could legally arise in such cases---Provision of S.2, Government Grants Act, 1895 insulated all grants and all transfers of land or any interest therein made by the Government from the checks of the provisions of Transfer of Property Act, 1882 while S.3 protected the terms of such grant from the provisions of any other law---Combined effect of Ss.2 & 3 of Government Grants Act, 1895 was that terms of any grant or terms of any transfer of land made by a Government would stand insulated from the tentacles of any statutory law---Section 3 of the Act placed the terms of such grant beyond the reach of any restrictive provision contained in any enacted law or even the equitable principles of justice, equity and good conscience by common law if such principles were inconsistent with such terms---Sections 2 & 3 were so framed as to confer unfettered discretion on the Government to enforce any condition, limitation or restriction in all types of grants made by the Government to any person---Rights and privileges and obligations of any grantee of the Government would be completely regulated by the terms of the grant, even if such terms were inconsistent with the provisions of any other law---In the present case, tenor of the grant made it obligatory for the grantee to pay total price including surcharge within 6 months of the letter of grant which was not done by the grantee---Grantee in 2007 could not be allowed to purchase such available land on the price fixed in 1982---Words "grant" and "tenor" as used in Ss.2 & 3 of the Government Grants Act, 1895 having been used in etymological sense to get widest import---Principles.

Government of Punjab Minister for Revenue, Board of Revenue, Lahore and others v. Messrs Crescent Textile Mills Ltd. PLD 2004 SC 108; Black's Law Dictionary; Concise Oxford Dictionary; Messrs Hajee S.W.M. Mohamed Jamaluddin Bros, and Co. v. Government of Tamil Nadu AIR 1997 SC 1368; Lt. Col. Muhammad Amin Khan and others v. Government of West Pakistan and others PLD 1966 (W.P.) Lah. 111 and Bilal Nasir v. The Province of Punjab and another 1991 MLD 708 Lah. ref.

Ch. Muhammad Hanif Khatana, Addl. A.-G.for Appellant.

Ch. Muhammad Yaqub Sidhu and Ch. Imtiaz Ellahi for Respondents.

Date of hearing: 9th April, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 878 #

2009 M L D 878

[Lahore]

Before Khurshid Anwar Bhinder and S. Ali Hassan Rizvi, JJ

MUHAMMAD NADIM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1341 of 2005, decided on 8th April, 2009.

Per Khurshid Anwar Bhinder, J.

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

----S.9(c)---Appreciation of evidence---Police witnesses were credible witnesses in narcotic cases, non-association of independent witnesses with recovery proceedings, therefore, would not hamper the prosecution case---Even otherwise, people from the locality always refrain from coming forward to give evidence in such cases and non-citing of public witnesses was not fatal to the case---Police Officer despite having a grudge against the accused could not have arranged a huge quantity of 90 kilograms of "Charas" to plant on the accused in order to avenge his wrath---CIA Staff was fully empowered to conduct raid anywhere in the city---Procedure adopted by the police officials regarding the recovery of samples of "Charas" was lawful and without any irregularity---Report of Chemical Examiner was positive---Accused was apprehended by the police raiding party red handed being in possession of huge quantity of "Charas"---Recovery witnesses had fully corroborated the version of the F.I.R---Conviction and sentence of accused were maintained in circumstances.

Khair Muhammad v. The State 2006 SCMR 299; Buner Gul v. The State 1999 PCr.LJ 728 and Zulifqar Ahmad v. The State 2006 SCMR 800 ref.

Per S. Ali Hassan Rizvi, J., agreeing with Khurshid Anwar Bhinder, J.

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

----Preamble---Intent and object of Control of Narcotic Substances Act (XXV of 1997)---Intent and object of the Act, inter alia, is to control the production, processing and trafficking of narcotics etc.---This Act being a special law, the effective provisions thereof could not be defeated with technicalities.

----Ss. 20, 21 & 22---Nature and scope of Ss.20, 21, 22, Control of Narcotic Substances Act, 1997)---Provisions of Ss.20, 21 and 22 of the Act, are directory in nature and non-observance thereof would hardly be a ground for holding the trial or conviction as bad in law.

Fida Muhammad v. State 2006 PCr.LJ 516 ref.

Kh. Sultan Ahmed and Sher Afghan Asdi for Appellant.

A.D. Naseem, Special Prosecutor ANF for the State.

Date of hearing: 30th March, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 886 #

2009 M L D 886

[Lahore]

Before Kazim Ali Malik and Rana Zahid Mahmood, JJ

NABAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.539 and Murder Reference No.589 of 2002, heard on 20th October, 2008.

Penal Code (XLV of 1860)---

----Ss. 302 & 449---Appreciation of evidence---Benefit of doubt---Two eye-witnesses deposed that soon after taking meal the deceased was done to death---Said claim stood belied by the medical evidence as post-mortem examiner found semi-digested food in the stomach of deceased---Presence of semi-digested food in the stomach of deceased was evidence to show that he was done to death after 2/3 hours of taking his last substantial meal---Had the deceased suffered death immediately after taking meal, partially digested food would not have been found lying in his stomach on post-mortem examination---Motive part of the evidence adversely affected the prosecution case and it did not corroborate testimonies of the eye-witness---Two eye-witnesses were inimical towards accused---Deceased was also not Masoom-ud-Dam as he had been declared Karo after having developed illicit relations with wife of his neighbour---Prosecution had failed to prove the charge of house trespass and murder against accused beyond any shadow of doubt---Benefit of doubt, however, slight, was right of accused---Conviction and sentence awarded to accused by the Trial Court, were set aside and accused was acquitted of the charge giving him benefit of doubt and he was set at liberty.

Sheikh Abdul Samand for Appellant.

Zulifqar Ali Sidhu, A.P.G. Punjab for the State.

Date of hearing: 20th October, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 916 #

2009 M L D 916

[Lahore]

Before Saif-ur-Rehman, J

ZAFAR alias ZAFRI---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.1906-B of 2008, decided on 10th September, 2008.

Criminal Procedure Code (V of 1898)---

---S.497(2)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Bail, grant of---Further inquiry---F.I.R. lacked the information as .to who, among the Police party, identified accused or whether or not accused and his co-accused were known to any one of them---Record was also silent in that context and informer was not examined---Case of accused, in circumstances, was of further inquiry---Accused was admitted to bail.

Mehr Khalil-ur-Rehman for Petitioner.

Ashfaq Ahmed Malik, DPG for the State.

MLD 2009 LAHORE HIGH COURT LAHORE 917 #

2009 M L D 917

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD SIDDIQUE and 3 others---Petitioners

Versus

MUHAMMAD BOOTA and others---Respondents

Civil Revision No. 2457 of 2006, decided on 27th March, 2009.

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

----O.XIV, R.1---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Burden of proof---Principles---When parties are all along aware of controversy going on between them and entire evidence is recorded, burden of proof in civil matters loses its importance---Burden of proof does not remain permanently fixed, as such the same is constantly shifting.

PLD 1980 Lah. 145; 1992 CLC 1263 and 2006 SCMR 586 rel.

(b) Document---

----No person is bound to sue for setting aside a document because it is raising presumption against his rights.

1999 SCMR 1245 rel.

----Succession----Principles---When a Muslim dies, his successors automatically succeed to the estate and no seal of Revenue Authorities is required.

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

----Ss.122 & 123---Gift mutation---Doctrine of Marz-al-Maut---Applicability---Concurrent findings of two Courts below---Plaintiff assailed gift mutation attested by his mother excluding plaintiff in favour of defendants who were his step-brothers---Suit and appeal filed by plaintiff were concurrently dismissed by both the Courts below---Plea raised by plaintiff was that their mother died 45 days after attestation of mutation of gift in favour of defendants then she was100 years of age---Validity---Donor at the age of 100 years was under undue influence of defendants, who were pitted against plaintiff--Evidence did not suggest any reason for donor to have deprived her eldest son from her landed property---Donor at relevant time was admittedly living under the care of defendants and was totally dependent on them and was only a tutelage in their hands---Mutation of gift was shown to have been recorded and sanctioned on 23-2-1987 and donor had died on 10-4-1987 i.e. just after 45 days--On the date of attestation of gift mutation, death of donor was more probable than a chance to live, who with affected mental capacity, physical infirmity and old age could not constitute a valid gift as an independent person---On 23-2-1987 donor was suffering from Marz-al-Maut and was not a person competent with free consent to make an intelligent decision---Transaction of mutation was hit by the vice of mischief---Judgments and decrees passed by Trial Court and Lower Appellate Court were outcome of misreading and non-reading of material evidence and in complete departure of provisions of Islamic Law and Ss.122 and 123 of Transfer of Property Act, 1882---High Court, while reversing finding of both the Courts below on all issues, set-aside concurrent judgments and decrees passed by two Courts below dismissing suit filed by plaintiff---Revision was allowed in circumstances.

PLD 1970 SC 28; 1980 CLC 110; PLD 1982 SC 457; 1991 MLD 889; 1991 SCMR 2300; 1992 MLD 2127; PLD 1995 SC (AJ&K) 4; 1997 SCMR 154; 1997 MLD 307; 1997 MLD 3236; 2005 MLD 2061; 2005 MLD 283 and 2006 MLD 248 distinguished.

PLD 1947 PC 73; PLD 1964 SC 173; 1981 CLC 962; PLD 1990 SC 1; 1992 SCMR 553 and 1999 SCMR 1049 rel.

Ishfaq Qayyum Cheema for Petitioners.

Abdul Qaddus Rahwas for Respondents.

Date of hearing: 25th March, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 929 #

2009 M L D 929

[Lahore]

Before Asif Saeed Khan Khosa, J

ASHIQ---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 360 of 2005, heard on 12th February, 2009.

Penal Code (XLV of 1860)---

----S. 337-A(vi) & 337-N(2)---Appreciation of evidence---Nothing was on record to establish that the petitioner had any credentials or antecedents of being a previous convict, habitual or hardened, desperate or dangerous criminal---By virtue of provision of subsection (2) of S.337-N, P.P.C. the petitioner could not be awarded a sentence of imprisonment as Tazir---Occurrence in the case had taken place about thirteen years back and the petitioner had been facing the agony and anguish of a trial an appeal and present revision petition and he had repeatedly been in and out of the prison during all that period---Revision petition was partly allowed---Sentence of rigorous imprisonment for three years awarded to the petitioner as Ta'zir for an offence under S.337-F-(vi), was set aside.

Muhammad Masood Chishti for Petitioner.

Mrs. Farzana Shahzad Khan, Deputy Prosecutor-General for the State.

Date of hearing: 12th February, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 930 #

2009 M L D 930

[Lahore]

Before Syed Hamid Ali Shah, J

MUHAMMAD MUNEER and 7 others---Petitioners

Versus

MEMBER BOARD OF REVENUE, PUNJAB, LAHORE and 12 others---Respondents

Writ Petition No. 6512 of 2009, decided on 10th April, 2009.

(a) Judicial proceedings---

----Such proceedings have the precedence over affidavits of the litigant or counsel of such litigant to the contrary.

Fayyaz Hussain v. Akbar Hussain and other 2004 SCMR 964 ref.

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

----S. 135---Application for partition of joint land---Jurisdiction of civil court---scope---Whole record of land having been kept by the Revenue Officer, civil court had no jurisdiction to partition the joint land by metes and bounds---Such function was assigned to the Revenue Officer under S.135, West Pakistan Laud Revenue Act, 1967---Where, however, question of title had arisen, the Revenue Officer could either himself take cognizance of the matter or refer the same to the civil court---Matters where title of joint owners was not in dispute, the Revenue Officer had to determine the mode of partition---Function of civil court in partition cases was to decide question of title pure and simple and said jurisdiction of civil court could not be invoked to question mode of partition.

Haji Mustaqim v. Haji Faridullah and others PLD 1992 Pesh. 37 ref.

----Ss. 135 & 3---Application for partition of joint land---Exclusion of certain land from operation of West Pakistan Land Revenue Act, 1967---Scope---Said Act would not apply to the land which was kept as site of town or village and was not assessed to land revenue---Revenue authorities, in the present case proceeded with partition of joint land, as there was no objection to the title of the owner, however, objections of the party that certain Killas were residential and fell under boundary wall of abadi, were turned down on the ground that change in the classification of land took place through Khasra Girdawari during the period when the partition proceedings were pending---Held, no interference in such finding was justified as the Revenue Officer had proceeded in the matter as per entries in the Revenue Record, as existing at the time of filing of application for partition---Any subsequent change was immaterial---Land as per Revenue Record, was assessed to land revenue, therefore, partition proceedings were rightly undertaken.

Ch. Muhammad Nawaz for Petitioners.

MLD 2009 LAHORE HIGH COURT LAHORE 940 #

2009 M L D 940

[Lahore]

Before Khurshid Anwar Bhinder, J

MUHAMMAD AZMAT---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7871-B of 2008, decided on 29-9-2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.392/411---Bail, grant of---Further inquiry---Accused was not nominated in the F.I.R. and no role had been ascribed to him---F.I.R. was only got registered against unknown persons---Since no identification parade was held, nothing definite could be ascertained regarding the identity of accused, which could possibly connect accused with the commission of the offence---No direct or indirect evidence was available against accused---Accused had been nominated in the supplementary statement after 1-1/2 years---Said fact alone proved that after such a long time, complainant had not been able to trace out real culprits---No weapon of offence had been recovered from accused---Amount recovered from accused was only to the extent of Rs.10,000, whereas dacoity had been committed to the tune of Rs.19,38,107 and no evidence was on record that as to whether the amount which had been looted in the occurrence was exactly the same which had been recovered from accused---Case of accused, in circumstances, had become that of further inquiry into his guilt---Accused was admitted to bail in circumstances.

Ch. Nawab Ali Meo for Petitioner.

Shafqatullah Butt, DPG for the State.

MLD 2009 LAHORE HIGH COURT LAHORE 942 #

2009 M L D 942

[Lahore]

Before Rana Zahid Mahmood, J

Mst. SAMERA BUTT---Petitioner

Versus

HUSNAIN AHMAD NASIR and 3 others---Respondents

Writ Petition No.4289 of 2007, decided on 17th March, 2009.

Civil Procedure Code (V of 1908)---

----S. 148---Specific Relief Act (I of 1877), Ss.12 & 35(c)---Suit for specific performance---Enlargement of time---Trial Court, after passing of the decree had not become functus officio and had jurisdiction to enlarge time under S.148, C.P.C.---Party, in the present case, had come to know about stipulation of deposit of Rs.100 within 30 days on 21-10-2003 when copy was delivered to him which was also prepared on the same day, as such he filed application under S.148, C.P.C. on the same day for extension of time---Trial Court, in circumstances, had not lost seizin over the matter and was competent to extend time.

Shabbir Ahmad and another v. Zahoor Bibi and others PLD 2004 SC 790; PLD 1967 Dhaka 557; 1987 CLC 1682: 2003 CLC 1705; PLD 2004 SC 790 and Haji Abdul Latif and 4 others v. Attiq Ahmad and 3 others 2004 YLR 985 fol.

Haji Abdul Latif and 4 others v. Attiq Ahmad and 30 others 2004 YLR 985; Niazm-ud-Din and 13 others v. Ch. Muhammad Saeed and 7 others 1987 CLC 1782; PLD 1967 Dhaka 557; 1985 CLC 474; 2003 SCMR 1202; 2003 CLC 1705; 1999 MLD 1466 and PLD 2004 SC 790 ref.

M. Abbas Mirza for Petitioner.

Akbar Ali Chaudhary for Respondent No.1.

MLD 2009 LAHORE HIGH COURT LAHORE 945 #

2009 M L D 945

[Lahore]

Before S. Ali Hassan Rizvi, J

ANEELA AKHTAR---Petitioner

Versus

MUHAMMAD IRFAN and 2 others---Respondent

Writ Petition No.5337 of 2009, heard on 15th April, 2009.

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 dowry articles, maintenance allowance and dower in shape of gold ornaments---Family Court allowed the suit relating to recovery of dowry articles as per list---Suit relating to dower in shape of gold ornaments was also decreed in toto---Suit for recovery of maintenance, however, was dismissed on the ground that plaintiff was not performing matrimonial obligation---Appellate Court however, partly allowing appeal, suit for recovery of maintenance allowance filed by the plaintiff was decreed for Iddat period at the rate of Rs.5,000 per month and appeal as to the remaining claim, however, was dismissed---Validity---Legislature, in its wisdom, did not provide any further remedy against the judgment and decree passed by the Appellate Court in the hierarchy of the Family Laws---Appellate Authority was the superior court of fact and the judgment and decree rendered by Appellate Authority were based on evidence---No misreading or non-reading of evidence or jurisdictional defect was pointed out by the counsel for the plaintiff---Reappraisal of evidence in constitutional jurisdiction of High Court was not permissible unless miscarriage of justice was shown to have occasioned---In absence of any valid reason to interfere with the judgment/decree passed by the Appellate Court constitutional petition was dismissed.

Malik Abdul Wahid for Appellant.

Khalid Hussain Ansari for Respondent.

Date of hearing: 15th April, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 955 #

2009 M L D 955

[Lahore]

Before Ali Akbar Qureshi, J

FARRUKH NADEEM---Petitioner

Versus

MUHAMMAD AHMAD KHAN and another---Respondents

Writ Petition No. 8972 of 2008, heard on 23rd September, 2008.

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

----Ss. 2(c)(i), 13(2)(i)(iii) & 13(6)---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction---Scope---Ejectment of tenant on ground of default in payment of rent and damage to property---Relationship of landlord and tenant--Tentative rent order--Tenant denied relationship of landlord and tenant between the parties----Rent Controller, after receiving the written reply from the tenant, passed tentative rent order under S.13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 whereby tenant was ordered to pay arrears of rent as well as future rent at the rate fixed by the Rent Controller---Rent Controller while passing said order had also taken the cognizance of objection regarding the relationship of landlord and tenant and thereafter passed impugned order--Tenant denied relationship of landlord and tenant between the parties contending that he was tenant of original landlady and that during her life time he purchased the premises in question---Counsel for landlord had submitted that petitioner was the tenant of the previous owner and had become the tenant of landlord by operation of law as the landlord had purchased the premises from the daughter of the original landlady---Petitioner/tenant had admitted that he was tenant of landlady and said landlady was mother from whom landlady had purchased the property---Validity---Denial of the tenant was not only evasive, but also contumacious as he could not place anything on record to substantiate his claim of purchasing the suit property from the landlady---Mere denial from the relationship of landlord and tenant was not sufficient, but there must be some cogent evidence, which was lacking in the case---Rent Controller, in circumstances, had rightly concluded that stand taken by the petitioner/tenant with regard to relationship of landlord and tenant was evasive, and contumacious---Order passed by the Rent Controller under S.13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 was just fair and strictly in accordance with law---Petitioner having deliberately avoided to comply with said order, constitutional petition filed by him was not maintainable---Constitutional jurisdiction to some degree, could be exercised, but not in such like case, where the petitioner, with mala fide intention, and ulterior motive; in casual way denied the relationship of landlord and tenant, simply with the intention to blackmail the landlord or frustrate the proceedings passed by a competent legal forum---Rent Controller, in circumstances, had rightly directed the petitioner to deposit the arrears of rent including the future rent.

Ashfaq ur Rahman v. Chaudhri Muhammad Afzal PLD 1968 SC 230; Anwarul Haq v. State Oil Company Ltd. 1993 CLC 1565; Babu Din v. Civil Judge/Rent Controller, Multan and 6 others 2006 CLC 926; Siraj Din and others v. Additional District Judge, Okara and others 1986 CLC 975 and Mst. Razia and another v. Senior Civil Judge (Rent Controller), Charsadda and 2 others PLD 1996 Pesh; Tariq Ali Sheikh v. Rent Controller (Khalid Nawaz), Lahore and another 1998 CLC 460; Muhammad Younis and another v. Muhammad Ayub and another PLD 1998 Lah. 7; Malik Sadfar Hussain v. Lutuf Ahmad Khan and others 1997 SCMR 567 and Rafiq Ahmad through General Attorney v. Rent Controller, Jacobabad and 3 others 2006 CLC 989 rel.

Muhammad Rafiq Shad for Petitioner.

Syed Kazim Bukhari for Respondent.

Date of hearing: 23rd September, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 962 #

2009 M L D 962

[Lahore]

Before Mazhar Hussain Minhas, J

AFTAB AHMAD---Petitioner

Versus

JUDGE FAMILY COURT and 3 others---Respondents

Writ Petition No.2265 of 2007, heard on 2nd February, 2009.

(a) Islamic Law---

----Dissolution of marriage---Changing of faith---Offer to accept Islam---Presumption---Lady was Christian by faith and had earlier married to a Christian but she embraced Islam and married a Muslim without getting formal divorce from her former Christian husband---Effect---After repudiating Christianity, lady embraced Islam, though there was nothing on record to show that she invited her Christian husband to accept Islam but it was established that it was in his knowledge that she had changed her faith and was living with a stranger i.e. Muslim husband---Since that former husband did not challenge their co-habitation in any forum, therefore, presumption would be in favour of lady that she offered embracing of Islam to her former husband but he refused to accept the same, thus marriage of respondent lady with the Christian husband stood dissolved.

Mahomedan Law by D.F. Mulla, Section 20(4); Sardar Masih v. Haider Masih and others PLD 1988 FSC 78 and Mst. Zarina and another v. The State PLD 1988 FSC 105 rel.

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

----S.5---Non-registration of marriage---Effect---Marriage solemnized under Muslim Family Laws Ordinance, 1961, requires its registration but Nikah does not become invalid due to its non-registration---If a person does not report marriage to Nikah Registrar for the purpose of registration, he may be held liable under S.5 (4) of Muslim Family Laws Ordinance, 1961.

Muhammad Akram v. Mst. Farman Bi PLD 1989 Lahore 200 rel.

----S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintenance---Legitimacy of children---Presumption---Petitioner assailed maintenance allowance by denying being father of minors and alleged that they were born to respondent from her previous husband---Validity---Plenty of evidence was available on file to show that petitioner and respondent kept on residing together and minors were born as a result of their cohabitation---Status of both the parties as husband and wife was proved and despite consistent claim of respondent that she was legally wedded wife of father of minors, the petitioner did not file any suit for jactitation of marriage to disprove her assertion---Minors were admittedly born during the lawful union of petitioner and respondent and petitioner had been paying them maintenance through money order during their stay in another city---High Court noted it with great concern that conduct of petitioner throughout the proceedings was contumacious rather shameful and he disowned paternity of his legitimate offsprings just to avoid payment of maintenance, which was his legal as well as moral obligation---Petitioner maliciously dragged respondents in litigation and humiliated them in society, therefore, High Court imposed special costs against him---High Court declined to interfere with maintenance imposed by the courts below---Petition was dismissed in circumstances.

Abdul Majid Khan and another v. Mst. Anwar Begum PLD 1989 SC 362 and Bashir and others v. Ham Din and others PLD 1988 SC 8 ref.

Razzaq A. Mirza for Petitioner.

Muhammad Fazil Siddiqui for Respondents.

Date of hearing: 2nd February, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 974 #

2009 M L D 974

[Lahore]

Before Pervaiz Inayat Malik, J

ASIM NAZIR---Petitioner

Versus

JUDGE FAMILY COURT and others---Respondents

Writ Petition No. 2610 of 2009, decided on 13th April, 2009.

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

----Ss.5, Sched. & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles---Stay of execution proceedings---Family Court decreed suit for recovery of dowry articles filed by the plaintiff and appeal filed by the defendant against judgment of the Family Court was also dismissed by the Appellate Court---On filing execution petition by decree-holder, process against judgment-debtor was issued---Execution proceedings, however were stayed by the Appellate Court---Defendant/judgment-debtor filed constitutional petition against impugned order passed by the Appellate Court whereby judgment of the Family Court was upheld, after about 10 months of impugned order---Validity---Though no specific time had been provided for filing the constitutional petition; but same was hit by principle of laches---On merits no illegality, misreading or non-reading of the impugned judgments and decrees of the courts below had been pointed out---Discrepancies pointed out by the defendant were not of much help to him for the simple reason that in constitutional jurisdiction, High Court could not substitute its findings with that of lower courts merely because from reading of evidence another view could possibly be taken---Conduct of the defendant was also not appreciable which disentitled him even, otherwise to equitable relief---Impugned judgments and decrees, which were not only concurrent in nature, but also well-reasoned and perfectly in accordance with law on the subject were maintained.

Ch. Pervaiz Akhtar Gujjar for Appellant.

Nemo for Respondent.

Date of hearing: 13th April, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 980 #

2009 M L D 980

[Lahore]

Before S. Ali Hassan Rizvi, J

LIAQAT ALI alias FAUJI---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.117 of 2009, decoded on 16th April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 540---Penal Code (XLV of 1860), Ss.302/109/34---Recalling prosecution witnesses for further cross-examination---Petitioners/accused moved an application under S.540, Cr.P.C. praying that prosecution 'witnesses be recalled so that they could be further cross-examined---Challan in the case was submitted, charge was framed and the trial remained in doldrums---On the direction of the Court, copy of statements of prosecution witnesses had been placed on record---Said prosecution witnesses appeared to have been incisively cross-examined---Petitioner seemed trying to shelve the efforts of the court to conclude trial---Provisions of S.540, Cr.P.C. had two parts; first part was discretionary while second was mandatory---First part related to the powers of the court to summon any person as a witness or examine any person in attendance though not summoned as a witness; second part related to its powers to re-call and re-examine any person already examined, provided his evidence appeared essential for the just decision of the case---Recalling of the prosecution witnesses for further cross-examination at that stage would not, in any manner, be in quest of justice---Conversely, it appeared that the petitioner was making all efforts to arrest progress in trial---Application for recalling prosecution witnesses for further cross-examination, was rightly dismissed by the Trial Court---Impugned order being quite reasonable and proper on all fours, would not call for any interference in exercise of revisional jurisdiction of High Court.

Muhammad Irshad Chaudhry for Petitioner.

MLD 2009 LAHORE HIGH COURT LAHORE 993 #

2009 M L D 993

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD KHALIL SHAH---Petitioner

Versus

PROVINCIAL STANDING MEDICAL BOARD---Respondent

Writ petition No. 5639 of 2009, decided on 15th April, 2009.

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

----Arts. 185(3) & 199---Constitutional petition---Adjudication---Effect of filing of petition for leave to appeal in Supreme Court---Mere filing of petition for leave to appeal, would not operate as a bar for High Court to decide constitutional petition on its own merits.

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

----Art.199---Constitutional petition---Opinion/report of Provincial Standing Medical Board in respect of the injuries allegedly suffered by respondent having been rendered in disregard of the order passed by the Addl. Sessions Judge and the order passed by the High Court in constitutional petition, same was declared to be illegal, without lawful authority and of no legal consequence.

Shabbir Ahmad Khan for Petitioner.

Farooq Mehmood Kahloon for Respondent No.3.

MLD 2009 LAHORE HIGH COURT LAHORE 1002 #

2009 M L D 1002

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD ASHRAF---Petitioner

Versus

JUDICIAL MAGISTRATE, TOBA TAKE SINGH---Respondent

Writ Petition No. 6786 of 2009, decided on 14th April, 2009.

Penal Code (XLV of 1860)---

----S.182---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of proceedings---Petitioner had sought quashing of proceedings pending before Judicial Magistrate by way of kalandara under S.182, P.P.C., prepared and submitted by S.H.O. Police Station concerned---Validity---Provisions of S.182, P.P.C. would be invoked where a person would give to any public servant any information which he knew or believed to be false ---Mere filing of complaint by the petitioner before the Illaqa Magistrate would not justify quashing of the Kalandra under S.182, P.P.C.; because it would be for the Judicial Magistrate seized of the complaint case to see if it was filed to create a defence to the proceedings under S.182, P.P.C.; or that same was filed bona fide on facts---Stage of the complaint case was not shown---Magistrate seized of the proceedings under S.182, P.P.C. was to decide its fate in accordance with law if and when any application was moved under S.249-A, Cr.P.C.

Mst. Razia Bibi v. The State 1990 PCr.LJ 284 and Maulana Muhammad Ilyas Qadri v. Superintendent of Police, Haripur District and 3 others 2005 PCr.LJ 623 rel.

Mian Muhammad Saeed for Petitioner.

MLD 2009 LAHORE HIGH COURT LAHORE 1011 #

2009 M L D 1011

[Lahore]

Before Pervaiz Inayat Malik, J

AMER KHAN---Petitioner

Versus

JUDGE FAMILY COURT---Respondent

Writ Petition No.7093 of 2008, decided on 22nd April, 2009.

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

----S.5, Sched. & S. 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for maintenance allowance---Suit for maintenance allowance was decreed by the Family Court---Appellate Court with consent of the parties, set aside judgment and decree passed by the Family Court allowing the application filed by the defendant in which he sought to produce additional documentary evidence---Defendant was. also permitted to amend his written statement to that extent by remanding suit to the Family Court for fresh decision---In post remand proceedings, Family Court allowed the defendant to amend his written statement and with the consent of counsel for the parties no additional issue was framed and Family Court proceeded to decide the suit on the basis of evidence already recorded and vide impugned judgment and decree, suit filed by the plaintiff was decreed, against which the defendant had filed appeal before the Appellate Court, but same was withdrawn by the defendant who had filed constitutional petition after about nine months---Family Court had exhaustively dealt with all the issues with sound reasons---Emphasis of counsel .for the defendant was on the point that in post remand proceedings Family Court, had failed to frame additional issue in compliance with the remand order passed by the Appellate Court---Validity---By non-framing of any additional issue no prejudice had been caused to either of the parties as the entire controversy revolved around the issues which had already been framed--Family Court had attended to all the substantial points while passing the impugned judgment---Additional issue having not been framed with the consent of parties, defendant could not be allowed to resile from his commitment---Well-reasoned judgment passed by the Family Court, could not be interfered with in constitutional jurisdiction of the High Court---Constitutional petition was dismissed.

(b) Administration of justice---

----Once a mode/procedure was adopted by the court on the request of the parties and an order or judgment was passed in pursuance thereof, the parties were bound by it and were estopped from assailing such mode or judgment subsequently.

Muhammad Hussain v. Muhammad Taqi 1999 CLC 1371 rel.

Sagheer Ahmad Bhatti for Petitioner.

MLD 2009 LAHORE HIGH COURT LAHORE 1020 #

2009 M L D 1020

[Lahore]

Before Malik Saeed Ejaz, J

DILBAR HAYAT---Petitioner

Versus

R.F.O. MULTAN RANGE, MULTAN and another---Respondents

Writ Petition No. 2292 of 2009, decided on 2nd April, 2009.

Criminal Procedure Code (V of 1898)---

----S.22-A-(6) [as inserted vide Code of Criminal Procedure (Third Amendment) Ordinance (CXXXI of 2002)]---Police Order (22 of 2002), Art 155---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Registration of criminal case---Noncompliance of direction of Justice of Peace with regard to registration of criminal case---Application filed by the petitioner under S.22-A, Cr.P.C. for registration of criminal case against respondents, Justice of Peace, directed D.I.C./R.P.O. to lodge F.I.R. against respondents/Police Officials who were involved in case under Art.155-C of Police Order, 2002---Grievance of the petitioner was that despite said specific direction of Justice of Peace, the case was not being registered---Validity---Once an explicit order was passed or direction was issued by Justice of Peace under S.22-A, Cr.P.C. and said order/direction was not challenged anywhere, in case of its non-compliance, remedy lay under newly inserted subsection (6)(i)(ii) & (iii) of S.22-A, Cr.P.C.---Under said provision of law Justice of Peace had been fully empowered to issue direction to the Police authorities concerned whenever, any complaint about their neglect, failure or excess committed in relation to its functions and duties, was reported to it---When an order/direction of Justice of Peace was not complied with in its true letter and spirit, the best and legal course for the aggrieved person was to move another complaint to the same Justice of Peace complaining non-compliance of its order and upon such complaint, said Justice of Peace was fully competent to issue further direction to the concerned D.P.O. by recommending penal action against such delinquent Police Officials in terms of Art.155 of the Police Order, 2002---Recourse to High Court through its constitutional jurisdiction, would not only mean unnecessarily burdening High Court, but also would amount to sheer wastage of time and money of the poor litigants---Constitutional petition being deviation from said legal propositions, was dismissed---Petitioner could, if so advised have recourse to the same Justice of Peace.

Rashid Rehman Khan for Petitioner.

MLD 2009 LAHORE HIGH COURT LAHORE 1023 #

2009 M L D 1023

[Lahore]

Before Abdul Sattar Goraya, J

MUHAMMAD ASGHAR---Petitioner

Versus

MEMBER BOARD OF REVENUE and others---Respondents

Writ Petition No. 4320 of 2004, heard on 25th March, 2009.

(a) Colonization of Government Lands (Punjab) Act (IV of 1912)---

----Ss.10 & 19---Proprietary rights---Scope---Non-execution of conveyance deed---Effect---Allottee remains tenant under Government till he pays full price of land purchased from government---After payment of full price, such allottee becomes absolute owner and statement of conditions ceases to exist and allottee remains no more tenant---Fact that conveyance deed had yet to be executed by Provincial Government or District Collector in favour of allottee, was a mere formality.

Abdur Rahman Bhatti and another v. Member (Colonies), Board of Revenue, Punjab, Lahore and another 2006 CLC 543; Ali Muhammad v. Mst. Rabia Bibi and 3 others PLD 1971 Beghdad-ul-Jadid 38; Nathey Khan v. Mehr Din and another 1994 MLD 1630 and Faiz Ilahi v. Shamir and other 1991 CLC 2005 rel.

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

----Arts.189 & 190---Judgment of superior court, citing of---Failure to discuss in judgment, the case law noted down during course of arguments---Effect--As such the same has effect of violation of judicial discipline and is a violation of Arts.189 and 190 of the Constitution which makes it imperative that law laid down by superior courts, which commonly is known as judgment made law, should imperatively be followed.

----Ss.10 & 19---Constitution of Pakistan (1973), Art.199---Constitutional petition---Proprietary rights, grant of---Deposit of sale consideration---Non-execution of conveyance deed---Full sale consideration of land in question had been deposited by predecessor-in-interest of petitioner way back in year, 1946 but no conveyance deed was executed, therefore, Revenue authorities declared sale in favour of petitioner as against S.19 of Colonization of Government Lands (Punjab) Act, 1912---Validity---Mere fact that formal conveyance deed had not been executed it remained a formality only to be done by District Collector---For the slightest formality, it could not be said that allottee was still tenant under Provincial Government---Allottee was absolute owner of property in question, on the day, he made oral sale in favour of petitioner and there was no bar in his way to sell out the land---Orders passed by revenue authorities were without lawful authority and of no legal effect and the same were declared accordingly---Petition was allowed in circumstances.

Ilam Din v. Muhammad Din PLD 1964 SC 842; Nabi Bakhsh v. Ali Bakhsh PLD 1978 (Rev.) 15; Gouranga Mohan Sikandar v. Collector of Import and Export PLD 1970 Supreme Court 158 and Hakim Ali and another v. Atta Muhammad and others 1981 SCMR 993 ref.

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

----S. 69---Appeal---If it had been a case of fraud alleged in memorandum of appeal, or at any stage of proceedings, power rested with civil court and not with court of appeal or revising authority.

M. Maftooh-ur-Rahim for Petitioner.

Ch. Tariq Muhammad Shafi, A.A.-G. for Respondents Nos.1, 3 and 4.

Sardar Muhammad Hussain Khan for Respondent No.2.

Date of hearing: 25th March, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 1031 #

2009 M L D 1031

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD IBRAHIM---Petitioner

Versus

Mst. NASEEM KHUSHI and another---Respondents

Civil Revision No. 598 of 2009, decided on 10th April, 2009.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2---Suit for declaration---Application for temporary injunction---Benami transaction---Application for grant of temporary injunction was rejected by the Trial Court and appeal- filed against rejection order was also dismissed by the Appellate Court---Plaintiff had claimed in the suit that the transaction in favour of defendant with regard to the house in question was a benami in nature; however, conditions of a benami transaction were not alleged---Heading of the plaint itself showed that the said house was given by the plaintiff to defendant as a bridal gift---To all intents and purposes, it was a bridal gift and could not be claimed back through process of law---Defendant being owner of the house, further transfer by her in favour of her sister, could not be dubbed as a fraudulent deal---Plaint did not show as to what was the motive for making benami transaction in favour of defendant---What was not pleaded, could not be allowed to be proved later through evidence---"Secundum allegata et probata" was a time-honoured rule---Parties were bound by their pleadings---Assertion that the transfer of house in favour of defendant by the plaintiff was in nature of bridal gift, contained germs of defeat of the assertion that the transaction was benami---Plaintiff in circumstances, had no prima facie case and was not entitled to any temporary relief; his application was rightly dismissed by two courts below.

PLD 2006 Lah. 401 ref.

Rustam Ali Khan Baloch for Petitioner.

MLD 2009 LAHORE HIGH COURT LAHORE 1039 #

2009 M L D 1039

[Lahore]

Before Abdul Shakoor Paracha, J

SALAHUD-DIN-AYYUBI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Application No. 10299-B of 2008, decided on 19th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420/468/471---Bail before arrest, refusal of---Accused, who was not in attendance, thrice obtained bail before arrest, but he did not appear before the court thereafter---After obtaining bail before arrest accused had not appeared in High Court also---Such conduct of accused had disentitled him to the discretionary relief of bail before arrest---Even otherwise accused was nominated in the F.I.R. and serious allegation of preparing forged documents had been levelled against him---Bail application was dismissed, in circumstances.

Ch. Atif Raza Iqbal for Petitioner.

2009 M L D 1068

[Lahore]

Before Hasnat Ahmad Khan, J

GULZAR AHMAD---Petitioner

Versus

SUPERINTENDENT DISTRICT JAIL, FAISALABAD and another---Respondents

Criminal Miscellaneous No. 1374-M of 2008, decided on 9th March, 2009.

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

----Ss.392 & 411---Criminal Procedure Code (V of 1898), Ss.35, 397 & 561-A---Sentences sought to run concurrently---Trial Court had convicted and sentenced the accused under Ss.392 and 411, P.P.C. in five different cases on the basis of confession made by him in each case, but did not pass any order directing the sentences awarded in different cases to run concurrently---Though the accused was a hardened criminal having committed offences of robbery in a heinous and dreadful manner, yet in each case he had been awarded the minimum sentence of three year's R.I. provided under section 392, P.P.C. by Trial Court, ostensibly due to his confessional statement-Accused had not challenged his convictions and sentences through appeal or revision before High Court and therefore High Court under S.561-A, Cr.P.C. could not grant the relief prayed for---In all the cases accused had been tried on the basis of distinct and separate offences and. the facts thereof were not inter-related---Accused had committed the offence of robbery and allied offences repeatedly and he did not deserve that his sentences in the cases should be directed to run concurrently---Petition was dismissed accordingly.

Muhammad Asif v. State PLD 2003 Lah. 512; Abdul Ghafoor v. State 2007 YLR 700; Sanaf Gul alias Sunny V. The State 2005 PCr.LJ 370; Abdul Razzaq v. State 2005 PCr.LJ 237; Muhammad Khan; Sikandar Ali alias Sikoo Shaikh v. The State PLD 2003 Kar. 260; Mst. Dalian Bibi v. Superintendent District Jail and another 1988 PCr.LJ 1976; Muhammad Yaqub Tahir v. Superintendent, District Jail, Gujranwala and another PLD 1979 Lah. 46; Mian Gulzar Muhammad v. Crown PLD 1950 Lah. 497 and Mahabir Beldar v. The State AIR 1965 Patna 178 ref.

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

---Ss. 561-A & 397---Inherent jurisdiction of High Court---According to the specific provisions of S. 397, Cr.P.C. it is the prerogative of the Trial Court or the appellate Court to pass a direction for the sentences to run concurrently or not---High Court, therefore, cannot pass such a direction on a petition filed under S.561-A, Cr.P.C.

----Ss.561-A, 397 & 369---Fresh direction for concurrent running of sentences not permissible---After the judgment has attained finality under S. 369, Cr.P.C, fresh direction for sentences to run concurrently by High Court in exercise of powers under S.561-A, Cr.P.C. would amount, to alteration and review or modification of the appellate judgment, which is not permissible under S. 369, Cr.P.C.

Sikandar Ali alias Sikoo Shaikh v. The State PLD 2003 Kar. 260 ref.

Hafiz Abdul Rehman Ansari for Petitioner.

Shahid Mehmood Khan, D.P.G.

MLD 2009 LAHORE HIGH COURT LAHORE 1090 #

2009 M L D 1090

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

TEHMINA SHAHZAD and another---Petitioners

Versus

S.H.O. POLICE STATION NOOR SHAH DISTRICT SAHIWAL and 6 others---Respondents

Writ Petition No. 2094-Q of 2009, decided on 6th May, 2009.

Penal Code (XLV of 1860)---

----S.365-B---Constitution of Pakistan (1973), Arts. 199, 4, 9 & 35---Constitutional petition---Quashing of F.I.R.---Female accused had admitted in Court that she had contracted marriage with her co-accused, of her own free will and consent---Lady being sui juris had every right to live and settle anywhere in the country and could not be compelled through different means to get divorce---Articles 4, 9 and 35 of the Constitution had guaranteed the life, liberty, marriage and privacy of home of a citizen of country--When law did not prohibit the parties from marrying each other, it was the duty of the State to protect the marriage and the family--Court was also. duty bound to satisfy itself that fundamental rights guaranteed under the Constitution might not be infringed by the State functionaries on the asking of private individuals---Extraordinary jurisdiction under Article 199 of the Constitution could be exercised to rescue the accused in such a situation---Alleged abductee had categorically and emphatically denied the allegations regarding her abduction---F.I.R. was outcome of nothing but frustration and malice on the part of the respondent, who had tried to transform and convert a social and family issue into a criminal case, so as to bring the weight of criminal law upon the accused---Allowing such an F.I.R. to hold the field would amount to blatant abuse of the process of law, which could not be allowed to be perpetuated---Impugned F.I.R. was quashed accordingly.

Mian Jehanagir Kamran for Petitioners.

Sh. Muhammad Usman and Mehr Ahmad Hassan Sial for the Complainant.

Amjad Hussain, A.S.-I. with record.

MLD 2009 LAHORE HIGH COURT LAHORE 1121 #

2009 M L D 1121

[Lahore]

Before Jamila Jahanoor Aslam, J

Sahibzada GHULAM MUSTAFA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 367/B of 2009, decided on 23rd April, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Exit from Pakistan (Control) List Ordinance (XLVI of 1981), S.4---Bail, refusal of---Accused was also involved in other such like cases---During the proceedings before the courts accused had undertaken that he would return the money for which he had given various cheques after acknowledging his mistake; and just for that and to ensure that he honoured the promises to return the money which was due from him in the other cases, accused was put on the Exit Control List---In order to evade the payment to the claimants in the other cases, accused tried to escape from Pakistan and his expected travel was towards foreign country of which he was citizen---Such was not an innocent trip, but was with mala fide intention and to evade payments and honour promises made by him before the courts---Accused had defrauded a number of people of their money and despite his commitment to the court he seemed adament to deprive them of their rights further---Accused had tried to get out of Pakistan in order to obstruct the path of justice and had attempted violation of an order of the High Court---Behaviour of accused could be deemed to be contumacious and thus he was not entitled to the benefit of bail.

PLD 1999 Karachi 402; PLD 2003 Pesh. 102; 2006 YLR 2797 Lah.; PLD 2006 Kar. 193 and PLD 1999 Kar. 402 rel.

Miss Farzana Sultan Baig for Petitioner.

Mirza Waqas Rauf Baig Advocate.

Muhammad Afzal Khan, Inspector F.I.A.

MLD 2009 LAHORE HIGH COURT LAHORE 1131 #

2009 M L D 1131

[Lahore]

Before Hasnat Ahmad Khan and Zubda-Tul-Hussain, JJ

MUHAMMAD ASHRAF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1316 and Murder Reference No. 498 of 2003, heard on 9th February, 2009.

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

----S.302(b)---Appreciation of evidence---Sentence, reduction in---Case was of two versions, one put forth by the complainant and the other advanced by the accused---Accused had admitted the occurrence though in a different manner---Occurrence had been reported to police within 75 minutes and F.I.R. was not lodged after spot inspection and consultations---Independent witnesses of the locality usually avoided to give evidence in Court and on that score ocular evidence could not be disbelieved---In the absence of any enmity between the parties, ocular account furnished by eye-witnesses could not be discarded, especially when some of the salient features of the occurrence stood admitted by the accused---Defence version was neither plausible nor probable---After raising plea of self defence, burden of its proof had shifted to accused under Article, 121 of Qanun-e-Shahadat, 1984, but he had failed to discharge the same---Attending circumstances of the case also did not synchronize with the defence plea---Acquittal of co-accused was of no help to accused, as Courts were supposed to winnow truth from falsehood---Ocular evidence was duly supported by the motive as well as medical evidence---Conviction of accused was, therefore maintained--However, misdoings of the deceased had contributed a lot in his murder by the accused, who had killed the deceased to save his family honour---Death sentence awarded to accused was converted into imprisonment for life in circumstances.

Muhammad Siddique v. The .Crown PLD 1954 F.C. 112; Safdar Ali v. The Crown PLD 1953 F.C. 93; Muhammad Dilbar alias Muhammad Boota v. The State 2002 SCMR 1425; Baggu v. The State PLD 1972 SC 77 and Sikandar Shah v. The State PLD 1965 Pesh. 134 ref.

Muhammad Ramzan and another v. The State 1993 PCr.LJ 1589 and Muhammad Ashraf v. State 1990 ALD 749 rel.

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

----S.302(b)---Qanun-e-Shahadat (10 of 1984), Art.121---Defence plea---Burden of proof---Prosecution is bound to prove its case beyond any shadow of doubt, but the burden on accused to' prove his defence plea is not so heavy as cast upon prosecution---After raising plea of self defence the burden of proving the same shifts on the accused under Article 121 of the Qanun-e-Shahadat, 1984.

Messrs Sardar Khurram Latif Khan Khosa and Malik Allah Wasaya for Appellants.

Ch. Abdul Razzaq Kamboh, D.P.G. for the State.

Ch. Muhammad Inayatullah Cheema for the Complainant.

Date of hearing: 9th February, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 1154 #

2009 M L D 1154

[Lahore]

Before Maulvi Anwarul Haq, J

IMTIAZ AHMAD---Petitioner

Versus

WAJID NASIM RANA through Attorney---Respondent

Civil Revision No.369 of 2007, heard on 29th June, 2009.

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

----S.13---Performance of Talbs---Stating time, date and place of making of first talb i.e. Talb-i-Muwathibat is mandatory.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 fol.

Muhammad Yusuf v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore and another PLD 1968 SC 101 ref.

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

Dr. Hameed Ahmad Ayyaz for Petitioner.

Jehangir A. Jhoja for Respondent.

Date of hearing: 29th June, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 1160 #

2009 M L D 1160

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ARIF---Petitioner

Versus

DISTRICT CO-ORDINATION OFFICER, KHUSHAB and another---Respondents

Writ Petition No. 9014 of 2009, decided on 5th June, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Domicile---Record showed that petitioner had fraudulently obtained domicile certificate of District "K", though he was not resident of District "K", but he was resident of District "S" and thus had usurped the right of the residents of District "S" for appointment in government department in their District---High Court declined to exercise extraordinary discretion in favour of the petitioner ho had not come to the court with clean hands having defrauded the authorities by producing forged documents---Constitutional petition was dismissed.

Mian Zulifqar Ali for Petitioner.

Mian Ihsanul Haq Sajid, Addl A.G. along with Imdad Hussain, Junir Clerk on behalf of Respondent No.1.

MLD 2009 LAHORE HIGH COURT LAHORE 1167 #

2009 M L D 1167

[Lahore]

Before Khawaja Muhammad Sharif, C.J.

LIAQAT HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1094-M of 2009, decided on 12th June, 2009.

Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1860), S.489-F---Quashing of orders---Accused had issued the cheques which had been dishonoured---Accused had confessed the issuance of the cheque and in lien thereof issuance of two cheques and entering into an agreement, on the basis, of which he had got is bail confirmed---Accused now could not be allowed to take a somersault and say that the said cheques were .got under coercion or even on the report of the Director Technical, F.I.A, no reliance could be placed---Magistrate and the Sessions Court had rightly refused to acquit the accused on his application moved under S.249-A, Cr.P.C.---Said orders of the Courts below were just, fair and in accordance with the facts and circumstances of the case and did not suffer from any illegality---Petition was dismissed accordingly.

Pir S.A. Rashid for Petitioner.

Rana Bukhtiar Ali, Deputy Prosecutor General.

Miss Aaliya Neelam for the Complainant.

MLD 2009 LAHORE HIGH COURT LAHORE 1175 #

2009 M L D 1175

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD SHAFQAT through Sons and Daughters and 3 others---Petitioners

Versus

NAVEED-UZ-ZAFAR and 5 others---Respondents

Writ Petition No. 3922 of 1983, heard on 30th April, 2009.

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----S. 30---"Co-Transferee"-Competency to move ejectment petition against the tenant in the property so transferred---Person in whose favour P.T.O. had been issued was a "transferee" within the meaning of S.30, Displaced Persons (Compensation and Rehabilitation) Act, 1958---Such transferee being a "co-transferee" was competent to move ejectment application against the tenant.

Shabbir Ahmad v. Mst. Kabir-un-Nisa and others PLD 1975 SC 58; Muhammad Iqbal Ahmad Qureshi v. Mst. Jaleesa Beugm PLD 1980 Lah. 443 and Khalique Ahmed v. Abdul Ghani and another PLD 1973 SC 214 ref.

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----S.30---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.1(2)-Ejectment application---Protection from eviction under S.30, Displaced Persons (Compensation and Rehabilitation) Act, 1958 disappeared with the repeal of said Act upon the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---Principles.

Mst. Jaleesa Begum v. Iqbal Ahmad Qureshi PLD 1982 SC 396 ref.

Sh. Khalid Habib for Petitioners.

Azad Khan Respondent No.5 in person.

Nemo for others.

Date of hearing: 30th April, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 1184 #

2009 M L D 1184

[Lahore]

Before Khawaja Farooq Saeed, J

MUHAMMAD TAHIR---Petitioner

Versus

QOVERNMENT OF PUNJAB through Director General Excise and Taxation and 2 others---Respondents

Writ Petition No. 9911 of 2009, heard on 17th June, 2009.

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

----Ss.3 & 14---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Alternate remedy---Charging of property tax---Liability of tenant---Scope---Petitioner was tenant in premises and assailed notice of recovery of property tax issued by authorities to him---Validity--It was a case of misconception as S.14 of West Pakistan Urban Immovable Property Tax Act, 1958, did not create charge and it only had come in substitute where original person/landlord failed to discharge his obligation---Tenant, therefore, was required to pay property tax but that also to the extent of its rent and nothing beyond--Department was not to attach property after fulfillment of legal requirements for the purpose of recovery of its taxes against landlord even if it resulted in closure of business of tenant---Section 3 of West Pakistan Urban Immovable Property Tax Act, 1958, had created charge on owner of building or land---Petitioner had availed alternate remedy in terms of filing application before authorities, therefore, he should not have filed constitutional petition---High Court directed the petitioner to approach authorities for earlier redressal of his grievance---Petition was dismissed in circumstances.

(b) West Pakistan Urban Immovable Property Tax Act (V of 1958)---

---S. 3 (2)---Levy of tax-Scope-Charge in West Pakistan Urban Immovable Property Tax Act, 1958, is not on a person but on building and land---Responsibility of payment of tax is on owner of building to the extent of structure and on the owner of land to the extent of land.

Agha Abual Hassan Arif for Petitioner.

Salrna Malik, A.A-G., M. Asadullah, Special Attorney to Respondent No.3, Muhammad Rasheed Ch. Advocate for Respondent No.3 and Tanveer Husain, Inspector Excise and Taxation.

Date of hearing: 17th June, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 1195 #

2009 M L D 1195

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD SOHAIL SARWAR---Applicant

Versus

Mst. HINA YOUNAS and another---Respondents

T.A. No.16/C of 2009, decided on 25th March, 2009.

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

----S. 5, Sched. & S.25-A---Suit for maintenance---Transfer of suit, application for---Suit filed by the plaintiff for maintenance in Family Court at place 'K' had been sought by the defendant to be transferred to any other Court of competent jurisdiction out of District K'---Defendant initially sought transfer on two-fold grounds; firstly that father of plaintiff being an Advocate of imminence, commanded a lot of respect in the members of District Bar AssociationK' and thus Advocates appearing on behalf of defendant were feeling hesitant to face him; secondly that father of the plaintiff was seen visiting the Presiding Officer in his chamber along with the sitting President of District Bar Association K'---Counsel for defendant, however, did not opt to press to the extent of said second ground agitated in the transfer application; he however insisted on first ground---Validity---Suit could not be transferred simply on the ground that father of the plaintiff being an advocate of imminence commanded a lot of respect in the members of District Bar Association, the Advocates appearing on behalf of the defendant were feeling hesitant to face him, especially when the order sheet had revealed that suit filed by the plaintiff had been lingering since long---Even the order of payment of interim maintenance had not been passed by the Family Court---Such fact tentatively speaking, had shown the fairness on the part of the, Family Court---From the first day an Advocate practising at Tehsil Courts had been contesting the suit on behalf of the defendant---Besides every Advocate was supposed to watch the interest of his client vigilantly and showing any favour or latitude to the opposite party by a counsel would amount to professional misconduct---Having a soft corner in the heart of counsel of the defendant for the father of the plaintiff, could not be made a ground for transfer of the case---Besides, after all somebody had to cross-examine the father of the plaintiff as special attorney of his daughter, even if the case was transferred to any other Court functioning out of DistrictK'---Furthermore considering the allegations levelled in the application, the acceptance of the application, was likely to demoralize the Judge Family Court seized of the matter---Application for transfer of case, was dismissed, in circumstances.

Mehr Ahmad Nawaz v. Mst. Rashida Begum 1997 CLC 328; Boolchand v. Qazi Muhammad Bachal 1987 CLC 1109; Mst. Sardar Begum and others v. Aziz Begum and others 1985 CLC 2613 and Allah Rakha v. Nasim Akhtar NLR 1981 UC 628 ref.

M. Waseem Shahab for Applicant.

Malik Arab Hussain Asif for Respondents.

MLD 2009 LAHORE HIGH COURT LAHORE 1201 #

2009 M L D 1201

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUSTAFA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.154 of 2005, heard on 4th June, 2009.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence-Brother of the deceased and an eye-witness in their statements made soon after the occurrence before the police, had neither nominated any accused nor given the details of the occurrence---Police had accepted the death of the deceased as an accidental death and initiated proceedings under section 174, Cr.P.C.---Brother of the deceased who was the first person to locate and identify the dead body had been given up by the prosecution as a witness---Eyewitnesses were not found to have seen the occurrence---Ocular testimony was belied by medical evidence and the Investigating Officer---Prosecution case was replete with doubts---Accused was acquitted in circumstances.

Yar Muhammad Dah for Appellant.

Arshad Hussain Bhutta for Respondent.

Asif Mehmood Cheema, DPG for the State.

Date of hearing: 4th June, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 1214 #

2009 M L D 1214

[Lahore]

Before Maulvi Anwarul Haq and Abdul Sattar Goraya, JJ

MANZOOR AHMAD and another---Appellants

Versus

ELECTION TRIBUNAL FOR FAISALABAD DISTRICT and 8 others---Respondents

I.C.A. No.64 in W.P. Np.1308 of 2007, heard on 8th June, 2007.

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

----S. 152(1)---Disqualification of candidate---Election of Nazim and Naib-Nazim---Election petition was moved against the returned candidate on the ground that one of the returned candidates was not possessed of the requisite educational qualification and the certificate appended by him with nomination papers was forged---No evidence whatsoever was available on record about the notoriety of the disqualification of said candidate---Election petition, in the present case, was accepted---Challenge thrown to qualification of appellant was reported in the Press, the voters thus had thrown away their votes despite knowledge---Mere fact that a news item was published regarding the said objection would be of no avail when admittedly the objection was not entertained and was turned down by the Returning Officer---Appeal was accepted and fresh elections in the constituency were ordered to be conducted to the said seats, in circumstances.

Ch. Aftab Ahmed and another v. Naveed-ur-Rehman and others PLD 2004 SC 526 and Bristol South East Parliamentary Election (1961) 3 All E.R. 354 rel.

Shaukat Ali and another v. District Returning Officer and another PLD 2006 SC 78 and Bashir Ahmad Bhanbhan and another v. Shaukat Ali Rajpur and others PLD 2004 SC 570 ref.

Hassan ivawaz iviaxnuoom for Appellants.

Abdul Khaliq Safrani for Respondents Nos.2 and 3.

Nemo for others.

Date of hearing: 8th June, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 1219 #

2009 M L D 1219

[Lahore]

Before Fazal-e-Miran Chauhan and Syed Shabbar Raza Rizvi, JJ

FALAK SHER---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeals Nos.169, 168 and M.R. No.34 of 2007, heard on 29th April, 2009.

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

---S.302(b)---Appreciation of evidence---Recovery of hatchet from accused was doubtful---Occurrence had not taken place as described by the prosecution---Eye-witnesses had not seen the occurrence, who had been called from another District whereafter the whole story was coined---Defence story was more probable---Many blunders had been committed by the prosecution after due deliberations and consultations and every thing was, done to make up the deficiencies in its case---Prosecution case was replete with serious doubts and material contradictions---Confession made by accused before Trial Court on the day of pronouncement of judgment being not recognized in law, inference drawn by Trial Court in this context had been rejected---Accused were acquitted in circumstances.

Tariq Mehmood v. State 2000 PCr.LJ 837 ref.

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

----Ss.164, 265-E & 364---Penal Code (XLV of 1860), S.302(b)-Confession-Practice and procedure---Before the commencement of trial a confession can be made under S. 164, Cr.P.C.----After commencement of trial such confession may be made under S.265-E or 364, Cr.P.C.---Confession before the Trial Court on the day of pronouncement of the judgment is not recognized in the Code of Criminal Procedure---Confession even when made under Ss. 164 and 364, Cr.P.C. is viewed with very care and caution and if any fault is found in the procedure, the same is not believed or made a basis for conviction.

Ghulam Murtaza Khan Chaudhry and Babar Murtaza Khan for Appellant.

Ijaz Ahmed Bajwa, D.P.G. for Respondents.

Date of hearing: 29th April, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 1230 #

2009 M L D 1230

[Lahore]

Before Tariq Shamim and Malik Saeed Ijaz, JJ

GUL BADSHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.135 and C.S.R. No.6-N of 2006, heard on 28th May, 2009.

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

----S.9(c)---Appreciation of evidence---Narcotics comprising 171 kilograms of "Charas", 70 kilograms of opium and 3 Kilograms of heroin, were recovered from secret cavities of the truck being driven by the accused, which stood established by his statement made under S.342, Cr.P.C., and by failure of the defence to cross-examine the recovery witness---All the tests conducted by the chemical examiner of the samples of recoverd narcotics were positive---Police and Excise Officials were as good witnesses as others, who had no motive, ill will or enmity with the accused to falsely implicate him in the crime---Investigating Officer could be a complainant as well as a witness at the same time, without any adverse effect on the prosecution case---However, in the present case complainant had not made the investigation himself---Prosecution witnesses were consistent and unanimous on all material aspects of the case---Accused had failed to rebut the presumption of criminal liability attached to him after the recovery of narcotics from his possession, as envisaged by S.29 of the Control of Narcotic Substances Act, 1997---Accused was transporting the aforesaid huge narcotics for sale---Conviction and sentence of death of accused were affirmed in circumstances.

Zafar v. The State 2008 SCMR 1254 and State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 ref.

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

----Ss. 20 & 21---Search and investigation---Nature and scope---Provisions of Ss.20 and 21 of the Control of Narcotic Substances Act, 1997, are not mandatory, but directory in nature and non-observation thereof would not vitiate the trial.

Zafar v. 'The State 2008 SCMR 1254 ref.

Muhammad Ayub Chaudhary and Syeda B.H. Shah for Appellant.

Ch. Muhammad Tariq, Additional Prosecutor General Punjab for Respondent.

Date of hearing: 28th May, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 1252 #

2009 M L D 1252

[Lahore]

Before S. Ali Hassan Rizvi, J

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, SARGODHA through Chairman and another---Petitioners

Versus

Mst. SURRIYA ANDLEEB and another--Respondents

Civil Revision No.2389 of 2005, heard on 8th April, 2009.

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

----S. 42--Qanun-e-Shahadat (10 of 1984), Art. 59---Suit for declaration---Charge of impersonation levelled against plaintiff by Board of Intermediate and Secondary Education---Passing of order by Board on basis of report of private handwriting expert regarding handwriting of plaintiff---Validity---Board while conducting proceedings had neither summoned expert nor given copy of his report to plaintiff for an opportunity to meet report---Photocopy of report placed on record was not legible---Expert had not appeared before Board or Court to testify in support of his report with an opportunity to plaintiff to cross-examine him---Plaintiff in her evidence had raised a presumption against alleged impersonation, thus, onus was on Board to prove same---Except such report, there was no connecting evidence against plaintiff---Such report had no evidentiary value, whereupon no reliance could be placed, thus, same was excluded from consideration---Suit was decreed in circumstances.

Alla-ud-Din Butt v. Qamar-ud-Din Butt 2006 CLC 1863 ref.

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

----Arts. 117 & 118---Civil matters, burden of proof in---Principle--When entire evidence is recorded, burden of proof does not remain constant; it remains on being changed.

----S. 9---Punjab Board of Intermediate and Secondary Education Act (XIII of 1976), Ss. 29 & 30---Bar on jurisdiction of---Civil Court---Scope stated.

(b) Civil Court is a Court of ultimate jurisdiction and is always competent to examine whether the orders brought before it for judicial scrutiny were in accordance with legal framework and did not suffer from mala fides.

The jurisdiction of civil Court is only barred, if the orders impugned before it are within the framework of law passed with due care and attention.

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

----S.26---No claim can be defeated on mere bad form of suit.

(e) Administration of justice---

----All procedural laws are framed for advancing justice---Genuine claims cannot be smothered on technicalities.

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

Ch. Asghar Ali for Respondent No. 2.

Dr. Abdur Rahim Bhith, DMS. DHQ T.T. Singh.

Date of hearing: 8th April, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 1274 #

2009 M L D 1274

[Lahore]

Before Zubda-tul-Hussain, J

Malik GUL RAIZ AWAN---Petitioner

Versus

Mst. ASMA GUL RAIZ and others---Respondents

Writ Petition No. 388 of 2008, decided on 10th June, 2009.

(a) Words and phrases---

---"Ordinarily"---Meanings stated.

The word "ordinarily" by its dictionary meanings has been defined as "usually, commonly, mostly and normally"---Sometimes it is also used to connote a thing adopted habitually as a rule by and large.

(b) Guardians and Wards Act (VIII of 1890)---

---Ss. 7, 9 & 10---Application for appointment and declaration as guardian of person of minor son---Wife living apart from husband at place "M" with minor---Filing of application by wife in Court at place "L" after admitting minor in educational institution located there---Plea of husband that minor was ordinarily residing at place "M", thus, Court at place "L" had no jurisdiction to decide the matter---Validity---Words "ordinarily resides" as used in Ss. 9 & 10 of Guardians and Wards Act, 1890 would mean residence in fact, but not mere residence in law for purpose of domicile etc---Words "ordinarily resides" neither equate with word "ordinary residence" nor aynonymous to occasional or temporary residence/dwelling---Temporary removal or dwelling of minor at a place would imply cessation of such dwelling on a short interval---Mother had shifted minor to place "L" with intention to provide him better education there and got him admitted in prestigious educational institution---Such removal of minor from place "M" would not be deemed for purpose of defeating ends of justice or requirements of S. 9(1) of Guardians and Wards Act, 1890---Place at "L", in circumstances would be construed as the place, where minor "ordinarily resides"---Court at place "L" had jurisdiction to entertain and decide such matter---Such plea of husband was repelled in circumstances.

---S.9(1)---Words "ordinarily resides" as used in S. 9 (1) of Guardians and Wards Act, 1890 and "ordinary residence"---Connotation and distinction stated with illustrations.

For the purposes of section .9 of the Guardians .and Wards Act, 1890, the words "ordinarily resides" are not synonymous to the occasion or temporary residence. The provisions of S. 9(1) have to be given ordinary and usual meaning connoting some habitat in contradistinction with the occasional or temporary residence. The words "ordinary residence" do not equate with the words "ordinarily resides" as used in section 9(1)---The ordinary residence is the one which generally has a permanent character and makes the residents available in normal course of life. As against it, ordinarily resides, despite being a usual residence, may have a little bit different level of permanency.

The words "ordinarily resides" do not mean temporary dwelling, because the temporary removal or dwelling at the place, implies the cessation of such dwelling on a short interval.

A person or a child may have been residing for years at a specific place, his parents may also be the residents of such place, but the situation can radically change, if in the circumstances of the family and especially for any substantial need and requirement of the minor, a decision is taken for their shifting to some other place. One example of such a case may be that where because of differences with the husband or for any other excuse, a wife may opt to live at some place other than the place, where she had been living with her husband and she also takes the children with her. Another incident of such situation can be the need and requirement of a spouse or of the children. If one of the spouses moves to a place for earning his livelihood and the transfer is not for a short-specified time, his residence at the new place can be called the place where he ordinarily resides. Another example, which may have direct reference to the case in hand, is where the children are shifted for the purpose of their education. If they join regular classes in regular and well recognized educational institution at the same time, it being the intention of one or of both the spouses to continue their education at such place, the place of their education shall also become the place, where they ordinarily reside. It has of course to be seen whether in this process, their residence at the place of their school is merely temporary or they have been shifted with determination to live and continue their education there.

The expression "ordinarily resides" may signify a casual dwelling at a place, where mother may bring the children with a positive intention to provide them education. It may not be permanent dwelling place either, but it is definitely not a temporary dwelling as well. If the mother shifts the minors to another place for providing them better chance of education and subsequently also acts upon such intention and gets the children admitted in the prestigious educational institutions, the circumstances would lead to the only conclusion that the minors have been shifted to such place, which has to be construed as the place, where they "ordinarily reside".

(d) Guardian and Wards Act (VIII of 1890)---

----Ss. 9 & 10---Place at which minor "ordinarily resides", determination of---Proof---Such matter being a question of fact would be decided on basis of evidence placed on record.

Ras Tariq Chaudhry for Petitioner.

Nemo for the Respondents.

MLD 2009 LAHORE HIGH COURT LAHORE 1287 #

2009 M L D 1287

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Syed ESAR HUSSAIN NAQVI---Petitioner

Versus

D.C.O. NANKANA SAHIB and 3 others---Respondents

Writ Petition No. 9287 of 2009, decided on 5th June, 2009.

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

----Ss.152 & 156---Constitution of Pakistan (1973), Art.199---Election of officiating Union Nazim---Qualification for---On death of Nazim of Union Council concerned, his seat fell vacant---Naib Nazim of the Union Council called the meeting of General House, in which petitioner secured majority votes and was elected as an -Acting Union Nazim till the elections were held---One of the members of the Union Council raised objection that the petitioner being not matriculate, could not become Acting Nazim---Validity---Petitioner admittedly was not matriculate, while under S.152(e) of the Punjab Local Government Ordinance, 2001, the prescribed qualification was matriculate---No provision was available to the effect that even a non-matriculate member could act as an officiating Nazim, if the said seat fell vacant--Respondent was a matriculate and he had secured confidence of 7 members out of 12 members---Member having the confidence of majority votes could act as an officiating Nazim; as against the respondent the petitioner could not be allowed to act as officiating Nazim being not eligible for the same---Petitioner had failed to show that it was his vested right to act as officiating Nazim and no writ could be issued in his favour.

Faisal Maqsood Ahmed Khan and Sheikh Navid Shehr Yar for Petitioner.

Mian Ihsan ul Haq Sajid, Advocate General.

Ch. Abdul Wadood Advocate for Respondent No.1.

Muhammad Zubair Khalid Ch. for Respondents Nos. 3 and 4.

MLD 2009 LAHORE HIGH COURT LAHORE 1314 #

2009 M L D 1314

[Lahore]

Before Iqbal Hameed ur Rehman and Mazhar Hussain Minhas, JJ

Mst. SAEEDA ANWAR and 3 others---Appellants

Versus

Malik BASHIR AHMAD and others---Respondents

Regular First Appeals Nos. 121 & 142 of 2008, decided on 12th June, 2009

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

----S.12---Qanune-e-Shahadat (10 of 1984), Arts. 102 & 103---Suit for specific performance of sale agreement--Receipt of earnest money by General Attorney of vendor after executing sale agreement in favour of plaintiff---Refusal of defendant to receive balance amount within extended period of sale agreement---Plea of defendant that prior to sale agreement, he had sold suit plot to first-vendee, about which plaintiff had knowledge; that he was not willing to make sale agreement in favour of plaintiff, but on his undertaking that he would himself get concurrence of first-vendee and if he failed to persuade first-vendee to forego his rights in suit plot, then sale agreement would come to an end---Proof---Attorney of vendor had admitted that while executing sale agreement, he had not disclosed to defendant that suit plot had already been transferred to first-vendee---Nothing on record was available to substantiate such version of attorney that in addition to sale agreement, any oral agreement was also made between parties to the effect that defendant would persuade first-vendee to forego his rights in suit plot and agree to transfer same in favour of defendant- -Not mentioned either in receipt of earnest money or in sale agreement or on the reverse page of sale agreement while endorsing extension of time that there was any other condition precedent for completion of sale i.e. sale agreement was a contingent or conditional agreement enforceable subject to acquiescence of first-vendee---Oral evidence of intention of parties against terms of written agreement would not be admissible---Such plea of defendant was repelled in circumstances.

Bolan Beverages (Pvt.) Ltd. v. Pepsico INC and 4 others PLD 2004 SC 860; Mst. Baswar Sultan v. Mst. Adeeba Alvi 2002 SCMR 326 and Muhammad Shafi and others v. Allah, Dad Khan PLD 1986 SC 519 rel.

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

----Arts. 102 & 103---Oral evidence of intention of parties against terms of written agreement would not be admissible.

Bolan, Beverages (Pvt.) Ltd. v. Pepsico INC and 4 others PLD 2004 SC 860; Mst. Baswar Sultan v. Mst. Adeeba Arvi 2002 SCMR 326 and Muhammad Shafi and others v. Allah Dad Khan PLD 1986 SC 519 rel.

---Arts. 17(2)(a) & 79---Non-examination of two attesting witnesses of a document---Effect---Execution of such document would not stand legally proved---Illustration.

Sana Ullah and another v. Muhammad Manzoor and another PLD 1996 SC 256 and Qasim Ali v. Khadim Hussain (deceased) through Legal representatives and another PLD 2005 Lah. 654 rel.

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

---S.54---Sale agreement---Proof---Deposition of attesting witnesses to the effect that no payment was made in their presence, but vendor had simply acknowledged receipt of payment---Validity---Transaction of sale had not taken place in presence of attesting witnesses, who had simply put their signatures on sale agreement, which was, thus not proved for their evidence.

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

----Ss. 12 & 27(b)---Income Tax Ordinance (XXXI of 1979), S.150(1)---Suit for specific performance of sale agreement---Plea of first vendee that after purchasing suit plot from vendor, he constructed shops thereon, and from income derived therefrom, he was paying wealth tax and income tax, thus, plaintiff-second vendee had sufficient notice of such prior sale in his favour---Validity---No third person could have access to returns of income tax and wealth tax filed by first vendee with Income Tax Department for being privileged documents---Knowledge of prior sale of suit plot in favour of first vendee could not be attributed to plaintiff on basis of such returns---Such plea of first vendee was repelled in circumstances.

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

----S.53-A---Oral or written agreement of sale not proved by a party---Effect---Such party would not be entitled to benefit under S.53-A of Transfer of Property Act, 1882.

Muhammad Yousaf v. Munawar Hussain and 5 others 2000 SCMR 204; Nook Muhammad v. Abdul Ghani 2002 CLC 88 and Mina Abdul Ghani v. Mrs. Farrukh Taj and others 1987 MLD 261 rel.

Nisar Ahmad and Ahmad Waheed Khan for Appellant.

Syed Najam-ul-Hassan Kazmi for Respondent ,No. 1.

Mian Asrar Ahmad and Syed Raees-ud-Din for Respondents Nos.2&3.

Ch. Rashid Ahmad and Mian Muzaffar Hussain for Respondent No.4.

Dates of hearing: 29th and 30th April, 4th, 5th, 6th, 7th, 11th, 14th and 18th May, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 1340 #

2009 M L D 1340

[Lahore]

Before Asif Saeed Khan Khosa and Syed Ihtasham Qadir Shah, JJ

MUHAMMAD NAWAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.1446, 1587 and Murder Reference No.923 of 2004, heard on 18th June, 2009.

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

----S.302---Criminal Procedure Code (V of 1898), S.345---Compromise--Compromise was arrived at between legal heirs of one of deceased and accused during pendency of appeal---Said compromise between the parties was not only voluntary, but also complete in all respects and had been recorded between the parties way back in the year 2005 and same was still holding good despite a passage of about four years---Prosecution's case was that accused had not caused any injury to deceased---No reason existed for not accepting the compromise between the parties or for not acting upon the same---Appeal filed by accused was partly allowed to the extent of conviction and sentence for an offence under S.302, P.P.C. on the count pertaining to murder of said deceased--Conviction and sentence recorded by the Trial Court on said count were set aside and he was acquitted of the said charge on the basis of the compromise.

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

----S.302(b)--Appreciation of evidence---Sentence, reduction in---Counsel for accused did not challenge the conviction of accused for offence of murder of deceased, but only prayed for reduction of his sentence---Complainant and prosecution witness had furnished the ocular account of the incident and made absolutely consistent statements regarding the role played by accused in the murder---Ocular account furnished by the said eye-witnesses had received independent corroboration from the motive and had also found ample support from . the medical evidence, which had confirmed the date and time of occurrence, the weapon used and the locale of injuries stated by the said eye-witnesses---Accused in his statement recorded under S.342, Cr.P.C. had accepted killing of the deceased, but he had maintained that the murder had been committed by him under the impulse of grave and sudden provocation---If an accused would take a special or general plea, then the onus would shift on him to establish the circumstances supporting his plea and the court was to presume the absence of said circumstances---No independent witness or evidence, had been produced by accused in order to establish circumstances supporting his plea of grave and sudden provocation---Accused, in circumstances, had failed to discharge the onus placed on him in that respect---Trial Court was quite justified in finding accused guilty of the offence under S.302(b), P.P.C. on that count pertaining to murder of the deceased and counsel for accused was quite fair and justified in not challenging his conviction recorded on that count, though said accused was acquitted in case of murder of other deceased on basis of compromise---Sentence of death, however, was reduced to imprisonment for life in circumstances.

----S.302---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Co-accused was acquitted by the Trial Court mainly on the grounds that the medical evidence produced by the prosecution did not support the ocular account to his extent and no weapon had been recovered from his possession during the investigation of the case---Trial Court had also observed that two Investigating Officers had found said co-accused to be innocent, whereas another one had opined about his guilt---Trial Court, in circumstances was justified in holding that medical evidence did not support the ocular account---No weapon had. been recovered from the possession of said co-accused during the investigation of the case-Record had also shown that whatever was its evidentiary worth, the opinion of different Investigating Officers regarding involvement of said co-accused in the offence was divided---Occurrence in the case had taken place in the year 2002 and after facing a trial for about one year, co-accused had earned his acquittal on the merits of the case way back in the year 2003; and about six years had already gone by since then---Initial presumption of innocence qua said ; co-accused had been reinforced through his acquittal by the Trial Court---Acquittal of co-accused could not be interfered with, in circumstances---Appeal against acquittal was dismissed, in circumstances.

Mian Aftab Farrukh with Tariq Nadeem for Appellant (in Criminal Appeal No.1446 of 2003).

Shehryar Sheikh with Kh. Awais Mushtaq for Appellant (in Criminal Appeal No.1587 of 2003).

Mrs. Farzana Shahzad Khan, Deputy Prosecutor General for the State.

Shehryar Sheikh with Kh. Awais Mushtaq for the Complainant.

Mian Aftab Farrukh for Respondent No.2 (in Criminal Appeal No.1587 of 2003).

Date of hearing: 18th June, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 1362 #

2009 M L D 1362

[Lahore]

Before Syed Hamid Ali Shah, J

Mst. KALSOOM BEGUM---Petitioner

Versus

MEMBER JUDICIAL, BOARD OF REVENUE---Respondent

Writ Petition No.1221 of 2002, decided on 3rd June, 2009.

(a) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S.2-A---Acquiring of land under custom---Applicability---Impact of amendment in West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, is that Muslim male heir acquiring any agricultural land under custom prior to enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948, becomes absolute owner of such land as if such land had devolved on him under Muslim Personal Law---Such provision of law is equally applicable to male as well as female heir.

Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407 rel.

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

----S.42---West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S.2-A---Constitution of Pakistan (1973), Art.199--Constitutional petition---Limited owner---Acquiring of land under custom---Application of Sharia---Defendants purchased two pieces of land measuring 8-Kanal 4-Marla from issueless widow who inherited land as limited owner under custom---Plaintiff assailed the transaction on the ground that deceased owner left total of 20-Kanal and 6-Marla of land and widow could not sell land beyond her share---Validity---Widow was entitled to 1/4th share of property of deceased husband and her entitlement in the estate of her deceased husband was to the extent of 5 Kanal and 1½ Marla---Widow sold 3-Kanal and 3 ½-Marla in excess of her share, therefore, land in excess of share of vendor (widow) was void while sale by vendor to the extent of her share was valid transaction and was not open to exception---Vendees (defendants) were liable under law to surrender to legal heirs of plaintiff the excess land which they purchased from widow---High Court directed that excess land would devolve upon those legal heirs of plaintiff who were alive at the time of death of their predecessor-in-interest i.e. plaintiff---Order passed by Board of Revenue was set aside as the same was illegal, passed without lawful authority and with no legal effect---High Court directed Board of Revenue to sanction mutation according to the share which legal heirs of deceased including widow had inherited according to Sharia---Petition was allowed accordingly.

Mohsin Khan and 3 others v. Ahmed Ali and 2 others PLD 2004 Lah. 1 rel.

Zaheer Bashir Ansari for Petitioner.

Mian Zahoor Akhtar for Respondent.

Date of hearing: 24th October, 2008.

MLD 2009 LAHORE HIGH COURT LAHORE 1373 #

2009 M L D 1373

[Lahore]

Before Maulvi Anwarul Haq, J

MAHMOOD JAVED and another---Petitioners

Versus

Syed IJAZ ALI SHAH---Respondent

Civil Revision No. 2220 of 2002, heard on 17th June, 2009.

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

----S.4---Evacuee property, partition of---Jurisdiction of Settlement Authority---Scope---Such authority fully competent to effect partition of such property horizontally.

Nazir and others v. Syed Israr Ahmed, and others 1981 SCMR 829; Muhammad Rafiq v. Malik Sikandar and others 1994 CLC 2300; Mst. Khairun Nisa through General Attorney v. Abdul Wahid 1998 SCMR 492 and Ch. Bahar Muhammad v. Chief Settlement and Rehabilitation Commissioner, Lahore and another 1977 SCMR 189 ref.

Muhammad Yaqub v. Settlement and Rehabilitation Commissioner, Lahore and 5 others PLD 1973 SC 439 fol.

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

----O.XLI, R.27 & S.115---Documents sought to be produced in evidence being certified copies of public record and required for effective decision of matter---Appellate Court permitted such evidence while giving a chance to respondent to rebut same---Validity---High Court declined to interfere with impugned order in exercise of revisional jurisdiction.

Ch. Mushtaq Hussain for Petitioner.

Khizar Abbas Khan for Respondent.

Date of hearing: 17th June, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 1381 #

2009 M L D 1381

[Lahore]

Before Maulvi Anwarul Haq and Abdul Sattar Goraya, JJ

MUHAMMAD HUSSAIN and 5 others---Appellants

Versus

CHAIRMAN, NATIONAL HIGHWAY AUTHORITY, ISLAMABAD and others---Respondents

I.C.A. No.229 of 2009 in Writ Petition No.8010 of 2008, heard on 1st July, 2009.

Land Acquisition Act (I of 1894)---

----Ss.34 & 12-A---Acquisition of land---Compound interest,- award of---Provision of S.34, Land Acquisition Act, 1894 provided in mandatory terms that the Collector shall pay the amount awarded with compound interest thereon at the rate of 8% per annum from the time of taking over possession until the amount had been paid or deposited---Proviso to said S.34 has laid down that any waiver of the said right by the landowner shall be void and he shall be entitled to the said interest notwithstanding any agreement to the contrary---In the present case, landowners had only prayed for a direction to the Authorities. to act in accordance with the said law, such being, by all means, a clerical error liable to be corrected by the Collector himself in terms of S.12-A, Land Acquisition Act, 1894, needful could be done accordingly.

Collector of Land Acquisition, Nowshera v. Fazal Rahim and 3 others 1984 SCMR 1043 ref.

Zulfiqar Ali Dhuddi for Appellants.

Nemo for Respondents.

Date of hearing: 1st July, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 1391 #

2009 M L D 1391

[Lahore]

Before Maulvi Anwarul Haq, J

LIAQUAT ALI -Petitioner

Versus

MUHAMMAD SAEED---Respondent

Civil Revision No.2211 of 2006, heard on 25th June, 2009.

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

----Art.77---Rule as to notice to produce document---Exception---Very first exception to the rule laid down in Art.77, Qanun-e-Shahadat; 1984 is where the document sought to be proved is itself a notice i.e. in such a case service of notice to produce original document is not required.

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

----S.13---Suit for pre-emption---First talb---Non-mentioning the names of members of Majlis in connection with first talb---Effect---Held, there was no necessity of mentioning the names of witnesses.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Fazal Subhan and 11 others v. Mst. Sahib Jamala and others PLD 2005 SC 977; Haji Noor Muhammad v Abdul Ghani and 2 others 2000 SCMR 329 and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through L.Rs and another 2000 SCMR 314 ref.

----S.13---Suit for pre-emption---Performance of talbs---Talb-e-Muwathibat---Talb-e-Ishhad---Mentioning of place of making of talb was not of that much importance as against the date and time---In cases involving limitation of any kind the plaintiff/pre-emptor was required to specify date and time of the commencement of limitation or of his knowledge in specific terms so that limitation was computed accordingly---It was important to tell the date and time of performance of Talb-e-Muwathibat in the same meeting and before the dispersal thereof; it was therefrom that limitation of 15 days for performance of Talb-e-Ishhad had to be computed.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs and others PLD 2007 SC 302; Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Fazal Subhan and 11 others v. Mst. Sahib Jamala and others PLD 2005 SC 977; Abdul Qayyum through Legal Heirs v. Mushk-e-Alam and another 2001 SCMR 798; Haji Noor Muhammad v Abdul Ghani and 2 others 2000 SCMR 329 and Altaf Hussain v. Abdul Hameed Q Abdul. Majeed L.Rs and another 2000 SCMR 314 ref.

Malik Farzand Ali Awan for Petitioner.

Ch. Muhammad Zafar Iqbal for Respondent.

Date of hearing: 25th June, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 1403 #

2009 M L D 1403

[Lahore]

Before Zubda-tul-Hussain; J

SHAFQAT ALI---Petitioner

Versus

Mst. RIFFAT NAZIR---Respondent

Writ Petition 6777 of 2006, heard on 2nd July, 2009.

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

----S.5, Sched. & S.14---Constitution of Pakistan (1973), Art.199--Constitutional petition---Suit for maintenance allowance---Plaintiff, who along with her minor children started living separately from defendant husband, filed a suit for maintenance allowance for herself as well as for the minor children---Family Court decreed suit and allowed maintenance at the rate of Rs.1000 per month each---However to the extent of the plaintiff wife, decree was only for the period from the institution of the suit till the expiry of period of "Iddat" after pronouncement of divorce---Plaintiff was not prepared to live with defendant and was living away from him without any reasonable excuse---Plaintiff had linked up, her demand for separate living with the residence of her husband from his parents---Defendant was the only son of his parents who were dependant upon him---Demand of the plaintiff, asking the defendant to give up his residence from the house of his parents, was not reasonable as parents of the defendant also had. a right of living with their son and to have maintenance from ' him---Throwing away the old parents in solitude and in economic or social helplessness was not justifiable by any standard of morality, social ethics and even law---Demand of the plaintiff, in circumstances, was unjustified and her refusal to put up with the defendant, in circumstances had disentitled her from receiving maintenance allowance from him---Courts below, in circumstances, were not justified in law or on facts to pass a decree for maintenance allowance in favour of the plaintiff---Impugned judgments, in circumstances, were declared to be unlawful to the extent of granting maintenance allowance to the plaintiff, and were set aside.

Javed Bashir for Petitioner.

Ch. Akram Khan for Respondent.

Date of hearing: 2nd July, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 1406 #

2009 M L D 1406

[Lahore]

Before Khawaja Muhammad Sharif, C. J

FARZANA ANWAR and another---Petitioners

Versus

S.H.O. and 6 others---Respondents

Writ Petition No. 6225 of 2009, decided on 16th April, 2009.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Quashing of F.I.R.---Petitioner in his statement recorded by Investigating Officer had denied all the allegations levelled in F.I.R.---Petitioner had stated that she being sui juris had entered into marriage with co-accused according to her own free will and consent---Complainant though served, had not appeared despite repeated calls---F.I.R. lodged by the complainant was quashed because further proceedings on the basis of F.I.R. would be clear abuse of process of court and law.

Rana Muhammad Arif for Petitioners.

Tahir Mahmood Gondal, A.A.-G. with Zulfiqar Ahmed, Inspector/I.O.

MLD 2009 LAHORE HIGH COURT LAHORE 1410 #

2009 M L D 1410

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

ARSHAD ALI---Petitioner

Versus

Rana MUHAMMAD ANWAR and 3 others---Respondents

Writ Petition No.5348 of 2009, heard on 2nd July, 2009.

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

----R. 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of Lambardar---Contention of the respondent was that he being more educated and having a more holding than the petitioner was entitled to be appointed as Lambardar---Validity--Appointment of Lambardar on the basis of being more educated was misconceived as R.17 of the West Pakistan Land Revenue Rules, 1968 was silent on the subject---Merely having a more holding by a candidate was also no ground for claiming superiority for the post of Lambardar.

Haji Burhan v. Haji Ibrhaim PLD 1974 Revenue 82; Bashir Ahmad v. Member (Judicial-III), Board of Revenue, Punjab, Lahore and others 2002 SCMR 1371; Muhammad Saleem v. Member (Judicial-V), Board of Revenue, Punjab, Lahore, and others 2007 MLD 349; Imam Bakhsh Shah v. Imam Din PLD 1964 W.P. (Revenue) 126; Saifullah Khan and another v. Settlement Commissioner, Punjab Lahore and 5 others 1982 SCMR 583; Muhammad Shaffi v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others 1972 SCMR 253; Taj Muhammad v. M.B.R. 1994 CLC 906; Taj Muhammad v. Inayat Beg PLD 1959 W.P. (Rev.) 96; Khan Muhammad v. Member, Board of Revenue and others 1999 YLR 221; Muhammad Afzal v. Senior Member, Board of Revenue, Punjab, Lahore and 6 others 2003 MLD 157; Sharaf Din v. Qazi Abdul Jalil and another 1986 SCMR 1368; Abdul Ghafoor v. Member Judicial II, Board of Revenue Punjab and 3 others 2003 YLR 1960 and Abdul Ghafoor v. The Member (Revenue), Board of Revenue and another 1982 SCMR 202 ref.

Bashir Ahmad v. Member (Judicial-III), Board of Revenue, Punjab, Lahore and others 2002 SCMR 1371; Muhammad Saleem v. Member (Judicial-V), Board of Revenue, Punjab, Lahore, and others 2007 MLD 349; Imam Bakhsh Shah v. Imam Din PLD 1964 W.P. (Revenue) 126 and Haji Burhan v. Haji Ibrhaim PLD 1974 Revenue 82 rel.

(b) West Pakistan Land Revenue Rules, 1968---

----R. 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of Lambardar---Conduct of the candidate---Petitioner contended that respondent being candidate of the Lambardar had been involved in case under S.16 Maintenance of Public Order Ordinance, 1960 and Ss. 148 & 149, P.P.C.---Effect---Respondent had previously been involved in case under S.16, Maintenance of Public Order Ordinance, 1960 and Ss. 148 & 149, P.I.C. as against the petitioner where nothing adverse was on record about his conduct---High Court accepted the constitutional petition, set aside the order for appointment of respondent as Lambardar.

----R. 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of Lambardar---Candidate was Chairman of Mogha Committee---Effect---Respondent asserted that the petitioner had been a Chairman of Mogha Committee which disentitled him for the post of Lambardar---Objection of being Chairman Mogha Committee was taken up for the first time in constitutional, petition and was not taken up in the earlier forums, as such, the same could not be taken into consideration in petition under constitutional jurisdiction of High Court.

Shamim Abbas Bukhari for Petitioner.

Muneeb Iqbal for Respondent No.1.

Muhammad Azeem Malik, Additional Advocate-General.

Munir Ahmad, Naib Tehsildar with record.

Date of hearing: 2nd July, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 1422 #

2009 M L D 1422

[Lahore]

Before Syed Sajjad Hussain Shah, J

ARSHAD HUSSAIN ABBASI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1067-B of 2007, decided on 2nd November, 2007

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.371-A/B---Bail, grant of---Further inquiry---Allegation against accused was that he was found present with a woman in an objectionable position, when the raid was conducted by the police---Said woman made statement before the Magistrate under S.164, Cr.P.C. and had stated that neither accused had sexual intercourse with her nor she was sold by anyone---Involvement of accused and applicability of S.371-A/B, P.P.C. required further determination, which would be done by the Trial Court after recording the evidence---Accused was literate person and had no criminal record---Accused who was behind the bars was no more required for further investigation; his further detention would not serve any useful purpose---Accused was admitted to bail, in circumstances.

Muhammad Tanvir Ch. for Petitioner.

Ch. Mubarak Hussain D.P.G. for the State.

MLD 2009 LAHORE HIGH COURT LAHORE 1427 #

2009 M L D 1427

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

TAYYABA DOLTANA---Petitioner

Versus

DISTRICT JUDGE and others---Respondents

Writ Petition No.7493 of 2007, decided on 25th June, 2009.

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

----S.5, Sched., Ss.13 & 14---Constitution of Pakistan (1973), Art.199---Suit for recovery of maintenance allowance---Execution of decree---Enhancement of maintenance allowance---Family Court -decreed suit for maintenance awarding Rs.500 per month to her as maintenance allowance---Said decree was maintained in appeal by the Appellate Court---Plaintiff filed execution petition anti during pendency of execution petition; the plaintiff moved application for enhancement of maintenance allowance; which. application was allowed and maintenance allowance of Rs.500 was enhanced upto Rs.1200 per month with 10% annual increase after every three years---Appeal filed by the defendant against said judgment of the Family Court was accepted vide impugned judgment and decree on the ground that it was necessary and proper for plaintiff/decree holder to move an independent application or to institute a separate suit for enhancement of the maintenance allowance---Application for enhancement of maintenance allowance had been filed by the plaintiff/decree holder as an independent application and same had been so numbered independently apart from the execution petition---Appellate Court had failed to comprehend the same and the said application no doubt was addressed to Judge Family Court who was also dealing with the execution petition---Subsequent enhancement of maintenance allowance could be allowed on the ground of change in circumstances and conditions as well as in the cost of living---Family Court, while enhancing maintenance allowance from Rs.500 to Rs.1200 had rightly taken the same into consideration---Allowing constitutional petition, High Court set aside judgment and decree passed by the Appellate Court and upheld that of the Family Court.

Arbab Mir Muhammad v. Mst. Iram Iltimas and 4 others 1999 CLC 1668 and Muhammad Akram v. Additional District Judge and others PLD 2008 Lah. 560 ref.

M.M. Iqbal for Petitioner.

Muhammad Aslam Nadeem for Respondent No.3.

MLD 2009 LAHORE HIGH COURT LAHORE 1434 #

2009 M L D 1434

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

WAPDA---Petitioners

Versus

MUHAMMAD AZEEM---Respondent

Civil Revision No.733-D of 2009, heard on 21st July, 2009.

Electricity Act (IX of 1910)---

----Ss.24, 26, 26-A & 39-A---Specific Relief Act (I of 1877), Ss.42 & 55---Issuance of detection bill---Suit for declaration and mandatory injunction---Plaintiff filed suit for declaration and mandatory injunction praying that detection bill issued to him by the authorities be declared illegal, unlawful, ultra vires and against the law---Trial Court decreed suit and appeal filed against the judgment and decree passed by the Trial Court had been dismissed by the Appellate Court---Validity--Plaintiff had challenged the detection bill, which squarely fell under S.26(6) of Electricity Act, 1910 conferring exclusive jurisdiction to Electric Inspector---Both the courts below had failed to take notice of said legal position as to the jurisdiction of the court---Controversies and disputes concerning the slowness of electric meter or other faults with the equipments fell within the jurisdiction of the Electric Inspector under S.26 of Electricity Act, 1910---Matter, in circumstances fell within the exclusive jurisdiction of Electric Inspector---Since the very jurisdiction of the court did not extend to try such a lis, assumption of jurisdiction, the trial of the suit and the judgment rendered by both the courts below stood on no better footing than the one without jurisdiction---Same was liable to be set aside---Contention of counsel for the plaintiff that no notice under S.24 of the Electricity Act, 1910 had been given to him, in absence of which civil suit was maintainable, was repelled as same was mandatory when discontinuation of the supply of electricity was to be made, but in the present case only a' detection bill had been issued under S.26(6) of Electricity Act, 1910---Impugned judgments and decrees of both the courts below, were set aside in circumstances.

Mian Muhammad Munir v. WAPDA and others 1983 CLC 211; Khalid Pervaiz v. Water and Power Development Authority through Chairman, WAPDA and another 1999 CLD 1591; Imran Nazeer v. Saifullah Jan and others PLD 2001 Lah. 31; Messrs Narowal Flour Mills through Managing Director v. WAPDA through Chairman and 3 others 2006 MLD 636; Water and Power Development Authority through Chairman, WAPDA and 4 others v. Abdul Shakoor through Legal Heirs PLD 2008 Lah. 175 and Water and Power Development Authority and another v. Mian Muhammad Riaz and another PLD 1995 Lahore 56 ref.

Mian Khurshid Alam Ramay for Petitioners.

Ch. Zulfqar Ali for Respondent.

Date of hearing: 21st July, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 1439 #

2009 M L D 1439

[Lahore]

Before Tariq Shamim, J

TALIB HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.11779/B of 2008, decided on 21st January, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 109, 148 & 149---Bail, grant of---Further inquiry---Accused and his co-accused were implicated by the complainant with abetment in the murder of his brother-- Incidently, the witnesses in whose presence the conspiracy was hatched, in their statements recorded under S.161, Cr.P.C. had not fully supported the prosecution case in the course of investigation---Plea of alibi extended by accused was accepted and he was declared innocent---Opinion of the police as to the innocence of accused was based on cogent material, which had to be given weight on a tentative assessment of the evidence available on the record---Case of accused was one of further inquiry as enough incriminating material was not available to connect him with the offence---Accused was admitted to bail, in circumstances.

Abdul Khaliq Safrani for Petitioner.

Shaukat Rafiq Bajwa for the Complainant.

Ch. Amjad Hussain, Deputy Prosecutor General with Ijaz S.-I. for the State.

MLD 2009 LAHORE HIGH COURT LAHORE 1441 #

2009 M L D 1441

[Lahore]

Before Syed Hamid Ali Shah, J

MUHAMMAD MUSTANSAR MAQBOOL---Petitioner

Versus

BAHA-UD-DIN ZAKARIYA UNIVERSITY through Vice Chancellor and 2 others---Respondents

Writ Petition No. 3980 of 2009, decided on 25th May, 2009.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Educational institution---Dropping of candidate from college' rolls---Petitioner was dropped from college rolls due to low CGPA/GPA---CGPA of the petitioner in the fourth semester was 1.83, whereas required CGPA as per University Rules in fourth semester, was 2.00 out of 4.00---Rules which the petitioner had placed on the file were not of the concerned University but were Regulations of another University---Even otherwise constitutional jurisdiction could not be invoked to compel the University to bypass the application of Rules uniformly to all the students---High Court in constitutional jurisdiction, could not replace its own opinion---Constitutional petition was not competent in circumstances.

Ali Yousuf and another v. Chairman of Academic Council and Principal, DOW Medical College, Karachi and others 2000 SCMR 1222; Rashid Nawaz and 7 others v. _University of the Punjab through Vice-Chancellor, Lahore and 3 others PLD 2007 Lah. 78 and Yahya Gulzar v. Province of Punjab through Secretary Health, Government of Punjab Lahore and 3 others 2001 CLC 9 ref.

Syed Jaffar Tayyar Bukhari for Petitioner.

MLD 2009 LAHORE HIGH COURT LAHORE 1450 #

2009 M L D 1450

[Lahore]

Before Zubda-tul-Hussain and Hasnat Ahmed Khan, J

HAROON AQIL---Appellant

Versus

KHALID PERVAIZ and 5 others---Respondents

Criminal Appeal No.667 and Murder Reference No.830 of 2003, heard on 3rd July, 2009.

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

----Art. 121---Burden of proving that case of accused comes within exception---Extent and scope---Burden cast on accused under Art.121 of Qanun-e-Shahadat, 1984, cannot be as heavy as the burden that rests on the prosecution---Plea of accused despite having not been established, yet may create a reasonable doubt about his guilt, benefit of which shall be given to him not as a matter of grace, but as a matter of right, because prosecution has failed to prove its case beyond reasonable doubt.

Safdar Ali v. The Crown PLD 1953 FC 93 and Shamir alias Shamla v. The State PLD 1958 SC (Pak) 242 ref.

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

---Ss. 100 & 101---Self-defence---Receiving of an injury by the accused is not necessary before apprehending imminent danger to his life.

Aludo alias Ali Bux v. The State 1976 PCr:LJ 329 and Ahmad Nawaz v. the State 1970 SCMR 597 ref.

---Ss. 302/324/148/149---Criminal Procedure Code (V of 1898), S.417(2)---Appeal against acquittal---Benefit of doubt--None of the accused persons, except the main accused, was present at the time and place of occurrence---Main accused had resorted to firing in defence of his person as well as that of the disputed property and while exercising his right of self-defence he had not exceeded the same---Right of self-defence of accused could not be weighed in golden scales---Said accused had caused only one fire-arm injury to the deceased, besides giving some pellet injuries to the injured prosecution witness, who had not even bothered to get himself medically examined immediately after the occurrence---Onus to prove the prosecution story always lay on the prosecution and it would never shift to accused---Even if there was any remotest possibility of truthfulness of defence plea, the benefit of doubt had to go to the accused---Patchy and contradictory ocular evidence was not corroborated by any independent source---Impugned judgment of acquittal was not capricious, arbitrary or fanciful---Appeal was dismissed accordingly.

Safdar Ali v. The Crown PLD 1953 FC 93; Shamir alias Shamla v. The State PLD 1958 SC (Pak) 242; Miran Bux v. Niaz and others 1975 SC 337; Aludo alias Ali Bux v. the State 1976 PCr.LJ 329; Ahmad Nawaz v. the State 1970 SCMR 597; Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 and Muhammad Alsam v. Sabir Hussain and others 2009 SCMR 985 ref.

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

----S. 417---Appeal against acquittal---Principles---Presumption of innocence initially attached to every accused is doubled ordinarily by an order of acquittal and becomes more strong after the verdict of acquittal accorded by a Court of record---Judgment of acquittal would not be interfered with, unless the same is conclusively shown or established to have been based upon artificial, perverse and fanciful reasoning.

Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 and Muhammad Alsam v. Sabir Hussain and others 2009 SCMR 985 ref.

Malik Amjad Pervez for Appellant.

Ch. Shahid Tabassum and Naeem Tariq sanghera, D.P.-G. for Respondents.

Date of hearing: 3rd July, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 1462 #

2009 M L D 1462

[Lahore]

Before Maulvi Anwarul Haq, J

SAFDAR ALI SHAH and another---Petitioners

Versus

CANTONMENT BOARD TAXILA through Executive Officer---Respondent

Writ Petition No.2833 of 2004; heard on 28th July, 2009.

Cantonments Act (II of 1924)--

----Ss.60 & 186---Stamp Act (II of 1899), S.27-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Transfer of immovable property---Tax---Valuation table---Commercial fee, recovery of---Consideration mentioned in transfer document---Scope---Petitioner was aggrieved of imposing of Immovable Property Tax on the basis of valuation table prepared by Executive Officer Cantonment Board and levy of commercial fee---Validity---Valuation table was prepared by Executive Officer of Cantonment Board proposing increase in rates already fixed by Collector in terms of S.27-A of Stamp Officer legal basis was available of such rates proposed by Executive either in terms of S.27-A of Stamp Act, 1899 or S.60 Cantonments Act, 1924, and the same were without lawful authority and petitioners could not be asked to pay tax on Transfer of Immovable Property with reference to proposed rates---Apart from notification in question issued by Cantonment Board, the Board was competent to recover such Tax at the rate of 2% of the, consideration 'money paid by transferee---Mode of charging and levying tax having been prescribed, the Board would not be having any lawful authority to charge the tax on any amount other than consideration paid by transferee, which was to be determined from transfer documents---Cantonment Board could not have imposed commercial fee over and above the one prescribed by bye-laws and that too in violation of statutory provisions contained in Cantonments Act, 1924---Valuation table prepared by Executive Officer of Cantonment Board and imposition of commercial fee were declared by High Court to be without lawful authority and void---Petition was dismissed in circumstances.

Rizwan Niaz for Petitioner.

Mirza Waqas Rauf for Respondent.

Date of hearing; 28th July, 2009.

MLD 2009 LAHORE HIGH COURT LAHORE 1478 #

2009 M L D 1478

[Lahore]

Before Zubda-tul-Hussain, J

AMBREEN AFSHAN---Petitioner

Versus

Mrs. IDREES QAZI---Respondents

Writ Petition No. 5657 of 2009, decided on 18th June, 2009.

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

----S.7---West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, R.6---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Divorce---Effectiveness of divorce---Husband administered the divorce and notified the same to Chairman of Arbitration/Union Council whereupon certain proceedings were taken and ultimately a certificate for the effectiveness of divorce was issued through the- impugned order Wife was well aware of the fact that husband had pronounced divorce to her for which consequential proceedings before the Arbitration/Union Council had also been taken---Father of the wife had been pursuing the matter before Arbitration Council---Case of the wife who had challenged effectiveness of the divorce was that the submission of divorce deed with a notice before the Arbitration Council could not, ipso facto, operate and result into the dissolution of marriage---In the present case it could not be disputed that the period much beyond 90 days had expired from the date of notice of the divorce when impugned certificate of its effectiveness was issued; in the circumstances, especially keeping in view all the relevant facts of service of notice on the Chairman Union Council, the initiation of the proceedings by the Arbitration Council, the repeated appearance of father of the wife who was holding a power of attorney on her behalf in those proceedings and actual knowledge of the wife about the pendency and fact of those proceedings, divorce and its pronouncement had become effective---Failure to send a notice to the Chairman of the Arbitration Council would not render the divorce in-effective in Shariah---Effect of pronouncement of divorce in Shariah would not justify interference with impugned order nor would warrant exercise of discretion in favour of the petitioner/wife under Art.199 of the Constitution.

Mst. Zahida Shaheen and another v. State and another 1994 SCMR 2098 and Mst. Sheeman Farooq v. Chairman Union Committee Ward No.4, Lahore Cantt: 1996 CLC 673 ref.

Talat Farooq Sheikh for Petitioner.

Ch. Hafiz ur Rehman Atif for Respondent.

MLD 2009 LAHORE HIGH COURT LAHORE 1484 #

2009 M L D 1484

[Lahore]

Before Syed Hamid Ali Shah, J

MUHAMMAD QASIM---Appellant

Versus

ABDUL SATTAR and another---Respondents

Regular Second Appeal No.32 of 2003, heard on 22nd June, 2009.

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

----S.15---Exclusion of time---Suspended proceedings---Terms "execution" and "institution"---Scope---Term "institution" has reference to suit while "execution" has reference to decree---Exclusion of period of continuance of injunction from computation of prescribed period of limitation as envisaged hi S.15 of Limitation Act, 1908, cannot be confined to stay of execution of decree only; as such the same is equally applicable in cases where suit has been stayed---Period of continuance of stay has to be excluded if suit or a decree is stayed and it is immaterial that stay order was operative between parties to suit or between one of the party and stranger.

Syed Ghulam Shah v. Mst. Hawa Bai and 5 others 1984 CLC 190; Sitaram Nanasa and others v. Chunnilalsa Bhachandsa Kalal AIR 1944 Nag. 155 and Krishnachandra Sahani v. Anem Peda Sive Paravatalnma AIR 1953 Orissa 13 ref.

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

----S.53-A---Part performance, doctrine of--.-Scope---Doctrine of part performance was developed in equity Court of England---By means of S.53-A of Transfer of Property Act, 1882, the doctrine became applicable to the sub-continent and it has been given statutory recognition---Principle of part performance is based upon golden rules of fairness and righteous dealing between the parties.

Sh. Abdur Rashid v. Mubarik Ali and others 1994 CLC 1617; Pucha Lal v. Kunj Behari Lal 18 CWN 445-1913; Mehmmod Musa v. Aghore Kumar Ganguli LR 42 1.A ISC = ILR 42 Calcutta 801; Potler v. Potter 1 Ves Sen 437, 441 (1750); Khagenera Nath Chatterji and others v. Sonatan Guha and others 1.0 Vol. XXXI (195), 987 and Garu and another v. T. Multruramareddi and others AIR 1924 Madras 27 rel.

----S.12---Transfer of Property Act (IV of 1882), S.53-A---Limitation Act (IX of 1908), Art. 113---Specific performance of agreement to sell---Limitation---Principle of part performance-Plaintiff, after making part payment obtaining possession of property in question---Trial Court decreed the suit in favour of plaintiff but Lower Appellate' Court dismissed same on the ground of its being barred by time---Validity---Plaintiff obtained possession of suit property on execution of contract and on payment of earnest money---Plaintiff appeared before Sub-Registrar for registration of sale deed on given date and paid balance amount of sale consideration---Rights of plaintiff were protected under the doctrine of part performance which was not subject to limitation as prescribed under Art.113 of Limitation Act, 1908---Lower Appellate Court had wrongly non-suited plaintiff on the question of limitation and finding of Lower Appellate Court on the issue of limitation being erroneous, same was set aside---Judgment and decree passed by Lower Appellate Court was set aside and that of Trial Court was restored.

Inam Naqshban v. Haji Shaikh Ijaz Ahmad PLD 1995 SC 314 and Iqbal Hussain v. Qaimkhani Welfare Society through president 2006 MLD 1798 ref.

Amin ud Din Khan for Appellant.

Syed Sardar Shah Bukhari for Respondents.

Date of hearing: 22nd June, 2009.

Pakistan Bar Council

MLD 2009 PAKISTAN BAR COUNCIL 207 #

2009 M L D 207

[Pakistan Bar Council]

Before Ch. Muhammad Ashraf Wahlah, Chairman, Dr. A. Khalid Ranjha, Pervaiz Inayat Malik and Raja Muhammad Shafqat Abbasi, Members

ILYAS HUSSAIN REHAN---Appellant

Versus

MUHAMMAD ASLAM CHEEMA and 3 others---Respondents

Appeal No. 48 of 2007, heard on 19th September, 2008.

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

----Ss.10, 41, 43 & 44---Punjab Legal Practitioners and Bar Council Rules, 1974, Rr. 4.11 & 6.1---Complaint---Jurisdiction to adjudicate---Scope---Executive Committee of Provincial Bar Council entertained complaint against advocate and directed to get criminal case registered against the accused advocate and further directed to refer the matter to Disciplinary Committee for onward submission of case to Misconduct Tribunal---Validity---Nowhere, in Legal Practitioners and Bar Councils Act, 1973 and Punjab Legal Practitioners and Bar Council Rules, 1974, framed by Pakistan Bar Council, the Executive Committee had been given powers to entertain any complaint against advocate---Only the Disciplinary Committee could entertain a complaint against advocate on its Roll for commission of misconduct---Disciplinary Committee either could reject the complaint summarily, if complaint was by private individual, or forward the same to Misconduct Tribunal for award of punishment or otherwise---In any case Executive Committee had no authority to entertain such complaint---Order passed by Executive Committee on complaint filed against accused advocate was without jurisdiction and the same was set aside---Appeal Committee of Pakistan Bar Council remanded the matter to 'Provincial Bar Council for placing same before concerned committee for decision afresh---Appeal was allowed accordingly.

Ilyas Hussain Rehan Advocate in person.

Malik Shaukat Ali Advocate/President District Bar Association Gujranwala present for Respondents Nos. 1 to 3.

Jabran Khalid an employee of Punjab Bar Council, Lahore with record.

Peshawar High Court

MLD 2009 PESHAWAR HIGH COURT 4 #

2009 M L D 4

[Peshawar]

Before Shah Jehan Khan Yousafzai, J

UMAR ZAHID alias KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 764 of 2007, decided on 15th September, 2008.

Penal Code (XLV of 1860)---

---Ss. 302/310/311/201/202/203/109/34---Offence of Zina (Enforcement of Hadood), Ordinance (VII of 1979), Ss. 11 & 16---Appreciation of evidence---Waiving right of Qisas---Legal heirs of deceased, who happened to be daughter of accused, had waived their right of Qisas and had also compounded the offence---Trial Court vide impugned judgment acquitted accused under S.302(c), P.P.C., but he was awarded punishment as Tazir under S.311, P.P.C.---Accused was also convicted and sentenced under Ss.201 & 202, P.P.C., but he was granted acquittal under Ss.203/109, P.P.C. and Ss.11/16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, with benefit of S.382-B, Cr.P.C.---Undoubtedly the legal heirs of the deceased had compounded the matter and had waived their right of Qisas---Statements of major legal heirs of the deceased were recorded by the Trial Court wherein they affirmed the factum of composition and waiving of the Qisas---Shares of the minors were deposited in the court in the shape of National Savings Certificates---Report in the case was lodged after 8 days of occurrence and it appeared to be quite unreasonable that a man who was holding a Jirga with the opposite party, would commit the murder of his daughter inside the house---Possibility existed that the deceased could have used poison to commit suicide for honour of the family---Conviction and sentence imposed upon accused by the Trial Court through the impugned judgment, were set aside and accused was acquitted of the charges levelled against him and he was set at liberty.

Nazar Ali and another v. The State PLD 1992 Pesh 176 ref.

Javed A Khan for Appellant.

Ali Raza, D.A.G. for the State.

Date of hearing: 8th September, 2008.

MLD 2009 PESHAWAR HIGH COURT 38 #

2009 M L D 38

[Peshawar]

Before Syed Yahya Zahid Gillani and Muhammad Alam Khan, JJ

CHAIRMAN, WAPDA and 3 others---Petitioners

Versus

Mst. JAN SULTAN and 6 others---Respondents

Writ Petition No.962 of 2007, decided on 13th August, 2008.

Fatal Accidents Act (XIII of 1855)---

----S. 1---Civil Procedure Code (V of 1908), S.115---West Pakistan Civil Courts Ordinance (II of 1962), S.18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Fatal accident---Suit for recovery of compensation---Valuation of the suit was fixed by the plaintiffs to be Rs.25 Lac and the value for the purpose of jurisdiction was above one million---Appeal or revision, in circumstances, was not competent before the Additional District Judge and only the High Court was competent to hear the appeal or revision under provisions of Civil Courts Ordinance, 1962, read with S.115, C.P.C.---Revision petition filed before the Additional District Judge, in circumstances, being not competent, order passed in revision was without jurisdiction and coram non judice---Impugned order passed in revision by Additional District Judge, was set aside being without jurisdiction, without lawful authority and of no legal effect.

Zafar-ul-Haq v. Waris Iqbal and another PLD 1979 Lah. 793 ref.

Gul Nazir Azam for Petitioner.

Yousaf Khan Yousafzai for Respondent.

Date of hearing: 13th August, 2008.

MLD 2009 PESHAWAR HIGH COURT 65 #

2009 M L D 65

[Peshawar]

Before Zia Uddin Khatak and Muhammad Alam Khan, JJ

DARWAISH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 131 of 2007, decided on 2nd July, 2008.

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

----S. 9(c)---Appreciation of evidence---Sentence, reduction in---Four Kilograms opium was recovered from the waistcoat of accused when he was travelling in a passenger bus---Material on record showed that prosecution had duly proved its case against accused, who had been rightly convicted and sentenced by the Trial Court---No evidence was available against accused to prove that he was either a drug trafficker, previous convict or previously involved in such like activities---Case of accused, in circumstances, could be considered for reduction of sentence---Quantum of sentence awarded to accused seemed to be harsh and needed to be reviewed---While maintaining the conviction of accused, his sentence of imprisonment was reduced from five years to three years R.I. and sentence of fine from Rs.10,000 to Rs.5,000, accordingly.

Nazar Muhammad v. The State 1986 PCr.LJ 2065 rel.

Saleemulah Khan Ranazai for Appellant.

Sanaullah Khan Shamim Gandapur D.A.G. for Respondent.

Date of hearing: 2nd July, 2008.

MLD 2009 PESHAWAR HIGH COURT 90 #

2009 M L D 90

[Peshawar]

Before Zia uddin Khatak and Muhammad Alam Khan, JJ

MUHAMMAD WALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 67, 68 and Jail Criminal Appeal No. 97 of 2007, decided on 1st July, 2008.

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

----S. 9(c)---Appreciation of evidence---Sentence, reduction in---Huge quantity of contraband heroin was recovered from the secret cavities behind the driver's seat of the bus made of wood and accused could not say that they had no knowledge about recovered substance---Prosecution had successfully proved its case against accused and impugned conclusion of the Trial Judge was based on correct premises and established principle of appreciation of evidence---No illegality or irregularity appeared so as to warrant interference in the judgment of the Trial Court; however, no evidence was against accused to prove that they were either drug traffickers, previous convicts or previously involved in such like activities---Case of accused could be considered for reduction of sentence awarded to them as quantum of sentences awarded to accused seemed to be harsh and needed to be reduced---Sentences of five years' R.I. awarded to accused were reduced to three years R.I. each and fine amounting to Rs. one lac was reduced to Rs.10,000 each, accordingly.

Nazar Muhammad v. The State 1986 PCr.LJ 2065 rel.

Shehryar Khan Marwat for Appellant.

Sanaullah Shamim Gandapur, D.A.G. for Respondent.

Date of hearing: 1st July, 2008.

MLD 2009 PESHAWAR HIGH COURT 122 #

2009 M L D 122

[Peshawar]

Before Ghulam Mohyuddin and Muhammad Alam Khan, JJ

MOMIN KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 277 and 284 of 2007, decided on 21st August, 2008.

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

----Ss. (9)(c) & 15---Appreciation of evidence---Alleged recovery of narcotics was effected from. accused on a busy road which was always crowded by heavy traffic and Investigating Officer opted to make the two police officials witnesses to the recovery and even one of them later on was abandoned by the prosecution---Statement of prosecution- witness with regard to form and quantity of contraband, which was in contradiction with the quantity produced in the court, had thrown serious doubt on the credentials of prosecution making the recovery doubtful---Non-association of an accused who allegedly decamped from the spot and non-arraying him as an accused by the prosecution, was another glaring defect, which had created doubts in the mind of a prudent man, that the real culprit had been exonerated by the prosecution---Car from which alleged contraband charas was recovered had not been produced by the prosecution despite the objection by defence counsel, which was the case property subject to examination of the alleged secret cavities of the car---Case of co-accused was that there was no evidence against him as he was neither present with accused at the time of recovery of alleged narcotic nor any contraband had been recovered either from his direct possession or on his pointation---Statement of accused was not at all admissible in evidence qua the guilt of co-accused---Nothing had been brought on record that in other cases allegedly registered against him he was convicted---No evidence was on record that co-accused either facilitated, induced or helped in any manner or was instrumental in the commission of offence by accused---Conviction of co-accused under S.15 of the Control of Narcotic Substances Act, 1997, could not be maintained---Conviction and sentences awarded to accused persons by the Trial Court, were set aside, both were acquitted of the charge levelled against them and were set at liberty.

Amanat Ali. v. The State 2008 SCMR 69; Iqbal Khan v. The State PLD 2008 SC 107; Muhammad Munir v. State 2008 YLR 693; Jamil Shah v. The State 1997 SCMR 1494 and Tasawar Hussain v. the State 2001 PCr.LJ 879 ref.

Iqbal Khan v. The State 2008 SC 107 and Sher Khan v. The State 2003 MLD 259 rel.

Noor Alam Khan and Babar Khan Yousafazai for Appellants.

Salahuddin Khan DAG for the State.

Date of hearing: 20th and 21st August, 2008.

MLD 2009 PESHAWAR HIGH COURT 131 #

2009 M L D 131

[Peshawar]

Before Shahji Rehman Khan and Muhammad Alam Khan, JJ

BAKHTIAR---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No. 768 of 2007, decided on 13th August, 2008.

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

----Ss. 9(c), 32, 33 & 48---Appreciation of evidence---Confiscation of vehicle---Owner of vehicle allegedly used in occurrence had impugned order of the Trial Court in appeal to the extent of confiscation of vehicle---Before confiscation of the vehicle, the issuance of notice to the appellant/owner as envisaged under the provision of S.33, Proviso of Control of Narcotic Substances Act, 1997 was mandatory---Subsection (2) of S.32 of Control of Narcotic Substances Act, 1997 also permitted the confiscation of the vehicle only when it was proved that the owner had the knowledge that offence was being committed and such point had to be determined in accordance with law after issuing of a notice to the owner of the vehicle and affording a chance of hearing to him---No notice as envisaged under Control of Narcotic Substances Act, 1997, having been given to the appellant/owner of the vehicle, order of confiscation of vehicle was liable to be struck down on that sole ground---Impugned order of the Trial Court to the extent of confiscation of vehicle in question, was set aside and case was remanded to the Trial Court with the direction to proceed with the same strictly in accordance with law.

Muhammad Amin v. The State PLD 2004 Kar. 482 rel.

Noor Alain Khan for Appellant.

Khizar Hayat for Respondents.

Date of hearing: 13th August, 2008.

MLD 2009 PESHAWAR HIGH COURT 141 #

2009 M L D 141

[Peshawar]

Before Dost Muhammad Khan, J

NIAZ and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 240 of 2008, decided on 15th September, 2008.

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

----S. 497---Penal Code (XLV of 1860), S.324/34---Bail, grant of---Single shot was fired at both the injured by using hunter cartridge containing more than one hundred pellets of a very small size---Damage caused was serious which fact clearly reflected the intention of accused, not to kill the victims---Conduct of the complainant was also not above board as after having been confronted by accused and grossly abused in an aggressive manner, his coming back to the spot, could not be held to be in accordance with natural human behaviour as once he made a retreat to his house, then in ordinary course, he was not supposed to expose himself to an ensuing danger---Last report given by the radiologist about the nature of injuries did not show that any damage was caused to the internal organs or the bones of the two victims---No incriminating articles were recovered from the crime spot---Many aspects surrounding the occurrence, were highly debatable, in circumstances---Both the victims were not admitted in the Hospital and were let to go home, which fact by itself spoke that injuries sustained by them were almost simple---Complainant on his return to home, with the assistance of his father, retaliated and killed sister of accused, two days after the occurrence and did not wait for the court of law to do justice in the matter which had shown that the complainant party was desperate and did not spare a young lady who was having no hand in the occurrence---Accused in circumstances were granted bail.

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

----S. 497---Bail, grant of---Procedure and principles---While dealing with bail matter, the court had to tentatively assess as to what type of weapon accused was wielding at the time of occurrence i.e. whether it was dangerous, lethal or was of a very low velocity; similarly it was to be seen whether accused had used the weapon lightly or vigorously which resulted into damage caused to the victim---Use of firearm in committing a crime in ordinary circumstances was associated with intention to kill, but all the material available, must be fairly seen---Liberty of a person being always involved in bail matters, the court could not fold up its hands to rely what had been stated in the F.I.R., but it had to see and tentatively assess all the materials on record---If the injury caused to the victim was neither on his vital part nor dangerous to his life, then bail was ordinarily to be granted to accused in the absence of strong exceptions.

Ghulam Mohyuddin v. Ikramul Haque and others PLD 1968 Lah. 1000 ref.

Bushra Bibi for Petitioners.

Zulikhan Bibi for the Complainant.

Date of hearing: 15th September, 2008.

MLD 2009 PESHAWAR HIGH COURT 184 #

2009 M L D 184

[Peshawar]

Before Syed Musadiq Hussain Gillani, J

ISRAR JAMSHAD alias JAMSHED---Applicant

Versus

UMAR REHMAN and another---Respondents

Criminal Bail Application No. 769 of 2008, decided on 29th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/364---Bail, grant of---Further inquiry---Dead body of deceased had not been recovered---Accused though was directly charged, but no direct or last seen evidence was available against him---Accused had made no confession and case prima facie was of further inquiry as alleged demand of money for the recovery of dead-body, was yet to be proved at the time of trial---Accused in peculiar circumstances of the case being entitled to bail, was released on bail.

2003 SCMR 1419; 2001 SCMR 14(B); 2008'PCr.LJ 129; 2007 YLR 1576; 2004 PCr.LJ 143; 2007 PCr.LJ 1064; MLD 2007 1460; 2007 PCr.LJ 1579; 1996 SCMR 1485; 1990 PCr.LJ 1541; 2008 YLR 1134; PLD 1997 SC 545(F); 2005 PCr.LJ 43 and 1995 SCMR 1765 ref.

Malik Manzoor Hussain for Petitioner.

Inamullah Khan, A.A.-G. and Shakeel Ahmad Gillani for Respondents.

Date of hearing: 29th August, 2008.

MLD 2009 PESHAWAR HIGH COURT 220 #

2009 M L D 220

[Peshawar]

Before Tariq Pervez Khan, C. J. and Shah Jehan Khan, JJ

BACHA MUHAMMAD---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal Nos. 231, 126 and Criminal Revision No. 46 of 2008, decided on 14th October, 2008.

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

----S. 302(b)---Appreciation of evidence---Delay in making of report of occurrence, could not be taken as inordinate, when cause of delay was fully explained---In the present case single accused having been charged, there was no question of deliberation and consultation---Excepting same altercation taking place on the spot some minutes before the occurrence there was no history of hostility between the parties---Where there was absence of enmity, then delay, if any, in making the report was not to be taken into consideration---Accused remained absconder for nearly six years which would lend corroboration to the testimony of the complainant---Besides, the complainant, yet another eye-witness was who though related to deceased, but had not any personal motive to bring a false charge---Prosecution having brought home the charge against accused, conviction of accused had rightly been recorded by the Trial Court---Conviction and sentence of imprisonment awarded to accused, were maintained---Amount of fine, had been wrongly awarded to accused as under the law there was no provision of imposing fine under S.302, P.P.C.---Said amount was converted into compensation amount under S.544-A, Cr.P.C., which would be payable to the legal heirs of deceased, recoverable as arrears of land revenue.

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

----S.302(b)---Petition for enhancement of sentence of accused---Application of evidence---Held, there was no scope for enhancement of sentence awarded to accused, because firstly, as per prosecution evidence, accused acted under the command of his acquitted co-accused; secondly, accused had made only one shot; and thirdly, that preceding the firing there was an altercation between the parties---Such were sufficient grounds for mitigating the sentence awarded to accused---Petition was dismissed, in circumstances.

Khawaja Muhammad Khan Gara for Appellant.

Mr. Ishtiaq Ibrahim, A.A.-G. and Syed Sardar Hussain for Respondents.

Date of hearing: 14th October, 2008.

MLD 2009 PESHAWAR HIGH COURT 242 #

2009 M L D 242

[Peshawar]

Before Muhammad Alam Khan, J

SAMIULLAH and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Petition 240 of 2008, decided on 10th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.120-B/121---Anti-Terrorism Act (XXVII of 1997), S.7---Bail, grant of---Further inquiry---F.I.R. showed that accused persons were indulging in inciting and preparing innocent minor girls for suicidal attacks in the name of "Jehad" in a `Dini Madrassa', wherefrom two ladies were recovered---Record had revealed that statements of the ladies had been recorded under S.164, Cr.P.C., wherein they had admitted that they were themselves interested in Jehad and on their own will they used the cassettes/CDs for Jehad without any inducement or force by accused persons---Police had failed to bring on record such materials so as to reasonably connect accused persons with the commission of offence---Prima facie, an inordinate delay took place in lodging the report and no incriminating article had been recovered from either of the two accused persons so as to disentitle them to the concession of bail---Tentative assessment of the materials brought on record, had brought case of accused persons within the ambit of "further inquiry", entitling them to the concession of bail---Accused were admitted to bail, in circumstances.

Gohar Zaman Khan Kundi for Petitioners.

Sanaullah Khan Shamim Gandapur D.A.G. for the State.

2009 M L D 362

[Peshawar]

Before Muhammad Alam Khan and Said Maroof Khan. JJ

THE STATE through Advocate General, N.-W.F.P. Peshawar---Appellant

Versus

KHALWAT KHAN---Respondent

Criminal Appeal No.17 of 2001, decided on 31st October, 2008.

Penal Code (XLV of 1860)---

----S.302/34---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.7(1)--- Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Prosecution case rested on the solitary statement of the complainant who claimed to be present on the spot at the time of occurrence---Complainant being the real brother of deceased, would fall in the category of "interested witness" and his testimony had to be scrutinized with great care and caution---Inordinate delay in lodging the report having not been plausibly explained by the complainant, element of consultation or manipulation of false charge against accused, could not be ruled out altogether from consideration---According to the complainant his brother was also present on the spot before they rushed to the Police Station for making the report, but same was negated too even by his said brother who had stated that he came to know about the death of his brother in Police Station---Stance of the complainants that they had taken lunch before the occurrence, was further not supported by the post-mortem report of the deceased, according to which he was empty stomach during the autopsy---Veracity of complainant further became doubtful when numerous people were attracted to the spot soon after the occurrence, but no independent witness therefrom was cited in the case---Investigating Officer, in circumstances, had not complied with the mandatory provisions of S.103, Cr.P.C.---Two empties of 7.62 bore were recovered from the spot and sealed into a parcel, but no efforts were made to examine the same through an Arms Expert to find out whether those were fired from one or different fire-arms---Ocular account of the complainant was further not supported from the statements of independent witnesses, recorded by the Investigating Officer who had categorically stated that accused, at the time of occurrence, was present on duty in the Flour Mills and not on the scene of occurrence---Investigating Officer in such state of affairs, had declared accused innocent in the occurrence---Prosecution having not been able to prove its case against accused beyond any shadow of reasonable doubt, Trial Court had rightly acquitted accused by correctly appraising evidence brought on record---Once an accused was acquitted of a charge by a competent court of law after proper appraisal of evidence available on record then he would earn the presumption of double innocence and such order of acquittal could not be disturbed by a court of appeal, unless very strong and exceptional grounds existed for interference therein, which were lacking in the case---Appeal against acquitted was dismissed.

Farooq Akhtar for Appellant.

Muhammad Waheed Anjum for Respondent.

Date of hearing: 31st October, 2008.

MLD 2009 PESHAWAR HIGH COURT 384 #

2009 M L D 384

[Peshawar]

Before Muhammad Alam Khan, J

SHERIN and another---Applicants

Versus

WAZIR GUL and another---Respondents

Criminal Miscellaneous No. 678 of 2008, decided on 22nd August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, refusal of---Accused persons had been directly charged in the F.I.R.---Occurrence was duly supported by the statements of the two eye-witnesses whose statements had been recorded under S.164, Cr.P.C.---Involvement of accused persons with respect to the vicarious liability would be determined by the Trial Court after recording of evidence---Challan in the case was complete, which would be put in court---Reasonable grounds existed to believe that accused were prima facie involved in the commission of offence and were not entitled to the concession of bail.

Malik Muhammad Akram v. the State 1979 SCMR 56; Muhammad Arshad v. The State 2006 SCMR 966; Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC Page 585(c) and Mir Zakam and another v. The State and another PCr.LJ 1999 Page 927 ref.

Sikandar Khan for Petitioners.

Shaukat Ail Yousafzai and Khizar Hayat for the State.

Date of hearing: 18th August, 2008.

MLD 2009 PESHAWAR HIGH COURT 419 #

2009 M L D 419

[Peshawar]

Before Muhammad Alam Khan and Shah Ji Rehman, JJ

Mst. NAGINA BIBI---Petitioner

Versus

MUKHTAR HUSSAIN and 2 others---Respondents

W.P. No.302 of 2005, decided on 21st May, 2008.

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

----Ss. 5, Sched, & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dower amount, maintenance and dissolution of marriage---Plaintiff filed suit for recovery of dower amount, maintenance and dissolution of marriage---Both the Family Court and Appellate Court concurrently decreed the suit to the extent of recovery of dower amount and maintenance, but, her prayer for dissolution of marriage was dismissed---Plaintiff had assailed concurrent judgments and decrees of the Courts below before High Court only to the extent of refusing her prayer for dissolution of marriage---Effect---Record had revealed that there was difference in the temperaments of the parties---Relations inter se the parties had become so strained that it was not possible to have a happy union and to live within the limits prescribed by God and thus plaintiff was entitled to the decree for dissolution of marriage on the ground of Khula---Judgments and decrees of two Courts below were maintained only to the extent that decree for dissolution of marriage was granted to the plaintiff against defendant on the basis of Khula, subject to the condition that plaintiff would not claim the house decreed in her favour as she had claimed the Khula in lieu of the house.

Muhammad Wahid Anjum for Petitioner.

Nemo for Respondent.

MLD 2009 PESHAWAR HIGH COURT 442 #

2009 M L D 442

[Peshawar]

Before Muhammad Alam Khan and Shah Ji Rehman, JJ

ZAHEER-UD-DIN and another---Petitioners

Versus

MIAN SAQIB and 3 others---Respondents

Writ Petition No. 273 of 2007, decided on 21st May, 2008.

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

----Ss. 2(c)(i), 13 & 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment application---Relationship of landlord and tenant---Pending ejectment application, an objector submitted an application praying therein that she having a share in the suit property, was a necessary party, and thus she be impleaded as such in the ejectment proceedings pending between the parties---Said application was dismissed by the Rent Controller and her appeal before the Appellate Authority also failed---Validity---Objector was the aggrieved person to have impugned the two orders in constitutional petition, but, she had never challenged same---Petitioners were not "aggrieved persons" within the meaning of Article 199 of the Constitution---Grievance of the petitioner that while dictating the facts of the case, lower fora by passing on remarks had stated that respondent was landlord, was without any substance as vide order High Court had specifically directed with mutual consent of the counsel for the parties that Rent Controller would frame a preliminary issue and after affording an opportunity to the parties of leading evidence would decide the said issue---Such order was still intact and the Rent Controller would decide the matter in due course of time---Constitutional petition was dismissed in circumstances.

Khawaja Nawaz Khan for Petitioners.

MLD 2009 PESHAWAR HIGH COURT 455 #

2009 M L D 455

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gillani, JJ

NISAR AHMAD---Petitioner

Versus

CHIEF ELECTION COMMISSIONER OF PAKISTAN, ISLAMABAD and 4 others---Respondents

Writ Petition No.17 of 2008, decided on 14th February, 2008.

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

----S.14---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Entries of bogus votes---Petitioner had challenged the entries of bogus votes in his constituency---Grievance agitated by the petitioner pertained to factual controversy which would require recording of evidence and those persons who had been allegedly entered as voters illegally in the voters list, had not been arrayed in the panel of the respondents---High Court declined to determine in its extraordinary constitutional jurisdiction under Art.199 of the Constitution to probe into the matter and to scan the individual case of each and every voter in the disputed constituency as well as in their native constituency---Petitioner had never raised any objection at the proper time announced by the Chief Election Commissioner and had come to the High Court at a very belated stage, when election was going to be held and election Schedule had been announced---No interference was warranted in the process of election or with respect to de-limitation of constituency or the preparation of the electoral rolls.

Election Commission of .Pakistan through Secretary v. Javaid Hashmi and others PLD 1989 SC 396 rel.

Petitioner in person.

MLD 2009 PESHAWAR HIGH COURT 467 #

2009 M L D 467

[Peshawar]

Before Zia-ud-Din Khattak, J

ZAHIR SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Petition No.1292 of 2008, decided on 21st November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9---Bail, grant of---Further inquiry---Accused was neither the owner of the car which was used to carry narcotics nor he was the driver thereof and he was merely travelling in the car without having the conscious knowledge or physical possession of the narcotics---Person being the driver of a private vehicle, was supposed to be aware of the material recovered from the secret cavities of such vehicle---Driver of a public transport vehicle was not supposed to be responsible for any material in possession of the casual passenger---Person travelling with the driver could not be automatically considered to be privy of the offence of transportation of the narcotics, unless any link or nexus with the vehicle in question or driver or the recovered narcotics was established---person having proved to be the owner of the vehicle and travelling thereon, would certainly be considered equally responsible with the driver thereof because he being the owner was supposed to have the knowledge about the cavities of the vehicle or there could be a possibility of using the driver as a carrier only, whereas the owner' could be the real culprit---Person found on the front seat of the vehicle could not be blindly held responsible for anything in the secret cavities of the vehicle, unless it was established that he was the owner of the vehicle or the narcotics---Car belonged to one who had been dubbed as an accused in the case---Responsibility could be fixed on accused, if any connection between accused or the owner could be established, which had not been done by the Investigating Officer, rendering the case as one of further inquiry---Insufficient material, whereby the connection of accused with the principal accused could not be established, was considered to be a sufficient ground for releasing accused on bail particularly when the recovery was made from the secret cavities of the car---Accused was admitted to bail, in circumstances.

Shaukat Hayat and another v. The State 2008 PCr.LJ 348; Hussain Abid Jafri v. The State 2006 PCr.LJ 58; Gul Rehman v. The State 2006 YLR 207 and Amanat Ali v. The State 2008 SCMR 991 ref.

Noor Alam Khan for Petitioner.

Mr. Ilyas Ahmad Qureshi for State.

Date of hearing: 21st November, 2008.

MLD 2009 PESHAWAR HIGH COURT 484 #

2009 M L D 484

[Peshawar]

Before Muhammad Alam Khan and Said Maroof Khan, JJ

SHAHEEDUR REHMAN---Appellant

Versus

MIRZALI and 2 others---Respondents

Criminal Appeal No. 169 of 2006, decided on 31st October, 2008.

Penal Code (XLV of 1860)---

----Ss.302/324/34---Criminal Procedure Code (V of 1898), S. 417---Appeal against acquittal---Record had revealed that prosecution case was full of material contradictions and inherent defects---Site plan prepared in the case was not in conformity with the version of the complainant---Medical evidence also negated the ocular account of the complainant whose presence at the spot was not proved beyond any shadow of reasonable doubt---Other eye-witness was abandoned by the prosecution which further created a dent in the case, benefit whereof would go in favour of accused---No recovery of vessels containing water and the alleged bullock cart from the spot was made---Prosecution story was further unbelievable on the ground that indiscriminate firing had been attributed to all the three accused at the complainant---One person was killed in the occurrence for which three persons were charged---Empties recovered in the case as per Forensic Science Laboratory report, were fired from one and the same weapon---Solitary statement of the complainant and overall perusal of his cross-examination, was not reliable---All said glaring contradictions and defects in the prosecution case were enough to hold that accused were not guilty of the offence charged with and they were rightly acquitted through the impugned judgment which was based on sound reasons and needed no interference---Once an accused was acquitted of a charge, then he would earn the presumption of double innocence and very strong and exceptional grounds were needed to disturb the findings of acquittal---Impugned conclusion was based on cogent reasons and no illegality was found therein---Appeal was dismissed.

Saleemullah Khan for Appellant.

Date of hearing: 31st October, 2008.

MLD 2009 PESHAWAR HIGH COURT 518 #

2009 M L D 518

[Peshawar]

Before Muhammad Alam Khan, J

FAIZ MUHAMMAD---Petitioner

Versus

ZAIBUL NISA and another---Respondents

Criminal Miscellaneous Bail Petition No. 128 of 2008, decided on 9th October, 2008.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/120-B/148/149---Bail, refusal of---Accused though was not named by the complainant in her first report, but she had categorically charged him in her supplementary statement recorded under S.161, Cr.P.C. for committing murder of her brother---Investigation was conducted in the case and the materials so far brought on record, prima facie, connected accused with the commission of the offence falling within the restrictive clause of S.497, Cr.P.C., which had disentitled accused to the concession of bail---Bail petition was dismissed, in circumstances.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/120-B/148/149--Application for cancellation of bail, refusal of---Accused persons were female who were only charged for instigating co-accused and for abetment in the commission of the offence---Accused being women, had been admitted to bail by the Trial court in view of the amendment in S.497, Cr.P.C. by virtue of S.2 of Code of Criminal Procedure (Second Amendment) Ordinance, 2006---No exception could be taken to impugned order of granting bail to accused persons---Petition for cancellation of bail filed by the complainant was dismissed accordingly.

Muhammad Farid Khan for Petitioner.

Muhammad Ashraf Khan and Sultan Shaheryar Khan for Respondents.

Muhammad Daud Khan for the State.

Date of hearing: 7th October, 2008.

MLD 2009 PESHAWAR HIGH COURT 535 #

2009 M L D 535

[Peshawar]

Before Muhammad Alam Khan, J

Malik MUHAMMAD AFZAL KHAN---Petitioner

Versus

Mir HAWAS KHAN and 8 others---Respondents

Civil Revision No. 307 of 2005, decided on 15th September, 2008.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Superior right of pre-emptor--Making of Talbs----Suit had concurrently been dismissed by the Trial Court and Appellate Court---Validity---Record had indicated that the plaintiff, in order to prove the factum of Talbs, was examined, where he had failed to mention the time when he was informed about the suit transaction and when he declared his intention to pre-empt the suit transaction---Witnesses of Talb-e-Muwathibat and Talb-e-Ishhad also did not disclose the time of making Talb-e-Muwathibat by the plaintiff---Plaintiff though in the plaint as well as in the notice, had mentioned the time of making Talb-e-Muwathibat, but he was negated in that behalf by the informer in his cross-examination---Plaintiff, during the court statement, as well as the informer and the witness of Talb-e-Ishhad who were allegedly present on the spot, had negated the factum of time with respect to alleged performance of Talb-e-Ishhad---Plaintiff, in circumstances, had failed to perform Talb-e-Muwathibat in accordance with law---Halqa Patwari had stated that plaintiff was owner of property which was contiguous only to another Khasra---Both the courts below had rightly come to the conclusion that plaintiff had failed to prove his superior right of pre-emption against defendants and Courts had correctly dismissed the suit---Counsel for the plaintiff had failed to point out any illegality, irregularity, mis-reading, non-reading of evidence or misapplication of law so as to warrant interference in the concurrent judgments and decrees of the courts below, which were accordingly maintained as same were based on established principles of appreciation of evidence.

Khawaja Nawaz Khan for Petitioner.

Saleemullah Khan Ranazai for Respondents.

Date of hearing: 4th July, 2008.

MLD 2009 PESHAWAR HIGH COURT 546 #

2009 M L D 546

[Peshawar]

Before Muhammad Alam Khan, J

MUHAMMAD ARIF and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.127 of 2008, decided on 22nd September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/201/404/427/376/496-A/34---Bail, grant of---Further inquiry---Record had revealed that no direct ocular evidence was available to reasonably connect accused persons with the commission of the offence---Co-accused in his statement recorded under S.161, Cr.P.C. had implicated accused in the occurrence; and likewise accused had charged co-accused in his statement under S.161, Cr.P.C.---Co-accused having been released on bail, rule of consistency demanded that accused be also treated equally---Was yet to be determined at trial when complete evidence would come on record, whether statements made by accused persons against each other, had any evidentiary value---Available facts and circumstances of the case and tentative assessment of material brought on record, prima facie showed that case fell within the ambit of further inquiry entitling accused to the concession of bail---Accused was admitted to bail, in circumstances.

Muhammad Jamil v. Shaukat Ali and another 1996 SCMR 1685 and Mst. Najma Bibi v. The State 200 PCr.LJ 1112 ref.

Gohar Zaman Kundi for Petitioners.

Sanauallah Shamim D.A.G. for the State.

Jehanzeb Ahmad Chaughtai for the Complainant.

Dates of hearing: 19th and 22nd September, 2008.

MLD 2009 PESHAWAR HIGH COURT 558 #

2009 M L D 558

[Peshawar]

Before Muhammad Alam Khan, J

Mst. BIBI AISHA---Petitioner

Versus

ABDUL LATIF and 2 others---Respondents

Civil Revision Petition No.209 of 2004, decided on 27th October, 2008.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Plaintiff claimed that she was entitled to the right of pre-emption on the ground of being a co-sharer, continuity and participator in immunities and appendages with all rights appurtenance sold through registered deed---Trial Court granted decree to the extent of right of pre-emption of the plaintiff in. respect of suit property---Appellate Court also accepted superior right of pre-emption of the plaintiffs, but dismissed suit of plaintiff on the ground that she had not mentioned time and' place as well as the name of informer in her plaint---Suit of pre-emptor was dismissed on the ground of non-fulfilment of demands in accordance with S.13 of North-West Frontier Province Pre-emption Act, 1987---Validity---Record had shown that neither the date, time, place and name of the informer was mentioned in the plaint nor same had been mentioned in notice of Talb-e-Ishhad---Date, time, place and the name of the informer must be mentioned in the plaint and non-mentioning of the same would extinguish the right of pre-emption under S.13 of North-West Frontier Province Pre-emption Act, 1997---Judgment and decree of the Appellate Court was strictly in. accordance with law, and was based on correct appreciation of evidence---No misreading or non-reading of evidence had been pointed out by the plaintiff---Petition was dismissed.

Nadir Khan v. Itebar Khan 2001 SCMR 539 and Muhammad Ilyas v. Ghulam Muhammad and another 1999 SCMR 958 ref.

Khawaja Muhammad Khan for Petitioner.

Muhammad Iqbal Khan Kundi for Respondents.

Date of hearing: 20th October, 2008.

MLD 2009 PESHAWAR HIGH COURT 564 #

2009 M L D 564

[Peshawar]

Before Shahji Rahman Khan and Muhammad Alam Khan, JJ

Dr. ABDUL WAHEED---Petitioner

Versus

JAFFAR ALI and another---Respondents

Writ Petition No.327 of 2006, decided on 27th May, 2008.

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

---Ss. 13(8) & 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment application---Tentative rent order---Striking off defence for non-compliance of tentative rent order---Determination of rent---Rent Controller passed order tentatively assessing the rent of the suit house to be Rs.9,000 and tenant was directed to deposit the same regularly and also arrears in the court---Tenant having failed to comply with the order of Rent Controller to deposit the rent tentatively assessed, Rent Controller struck off the defence of the tenant and passed eviction order against the tenant---Appellate authority below dismissed appeals filed by the tenant against order of the Rent Controller and directed tenant to hand over the vacant possession of the house in question to the landlord; however, on the question of determination of the final rent between the parties matter was remitted to the Rent Controller for doing the needful---Landlord, had assailed said last mentioned order of the Appellate Court in constitutional petition, contending that once the defence of the tenant was struck off, then irrespective of the order under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, the Rent Controller was bound to have decreed all the arrears of rent as claimed in the petition for eviction; and that assessment of final rent between the parties could not be resorted to by the Rent Controller---Rent Controller would pass a tentative rent order regarding the deposit of rent---Under S.13(8) of West Pakistan Urban Rent Restriction Ordinance, 1959, if there was dispute between the parties with respect to the quantum of rent, the Rent Controller would finally determine the rent between the parties and would pay the same to the landlord after the conclusion of the proceedings---Hierarchy of Tribunals created under West Pakistan Urban Rent Restriction Ordinance, 1959 had the jurisdiction to determine the final rent between the parties as the rent was in dispute; and the only course available was to determine the same conclusively between the parties under the provisions of sub-section (8) of S.13 of the Ordinance---Order of Appellate Court impugned in the constitutional petition was based on facts, law and was strictly in accordance with provisions of the Ordinance which was not liable to be interfered with in extraordinary constitutional jurisdiction of the High Court---Constitutional petition was dismissed.

Waheedullah v. Mst. Rehana Nasim and others 2004 SCMR 1568 and Hajvery College through Chief Executive Lahore v. Mst. Masooda Begum 2004 MLD 1661 Lahore ref.

Minhaj-ud-Din Alvi for Petitioner.

S. Mastan Ali Zaidi for Respondent No.1.

MLD 2009 PESHAWAR HIGH COURT 622 #

2009 M L D 622

[Peshawar]

Before Shahji Rahman Khan, J

LAND ACQUISITION COLLECTOR and another---Appellants

Versus

REHMAT GUL and others---Respondents

R.F.A No. 163 of 2008, decided on 24th October, 2008.

Land Acquisition Act (I of 1894)---

----Ss. 4, 6, 9, 12, 18 & 54---Acquisition of land---Enhancement of amount of compensation---Amount of compensation of acquired land as determined by the Collector having been enhanced by the Referee Court, Authority had filed appeal against the enhancement of compensation---Report of the Local Commissioner was in support of the enhancement--Enhancement of compensation of acquired land was unequivocally upheld by the superior courts---Enhancement based upon the judgments of the superior courts, could not be challenged as illegal, and wrong or against the facts and circumstances of the case---Enhancement of the compensation was not based simply on the basis of agreement, which was duly signed by Land Acquisition Collector, but same was based on evidence available on record---Impugned judgment, in circumstances could not be objected to terming same a result of extraneous consideration and not based on the material available on record---Counsel for Authorities having failed to point out any material illegality or irregularity in the impugned judgment which was in consonance with the judgment of the superior courts, appeal against same was dismissed.

Sikandar Rashid for Appellants.

Abdul Kabir Khan for Respondents.

Date of hearing: 24th October, 2008.

MLD 2009 PESHAWAR HIGH COURT 675 #

2009 M L D 675

[Peshawar]

Before Shah Jahan Khan and Shahji Rahman Khan, JJ

DILBAR---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No.247 of 2006, decided on 16th December, 2008.

Penal Code (XLV of 1860)---

----Ss. 302/324/34---Appreciation of evidence---Prosecution witnesses had furnished a material and straightforward account of the occurrence; they clearly mentioned the place wherefrom the deceased was going and was fired at by accused--Such witnesses were subjected to a lengthy searching cross-examination, but their statements were not shattered and nothing was brought to the contrary on record which could reduce the probative worth of their testimony---Absolutely no conflict existed between the account furnished by the prosecution witnesses and the entries made in the site plan---No conflict between the ocular account and the medical evidence as those supplemented each other---Account furnished by the official witnesses also appeared to be natural and straightforward wherein no significant discrepancy was noted---Omission, if any, on the part of the Investigating Agency to examine any person in the matter was not of much. importance when the entire evidence on the record went unshaken---Charge against accused had been proved beyond any reasonable doubt; and accused was rightly convicted by the Trial Court in circumstances---Altercation had taken place on the thoroughfare between accused and the complainant party but the facts on which occurrence had taken place in the manner that both accused aged 68 years and his young son fired at the deceased, were still shrouded in mystery, especially when it was not certain as to whose shot turned effective, and same was a begging question in the circumstances of the case, which could not be answered from the available record---Normal sentence of death, in the circumstances of the case, would certainly be foe harsh---Sentence of death was converted into imprisonment for life, while the amount of compensation and other sentences awarded to accused by the Trial Court were left intact but accused instead was found entitled to the benefits of S.382-B, Cr.P.C.

Muhammad Jamil Khan for Appellant.

Ishtiaq Ibrahim D.A.G. for Respondents.

Date of hearing: 16th December, 2008.

MLD 2009 PESHAWAR HIGH COURT 793 #

2009 M L D 793

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ

AYUB KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No.71 of 2008, decided on 2nd April, 2009.

Penal Code (XLV of 1860)---

----Ss.468/471---West Pakistan Arms Ordinance (XX of 1965), Ss.13/14---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Appreciation of evidence---Terrorism---Scope---Scope of terrorism had been explained in various clauses of S.6 of Anti-Terrorism Act, 1997---Action which created a serious risk to 'safety of public was terrorism under clause (i) of subsection (2) of S.6 of Anti-Terrorism Act, 1997---Transportation of a huge quantity of illicit arms and ammunition, could be, by no stretch of imagination, for any lawful activities, peaceful purpose or welfare of the public---Only conclusion which could be drawn was that such transportation involved serious risk to safety of public which was already under wave of extreme terrorism---Occurrence, in the present case, took place at a place where many disinterested persons were present around who were not cited as witnesses of recovery---People did not co-operate and did not consent to be cited as witnesses of recovery; in terrorism and narcotics cases, because it invited annoyance of people relating to drug mafia and terrorists which they could not afford to face---Police witnesses; in such circumstances, were good witnesses, unless mala fide was established against them---In the present case, statements of police witnesses were neither contradictory nor infirm, nor having any inherent flaw---Statements of prosecution witnesses' relating to recovery in the case, were consistent on material points and intrinsically rang true---Said witnesses were rightly relied upon by the Trial Court---Accused was acquitted for offence under Ss.468/471, P.P.C. and S.14 of West Pakistan Arms Ordinance, 1965, but conviction of accused under S.7(h) Anti-Terrorism Act, 1997 as well as under S.13 of West Pakistan Arms Ordinance, 1965 was maintained.

Muhammad Naeem alias Naeema v. The State 1992 SCMR 1617; Feroz Shah v. The State 2002 PCr.LJ 1470 and Muhammad Hanif v. The State 2003 SCMR 1237 rel.

Saif ur Rehman Khan for Appellant.

Sanaullah Khan Shamim Gandapur, DAG for Respondent.

Date of hearing: 2nd April, 2009.

MLD 2009 PESHAWAR HIGH COURT 807 #

2009 M L D 807

[Peshawar]

Before Ghulam Mahy-ud-Din Malik and Zia-ud-Din Khattak, JJ

Messrs PAK CHINA FERTILIZERS (PVT.) LTD. through General Attorney ---Petitioner

Versus

DISTRICT COORDINATION OFFICER, HARIPUR---Respondent

Writ Petition No.55 of 2009, decided on 5th March, 2009.

Criminal Procedure Code (V of 1898)---

----S.144---Constitution of Pakistan (1973), Art.199---Constitutional petition---Promulgation of order under S.144, Cr.P.C.---Powers of the District Co-ordination Officer to promulgate such order---Petitioner had assailed the order promulgated by District Co-ordination Officer under S.144, Cr.P.C. imposing ban on shifting of machinery from its premises---Validity---Held, it could not be denied that under S.144, Cr.P.C., District Co-ordination Officer had the powers and jurisdiction in an emergency to issue an order to prevent apprehended danger likely to disturb the public peace---District Co-ordination Officer having immediate knowledge of local condition was satisfied that there was an emergency and it was necessary to impose ban on removal of machinery out of the factory premises---If District Co-ordination Officer had erroneously exercised jurisdiction over the subject-matter, it would be a case of merely an illegal order passed in the exercise of jurisdiction and not a case of an order passed without jurisdiction and being voidable order; it was liable to be set aside at the instance of an aggrieved person in appropriate legal proceedings; either by having it rescinded or altered under S.144(4),(5), Cr.P.C. or by filing a revision petition before the Sessions Court under S.439-A, Cr.P.C.---Alleged malice was essentially a question of fact requiring recording of evidence which exercise could not be undertaken in constitutional proceedings---Since factual controversy was involved in the case; and alternate, adequate and efficacious remedy was available to the petitioners for redressal of their grievance, they could not question the validity of order under S.144, Cr.P.C. under Art.199 of the Constitution.

Muhammad Umar Malik for Petitioner.

Abbas Sangeen, D.P.-G. for Respondent.

Date of hearing: 4th March, 2009.

MLD 2009 PESHAWAR HIGH COURT 819 #

2009 M L D 819

[Peshawar]

Before Shahji Rahman Khan and Muhammad Alam Khan, JJ

QAYYUM NAWAZ---Petitioner

Versus

Mst. ZUBAIDA BIBI and 2 others---Respondents

Writ Petition No.119 of 2005, decided on 23rd May, 2008.

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

----Ss.13 & 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment application---Landlady purchased house in question from its original owner-- Existing tenant who remained paying rent of the house to new owner/landlady, thereafter stopped payment of rent---Landlady filed ejectment application against tenant---During pendency of said ejectment application, the petitioner who claimed that he had purchased house in question from its original owner through registered sale-deed, applied for impleading-him as party in the case, which application was accepted---Petitioner was asked to produce his evidence in proof of his claim, he produced some evidence, but he failed to produce remaining evidence, consequently his defence was struck off---Evidence of landlady with regard to default in payment of rent by the tenant having remained unchallenged, both Rent Controller and Appellate Authority below accepted ejectment application and tenant was directed to hand over vacant possession of house to the landlady--Vide impugned order the Rent Controller had ordered ejectment of the tenant and no adverse order was passed against the petitioner despite his failure to produce remaining evidence, with the result that his defence was struck off---Petitioner, who otherwise had filed a civil suit to protect his legal rights, if any, had got no locus standi to file constitutional petition---Constitutional petition was dismissed.

Muhammad Kamran Niazi for Petitioner.

Akbar Ali Khan for Respondent No.1.

Nasrullah Khan Gandapur for Respondent No.2.

Date of hearing: 23rd May, 2008.

MLD 2009 PESHAWAR HIGH COURT 837 #

2009 M L D 837

[Peshawar]

Before Zia-ud-Din Khattak, J

JEHANZEB KHAN---Petitioner

Versus

JAN MUHAMMAD---Respondent

C.R. No. 207 of 2006, decided on 6th Mach, 2009.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss.6, 13 & 24---Civil Procedure Code (V of 1908), S.148---Suit for pre-emption---Failure to deposit 1/3rd amount within fixed time---Plaintiff/pre-emptor having failed to deposit 1/3rd of pre-emption amount within time fixed in that respect, Trial Court dismissed suit on ground of default in depositing the pre-emption amount within the stipulated period---Appellate Court, on appeal, extended time for deposit of pre-emption amount and remanded case to the Trial Court for decision on merits---Validity---Appellate Court could not have legally extended the time in view of subsection (2) of S.24 of North-West Frontier Province Pre-emption Act, 1987 which had made obligatory for the courts to dismiss the suit on the failure of the pre-emptor to deposit 1/3rd of the sale price within the period fixed by the court---Pre-emption right, being a feeble right, pre-emptor-seeking to exercise such right was bound to perform and fulfil its requirements meticulously and any failure in that behalf would deprive him of success in getting a pre-emption decree---North-West Frontier Province Pre-emption Act, 1987 was a special law, which, by itself, had provided procedure for certain matter, whereas Civil Procedure Code, 1908 had provided procedure for adjudication of civil dispute generally---Special law would prevail upon general law---Plaintiff, in circumstances, could not be allowed to take refuge under the provisions of S.148, C.P.C.---Impugned judgment passed by the Appellate Court below was set aside and that of the Trial Court was restored.

Sajjad Hussain Shah for Petitioner.

Ahmad Farooq Khan for Respondent.

Date of hearing: 2nd March, 2009.

MLD 2009 PESHAWAR HIGH COURT 860 #

2009 M L D 860

[Peshawar]

Before Shahji Rahman Khan and Jahanzaib Rahim, JJ

AMIR KHAN AFRIDI and 6 others---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Collector Land Acquisition and 4 others---Respondents

Writ Petition No.634 of 2007, decided on 2nd February, 2009.

Land Acquisition Act (I of 1894)---

----Ss.4, 11, 12 & 18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Acquisition of land---Determination of amount of compensation---Enhancement of compensation---Entitlement to such enhancement to affectee landowners who had' not filed any objection against rate of compensation---Land of the petitioners was acquired compulsorily and the rate of compensation under award given by the Collector subsequently stood enhanced by the Referee Court under S.18 of the Land Acquisition Act, 1894---Petitioner had not filed any objection against the rate of compensation as determined by the Collector before Referee Court, while other affectee land owners had filed objection against the rate of compensation fixed in the award which was enhanced by the Referee Court---Affectee land owners who had not filed objections/appeals against the rate of compensation fixed in the award, would be entitled for the enhanced rate of compensation allowed by the Referee Court on the reference of other affectee land owners---Authorities in circumstances were directed to make payment of the compensation at the enhanced rate to the petitioner, as determined by the Referee Court or by other superior court on the objection/appeal of other affectee land owners of the same award in respect of their land, if having equal character and the same potential value subject to their entry in the revenue record.

1998 SCMR 2197 and 1999 SCMR 2009 ref.

Imtiaz Ali for Petitioner.

Sikandar Rashid for Respondent.

Date of hearing: 2nd February, 2009.

MLD 2009 PESHAWAR HIGH COURT 970 #

2009 M L D 970

[Peshawar]

Before Muhammad Alam Khan, J

Dr. MUHAMMAD ALI ---Petitioner

Versus

Mst. FAKHR-UN-NISA---Respondent

C.R. No.371 of 2007, decided on 17th November, 2008.

Specific Relief Act (I of 1877)---

----Ss.12, 42 & 55---Suit for declaration, permanent mandatory injunction and specific performance of contract---Trial Court granted decree for specific performance of contract incorporated in Kabin Nama and decreed for recovery of amount as price/market value of plot in question in favour of plaintiff---Appellate Court having maintained the judgment and decree passed by the Trial Court, defendant had filed revision petition against concurrent judgments and decrees of the courts below---On the eve of marriage a deed in the shape of agreement was executed between the parties wherein it was agreed that the defendant/husband would provide a plot to plaintiff/wife for construction of a house---Witness produced by the plaintiff who was the scribe of agreement in question, testified contents of said deed---Said witness was subjected to a very lengthy cross-examination, but nothing adverse had been squeezed out from the, mouth of said witness to shatter his veracity---Patwari Halqa who appeared as witness had produced the chart of mutation, which had shown the average price of plot in question---Plaintiff and her father corroborated the allegations contained in the plaint---All witnesses were subjected to the cross-examination, but nothing adverse was squeezed out from their mouth to shatter the case of plaintiff---Defendant who appeared as his sole witness had admitted his signatures on said Kabin Nama---Plaintiff had proved her case by producing cogent and convincing evidence, which could not be shattered in cross-examination by the defendant---Two courts below had recorded concurrent findings of facts to which no exception could be taken---No misreading or non-reading of evidence had been pointed out by the counsel for the defendant---Lis having been decided in accordance with established principles of appreciation of evidence, concurrent findings of facts could not be set at naught.

Abdur Rahim and another v. Mst. Jantay Bibi and others 2000 SCMR 346; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rasheed Ahmad v. Muhammad Siddique PLD 2002 SC 293 ref.

Rustam Khan Kundi for Petitioner.

S. Mastan Ali Zaidi for Respondent on pre-admission notice.

MLD 2009 PESHAWAR HIGH COURT 1005 #

2009 M L D 1005

[Peshawar]

Before Muhammad Alam Khan, J

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman WAPDA, Lahore and 4 others-Appellants

Versus

GHULAM SABIR and 10 others---Respondents

Regular First Appeal No.24 of 2007, decided on 1st December, 2008.

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

----Ss. 4, 18 & 28---Acquisition of land---Determination of compensation---Entitlement to 8% compound interest---Referee Court had enhanced the compensation and ordered that landowners whose land was acquired would be entitled to 8% compound interest from the date of taking over possession of acquired land till the payment of entire awarded compensation in view of S.28 of Land Acquisition Act, 1894---Referee Court was oblivious of the situation that S.28 of the Land Acquisition Act, 1894 had been amended vide N.-W.F.P. Ordinance No.V of 1983 and 8% compound interest per annum already permissible on the total awarded compensation was reduced to 6% simple interest---Judgment and decree of the Referee Court was liable to be modified accordingly.

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

----Ss.4 & 23---Pakistan Water and Power Development Act (XXXI of 1958), S.13---Acquisition of land---Determination of compensation---Award of 25% of compulsory acquisition charges by the Referee Court was erroneous under S.23 of Land Acquisition Act, 1894; under S. 23(2) if the acquisition of land was for a public purpose, their landowners were entitled to the compulsory acquisition charges at the rate of 15%, but if the acquisition was for a company, then besides compensation, the landowners would be entitled to 25% compulsory acquisition charges---Perusal of record had revealed that the acquisition of land in the case was for a public purpose---WAPDA, though was a company in view of WAPDA Act, 1958, but S.13 of the said Act had provided that land acquired by the authorities would be deemed to be an acquisition for a public purpose within the meaning of Land Acquisition Act, 1894---Despite the fact that acquiring department in the case was a company but acquisition was for public purpose---Acquiring authorities, in circumstances, were not obliged to pay 25%, rather the landowners were entitled to 15% compulsory acquisition charges---Judgment and decree of the Referee Court was liable to be modified to that extent.

Muhammad Salim Khan and another v. WAPDA 2000 YLR 2306 and Haji Fateh Khan and others v. Govt. of Pakistan PLD 1997 Pesh. 24 ref.

----Ss.4, 11, 18, 23 & 54---Acquisition of land---Determination of compensation---Points to be considered---Reference to Referee Court--Land Acquisition Collector in the impugned Award had awarded meagre compensation to the landowners without taking into consideration the location of the land, its high potential value and the future prospects of the same-Referee Court had taken into consideration the facts enumerated in S.23 of Land Acquisition Act, 1894---Land in question was adjacent to Indus Highway---Potential value of the acquired land had further been increased due to the construction of Flood Carrier Drain---Award in the case was announced after about 10 years after issuance of notification under S.4 of Land Acquisition Act, 1894 and there was upward trend in the prices of acquired land---Land in question was highly potential in value and the compensation fixed by Referee Court was perfectly in accord with the established principles of law enunciated by the apex court, which was not liable to be interfered with---Judgment of the Referee Court with respect to the quantum of compensation was maintained---Appeal was partly accepted and the judgment and decree of the Referee Court was modified to the extent that the compulsory acquisition charges of 25% were reduced to 15%, while the compound interest of 8% was reduced to 6% simple interest---Rest of the judgment and decree of the Referee Court was maintained.

Province of Punjab Collector Attock, v. Engineer Jamil Ahmad Malik and others 2000 SCMR 870 and N.-W.F.P. Collector Abbottabad Land Acquisition and others v. Haji Ali Asghar Khan and others 1985 SCMR 767 ref.

Minhaj ud Din Alvi for Appellants.

Abdul Qayyum Qureshi for Respondents.

2009 M L D 1096

[Peshawar]

Before Muhammad Alam Khan Syed Yahya Zahid Gilani, JJ

RAEEP KHAN---Appellant

Versus

THE STATE---Respondent

Criminal J.A. No.2 of 2006, decided on 21st April, 2009.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Deceased while in an injured condition, had herself lodged the report. in the emergency room of Civil Hospital where she had directly charged accused for attempting at her life with kalashnikov---Record proved that victim was in full senses at the time of lodging the report, whereafter she died in the Hospital---No question was put to prosecution witness who was mother-in-law of deceased and wife of accused that in fact deceased was done to death by her husband and in order to save the skin of her son, mother-in-law of deceased had put the blame on accused---No apparent twist or bend or doubt was found in the story narrated by the complainant who had directly and singularly charged accused for effectively firing and attempting on her life, which in all probabilities was nothing, but a dying declaration from her mouth---Her assertion was further supported by mother-in-law who appeared as witness, without any contradiction by charging her own husband with no concession at all---No strong reason was available to falsely implicate accused in the case---Ocular testimony was confidence inspiring and unimpeachable and was corroborated by the medical evidence---Absence or weakness of motive, could not make the prosecution case false or doubtful, in presence of strong, reliable and confidence inspiring evidence on record---No material inconsistencies were coming into conflict with the material probabilities militating against the credibility of witnesses justifying rejection of their testimony, had been pinpointed by the counsel for accused---Motive which otherwise was a double edged weapon, was always the state of mind of accused, which could not be proved by ocular testimony---Report of Ballistic Expert, revealed that eleven crime empties recovered from the spot were not matching with the weapon of offence, but it would not react upon the case of the prosecution, because being arrested after two days of the incident, had ample opportunity to substitute the weapon of offence with another one---Prosecution having successfully proved its case against accused, Trial Court had rightly appraised the evidence on record by drawing impugned conclusion, which could not be interfered with by High Court.

Haroon Rasheed and 6 others v. The State and another 2005 SCMR 1568 ref.

Malik Ehsan ul Haq and M. Ayaz for Appellants.

Saleemulah Khali Ranazai for the State.

Zewron father of the deceased in Person.

Date of hearing: 21st April, 2009.

MLD 2009 PESHAWAR HIGH COURT 1113 #

2009 M L D 1113

[Peshawar]

Before Syed Yahya Zahid Gilani, J

MUHAMMAD RAZIQ KHAN and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.1 of 2009, decided on 8th May, 2009.

(a) Criminal trial---

----Counter version---Counter version of accused in criminal case, could be taken into account when it was proved---Mere allegations in the statement of accused or suggestion to prosecution witnesses could not be sufficient to prove the cross version---If authentic documentary evidence was available about the counter version, but it was withheld, neither produced nor proved, it would reflect on weakness of the cross version---In absence of proved documentary evidence, the alleged counter version, could not be studied in juxtaposition with the facts and circumstances of the case for drawing apt and appropriate conclusion.

Allah Dad v. The State 2005 PCr.LJ 1405 ref.

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

----Ss.324/337-D/34---Appreciation of evidence---Counsel for accused had argued that it was a case of two versions---Since the counter version of cross-case as alleged by accused could not be proved according to law, it could neither shatter nor discard the prosecution case---Complainant was the solitary, but injured witness of the case, who had no previous blood feud or other-serious enmity with accused party to falsely drag accused persons in the case to substitute for some other real culprit---Immediate motive for assault, that a few days ago the complainant had grappled and exchanged abuses with accused, was convincing---Complainant had also stated that both accused persons used kalashinkovs to fire at him---Said part of his statement was corroborated by recovery of five empties and two bullets from the spot which were identified and confirmed by Forensic Science Laboratory report---Omission of Investigating Officer to indicate the relevant points in the site plan which were described by the complainant and duly recorded at the back of site plan, should not harm the case of complainant who had faced attempt at his life---Abscondence of one of accused persons further augmented case against him---Statement of injured witness, based on a promptly lodged F.I.R. about day light occurrence, duly supported by circumstances and medical evidence, had sufficiently proved the prosecution case beyond doubt---Parties were known to each other and no question was of misidentification or substitution of the real culprits---Trial Court, in circumstances, had rightly convicted both accused and the sentence was also appropriate, which was upheld.

Allah Dad v. The State 2005 PCr.LJ 1405 and Muhammad Akram alias Laloo v. The State 2008 PCr.LJ 1569 ref.

----'Abdomen' and `Trunk', defined and explained.

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

---Arts.132 & 133---Criminal trial---Appreciation of evidence---Failure of defence to cross-examine witnesses---When defence would fail to cross-examine the witnesses on a specific portion of the statements of witnesses in examination-in-chief, such unchallenged statement would be deemed to have been admitted by the defence.

Sheraz Tufail v. The State 2007 SCMR 518; Bagu v. The State PLD 1972 SC 77 and Arif v. The State PLD 2006 Pesh. 5 ref.

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

---Ss. 324/337-D/34---Appreciation of evidence----Medical report---Error in timing mentioned in the medico legal report---Prosecution had to appropriately clarify the error in timings mentioned in medico legal report, but if the complainant's counsel and the prosecution did not pay attention in that direction, the Presiding Officer of the court could not be free from the responsibility to ensure that all proper and necessary steps were carried out to unveil the truth.

Shah Hussain Khan for Appellants.

Yousaf Haroon Khan for the State

Sultan Shahryar Khan Marwat for the Complainant.

Date of hearing: 4th May, 2009.

MLD 2009 PESHAWAR HIGH COURT 1127 #

2009 M L D 1127

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ

SALEEM JAN alias SALMAN KHAN---Petitioner

Versus

ABDUL MANAN and 2 others---Respondents

Writ Petition No.314 of 2006, decided on 31st March, 2009.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss.6 & 13---Civil Procedure Code (V of 1908), O.XVIII, R.17--Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for pre-emption---Calling witnesses for cross-examination---Trial Court dismissed suit, but Appellate Court below set aside judgment of the Trial Court and remanded case to the Trial Court with direction to frame issues with respect of the superior right of pre-emption and market value of the suit property and to decide the lis afresh in accordance with law---On remand, after framing the necessary issues the plaintiff, who relied on 'the evidence already recorded, produced only two witnesses and closed his evidence---Application filed by defendant for issuance of direction to the plaintiff to produce and tender the witnesses for cross-examination, was dismissed by the Trial Court---On filing revision against the judgment of the Trial Court, Appellate Court directed Civil Judge to call those witnesses for cross-examination---Said last order had been impugned by the plaintiff in constitutional petition contending that there was no provision of law for calling witnesses for cross-examination---Validity---Provisions of O.XVIII, R.17, C.P.C. were crystal clear that the court could, at any time, call any witness for examination or cross-examination, even if earlier examined---Plaintiff was well within his right to rely on the evidence already recorded, but could not refuse to tender his witnesses for cross-examination of defendant as new situation had emerged and defendant had a vested right to cross-examine the witnesses---Appellate Court below had passed order in revision strictly in accordance with law, justice and equity which could not be interfered with by High, Court in exercise of its extraordinary constitutional jurisdiction under Art.199 of the Constitution.

Messrs Ilyas Marine and Associates Limited v. Muhammad Amin Lasania and another 1997 CLC 763; Rahmat Jan v. Gul-e-Nargis and 6 others PLD 1989 Lah. 506 and Nazir Hussain v. Abdul Manan through legal heirs 1998 MLD 678 ref.

Shaukat Hayat Khan Khakwani for Appellant.

Nemo for Respondent.

Date of hearing: 31st March, 2009.

MLD 2009 PESHAWAR HIGH COURT 1180 #

2009 M L D 1180

[Peshawar]

Before Muhammad Alam Khan and Syed Zahid Yahya Gilani, JJ

MIR WAL---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.12 of 2006, decided on 28th April, 2009.

Penal Code (XLV of 1860)---

---S.302(b)---Appreciation of evidence---Deceased in his dying declaration had singly charged accused for effectively firing at him---Nothing was available on record to show that the dying statement of deceased was prompted from outside; and being a daylight occurrence, the identity of accused could not be doubted---Dying declaration of the deceased was recorded after fulfilling the pre-requisite and being free from any suspicion, it rang true---Dying statement of the deceased, (then injured) was fully supported by prosecution witness, who was the solitary and star eye-witness of the prosecution---Testimony of said witness was free from doubt; in promptly lodged report, the trustworthy testimony of such a witness could not be brushed aside whose name was also mentioned in the medico legal report---Said witness was put to a lengthy cross-examination by the defence, but nothing could be impeached to create a dent in the prosecution case---Motive part of the incident was proved to the hilt---However, mere absence or weakness of motive was not sine qua non for proving the offence and was not necessary ingredient to doubt the otherwise proved case of the prosecution---Deposition of defence witness was not trustworthy and confidence inspiring---Conduct of accused was a strong corroborative piece of evidence towards his guilt in the crime as he had not only remained fugitive from law after commission of offence, but had also slipped away from the judicial custody---Case was that of a single accused where substitution was a rare phenomenon---Prosecution had been successfully able to prove its case against accused and the Trial Court had rightly appraised the evidence brought on record and correctly drawn the impugned conclusion by holding accused guilty of offence charged with---No legal infirmity was in the impugned judgment of the Trial Court so as to call for interference therein, which was accordingly upheld---Since the motive alleged by the deceased in his dying statement was not proved by the prosecution, it was a mitigating circumstance---Punishment awarded to accused, would meet the ends of justice.

Noor Muhammad v. The State and another 2005 SCMR 1958 ref.

Sultan Shahayar Khan Marwat for Appellant.

Farooq Akhtar and Faridullah Khan for the Complainant.

Date of hearing: 23rd April, 2009.

MLD 2009 PESHAWAR HIGH COURT 1211 #

2009 M L D 1211

[Peshawar]

Before Hamid Farooq Durrani and Syed Musadiq Hussain Gilani, JJ

SAJJAD ALI SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal' No.829 of 2007, decided 22nd May, 2009.

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

----S.9(c)---Appreciation of evidence---Sentence, reduction in---Accused was arrested red-handed while carrying 6 Kgs. of heroin' on bicycle---Statement of 'accused under S.340(2), Cr.P.C. that he had been falsely implicated in the case, was shattered in the cross-examination---Statements made by two witnesses produced by accused were also not inspiring confidence and were not sufficient to rebut the evidence of the prosecution---Plantation of heroin worth lacs of rupees on accused, was not believable and accused had introduced that story just to save his skin---Officials of Anti-Narcotic Force had no mala fide against accused for his false implication and their statements regarding recovery were consistent---Investigating Officer, under the law was not required to disclose the name of informer---Non-preparation of site plan was also not fatal---Heroin exhibited in the court was in granule powder form, regarding which report was in positive---Exact weight of heroin was not established, because it was weighed along with the wrappers and bags---Conviction of accused, in circumstances was recorded in accordance with law, after proper appraisal of evidence, which was maintained being unexceptional---Accused being a first offender, in the interest of justice, his sentence of imprisonment was reduced from twelve years' R.I. to eight years' R.I. and fine of rupees two lac to rupees one lacs.

2004 YLR 1051; 1997 SCMR 1494; 1995 SCMR 1345 and 2005 SCMR 859 ref.

Noor Alam Khan for Appellant.

Tariq Khan for the State.

Date of hearing: 22nd May, 2009.

MLD 2009 PESHAWAR HIGH COURT 1272 #

2009 M L D 1272

[Peshawar]

Before Syed Yahya Zahid Gilani, J

HABIBULLAH alias MALKU and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petitions Nos. 159 & 193 of 2009, decided on 19th June, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.419/420/368/387/120-B---Bail, refusal of---Accused persons had offered to make judicial confession which had been duly recorded and placed on file---Amount grabbed as ransom was Rs.6,00,000 out of which Rs.4,50,000 had been recovered on the pointation of accused---Accused, in circumstances, was well-connected with the crime on the basis of the collected evidence---Counsel for accused persons had emphatically stressed that offences against them were not hit by the prohibitory clause of S.497, Cr.P.C., but his argument was resultantly opposed by the opposite panel of the lawyers on the ground that even in said cases, the grant of bail was not a vested right---Bail application was dismissed in circumstances.

Muhammad Waheed Anjum for Petitioners.

Fazal-ur-Rehman Baloch for the State.

Saleemullah Khan Ranazai for the Complainant.

Date of hearing: 19th June, 2009.

MLD 2009 PESHAWAR HIGH COURT 1396 #

2009 M L D 1396

[Peshawar]

Before Ejaz Afzal Khan and Jehan Zaib Rahim, JJ

Major General (Retd.) FAZLE GHAFOOR---Appellant

Versus

TOTAL PARCO PAKISTAN LTD. and another---Respondents

F.A.O. No.23 of 2008, decided on 2nd July, 2009.

Arbitration Act (X of 1940)---

----Ss. 2(c), 17, 31, 34.& 39---Civil Procedure Code (V of 1908), O.VII, R.10---Arbitration agreement---Return of plaint---Territorial jurisdiction of Trial Court---Scope---Appellant had assailed order of Trial Court, whereby it returned his plaint for presentation in the proper forum---Relevant paragraph of agreement dealing with arbitration would reveal that it simply stipulated about the arbitration, place thereof and the application of provision of the Arbitration Act, 1940---Said clause despite stipulating that arbitration would be held at place L', did not stipulate the ousting of jurisdiction of the civil court at placeP'---Even S.2(c) of Arbitration Act, 1940 did not come in the way of the civil court at place P'---What it required and laid stress on was that the court must be a civil court and it must have jurisdiction to entertain a suit vis-a-vis the dispute referred to arbitration---Civil court at placeP' under no canons of interpretation would be shorn of jurisdiction, where the subject matter of dispute was situated and cause of action had arisen within its territorial jurisdiction---Section 31 of Arbitration Act, 1940, too, would not come in the way of the civil court, when all the questions enumerated therein could be decided by the said 'court---Respondents could well move an application for the stay of proceedings under S.34 of Arbitration Act, 1940 in case they felt that appellant had not done something good by leaping over the arbitration clause and there was hardly any occasion to ask for the return of plaint in the case---Allowing appeal, impugned order was set aside and case was sent back to the Trial Court for decision afresh in accordance with law.

Uzin Export Import Foreign Trade Co. v. Macdonald Layton and Co. Ltd., Karachi and another 1996 SCMR 690 and Messrs Eckhardt and Co., Marine GmbH v. Muhammad Hanif PLD 1993 SC 42 ref.

Jehanzab Khan Mohdzai for Appellant.

Shamail Ahmad Butt for Respondents.

Dates of hearing: 30th June, 1st and 2nd July, 2009.

MLD 2009 PESHAWAR HIGH COURT 1418 #

2009 M L D 1418

[Peshawar]

Before Ejaz Afzal Khan and Shahji Rehman Khan, JJ

GOVERNMENT OF N.-W.F.P.---Appellant

Versus

SHAHIN SHAH and others---Respondents

R.F.A. No.94 of 2007, decided on 24th June, 2009.

Arbitration Act (X of 1940)---

----Ss.17 & 39---Making award rule of the court---Scope---Appellant had challenged the judgment and decree whereby award was made rule of the court---Trial Court felt free to make award as rule of the court, in the case, the moment it found that the objection thereagainst had not been filed within the period of limitation---Court did not bother to cast even a. passing glance at the award before proceeding to make it rule of the court---Court seized of a proceeding for making award, as rule of the court, was not supposed to sit in judgment over it as a court of appeal---Court was also not required to make reappraisal of evidence recorded by the Arbitrator to discover any error or infirmity in the award, but it would not mean that it was to ditto or rubber stamp the award mechanically without much questioning about it---Legislature, did not envision the intervention of the court just for hack of it, it was rather purposive, meaningful and goal oriented---Jurisdiction of Court being supervisory was meant to check the excesses and over-doings in the conduct of Arbitrator in the arbitration proceedings---Role of court, was that of active dissenter rather than passive consenter---Trial Court, in the present case, considered itself just a plant meant for manufacturing the goods known as rule of the court on receipt of some raw material in the form of award---No part of its judgment reflected due or conscious application of mind---Judgment passed by the Trial Court, in circumstances, could not be maintained under any canons of law and propriety---Court was required to look at the award with a pronounced leaning towards upholding rather than vitiating it, but when the Trial Court did not care even to touch it before making it rule of the court, remand of the case would be imperative---Impugned judgment and decree of the court below were set aside and the case was sent back to the Trial Court for decision afresh in accordance with law after hearing the parties.

Pakistan through General Manger, Pakistan Railways v. Messrs Q.M.R. Expert Consultants PLD 1990 SC 800; Messrs Millat Tractors Ltd. v. Messrs Millat Tractor House, A Partnership Firm, Registered under the Partnership Act Kutchery Road, Sargodha through Malik Muhammad Aslam, Managing Partner 1999 YLR Lah. 295; Messrs Abdullah Traders through Partner Mukhtar Ahmad v. Trading Corporation of Pakistan Ltd. through Chairman, Attorney, Principal Officer and 2 others 1999 CLC Kar. 2047; Mian Corporation through Managing Partner v. Messrs Lever Brothers of Pakistan Ltd. through General Sales Manager, Karachi PLD 2006 SC 169; Sezai Turkes Feyzi Akkays Construction Company v. Board of Trustees of Karachi Port Trust, Karachi 2007 CLC Kar. 879; Sheikh Mahboob Alam v. Sheikh Mumtaz Ahmad PLD 1956 (W.P.) Lah. 276; Ashfaq Ali Qureshi v. Municipal Corporation Multan and another 1984 SCMR 597 and Messrs Awan Industries Ltd. v. The Executive Engineer, Lined Channel Division and another 1992 SCMR 65 ref.

Zahid Yousaf Qureshi D.A.G. for Appellant.

Qazi Jawad Ihsanullah Qureshi for Respondent No.1, 2 and Nazir Ullah Qazi for Bank of Khyber.

MLD 2009 PESHAWAR HIGH COURT 1448 #

2009 M L D 1448

[Peshawar]

Before Dost Muhammad Khan, J

SAIR AJAB KHAN---Petitioner

Versus

ZAR WALI SHAH and others---Respondents

Civil Revisions Nos.1257 and 1286 of 2006, decided on 18th September, 2009.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss.6 & 13---Suit for pre-emption---Making of Talbs---Plaintiff having not uttered a single word about the making of Talb-i-Muwathibat (First Talb), notices of Talb-i-Ishhad which was confirmation of the first Talb, would hardly fulfil the mandatory requirements of S.13 of North-West Frontier Province Pre-emption Act, 1987---Non performance of the first talb or not deposing at the trial to that effect was substantially fatal to the case of the plaintiff and no other evidence could repair the fatal damage caused to the case by the plaintiff himself---Many inconsistencies, infirmities and contradictions were found in the evidence, however, that did not require any further discussion because non-performance of the first talb was sufficient to dismiss the suit of the plaintiff---Both courts below had elaborately discussed that aspect of the case along with other infirmities in the evidence of the plaintiff (grave in nature) and after fair and proper appraisal of the evidence recorded concurrent findings on the question of fact, which was not open to interference in limited revisional jurisdiction of High Court---Petition was dismissed.

Kanwal Nain's case PLD 1983 SC 53 rel.

(b) Pleadings---

----Pleadings were never held to be a substitute for legal evidence, which was ordinarily led at the trial.

Mazullah Barkandi for Petitioner.

Muhammad Qasim Khan Khattak for Respondents.

Date of hearing: 18th September, 2009.

MLD 2009 PESHAWAR HIGH COURT 1470 #

2009 M L D 1470

[Peshawar]

Before Shah Jehan Khan Yousafzai, J

KAMAL SHAH---Petitioner

Versus

Mst. ZOBIADA BEGUM---Respondent

Civil Revision No. 95 of 2007, decided on 3rd July, 2009.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Suit for declaration and permanent injunction---Claim of the plaintiff was that suit property was owned by her and that mutation of suit property attested in favour of predecessor of the defendants and the inheritance mutation attested in favour of said predecessor of defendants, were wrong, based on fraud, collusion and ineffective upon her---Plaintiff also prayed for permanent injunction against defendants not to deny her title and to interfere in her possession---Plaintiff claimed that she was in possession of suit land as co-sharer and received its usufruct regularly without any hindrance---Claim of defendants was that land in dispute was purchased by them for a sale consideration---Suit was concurrently decreed by the Trial Court and Appellate Court and defendants had filed revision petition---Original record of alleged sale mutation was requisitioned but same could not be produced by Revenue Department contending that said record was not available at Tehsil Kanungo---Original record of disputed sale mutation was found not traceable in the District Kanungo or Tehsil Kanungo---Defendants being the beneficiaries of the untraced sale mutation, it was their duty to prove the genuineness of said document, whereby the plaintiff/the original owner was deprived of her title, but defendants failed to do so---Plaintiff undisputedly was recorded owner of disputed property and had fully proved her title and possession in respect of suit property by producing oral and documentary evidence---When the original record of impugned sale mutation was found not available and none of the signatories of the identifier or marginal witnesses, was produced by the defendants, suit was rightly decreed in favour of the plaintiff who fully proved her title and possession in respect of suit property---In absence of any illegality or irregularity in the impugned judgments and decrees of the two courts below, same could not be interfered with in revision.

1995 CLC 1541; PLD 2003 Pesh. 40; PLD 2003 Kar. 156; PLD 1994 Kar. 348; 1995 CLC 1061; PLD 1985 SC 405; 1988 CLC 1414; PLD 1989 FSC 80; 1996 SCMR 1386; 2002 CLC 88; PLD 1984 Pesh. 11; PLD 1975 Lah. 1349; 1996 SCMR 78; 1999 MLD 1386; 1980 CLC 1602; PLD 2003 SC 849; 1994 SCMR 1454; 1995 MLD 1165; 1989 CLC 418; 1990 MLD 89 and 1990 ALD 611 ref.

Gul (sic) for Appellaht.

Altaf Ahmed for Respondent.

Date of hearing: 3rd July, 2009.

MLD 2009 PESHAWAR HIGH COURT 1482 #

2009 M L D 1482

[Peshawar]

Before Ejaz Afzal Khan, J

RIZWAN ULLAH and 2 others---Petitioners

Versus

SECRETARY HOME AND TRIBAL AFFAIRS GOVT. OF N.-W.F.P. PESHAWAR and 3 others---Respondents

Writ Petition No. 2016 of 2009, decided on 26th August, 2009.

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S.3---Constitution of Pakistan (1973), Art. 199-Constitutional petition---Preventive detention---Petitioners had questioned the order of their preventive detention contending that they had never been involved in any activity as could prejudicial to the public safety or the maintenance of public order in the District---Nothing had been brought on the record to show that petitioners ever indulged in any activity, which could be prejudicial to the public safety and the maintenance of public order in the District concerned---Allegation that petitioners had been involved in a good number of cases in Swat, remained unsubstantiated as nothing had been brought on the record in that behalf---Havoc to the peace of area was anticipated on account of visits of militants to their house, but who witnessed those visits and how would they work havoc to the peace of area, was yet another allegation which also remained unsubstantiated---Petitioners were sons of Sofi Muhammad, who had been a source of strife and insurgency in Swat, but that alone could not justify their preventive detention on the analogy of S.21 of Frontier Crimes Regulation, 1901, which was not applicable in the area---When no material much less satisfactory had been brought (In the record to show that the petitioners were acting in a manner prejudicial to public safety and the maintenance of public order---Petitioners were directed to be released.

Mahmood Atlas Khan for Petitioners.

Fazal Rehman Khan, A.A.-G. along with Liaqat Ali S.O. Litigation L.R.I. for Respondents.

Date of hearing: 26th August, 2009.

Syed Ayaz Zahoor for Appellants (in Criminal Appeal No.64 of 2002).

Raja Aamir Abbas for the State (in Criminal Appeal No.64 of 2002).

Kamran Murtaza for the Complainant (in Criminal Appeal No.64 of 2002).

Ch. Rafiq Ahmed for Appellants (in Criminal Jail (ATA) Appeal No.92 of 2002).

Salahuddin Mengal, A.-G. for the State (in Criminal Jail (ATA) Appeal No.92 of 2002).

Arshad Mehmood for Appellants (in Criminal Jail (ATA) Appeal No.106 of 2002).

Muhammad Raza Changezi, Superintendent Central Jail Mach for the State (in Criminal Jail (ATA) Appeal No.106 of 2002).

Dates of hearing: 31st October, 11th and 28th November, 2002