MLD 2010 Judgments - Pakistan Legal Archive

Courts in this Volume

Karachi High Court Sindh
Lahore High Court Lahore
Peshawar High Court
Quetta High Court Balochistan
Supreme Appelate Court Gilgit
Supreme Court Azad Kashmir

Karachi High Court Sindh

MLD 2010 KARACHI HIGH COURT SINDH 8 #

2010 M L D 8

[Karachi]

Before Abdul Rasheed Kalwar, J

YOUNIS alias JHOONO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-259 of 2009, decided on 27th October, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9---Bail, grant of---Accused was apprehended with 10 pieces of charas total 1000 grams, whereas only ode piece of 100 grams was sent for chemical examination---Was yet to be seen as to whether remaining 9 pieces of charas weighing 900 grams was charas or not---No doubt 1000 grams of charas would bring the case of accused within the definition of S.9(b) of Control of Narcotic Substances Act, 1997, but it was simply a fraction of weight above the limits keeping the offence within the ambit of S.9(a) of the Act which was punishable with 2 years imprisonment and fine---When the offence did not fall within prohibition contained under S.497, Cr.P.C., then grant of bail was a rule and refusal was an exception---No exceptional circumstances disentitling accused for grant of bail, having been pointed out, bail was granted to accused.

Muhammad Sharif Sail for Applicant.

Mukhtar Ahmed Khanzada for the State.

MLD 2010 KARACHI HIGH COURT SINDH 14 #

2010 M L D 14

[Karachi]

Before Mrs. Yasmin Abbasey and Muhammad Ismail Bhutto, JJ

Moulvi SHAHZADO DREHO---Petitioner

Versus

DISTRICT NAZIM, SUKKUR and others---Respondents

Constitutional Petition No.D-820 of 2006, decided on 21st April, 2009.

Constitution of Pakistan (1973)---

----Art.199---Civil Procedure Code (V of 1908), O.I, R.10---Constitutional petition---Construction of highrise buildings and bungalows illegally without proper approval of plan from competent authority---Application for impleading as intervener---Grievance of petitioner, who claimed to be a social worker, was that Taluka Council was allowing construction of highrise buildings and bungalows in the city illegally without any proper approval of plans from the competent authority---Construction particularly being raised by respondent had been challenged by the petitioner--Application under O.I, R.10, C.P.C. was moved by a person as intervener claiming himself to be owner of property which was subject-matter of the constitutional petition, alleging that respondent in collusion with Revenue Authorities and Taluka Municipal Administration fraudulently got it transferred in his name and was extorting money by holding premises being constructed by them---Even if, it was assumed that intervener's case had some strength therein, then also extraordinary jurisdiction of High Court under Art.199 of the Constitution could be invoked only to meet extraordinary situation---Factual controversy with alleged mala fides on part of respondent and Revenue Authorities and Taluka Municipal Administration, could not be investigated and undertaken by High Court in exercise of its constitutional jurisdiction---When petitioner found himself on weaker side, he appeared to have set up intervener with ulterior purpose to keep litigation alive, otherwise if intervener would have any interest in the property, no reason had been assigned by him that why he waited for such long time for seeking relief---Constitutional petition as well as application under O.I, R.10, C.P.C. were dismissed.

Revenue Employees Cooperative Housing Ltd. and 8 others v. Mst. Bachoo and others 2001 SCMR 155; Government of Punjab v. Crescent Textile Mills Ltd. PLD 2004 SC 108; Shah Sadiq v. Muhammad Ashiq 2006 SCMR 276; Muhammad Saeed Azhar v. Marital Law Administrator Punjab and others 1979 SCMR 484; Umar Hayat Khan v. Inayatullah Butt and others 1994 SCMR 572; Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim 2001 SCMR 1493; Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Division Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415; Wazir Ali Soomro v. Water and Power Development Authority and others 2005 SCMR 37 and Pakistan Banking Council v. Ali Mohtaram Naqvi 1985 SCMR 714 ref.

Petitioner in person.

Sardar Abdul Sattar Chohan, Mukesh Kumar G. Karara and Khuda Bux Chohan, for Respondent.3.

Haider Imam Rizvi for Respondent No.9.

Imtiaz Ali Soomro, A.A.-G. for Respondents Nos. 1, 2, 4, 5, 6, 7, 8, 18 and 19.

Sher Muhammad K. Shaikh, D.A.G. for Respondents Nos. 16, 17 and 20.

Date of hearing: 31st March, 2009.

MLD 2010 KARACHI HIGH COURT SINDH 50 #

2010 M L D 50

[Karachi]

Before Khalid Ali Z. Qazi, J

KAMRAN MASIH---Applicant

Versus

THE' STATE---Respondent

Criminal Bail Application No.597 of 2008, decided on 27th June, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.392/34---Robbery---Bail, grant of---Further inquiry---Name of accused did not transpire in the F.I.R. and no specific role had been assigned to accused---Complainant had not implicated accused and clearly deposed that there were three accused persons who had come to commit dacoity---Prima facie, no material was available with the prosecution to connect accused with the commission of alleged offence; and case of accused fell under the category of further inquiry under S.497(2), Cr.P.C.---Accused was admitted to bail, in circumstances.

Khawaja Muhammad Azeem for Applicant.

Zafar Ahmed Khan, A.P.G., Sindh for the State.

MLD 2010 KARACHI HIGH COURT SINDH 54 #

2010 M L D 54

[Karachi]

Before Khilji Arif Hussain and Mrs. Sofia Latif, JJ

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

Versus

Mst. FARZANA SHABBIR and 3 others---Respondents

H.C.A. No. 116 of 2005, decided on 21st May, 2009.

Fatal Accidents Act (XIII of 1855)---

----S.1---Fatal accident---Suit for compensation---Plaintiffs who were legal heirs of the deceased who died in fatal accident, had alleged that accident in which deceased had died, had taken place due to rash and negligent driving. of driver of the Truck in question, owned by defendants---Occurrence of the accident and death of five persons resulting from the accident had not been denied by the parties---Burden heavily lay upon the defendants to prove that the accident which resulted in death of five persons, was not due to their negligence, but due to negligence of the deceased persons---Defendants had failed to discharge the burden that accident was not caused due to the negligence of the driver---Counsel for the driver, though undertook to file written synopsis within three days, but had failed to file same---Even witness of the defendants in his statement did not deny that accident took place due to rash and negligent driving of the truck---Doctrine of `res ipsa loquitur' was attracted to the facts of the case---Defendants failed to bring on record any tangible evidence to show that the accident was not caused due to their negligence---Suit filed by the plaintiffs having rightly been decreed by the single Judge " of the High Court, High Court Appeal was accordingly dismissed.

Akhtar Ali Khan v. Islamic Republic of Pakistan 2007 MLD 851 and Pakistan v. Haji Abdul Razzak 2005 SCMR 587 ref.

Sohail Hayat Khan Rana, D.A.G. for Appellants.

Nasir Maqsood for Respondents.

Date of hearing: 5th May, 2009.

MLD 2010 KARACHI HIGH COURT SINDH 71 #

2010 M L D 71

[Karachi]

Before Syed Pir Ali Shah and Syed Shafqat Ali Shah Masoomi, JJ

ABDUL KAREEM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.D-55 of 2007, decided on 21st March, 2009.

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

----S.9(c)---Appreciation of evidence---Sentence, reduction in----After alleged recovery of 60 kilograms charas, two kilograms of charas were separated and sealed as samples, while remaining substance was sealed separately--Chemical Examiner's report revealed that only two slabs were sent while remaining 58 slabs remained unexamined---Prosecution witnesses had fully implicated accused and the case of the prosecution stood proved beyond any shadow of doubt to the extent of only 2 Kilograms duly certified by the Chemical Examiner---Accused could not be convicted for the rest of 58 slabs---Conviction of accused and sentence for 10 years with fine would be served; however counsel for accused had stated that accused would be satisfied if conviction and sentence awarded to accused by the Trial Court would be modified and sentence was reasonably reduced---State Counsel fairly conceded to that proposition---Looking to the mitigating circumstances, on humanitarian grounds that accused having small children belonging to the Province of Balochistan, conviction and sentence awarded to accused by the Special Court, required modification---Sentence and conviction of accused was reduced to five years, accordingly.

Abdul Baqi Jan Kakar for Appellant.

Naimatullah Bhurgri, State Counsel.

Date of hearing: 18th March, 2009.

MLD 2010 KARACHI HIGH COURT SINDH 75 #

2010 M L D 75

[Karachi]

Before Arshad Noor Khan and Muhammad Athar Saeed, JJ

RAMZAN ALI HEMANI---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB)---Respondent

C.P.No. D-1657 of 2008, decided on 9th January, 2009.

National Accountability Ordinance (XVIII of 1999)---

----Ss.16-A, 18(g) & 24(b)---Constitution of Pakistan (1973), Art.199--Constitutional petition---Bail, grant of---Constitutional petition had been filed by the petitioner for grant of bail in reference pending before the Administrative Judge Accountability Court---Accused was arrested on 26-2-2005 and since then he had been in judicial custody, whereas, the reference had not progressed and had not been finalized despite the provisions of S.16-A of National Accountability Ordinance, 1999, which had provided that the hearing of the reference would be conducted on day to day basis and would be disposed of within a period of 30 days---High Court vide its order had transferred the case before the Court of Administrative Judge with the direction to conclude the trial within three months, but case was not done---Only five witnesses had been examined so far, whereas, 65 more witnesses had to be examined and it was not possible, in circumstances that the trial would be concluded even in six months---Though the non following of the procedure provided under S.16-A of National Accountability Ordinance, 1999, could not vitiate the proceedings, but carrying on the reference against the petitioner for almost for four years was beyond the comprehension of the court as it was apparent that the delay had occurred due to non-availability of the special prosecutor---Petitioner was admitted to bail, in circumstances.

Ch. Zulifqar Ali v. The State PLD 2002 SC 540; Ghulam Hussain v. The State 2008 MLD 350; Khawaja Muhammad Khan Tanoli v. The State 2008 MLD 352 and Ayaz Younus v. The State 2006 MLD 452 ref.

Shafaat Nabi Khan Sherwani for Petitioner.

Ch. Muhammad Iqbal D.P.G.A. NAB for Respondent.

2010 M L D 143

[Karachi]

Before Mrs. Qaiser Iqbal, J

Mst. SANA PARVAIZ---Petitioner

Versus

MUHAMMAD SAJAWAL BUTT and 3 others---Respondents

C.P. No.593 of 2008, decided on 31st March, 2009.

Criminal Procedure Code (V of 1898)---

----S.491---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minor son---Welfare of minor---Both minor son and daughter remained in the custody of the petitioner/mother, but later on custody of the minor son was taken away by respondent/father---Petitioner invoked jurisdiction of High Court under S.491, Cr.P.C., but relief as claimed by her having been declined through impugned order, the petitioner/mother had filed constitutional petition--Counsel for the petitioner had contended that minor son being three years of age had a right guaranteed to live with her mother till the time of his attaining age of seven years according to Islamic Law and/or adjudication of the matter of custody by a Guardian Court---High Court keeping in view the facts and circumstances of the case, without going into the technicalities of law, taking into consideration the welfare of the minor, ordered, in exercise of its inherent jurisdiction, that the custody of minor son be handed over to the petitioner/mother who was entitled to retain her custody---Interim custody of the minor son was delivered to the petitioner (mother).

Nazia Ghazal's case 2001 SCMR 1782; Ahmed Samt and 2 others v. Saadia Ahmed and another 1996 SCMR 268; Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1 and Mst. Rubia Ayaz Khan v. The State and another PLD 2001 Kar. 197 ref.

Mushtaq A. Memon and M.M. Tariq for Petitioner.

Khawaja Naveed Ahmed for Respondents.

MLD 2010 KARACHI HIGH COURT SINDH 166 #

2010 M L D 166

[Karachi]

Before Mrs. Qaisar Iqbal, J

RABOO and others---Appellants

Versus

ABDUL REHMAN and others---Respondents

IInd Appeal No.17 of 2007, decided on 28th January, 2009.

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

----S.100---Second appeal---Scope of second appeal was very limited---High Court would not sit as court in second appeal, but when there was a gross misreading of the evidence, then the 'court at that stage would interfere in the impugned judgment.

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

----Ss.8 & 54---Suit for possession, mesne profit and permanent injunction---Second appeal---In the present case the whole edifice was built on the basis of gift, which was not proved by the plaintiff and that fact was deliberately suppressed---When plaintiff had not proved the title to suit property or right or interest thereto as owner, suit for possession simpliciter, without seeking declaration of title was completely misconceived and not tenable in law---Concurrent findings of two courts below were set aside.

Muhammad Lehrasib Khan v. Mst. Aqeela Naz and 5 Others 2001 SCMR 338; Muhammad Akram and others v. Altaf Ahmed PLD 2003 SC 688; 2002 CLC 5157 and 2004 YLR 2546 ref.

Suresh Kumar for Appellants.

Nasir Mughal for Respondent Nos. 1 to 5.

Khadim Hussain M. Shaikh for Respondent Nos. 7 to 11.

MLD 2010 KARACHI HIGH COURT SINDH 173 #

2010 M L D 173

[Karachi]

Before Syed Mahmood Alam Rizvi, J

ZAIN-UL-ABIDIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 460 of 2009, decided on 25th June, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Explosive Substances Act (XI of 1908), Ss.4/5---Bail, grant of---Explosive substance was not recovered from the possession of accused, but was recovered from a house in which five persons were available, out of them two made their escape good, while three were arrested---Accused was in custody since 15-2-2008, charge had been framed, but not a single witness had' been examined---Expeditious trial of the case was the right of every accused, and no one could be put behind bars by showing that a serious case had been made out---Though as per recovery, the case was serious in nature, but involvement of accused appeared to be doubtful---Case of bail having been made out, bail was granted to accused.

The State v. Maqbool Hussain 1997 PCr.LJ 1490 ref.

Syed Nadeem-ul-Haq for Applicant.

Zulfiqar Jatoi, Learned A.P.-G. for Respondent.

MLD 2010 KARACHI HIGH COURT SINDH 192 #

2010 M L D 192

[Karachi]

Before Sabihuddin Ahmad and Zia Perwez, JJ

Dr. MUHAMMAD JUNAID---Petitioner

Versus

KARACHI DEVELOPMENT AUTHORITY and others---Respondents

C.P. No.D-573 of 2001, decided on 7th February, 2002.

Contract Act (IX of 1872)---

----S.74---Constitution of Pakistan (1973), Art.199---Constitutional petition---Breach of contract---Compensation for---Petitioners or their predecessors-in-interest were allotted various plots by the Authority---Certain amount by way of occupancy value required to be paid by the allottees was mentioned in the respective allotment orders---Such orders also contained a provision to the effect that construction on the allotted plot would be raised within a specified period of time and in case of failure to do so, allottee would be liable to pay non-utilization fee---It could be true that the non-utilization fee in the terms of penalty envisaged by clause 25 of the Allotment Regulations, could be theoretically enforceable, but S.74 of the Contract Act, 1872 had contemplated certain pre-conditions to be satisfied---In the first instance there had to be a sum payable, whether by way of penalty or compensation for breach of contract, in the contract itself; and secondly the non-breaching party was entitled only to reasonable compensation, subject to the maximum amount fixed in the contract---Amended clause 25 of the Regulations did not stipulate any amount and in any case the quantum of fee claimed by Authority in certain cases running into millions of rupees was against the occupancy value of a few thousands, could not by any stretch of imagination be deemed reasonable---Amount claimed, in circumstances; could not be lawfully demanded by the Authority---Petitions were allowed to the extent that the demand notices in excess of the amount stipulated under the original contract was valid.

Al-Samrez Enterprises v. Federation of Pakistan 1986 SCMR 1917; Haji Noor Muhammad v. Karachi Development Authority PLD 1975 Kar. 373 and Abdul Majeed v. Karachi Development Authority 1992 MLD 2401 ref.

H.A. Rehmani, Raja Qasit Nawaz, Aziz Malik, Dasti Muhammad Ibrahim, Nazar Hussain Dhoon and Syed Jameel Ahmad for Respondents.

Date of hearing: 7th February, 2002.

MLD 2010 KARACHI HIGH COURT SINDH 212 #

2010 M L D 212

[Karachi]

Before Maqbool Ahmed Awan, J

SALMAN RAZA KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.702 and M.A. No.2492 of 2009, decided on 20th July, 2009.

(a) Criminal Procedure Coder (V of 1989)---

----S.497---Penal Code (XLV of 1860), S.302---Qatl-a-amd---Bail, refused of---Accused had allegedly killed his wife by firing and the pistol used in the offence had been recovered from him---Material witnesses had been examined by Trial Court and only the formal witnesses were yet to be examined---Previous bail applications filed by accused had been dismissed on merits by High Court---Contention of defence counsel based on evidence brought on record of Trial Court required deeper appreciation, which was not permissible of bail stage---Bail was declined to accused in circumstances.

Muhammad Zamir v. State 2001 PCr.LJ 935; Mian Mehraj Din, and others v. The State 1985 PCr.LJ 2987; Sabz Ali and 3 others v. The State PLD 1993 Quetta 66; Saleh Muhammad v. The State 1983 SCMR 341 and State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 Pesh. P.173 ref.

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

----S.497---Penal Code (XLV of 1860), S.302---Bail---Second bail application, competency of---Where first bail application had been rejected after having considered the grounds urged therein, second bail application would only be competent on fresh material having come on record indicating new developments on the facts relevant for disposal of bail matter, or on any other ground which was not avail-able at the time of hearing of earlier bail application---Filing or non filing of the challan in the court, per se was not a fresh ground for considering the plea of accused in his second bail application.

Sabz Ali and 3 others v. The State PLD 1993 Quetta 66; Saleh Muhammad v. The State 1983 SCMR 341 and State through Advocate-General, N.-W.F.F. v. Zubair and 4 others PLD 1986 Pesh. P.173 ref.

A.Q. Halepota for Applicant.

Abdul Rahman Kolachi, A.P.G.

MLD 2010 KARACHI HIGH COURT SINDH 222 #

2010 M L D 222

[Karachi]

Before Shahid Anwar Bajwa, J

MUHAMMAD ASLAM PERVAIZ---Appellant

Versus

AL-MUSTAFA WELFARE SOCIETY, and 2 others---Respondents

Civil Appeal No.921 of 2003, decided on 16th December, 2009.

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

---Ss. 15(2)(ii) & 18---General Clauses Act (X of 1897), S.27---Constitution of Pakistan (1973), Art.199---Constitutional petition--Ejectment of tenant---Default in payment of monthly rent---Change of ownership---Issuance of notice--Proof---Postal receipts---Ejectment application filed by landlord was allowed by Rent Controller on the ground that notice of change of ownership was received by tenant and he committed default in payment of rent---Lower Appellate Court reversed both the findings of Rent Controller and allowed appeal filed by tenant---Validity---Landlord contended that he sent notice under S.18 of Sindh Rented Premises Ordinance, 1979, and onus of proof was on the landlord---Fact that other tenants received notices did not mean that tenant also received the notice---Landlord failed to establish that notice was sent to tenant much less received by him---If landlord could have produced postal receipt then S.27 of General Clauses Act, 1897, would have kicked in and come to his aid and raise presumption in favour of due service---Landlord failed to prove that notice under S.18 of Sindh Rented Premises Ordinance, 1979, was served on the tenant,. however, such determination was not fatal to the case of landlord---Default under S.15 (2)(ii) of Sindh Rented Premises Ordinance, 1979, rendering tenants liable to ejectment occurred if rent was not paid for 60 days after it had become due---Rent for the month of May became due on 10th June and period of 60 days expired on 8th August, therefore, on the day money order claimed to have been sent by tenant i.e. on 25-8-2000, default had occurred and sending of money order could not cure act of default---Tenant claimed that in the month of July he sent to previous owner and met him and offered payment of rent and previous owner parried of one pretext or the other and such previous owner was not produced in evidence---Tenant claimed to have sent rent through money order on 25-8-2000, after he had come to know that the property was sold but he neither disclosed in affidavit-in-?evidence nor in written statement as to how he came to know, when every other tenant had come to know but he did not---When previous owner refused to receive the rent, there was nothing to prevent tenant from sending rent before commencement of statutory default to previous owner through money order but he did not do it---Tenant had committed default and was liable to eviction---Petition was allowed accordingly.?

Khuda Bakhsh v. Muhammad Yaqoob and others 1981 SCMR 179; PLD 1993 Karachi 642; 1983 SCMR 1205; 2000 SCMR 1140; PLD 1982 Supreme Court 465; Pakistan State Oil Company Ltd. v. Sikandar A. Karim and others, 2005 CLC 2 and 2001 SCMR 1888 ref.

Muhammad Yaseen Azad for Appellant.

Rasheed Yousuf Zaid; for Respondent.

Date of hearing: 10th December, 2009.

MLD 2010 KARACHI HIGH COURT SINDH 231 #

2010 M L D 231

[Karachi]

Before Arshad Noor Khan, J

ALI GOHAR---Petitioner

Versus

DEPUTY INSPECTOR GENERAL OF POLICE, LARKANA RANGE and 8 others---Respondents

Constitutional Petition No. S-450 of 2009, decided on 19th May, 2009.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Registration of F.I.R.---Petitioner who was husband of deceased, had sought registration of F.I.R. for the alleged brutal and horrible murder of his wife at the hands of respondents Police Officials'---Counsel for the petitioner had contended that the Police was attempting to provide protection to Police Official concerned who allegedly committed murder of his wife; that post mortem report showed that deceased had expired because of certain firearm injuries; that investigation in the crime registered at Police Station concerned would not be fairly and transparently conducted by the Police; that allegation levelled by the petitioner would remain uninvestigated by the competent investigating agencies; that it would be appropriate in the peculiar circumstances of the case to direct S.H.O., Women Police Station concerned to register the F.I.R. as per narration of the petitioner against all those who according to the petitioner, had played any active or passive role towards the handing over custody of deceased to her parents as well as in the commission of her murder---Counsel for the petitioner further had stated that as case had acquired a status of high profile matter, enquiry could be conducted through Investigating Officer not below the rank of S.P.---High Court directed the D.P.O. concerned to appoint an honest, efficient and experienced S.P. to conduct the inquiry in the crime, after registration of the F.I.R., who, without any fear or favour would conduct enquiry keeping himself accountable to Almighty Allah---As the petitioner had prayed for exhumation of the dead body of deceased it was ordered that Principal of Chandka Medical College would constitute a Board of Doctors, preferably consisting of lady Doctors, who would conduct the post mortem examination on the corpse of the deceased after exhumation of dead body in presence of the Magistrate of the concerned area.

Ghulam Shabir Shar for Petitioner.

Agha Athar Hussain, Asst. A.-G. along with Baloch Khan, PDSP Larkana, Atta Muhammad Soomro, PDSP Shikarpur; Fida Hussain Solangi, PDSP Sukkur, Inspector Abdul Sattar Phull, SPO Naushahro Feroze, Inspector Saeed Ahmed Bhayo, Inspector Asad Nabi, S.H.O. P.S., Dari, Larkana, for the State.

MLD 2010 KARACHI HIGH COURT SINDH 253 #

2010 M L D 253

[Karachi]

Before Maqbool Ahmed Awan, J

PAWAN KUMAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 736 of 2009, decided on 22nd July, 2009.

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

----Ss.497(2) & 196---Penal Code (XLV of 1860), S.295-A/295-C---Outraging of religious feelings and using of derogatory remarks in respect of Holy Prophet---Bail, grant of---Complaint could not be legal without the order of 'the authority as mentioned in S.196, Cr.P.C.---Punishment of lesser offence had to be considered while deciding bail application---Case was of three versions, one advanced by the complainant, second by the Investigating Officer and third one by the accused himself and it was yet to be seen after recording evidence as to which version was correct--Accused had denied the allegations stating that he being a practising Doctor and an Assistant Professor in a Medical College, could not utter any defiling word against the Holy Prophet (P.B.U.H.) and cause injury to the faith or belief of any person regarding his sect or religion---According to accused he had been victimized by his-professional rivals---Accused. was found innocent in investigation---Complainant had failed to bring on record sufficient tangible evidence to connect the accused with the commission of the offence and to plausibly explain the inordinate delay of eleven .days in lodging the F.I.R.---Intention of accused and the nature of the offence were yet to be established at the trial and his case fell within the ambit of S.497(2), Cr.P.C. calling for further probe---Accused was admitted to bail in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 S C 34; Ayub Masih v. The State PLD 2002 SC 1048; Mst. Sardaran Bibi v. The State PCr.LJ 342 and Muhammad Ehsanullah v. The State 2006 MLD 1504 ref.

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

----S.497(1)---Bail in cases not -hit by prohibitory clause of S.497, Cr.P.C.---Principle---Grant of bail in such cases is a rule and refusal an exception---Examples of such exceptional cases are likelihood of abscondence of accused; apprehension of accused tampering with prosecution evidence, and danger of the offence being repeated by accused after release on bail, and previous conviction of accused.

Tariq Bashir and 5 others v. The State PLD 1995 S C 34 ref.

Abdul Mujeeb Pirzada for Applicant.

Abdul Rehman Kolachi, A.P.G. along with Jameel Ahmed Abbassi, the Investigating Officer of Police Station `C' Section Sukkur.

MLD 2010 KARACHI HIGH COURT SINDH 266 #

2010 M L D 266

[Karachi]

Before Shahid Anwar Bajwa, J

Mst. NARGIS BANO---Appellant

Versus

Mst. SHAMIM BANO and 3 others---Respondents

Second Appeal No.23 of 2008, decided on 23rd December, 2009.

Specific Relief Act (I of 1877)---

----Ss. 8, 42 & 54---Declaration of title---Receipt of sale consideration--Concealing of facts---Plaintiff filed the suit on the ground that defendant had received major portion of sale consideration but refused to register sale-deed---Suit and appeal filed by plaintiff were concurrently dismissed by Trial Court and Lower Appellate Court---Validity---In the entire discussion by Trial Court there was no reference to earlier suit, its plaint and order for withdrawal of plaint---Defendant had already admitted in the plaint of earlier suit that she had received an amount of Rs.24,00,000 and such aspect was not attended to either by Trial Court or even by Lower Appellate Court---There was specific admission in evidence of defendant that she filed earlier suit and that suit was dismissed as withdrawn---What was that earlier suit, what was pleaded in that earlier suit and why that earlier suit was withdrawn were all factors which should have been taken into consideration by the Courts below---As both the Courts below had not taken into consideration, High Court set aside judgments and decrees passed by both the Courts below and case was remanded to Trial Court for decision afresh---Second appeal was allowed accordingly.

Appellant in person.

Azizur Rehman Akhund for Intervener.

Date of hearing: 12th November, 2009.

MLD 2010 KARACHI HIGH COURT SINDH 286 #

2010 MLD 286

[Karachi]

Before Amir Hani Muslim and Ahmed Ali Shaikh, JJ

YAR MUHAMMAD---Appellant

Versus

RAFIQUE and another---Respondents

Criminal Acquittal Appeal No. 194 of 2009, decided on 5th November, 2009.

Penal Code (XLV of 1860)---

----S.302---Criminal Procedure Code (V` of 1898), S.417---Qatl-i-amd---Appeal against acquittal---Appraisal of evidence---Perusal of deposition of witness who was the real sister of deceased, had revealed that her conduct at the time of occurrence was unnatural and was not confidence-inspiring---Being the real sister of the deceased it was unconceivable on watching the incident she did not raise cry---Deposition of doctor who conducted autopsy of dead body of the deceased had revealed that there was no mark of any violence seen on the person of the deceased, either externally or internally---In the face of such material, the evidence of witness before the court implicating accused could not be relied upon---Absence of mark of violence on the person of the deceased belied the ocular evidence of said witness---Conclusion arrived at by the Trial Court was reasonable and based on cogent reasons---No infirmity was noticed in the impugned judgment which could connect accused with the alleged offence---Doctrine of double presumption of innocence was also attached to the impugned judgment---Appeal against acquittal was dismissed.

Ghulam Asghar Mirbahar for Appellant.

MLD 2010 KARACHI HIGH COURT SINDH 293 #

2010 M L D 293

[Karachi]

Before Khadim Hussain M. Shaikh, J

AKBAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 168 of 2009, decided on 27th April, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324, 353 & 34---Attempt to commit Qatl-i-amd and assault or criminal force---Bail, grant of---Further inquiry---No body from either side had sustained any injury though alleged encounter, per prosecution, lasted for 20 minutes---More than 700 rounds were allegedly fired by the Police party, but only 10 empties of 7.62 bore and 5empties of G.3 were shown to have been secured from the place of wardat---Accused allegedly was armed with .30 bore pistol, but no empty of .30 bore pistol was found from the place of incident---Case of accused required further inquiry into his guilt and his case was covered by S.497(2), Cr.P.C. which had entitled him to the concession of bail---Accused was admitted to bail, in circumstances.

Illahi Bux v. The State 2001 PCr.LJ 1731; Abdul Jabbar alias Arbelo alias Mooso and another v. The State 2006 PCr.LJ 1033 and Khawand Dino alias Dadoo v. The State 2003 YLR 918 rel.

Rafique Ahmed K. Abro for Applicant.

Miss Robina Dhamrah for the State.

MLD 2010 KARACHI HIGH COURT SINDH 302 #

2010 M L D 302

[Karachi]

Before Shahid Anwar Bajwa, J

Syed CHAN PEER SHAH---Petitioner

Versus

MUHAMMAD SHAFI and 2 others---Respondents

C.P. No.S-362 of 2009, decided on 23rd November, 2009.

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

----S.13---Constitution of Pakistan (1973), Art.199---Constitutional petition---Eviction of tenant---Default in payment of rent---Sale consideration---Plea of---Effect---Landlord filed ejectment application of tenant on grounds of alteration in the premises and default in payment of rent---Tenant contested ejectment application and denied his relationship with landlord as a tenant and further asserted that sale agreement was entered into between landlord and the tenant whereunder sale consideration had been paid by him to the landlord and denied tenancy agreement, being bogus---Rent Controller allowed ejectment on the ground of default in payment of rent---Appellate Court, on appeal upheld the judgment of Rent Controller---Validity---Tenant admitted that premises belonged to the landlord and it was sold to the tenant---Original ownership of the landlord was not denied by the tenant---Two courts below after assessing evidence came to clear finding that relationship of landlord and tenant did exist and the tenant had committed wilful default---High Court declined to interfere in concurrent findings of the courts below in its constitutional jurisdiction---Constitutional petition was dismissed in limine.

Umer Hayat Khan v. Inayatullah Butt and others 1994 SCMR 572; Abdul Rehman v. Additional District Judge, Faisalabad and another 1990 MLD 1221; Shaukat Javed v. Sh. Abdul Khaliq and 2 others 1991 SCMR 215 and Mst. Anis Bano and 3 others v. Mst. Rabia, 1987 CLC 775 ref.

Muhammad Ikram Siddiqui for Petitioner.

Mukhtiar Shah and Liaqat Hussain for Respondents.

Date of hearing: 5th November, 2009.

MLD 2010 KARACHI HIGH COURT SINDH 311 #

2010 MLD 311

[Karachi]

Before Khadim Hussain M. Shaikh, J

KHAN alias KHAN MUHAMMAD MANGRIO and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 190 of 2009, decided on 5th May, 2009.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.381-A---Theft of car or motor vehicle---Pre-arrest bail, confirmation of---F.I.R. in the case was lodged after more than three and half months from the alleged incident---Due to such an inordinate delay, possibility of false implication of accused could not be ruled out---Offence with which accused were charged, did not fall within prohibitory clause of S.497, Cr.P.C. and co-accused was on bail granted to him by the Trial Court and he had also joined the trial---Interim pre-arrest bail earlier granted to accused persons, was Confirmed, in circumstances.

Faiz Muhammad Larik for Applicants.

Naimatullah Bhurgri for the State.

MLD 2010 KARACHI HIGH COURT SINDH 318 #

2010 M L D 318

[Karachi]

Before Maqbool Ahmed Awan, J

MUREED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 759 of 2009, decided on 15th July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/337-A(i)/109/504---Qatl-i-amd and Shajjah---Bail, grant of---Hardship case---Expeditious and fair trial was the fundamental right of the accused---Criminal case must be decided without unnecessary delay---Inordinate delay, in importing justice was likely to cause erosion of public confidence in the Judicial system on one hand and on the other hand it was bound to create a sense of helplessness, despair, frustration and anguish apart from adding to the woes and miseries of the public---Inordinate delay in conclusion of the trial in the present case had caused great hardship to the accused, who was in custody for the last more than four years---Trial Court had failed to conclude the trial despite the direction given by High Court and accused could not be detained in jail for an indefinite period---Accused was admitted to bail on the ground of hardship in circumstances.

Manzoor Khan v. Kamir and 4 others 1972 SCMR 207; Ahrar Muhammad and others v. The State PLD 1974 SC 224; Ashok v. The State 1997 SCMR 436; Gul Hassan Panhyar v. The State 1997 SCMR 390; Muhammad Aslam v. The State 1999 SCMR 2147; Sardar Amjad Ali Khan v. The State 2009 SCMR 425;Mumtaz and 13 others v. The State 1992 PCr.LJ 2325; Abdul Hameed and 2 others v. The State 2003 MLD 19; Moula Bux and others v. The State 2004 YLR 2765; Gul Beg alias Nangi v. The State 2005 PCr.LJ 147; Aarab alias Katoo v. The State 2005 PCr.LJ 555 and Ghulam Abbas alias Abasi and others v. The State PLD 2005 Kar. 255 ref.

Mahmood A. Qureshi for Applicant.

Suhail Jabbar, Dy.P.-G. for the State.

MLD 2010 KARACHI HIGH COURT SINDH 327 #

2010 M L D 327

[Karachi]

Before Shahid Anwar Bajwa, J

Messrs MUMTAZ CONSTRUCTION COMPANY through Managing Partner---Petitioner

Versus

Messrs MFC (PVT.) LTD. and another---Respondents

Constitutional Petitions Nos. S-898 and S-899 of 2009, decided on 7th December, 2009.

(a) Review---

----Power of review is always creation of statute and unless it is conferred by law power of review cannot be exercised.

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

----S.13(1)---West Pakistan General Clauses Act (VI of 1956), S.20---General Clauses Act (X of 1897), S.21---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Principle of locus poenitentiae---Applicability---Power of review---Scope---Disconnecting utility services---Tenant filed application under S.13(1) of Cantonments Rent Restriction Act, 1963, restraining landlord from disconnecting electricity connection to his premises, which application was dismissed by Rent Controller---Subsequently, a few days later Rent Controller in exercise of his powers under S.20 of West Pakistan General Clauses Act, 1956, recalled his earlier order---Validity---Power under S.20 of West Pakistan General Clauses Act, 1956, or S.21 of General Clauses Act, 1897, was available only as long as the order had not taken legal effect and vested rights were not created in favour of any individual---Earlier order passed by Rent Controller took effect the moment it was passed and legal right was created in favour of landlord in that case, therefore, such order could not have been called back even in the garb of S.20 of West Pakistan General Clauses Act, 1956---Rent Controller, the moment order was passed, had become functus officio, thereafter unless law had specifically conferred power (such as to correct clerical mistakes and slips under 5.152 Cr.P.C. to recall ex parte order under O.IX, R.9 C.P.C. or to review an order under S.114 C.P.C.), Rent Controller could not do anything to modify, amend or change that order---Subsequent order passed by Rent Controller was without authority, without jurisdiction and was therefore, without lawful authority and was of no legal effect---High Court in exercise of constitutional jurisdiction, set aside the subsequent order and allowed time to tenant to challenge the earlier order in appellate proceedings in accordance with law---Petition was allowed accordingly.

Baghpotee Services (Pvt.) Ltd. and others v. Allied Bank of Pakistan Ltd. 2001 CLC 1363 and Pakistan through the Secretary Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 rel.

Allied Bank of Pakistan Ltd. through Manager v. Additional District Judge, Islamabad and 2 others 2005 CLC 738; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Sultan Mahmood v. Anwar Ahmad 1983 CLC 2109; Kohitex (Pvt.) Ltd. v. Muhammad Mukhtar and 2 others 1995 CLC 781; Mian Zafar Iqbal through Attorney v. Farzana Khanum and another 2009 YLR 403; West Pakistan Tanks Terminal (Pvt.) Ltd. v. Collector (Appraisement), 2007 SCMR 1318; West Pakistan Tanks Terminal (Pvt.) Ltd. v. Collector (Appraisement), 2007 PTD 1744; Government of Sindh through Secretary Education and others v. Delhi Anglo Arabic College and Schools, 2009 SCMR 315 and National Highway Authority through Chairman v. Nasrullah Khan Chattah, Secretary, Board of Revenue Government of Punjab, Lahore and 3 others 2007 SC 1794 ref.

Mian Zafar Iqbal through Attorney v. Farzana Khanum and another 2008 YLR 403; Mohammad Shafi v. Rent Controller 1995 CLC 639; Mohammad Taj v. Muhammad Younis Khilji and another. 2008 CLC 1666; Muhammad Saeed v. Mst. Saratul Fatima and another PLD 1978 Lahore 1459 and Ahasan Akhtar's case 1998 SCMR 68 distinguished.

Raja Qasit Nawaz Khan for Petitioner (in both Petitions).

Shamim Akhtar for Respondent (in both Petitions).

Date of hearing: 7th December, 2009.

MLD 2010 KARACHI HIGH COURT SINDH 344 #

2010 M L D 344

[Karachi]

Before Aqeel Ahmed Abbasi, J

SAMAD BALOCH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1170 and M.A. No. 4191 of 2009, decided on 20th November, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 324/353/147/148/149---Attempt to commit Qatl-i-amd and assault to deter public servant from discharging of his duty---Bail, grant of---Further inquiry---F.I.R. against accused had been registered under Ss.147, 148, 149, 353 & 324, P.P.C.-Sections 147, 148, 149 & 353, P.P.C. were bailable offences, whereas S.324, P.P.C. was not---Contents of F.I.R. however, had shown that ingredients of S.324, P.P.C., were missing as no specific role about the incident was attributed directly to accused, nor was any mention of the weapon from which accused allegedly opened fire; neither any recovery of alleged weapon was made from him---No independent eye-witness had been shown in the F.I.R., except police party and no injury was caused to any person---Regarding allegation of absconsion, it was to be established as to whether accused had knowingly remained fugitive from law or absconder, particularly when accused was arrested in four other cases, out of which in three of such cases he had been acquitted, whereas on fourth he had been granted bail---Accused was granted bail, in circumstances.

Sher Ali alias Sheri v. The State 1998 SCMR 190; Awal Gul v. Zawar Khan and others PLD 1985 SC 402; Mitho Pitafi v. The State 2001 SCMR 291; Rahim alias Rahmaq and others v. The State 1998 PCr.LJ 821; Muhammad Rafiq v. The State 1997 SCMR 412; Shahzad alias Mir v. The State 2004 PCr.LJ 1851; Shahzad alias Meer v. The State 2004 PCr.LJ 1851; Ishaq Masih v. The State 193 SCMR 1322 and Mitho Pitafi v. The State 2009 SCMR 299 ref.

Abdus Sami for Applicant.

Abdullah Rajput, D.P.G. along with I/O Hamdullah, East Zone.

MLD 2010 KARACHI HIGH COURT SINDH 356 #

2010 M L D 356

[Karachi]

Before Shahid Anwar Bajwa, J

Khawaja MUHAMMAD ASHFAQ BABA and another---Petitioners

Versus

MOIZ TAYYAB ALI and 15 others---Respondents

Constitutional Petition No.S-526 of 2005, decided on 7th December, 2009.

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

----S.11(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Disconnection of water line---Application against---Respondents/tenants filed application under S.11(2) of Sindh Rented Premises Ordinance, 1979 against the petitioners/landlord alleging that landlord had got the water line of premises in question in contravention of S.11(1) of the Ordinance---Tenants prayed that landlords be directed to restore water line of the premises---Previously landlords had filed case against the tenants which was compromised between the parties---Tenants had pleaded that it was clearly stated in the said compromise that the rent would include property taxes and Municipal Tax, betterment tax and other local taxes imposed by the Local Authorities or Provincial Government---Trial Court accepted application of the tenants holding that the rate of rent included water and conservancy charges---Appellate Court having upheld the order passed by the Trial Court, landlords had filed constitutional petition---Validity---According to compromise arrived at between the parties rent would include property and Municipal taxes, betterment tax; water and conservancy charges and all other levies imposed by the Local Authority and Provincial Government---Courts below had found that rent included water charges etc.---If impugned order was obtained by the tenants by misrepresentation or by a fraudulent act, landlords could file application under S.12(2), C.P.C., but no such application had been filed; after 10 years it did not lie in the mouth of the landlords to contend that compromise was not authorized or was fraudulent---Said compromise was binding on the landlords---Findings of the Trial Court upheld by the Appellate Court" could not be interfered with in constitutional petition---Constitutional petition was dismissed.

Syed Adil Hussaina v. Mst. Majda 2000 CLC 1982; Muhammad Saleem v. Provincial Election Authority Sindh at Karachi PLD 1985 Kar. 135; Yaqoob Ali v. Ismail 1987 CLC 526; Karachi Electric Supply Corporation Ltd. v. VIth Rent Controller Karachi and another PLD 1981 Kar. 660; Badaruddin v. Muhammad Yousuf 1991 CLC 949; Muhammad Hussain Patel v. Habib Wali Muhammad and others PLD 1981 SC 1 and State Life Insurance Corporation of Pakistan v. Mrs. Surraya Sajjad 2000 CLC 1813 ref.

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

----Art.199---Constitutional jurisdiction---Scope---High Court must be most reluctant to undertake assessment of evidence and disturb concurrent findings of fact by the courts below, unless misreading or non-reading of evidence was pointed out or the courts below had passed an order contrary to law and had failed to act in accordance with principles of law laid down by the superior judiciary.

M. Zahid Khan for Petitioners.

Sajjad Ellahi for Respondent.

Date of hearing: 10th November, 2009.

MLD 2010 KARACHI HIGH COURT SINDH 365 #

2010 M L D 365

[Karachi]

Before Shahid Anwar Bajwa, J

Syed IRFAN ALI and another---Petitioners

Versus

Syed REHMAT ALI and 4 others---Respondents

Constitutional Petitions Nos. S-62 and S-543 of 2007, decided on 1st December, 2009.

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

----S.16(1)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Tentative rent order---Non compliance---Effect---Relationship of landlord and tenant was not denied by the tenants---Tenants clearly stated that in consideration of their being allowed to live in the premises, rent of the shop was reduced from Rs.15,000 to Rs.10,000 per month---Rent Controller passed tentative rent order---Validity---Was not permissible for a party' to defy tentative rent order and then be allowed to contest the case on merits.

Mst. Siddiqa Begum' and others v. Irshad Ali Shah, PLD 1999 Karachi 311 and Waseem Haroon v. Mr. Abdul Shakoor Tabbani and another 2006 MLD 605 ref.

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

----Art.199---Constitutional petition---Concurrent orders--Interference--Scope---High Court should be most reluctant to interfere with concurrent orders passed by two courts below particularly when orders were passed after paying due attention to the law and submissions of the parties.

Muhammad Ali Lari holding brief for Ch. Latif Sagar for Petitioner (in C.P. No. S-543 of 2007).

Amir Saieem for Respondents (in C.P. No.543 of 2007 and in C.P. No. 62 of 2007).

Date of hearing: 4th November, 2009.

MLD 2010 KARACHI HIGH COURT SINDH 377 #

2010 M L D 377

[Karachi]

Before Khadim Hussain M. Shaikh, J

KHADIM HUSSAIN SHAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.122 and M.A. No.452 of 2009, decided on 21st April, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Qatl-i-amd and attempt to qatl-i-amd---Bail, grant of---Role of causing injuries to the deceased was attributed to co-accused---General allegation against accused and co-accused was that of causing injuries . to injured---Accused was in custody for the last more than two and half years and not even a single witness had been examined from the prosecution side---Despite the clear directions of High Court for conclusion of the trial within a period of three months, the trial had not been completed for which there was no explanation from the State Counsel---Accused having made out a case for grant of bail, he was released on bail.

Muhammad Aslam v. The State 1999 SCMR 2147 ref.

Habibullah Ghauri for Applicant.

Miss Rubina Dhamra for the State.

MLD 2010 KARACHI HIGH COURT SINDH 386 #

2010 M L D 386

[Karachi]

Before Shahid Anwar Bajwa, J

Ch. MUHAMMAD IQBAL---Petitioner

Versus

RENT CONTROLLER NO.IV DISTRICT SOUTH, CITY COURT, KARACHI and another---Respondents

Constitution Petitions Nos.129 and 130 of 2006, decided on 1st December, 2009.

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

----S.15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Ejectment application filed by Chief Executive of the company---Validity---If a Principal Officer, Secretary, Director or Attorney of a company filed ejectment, it could not be said to be incompetently filed---Provisions of O. XXIX, R.1, C.P. C. were not strictly applicable to proceeding before the Rent Controller.

Khan Iftikhar Hussain Khan Mamdot (represented by six heirs) v. Messers Ghulam Nabi Corporation Ltd., Lahore, PLD 1971 SC 550; Messrs Razo (Pvt.) Ltd. v. The Director, Karachi City Region Employees Old Age Benefit Institution and others 2005 CLD 1208; Abubakar Saley Mayet v. Abbot Laboratories and another, 1987 CLC 367; Messrs, A.M. Industrial Corporation Ltd. v. Aijaz Mehmood and others, 2006 SCMR 437; Muhammad Janan v. General Manager, Pakistan Mineral Development Corporation (Pvt.) Ltd., Islamabad and another PLD 2003 Kar. 156 and Civil Petitions No.24-K to 26-K of 2009 in Messrs Sohail Printers and others v. Messrs Sheikh Abid and Co. (Pvt.) Ltd. and others ref.

Khan Iftikhar Hussain Khan of Mamdot (represented by six heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore, PLD 1971 Supreme Court 550; Messrs Razo (Pvt.) Ltd. v. The Director, Karachi City Region Employees Old Age Benefit Institution and others 2005 CLD 1208; Abubakar Saley Mayet v. Abbot Laboratories and another 1987 CLC 367; National Insurance Corporation and others v. Pakistan National Shipping Corporation and others 2006 CLC 85; Habib Bank Ltd.'s case 2000 SCMR 472 and Muhammad Siddique Muhammad Umer's case PLD 1966 SC 684 rel.

Petitioner in person.

Dr. Naheed Abid, Chief Executive in person.

Date of hearing: 28th October, 2009.

MLD 2010 KARACHI HIGH COURT SINDH 410 #

2010 M L D 410

[Karachi]

Before Shahid Anwar Bajwa, J

Mst. HUMAIRA ABBASI---Applicant

Versus

MEHMOOD HUSSAIN HAJI and others---Respondents

Criminal Miscellaneous Applications Nos. 112 and 160 of 2009, decided on 14th January, 2010.

(a) Contempt of Court Ordinance (IV of 2003)---

----Ss.3, 4 & 5---Guardians and Wards Act (VIII of 1890), S.25---Contempt of Court---Welfare of the minors---Relationship between the mother and the father in respect of the minors was governed by an agreement, which contained both hard as well as soft provisions---Hard provisions were clear and well defined, whereas soft provisions depended upon mutual goodwill of the parties, leaving much room for interpretation as to the words and as to their intentions---On analysis of the conduct of the parties,' none of them would come out unscathed---Parties had come to the court for punishing each other for contempt of court---Interests of minors would not be served in any sense of the word whatsoever, if an order punishing one or the other or both was passed---Jurisdiction in family matters was parental jurisdiction---Punishment for contempt of court of either father or the mother or the both, would neither advance the cause of the minors nor lead to more faithful observance of the soft aspects of the said agreement---In advisory system of justice winner and the loser would rarely behave faithfully with each other and in the present case ultimately the children would be the loser---Judicial restraint, therefore, would have to be followed in the case---Application under S.25 of the Guardians and Wards Act, 1890, of the parties were already pending in the lower court---Parties were directed to strictly follow the hard clauses of their aforesaid agreement and as regards other clauses of the same, they might make appropriate applications for decision before the court below---Petitions were disposed of accordingly. ?

Mst. Hameed Mai v. Irshad Hussain, PLD 2002 SC 267; Chuharmal Issardas v. Khubchand K. Shahani PLD 1955 Sindh 410 and PLD 21007 SC 688 ref.

(b) Contempt of Court Ordinance (IV of 2003)---

----Ss. 3, 4 & 5---Contempt of court---Power to punish for contempt of court, exercise of---Power to punish for contempt of court is power of last resort---Such power should not be used indiscriminately to penalize persons---Respect for courts must rest on firmer foundation than the power to punish for contempt---Clarity of the orders of a court on the one hand and respect for judicial integrity and independence on the other hand, guarantee respect and obedience of a court---Obedience to an order of court entails act of physical compliance, which may or may not have any element of intellectual acceptance, whereas acceptance of an order of court means and includes both physical compliance and intellectual acceptance.?

Abdul Rehman for Applicant.

Mrs. Ismat Mehdi for Respondent.

Shahzado Saleem Nahiyoon, APG for the State.

MLD 2010 KARACHI HIGH COURT SINDH 420 #

2010 M L D 420

[Karachi]

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

Mst. NADIRA IZHAR---Petitioner

Versus

PROVINCE OF SINDH through Provincial Secretary Ministry of Food and another---Respondents

Constitutional Petition No. D-288 of 2007, decided on 2nd December, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction---Scope---Petitioner had claimed that she was entitled to the membership of Cooperative Housing Society by virtue of her employment being an officer in the Society---Petitioner had alleged that since the Society had inducted non-employees as a member, her seniority in the membership was affected and she was rendered ineligible to get any plot in the Housing Society---Validity---As far as eligibility to earn a plot was concerned, that matter was to be decided by the Society under its by-laws---Petitioner, could not invoke constitutional jurisdiction to seek her entitlement, either as a member of the Society or to earn eligibility to acquire a plot in the Society---Such rights, if any, could be agitated before the proper forum and not in exercise of extraordinary constitutional jurisdiction.

Naveed Ahmed Khan for Petitioner.

Shafi Memon, A.A.-G. for Respondent.

MLD 2010 KARACHI HIGH COURT SINDH 432 #

2010 M L D 432

[Karachi]

Before Maqbool Baqar, J

Mst. REHANA and another---Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION PANGRIO, DISTRICT BADIN and 34 others---Respondents

Constitutional Petition No. S-2 of 2010, decided on 11th January, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Second marriage of a lady while first marriage was in existence---Submission of counsel for respondent was that petitioner lady had already married to one and her alleged second marriage with another person was not only illegal and void, but also against the Injunctions of Islam---Station House Officer concerned had stated that neither he had harassed the lady and her alleged second husband nor was any case pending against them---Station House Officer had undertaken not to harass, intimidate or pressurize the both; and further that action, if at all, would be initiated against them strictly in accordance with law---Being satisfied with the statement of the S.H.O., counsel for the petitioners (both the lady and her alleged second husband) did not press constitutional petition which was disposed of with direction to the S.H.O. to provide protection to the petitioners---Said order would not come in the way of respondent or any one, claiming to be the husband of the lady to seek appropriate remedy from the court of competent jurisdiction.

Ghulamullah Change for Petitioners.

Muhammad Azeem Panhwar State Counsel along with Ghulam Muhammad S.H.O. Police Station Pangrio District Badin for Respondents.

MLD 2010 KARACHI HIGH COURT SINDH 439 #

2010 M L D 439

[Karachi]

Before Sarmad Jalal Osmany and Ahmed Ali M. Shaikh, JJ

MUHAMMAD MAZHAR IQBAL and 8 others-Petitioners

Versus

VITH ADDITIONAL DISTRICT JUDGE and 5 others-Respondents

C.P. No.D-2139 of 2007, decided on 22nd January, 2010.

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

----S.11---Res judicata, doctrine of---Applicability---When suit had not been finally heard and decided by Trial Court, doctrine of res judicata was not attracted in circumstances.

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

----S.11---Res judicata, doctrine of---Applicability---Pre-conditions.

In order to invoke principle of res judicata following conditions are necessary:-

(i) The matter directly and substantially in issue in subsequent suit or the issue must be the same matter which was directly and substantially in issue either actually or constructively in former suit.

(ii) The former suit must have been a suit between the same parties or between parties under whom they or anyone of them claim.

(iii) The parties must have litigated under the same title in the former suit.

(iv) The Court which decided the former suit must have been a court competent to try subsequent suit in which such issue is subsequently raised.

(v) The matter directly and substantially in issue in subsequent suit must have been heard and finally decided by the Court in the first suit.

----S.11---"Finally decided"-Connotation-Words "finally decided" means to deliberate on an issue either accepting or rejecting it after conducting full inquiry---Word "decide" cannot be interpreted to mean only passing of dismissal order and not an order of admitting or accepting application and "to decide" means to settle or to conclude in either way of accepting contention or rejecting the plaint.

Mursaleen v. Ghulam Sarwar and another PLD 1987 Quetta 8 and Abdul Majeed v. Board of Directors Khyber Vegetable Ghee Mills 1984 CLC 2392 rel.

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

----S.11, O. VII, Rr.11 & 13---Constitution of Pakistan (1973), Art.199---Constitutional petition---Res judicata, doctrine of---Applicability---Earlier suit filed by plaintiff was rejected under O. VII, R.11, C.P.C. and thereafter subsequent sues was dismissed by Lower Appellate Court on the principle of res judicata---Validity---If plaint was rejected under O. VII, R.11 C.P.C., the plaintiff was not precluded from presenting fresh plaint as provided in O. VII, R.13 C.P.C.---Rejection of plaint was not adjudication on merits and it was decreed only by fiction---Principle of res judicata could not be pressed into service unless matter had been finally decided---Order passed by Lower Appellate Court was based on mis-interpretation of S.11 C.P.C., which was not sustainable in the eyes of law-High Court set aside the order passed by Lower Appellate Court and remanded the case to Trial Court for decision on merits---Petition was allowed in circumstances.

M. Ehsan-ul-Haq for Petitioner.

Ms. Rukhsana Waheed and Manzoor Ahmed for Respondents.

Date of hearing: 13th January, 2010.

MLD 2010 KARACHI HIGH COURT SINDH 445 #

2010 M L D 445

[Karachi]

Before Gulzar Ahmed, J

STANDARD CONSTRUCTION COMPANY (PVT.) LTD. through Chief Executive Officer---Plaintiff

Versus

PAKISTAN through Secretary, Ministry of Communication, Islamabad and 5 others---Defendants

Suit No. 857 of 2007, decided on 1st September, 2009.

Contract Act (IX of 1872)---

----S.126---Bank guarantee, encashment of---Principles.

The contract of bank guarantee is independent contract in terms of S.126 of the Contract Act, 1872 from that of the contract between the employer and the contractor; and that in the bank guarantee the principal debtor is the contractor, while the bank is a surety and beneficiary is the employer; and that contract of bank guarantee has to be enforced on the terms stipulated in the bank guarantee itself; and that the bank must honour the guarantee notwithstanding any dispute between the employer and the contractor on the contract made between them.

Collector, Central Excise and Land Customs v. Rahim Din 1987 SCMR 1840; Royal Book Company v. John Wright and Sons Ltd. 1989 MLD 1191; Binyameen v. Hakim 1996 SCMR 336; State v. Zia-ur-Rahman PLD 1973 SC 49; Muhammad Yousaf v. Urooj (Pvt.) Ltd. PLD 2003 Kar. 16 and Mst. Azeemun Nisa Begum v. Ali Muhammad PLD 1990 SC 382; Shahenshah Shahalam Co-operative House Buildings Society Ltd., Kar. and another v. House Building Finance Corporation PLD 1972 Kar. 178 and Ocean Industries Ltd. v. Industrial Development Bank PLD 1966 SC 738 Manzoor Textile Mills Ltd., v. Special Judge Banking, Lah. 1996 CLC 422 ref.

United Bank Ltd. v. Pakistan Industrial Credit and Investment Corporation Ltd. PLD 2002 SC 1100; Messrs National Construction Ltd. v. Aiwan-e-Iqbal Authority PLD 1994 SC 311 and Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191 rel.

Faroogh Naseem for Plaintiff.

Nadeem Akhtar for Defendants 1 to 3.

Arshad Tayab Ali for Defendant No.4.

MLD 2010 KARACHI HIGH COURT SINDH 466 #

2010 M L D 466

[Karachi]

Before Gulzar Ahmed and Irfan Sadat Khan, JJ

Syed MUHAMMAD ABBAS HASSAN ABDI---Appellant

Versus

IKRAM-UL-HAQ---Respondent

High Court Appeal No.32 of 2009, decided on 12th November, 2010.

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

---Ss. 4, 5, 12 & Art. 151---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Delay, condonation of---Filing of Infra Court appeal on 10-1-2009 against order passed on 4-12-2008---Non-filing of certified copy of impugned order along with appeal---Filing of application for obtaining certified copy of impugned order on 13-1-2009 and its supply to appellant on 14-1-2009---Plea of appellant that time for filing appeal of 20 days was upto 24-12-2008 and 25-12-2008 was public holiday, whereafter Court remained closed till 9-1-2009 due to winter holidays, thus, appeal filed on opening day of Court on 10-1-2009 was within time; and that filing of certified copy of impugned order along with appeal was not mandatorily required---Validity---Last date for filing of appeal was 24-12-2008, thus, question of availing benefit of winter holidays would not arise, which commenced from 25-12-2008---Appellant had not shown any reason for his applying for certified copy of impugned order after expiry of limitation period for filing of appeal---Law required filing of Intra-Court Appeal along with impugned order within limitation period of 20 days---Filing of appeal after expiry of its limitation period without certified copy of impugned order was not a valid presentation of appeal---Appeal was dismissed as time barred.

Cooperative Model Town Society through Secretary v. Mst. Asghari Safdar 2005 SCMR 931 rel.

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

----S.3---Civil Procedure Code (V of 1908), S.96 & O.XLI, R.1---Appeal filed after expiry of prescribed limitation period without certified copy of impugned order/judgment---Validity---Law required that appeal must be filed along with impugned order/judgment within prescribed limitation period---Appeal filed in such manner was not a valid presentation of appeal.

Cooperative Model Town Society through Secretary v. Mst. Asghari Safdar 2005 SCMR 931 rel.

Khalid Mehmood Awan for Appellant.

Qamar Muhammad Khan for Respondent.

MLD 2010 KARACHI HIGH COURT SINDH 470 #

2010 M L D 470

[Karachi]

Before Mrs. Qaiser Iqbal, J

ATIQ-UR-REHMAN---Applicant

Versus

Mst. SADIA and another---Respondents

Criminal Miscellaneous Application No.176 of 2008, decided on 8th June, 2009.

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

----S.6---West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, R. 21---Criminal Procedure Code (V of 1898), S.561-A---Polygamy---Quashing of proceedings, application for---Respondent/ complainant wife in her complaint had alleged that applicant/husband had contracted second marriage without her prior permission and consent---Wife had also alleged that husband had not even filed any application to the Nazim Union Council for obtaining permission of Arbitration Council---Complaint was returned by the Civil Judge and Judicial Magistrate, with the direction to file same before the Union Council concerned---Appellate Court however, set aside order of the Trial Court and remanded the' complaint with the directions to record the statement of wife---Husband who filed application for quashing of the proceedings had contended that provisions of S.6 of Muslim Family Laws Ordinance, 1961 did not contemplate an action on behalf of private person, which could only be initiated on behalf of the Union Council---Validity---As to what had been provided under the law, had to be followed in the same manner and an aggrieved party could avail normal. remedies by approaching the Trial Court---Notwithstanding, it was not the intention of lawmakers that an aggrieved party under S.6(5) of the Muslim Family Laws Ordinance, 1961 should approach the court of law for redress, except that Union Council would have the jurisdiction over the subject in the event of Polygamy as said section did not contemplate delegation of authority to the private person for initiating an action on behalf of the Union Council---In the present case, proceedings initiated by the Trial Court in the complaint of wife, were found to be devoid of lawful authority, it would be an exercise in futile to allow the private complaint to linger on which would tantamount to be patent illegality and flagrant abuse of process of law---Bar existed in entertaining a private complaint directly filed by the wife against the husband, which would amount to violation of the principles of justice, and required interference for exercise of power of quashing the proceedings--Impugned order was set aside and proceedings pending before the Trial Court were directed to be quashed.

Subadar Malik Sher Muhammad v. The State 1986 PCr.LJ Qeutta 1510; Zakir Hussain Siddiqui v. Mst. Nazim Bano and others 1989 CLC Kar. 1062; Faheemuddin v. Sabeeha Begum PLD 1991 SC 1074 and Kausar Perveen v. The State 2004 YLR 2242 ref.

Muhammad Abdullah for Applicant.

Manzoor Ahmed Rajput for Respondent No.1.

Mushtaq Ahmed Memon, Advocate/Amicus Curiae on Court Notice.

Muhammad Iqbal Kalhoro, Addl. Prosecutor General, Sindh.

MLD 2010 KARACHI HIGH COURT SINDH 495 #

2010 M L D 495

[Karachi]

Before Aqeel Ahmed Abbasi, J

GHAZI NASEEM and 3 others---Appellants

Versus

Moulana MUHAMMAD BILAL SOMAYRI and another---Respondents

Second Appeal No. 47 of 2009, decided on 15th February, 2010.

Specific Relief Act (I of 1877)---

----S.12---Limitation Act (IX of 1908), Art.113---Contract Act (IX of 1872), S.202---Specific performance of agreement to sell---Limitation---Concurrent findings of fact by the courts below---Agent having interest in agency---Effect---Suit and appeal filed by plaintiffs were dismissed by Trial Court and Appellate Court respectively, on the ground of limitation---Validity---None of the eventuality as visualized in Art. 113 of Limitation Act, 1908, was present---Plaintiffs acquired lawful right in subject property on the basis of sale agreement, receipt of full amount towards sale consideration, undisputed continuous possession of suit property and original documents of title since year, 1996, as well as registered irrevocable general sub power of attorney with right to sale i.e. agent's authority coupled with interest in agency---Matter was non-contentious, there were no claimants of suit property except the plaintiffs---High Court in exercise of appellate jurisdiction set aside concurrent judgments and decrees passed by two courts below and suit was decreed in favour of plaintiffs---Second appeal was allowed in circumstances.

Karachi Catholic Cooperative Housing Society Ltd. v. Mirza Jawad Baig PLD 1994 Kar. 194 rel.

Ms. Mehrunnisa for Appellants.

Nemo for Respondents.

Date of hearing: 18th January, 2010.

MLD 2010 KARACHI HIGH COURT SINDH 503 #

2010 M L D 503

[Karachi]

Before Shahid Anwar Bajwa, J

Mrs. MEHMOODA AFTAB through Attorney and another---Petitioners

Versus

MARGHOOB HUSSAIN and 3 others--Respondents

C.P. No.S-828 of 2009, decided on 23rd December, 2009.

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

----Preamble & S.3---Illegal Dispossession Act, 2005---Applicability---Every individual illegally dispossessed from property could seek his remedy under Illegal Dispossession Act, 2005 without prejudice to other remedies simultaneously available to him under other laws---Principles.

The very first words of S.3 of the Illegal Dispossession Act, 2005 are that no one shall enter. There is no mention in this section that anyone belonging to a mafia or group of land grabbers. Further there is no requirement in the Act that one must have grabbed at least so many properties and only then he will be proceeded against. No doubt, in the preamble, the words "land grabbers" have been used and they have been used in the plural, but firstly the preamble though it must be given due weight, it does not have same weight as the words used in the Act.

In the case of Illegal Dispossession Act, 2005, even if an individual is illegally dispossessed, he has a right to have recourse to the provisions of Illegal Dispossession Act, 2005 without prejudice to such other remedies that may be simultaneously available to him under the laws.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 and Attorney General v. H.R.H. Prince Earnest Augustus of Hanover (1957) A.C. 436 rel.

(b) Interpretation of statutes---

----Preamble of an Act, though must be given due weight, but would not have same weight as the words used in the Statute.

Attorney General v. H.R.H. Prince Earnest Augustus of Hanover (1957) A.C. 436 rel.

----S.15---Illegal Dispossession Act (XI of 2005), Ss. 3 & 4---Criminal Procedure Code (V of 1898), S.403(1)---General Clauses Act (X of 1897), S.26---Contempt of Court Act (XIV of 1976), S. 3---Constitution of Pakistan (1973), Arts. 13 & 199---Constitution petition---Ejectement order, execution of---Eviction of tenant from property in execution proceedings during pendency of rent appeal and existence of stay order passed by Appellate Court---Tenant alleging his eviction to be violative of stay order filed contempt application and complaint under Ss. 3 & 4 of Illegal dispossession Act, 2005---Plea of landlord that stay order had not been communicated to him or Rent Controller; and that both contempt application and complaint could not go side by side---Validity---Appellate Court before passing any order on contempt application would positively determine as to whether alleged contemnors had knowledge of stay order and effect of its non-communication to Rent Controller, if any---Judicial proprietary would demand that Appellate Court should first decide appeal, and then take up contempt case and after its decision should decide such complaint---High Court stayed proceedings in complaint till decision of rent appeal and contempt case.

Niaz Ali v. The State PLD 1961 (W.P.) Lahore 269; Muhammad Ashraf and others v. The State, 1995 SCMR 626; Sakhi Dost Jan v. The State PLD 2000 Quetta 26 and Ismail A. Rehman v. Muhammad Sadiq and 3 others PLD 1990 Kar. 286 ref.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 and Muhammad Saddiq v. Ikramuddin PLD 1987 Kar. 401 rel.

Moin Azhar Siddiqui for Petitioners.

M.A. Lateef for Respondent.

Date of hearing: 11th December, 2009.

MLD 2010 KARACHI HIGH COURT SINDH 518 #

2010 M L D 518

[Karachi]

Before Ms. Rukhsana Ahmad, J

FAISAL KAPADIA and another---Plaintiffs

Versus

MOTOROLA LTD. and 2 others---Defendants

Suit No. 912 and C.M.As. Nos. 6728, 9917 of 2008, decided on 8th February, 2010.

Specific Relief Act (I of 1877)---

----Ss.42, 52, 53, 54, 55, 56 & 57---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Principle---Claiming of damages---Effect---Plaintiffs sought declaration to the effect that under agreement between the parties, they were the only brand ambassadors for the product of defendant-company and in alternate they had claimed damages---Validity---Grant of temporary injunction under O.XXXIX, Rr. 1 and 2 C.P.C. was governed by principles laid down in sections 52 to 57 of Specific Relief Act, 1877---As plaintiffs claimed damages against defendant through the suit, the same had established that money was adequate relief for them and agreement was incapable of being specifically performed, therefore, no injunction could be granted by court on the basis of agreement--Injunction under S.54 of Specific Relief Act, 1877, could be granted if it was proved to the court that no standard existed for calculation of damages suffered by party to contract and that pecuniary compensation could not be obtained---Plaintiffs claimed damages in the suit and the same had shown that loss if any suffered by plaintiffs could be ascertained in terms of money and, therefore, plaintiffs were not entitled for grant of injunction---Application was dismissed in circumstances.

1974 SCMR 519 and Muhammad Raza v. Haji Abdul Ghaffar and 6 others PLD 1992 Kar. 17 rel.

None for Plaintiffs.

Saqib Majeed for Defendants.

MLD 2010 KARACHI HIGH COURT SINDH 523 #

2010 M L D 523

[Karachi]

Before Amir Hani Muslim, J

MUHAMMAD IKHLAQ and another-:-Applicants

Versus

Mst. HAMEEDA NAQVI and another---Respondents

Criminal Revision Application No.78 of 2008, decided on 23rd December, 2009.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Criminal Procedure Code (V of 1898), S.265-K---Illegal dispossession---Complainants/applicants, who claimed to be owners of private qabuli land, had alleged that respondents had illegally occupied portion of said land for which they had filed complaint under S.3 of Illegal Dispossession Act, 2005---Respondents moved application under S.265-K, Cr.P.C. on the ground that there was no probability of their conviction---Complaint filed by the complainant was dismissed by the Trial Court by allowing said application of respondents---Validity---Record and report of Mukhtiarkar, showed that complainants owned area on which respondents had raised the boundary wall and location of the land claimed by the respondents was not established---Respondents' land was unsurveyed and their title was also not perfect; and record did not reflect the original source---Respondents had shown their possession on the land in dispute after the official assignee had handed over possession---Location, however was not clear---Land of the complainants had definite -boundaries and the respondents had encroached upon the land of the complainants---Trial Court, in circumstances, was not justified in dismissing the application of the applicants/complainants filed under S.3 of Illegal Dispossession Act, 2005---Impugned order was set aside and Mukhtiarkar was directed to hand over possession of land in question to the applicants/ complainants.

Naveed Ahmed Khan for Applicants.

Agha Kashif Hussain for Respondents.

Mukhtiar Ahmed Khanzada, State Counsel along with Mukhtiarkar concerned.

MLD 2010 KARACHI HIGH COURT SINDH 527 #

2010 M L D 527

[Karachi]

Before Bhajanaas Tejwani and Ms. Rukhsana Ahmad, JJ

Mrs. NEELAM YASMIN ABBASI---Appellant

Versus

RETURNING OFFICER and 2 others---Respondents

Election Appeal No.1 of 2010, decided on 6th February, 2010.

(a) Civil service---

---Resignation---Effectiveness---Principle---Mere tendering/submitting of resignation, services of government/civil servants would not come to an end and the same has to be accepted for its effectiveness by competent authority---Till such time as the resignation is accepted by competent authority, the civil/government servant would continue to be in government service and would be under an obligation to perform his duties---In case such civil servant fails or omits to perform his duties without prior authorization or leave, he would be deemed to be an absentee rendering himself liable for disciplinary proceedings under appropriate law and rules.

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

----Ss.14 (5) & 99---Eligibility of candidate---Resignation from government service---Period of two years, reckoning of---Petitioner sought rejection of nomination papers of respondent on the ground that two years had not elapsed since acceptance of his resignation from government service---Plea raised by respondent was that period of two years was to be reckoned from the date of submission of resignation and not from the date of its acceptance---Validity---Employment / service was result of bilateral agreement between civil servant and government and unilateral action of civil/government servant to relinquish his right in relation to office / post would not be operative or effective unless accepted by competent authority---Resignation tendered by civil servant and its acceptance by competent authority was an essential requirement for its effectiveness and till such time as it was accepted or approved the civil servant would continue to be in service---Resignation of respondent was accepted on 26-1-2010, therefore, period of two years as stipulated under S.99 (1A)(k) of Representation of the People Act, 1976, would be reckoned from the date of notification of acceptance of resignation and thus would become eligible after two years from the date of notification---High Court in exercise of constitutional jurisdiction rejected the nomination papers of respondent---Petition was allowed in circumstances.

----Executive/departmental authority has no power to pass orders with retrospective effect.

PLD 2007 SC 52 rel.

Akhtar Hussain for Appellant.

Ashraf Khan Mughal, D.A.-G. and Adnan Karim, A.A.-G on behalf of Government.

Rasheed A. Razvi for Defendant No.2.

MLD 2010 KARACHI HIGH COURT SINDH 544 #

2010 M L D 544

[Karachi]

Before Shahid Anwar Bajwa, J

HABIB-UR-REHMAN through Attorney---Petitioner

Versus

Mst. HINA SAEED and 4 others---Respondents

Constitution Petition No.S-721 of 2009, decided on 4th December, 2009.

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

----Ss. 12 & 2S---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Application for custody of two minor daughters and one son---Contest between mother and father of minors---Father (a Pakistani born citizen of France) alleged to be in receipt of handicap allowance from French Government---Father's plea was that if children were sent with him, they would get allowance and free education from French Government, but would not get such benefit in Pakistan---Order of Guardian Judge accepting such application of father was set aside by appellate court---Validity---Sending children with father to France would deprive mother of meeting her own flesh and blood---Courts, in Pakistan would not be able to enforce an undertaking of father to send children to Pakistan every year to see mother---Father could not be expected to honour such undertaking as he had not respected and complied with court's order for payment of maintenance to children every month---Father in cross-examination had refused to pay maintenance to children in Pakistan-French schools might be better schools, but in Islamic Society of Pakistan, they would have better upbringing as Muslims---Father had neglected children for last three years---Children were being well looked after by mother and were receiving good education---All three children having happy smiling faces had answered court's questions with confidence---Mother was living in a separate portion of her sister's house, where her brother was regularly paying visits and providing necessary protection---Welfare of children would lie in their living with mother in Pakistan---Father would have right to meet children in Pakistan subject to his paying maintenance to them as ordered by Family Court---If children on attaining age of 16 years wanted to visit father in France, then father could take them to France for one month during summer vacations---High Court disposed of constitutional petition in above terms.

Mst. Rubia Jilani v. Zahoor Akhtar Raja and 2 others 1999 SCMR 1834; Mukhtar Ahmed Khan v. Mst. Aziza Begum PLD 1975 Lah. 86; Mst. Razia Bibi v. Riaz Ahmad and another 2004 SCMR 821 and Mehmood Akhtar v. District Judge, Attock and 2 others 2004 SCMR 1839 ref.

M. Zahid Khan for Petitioner.

Muhammad Arif for Respondent.

Date of hearing: 20th November, 2009.

MLD 2010 KARACHI HIGH COURT SINDH 554 #

2010 M L D 554

[Karachi]

Before Gulzar Ahmed and Irfan Saadat Khan, JJ

Mst. HALIMA TAHIR and 5 others---Appellants

Versus

Mst. NAHEED EJAZ and 3 others---Respondents

H.C.A. No. 470 of 2006, decided on 18th January, 2010.

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

----O. XLI, R.19---Limitation Act (IX of 1908), Art.168---Law Reforms Ordinance (XII of 1972), S.3---Dismissal of appeal for non-prosecution---Application for restoration---Limitation---High Court appeal---On date when matter was adjourned, the court had categorically ordered that on next date of hearing further adjournment would not be granted; and that if for any reason counsel for the appellants was not in a position to proceed with the matter, the appellants should make alternate arrangement---On adjourned date of hearing, counsel for the appellants did not appear nor any alternate arrangement was made by the appellants in compliance of order of the court-- again a request for adjournment was made, which was not accepted by the court and the counsel holding brief for original counsel for the appellants, being his associate, was asked to argue the matter, but he expressed his inability to proceed with the matter and appeal was dismissed for non prosecution, especially in view of previous history of dismissal for non prosecution and restoration---Conduct of the appellants and counsel had apparently left no choice with the court, but to dismiss the appeal for non-prosecution-Under Art.168 of Limitation Act, 1908, the application for restoration of the appeal, dismissed for non prosecution, had to be filed within thirty days from the date of dismissal and not from the date of knowledge---In the present case, counsel for the appellants who admitted that he came to know of dismissal of appeal for non prosecution on the very next date, filed delayed application without any application for condonation of delay---Conduct of the appellants and their counsel had altogether been casual and of serious negligence to which no premium could be given---No explanation was on record for not making application in time or for delay in making application---Application for restoration of appeal being time-barred, was rightly rejected, in circumstances.

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

----S. 5---Delay, condonation of---Application for---When the application was filed out of time, the party filing such application had to explain each day of delay; more so when valuable rights by efflux of time would occur to the opposite party.

Maqbool-ur-Rehman for Appellants.

Shaiq Usmani for Respondents.

MLD 2010 KARACHI HIGH COURT SINDH 561 #

2010 M L D 561

[Karachi]

Before Faisal Arab and Abdul Rasheed Kalwar, JJ

MEDHI K. LAVJI---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

C.P. No.D-354 of 2005 decided on 19th February, 2009.

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

----Art.199---Arbitration Act (X of 1940), S.20---Tenancy agreement regarding State land executed by an incompetent authority containing an arbitration clause---Constitutional petition challenging order of competent authority cancelling such agreement---Maintainability---Competent authority was pot party to such agreement---Such matter could not be referred, to arbitration in circumstances.

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

----Ss. 121 & 180---Constitution of Pakistan (1973), Art. 140-A---Land purchased by Provincial Government for a public purpose--Renting out of such land by Zila Nazim---Scope---Neither Art. 140-A of the Constitution nor any provision of Sindh Local Government Ordinance, 2001 provided that such land would come under ownership of Local Government without its title being specifically transferred to Local Government---Zila Nazim had no right to rent out such land---Unutilized portion of such land could not be utilized for any other purpose without approval of Provincial Government---Act of renting out of such land to an individual for being contrary to public interest would not be sustainable---Principles.

----Public land meant for public purpose---Utilization of such land for any other .purpose or benefit of an individual and conversion of its use---Scope stated.

Where a public land is meant for a public purpose, then it cannot be utilized for any purpose other than the public purpose. It, cannot be utilized for the benefit of an individual. Even where circumstances justify conversion of land use, such decision should be taken after: inviting public objections and objectively evaluating. the new purpose to which land is to be put to use. All such steps are to be taken in a transparent manner and with the object to serve the best public interest.

(d) Natural Justice, principles of---

----Tenancy agreement executed by an incompetent authority---Validity---Right created by a competent authority could not be impaired or nullified without affording an opportunity of hearing to affected person---Such agreement for being void ab initio could be cancelled by competent authority without issuing prior notice to tenant---Illustration.

PLD 1992 SC113 and PLD 1975 SC 355 ref.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Contractual rights, enforcement of---In cases involving disputed facts, such rights could not be enforced by taking recourse to such jurisdiction---High Court could examine competency of a functionary to execute a contract---Where contract was executed by competent authority and on account of factual controversies, evidence was required to be recorded in order to resolve factual dispute, then party could be relegated to seek remedy before Civil Court---Where tenancy agreement regarding State land was not validly created, which fact was evident from pleadings and undisputed documents lying on record, then High Court could examine legality of such agreement---Principles.

PLD 1962 SC 108; Muhammad Talib v. Karachi Development Authority 1999 CLC 813; The Majlis-I-Intizamia, Jamia Masjid v. The Secretary to Government of West Pakistan PLD 1963 SC 109; Al-Shafeeq Housing Society, Hyderabad v. Pakistan Medical Association, Karachi PLD 1992 SC 113 and Muhammad Amin v. The Province of Sindh 1992 MLD 671 ref.

Anwar Mansoor Khan for Petitioner.

Allah Bachayo Soomro, Addl. A.-G.

Naimatullah Soomro, for Respondent No.2.

Rafique Ahmed for Respondent Nos. 3 to 5.

MLD 2010 KARACHI HIGH COURT SINDH 573 #

2010 M L D 573

[Karachi]

Before Muhammad Mujibullah Siddiqui, J

Messrs MERCK MARKER (PVT.) LTD.---Plaintiff

Versus

Messrs UNITEC PAKISTAN (PVT.) LTD. and another---Defendants

Suit No. 165 of 2002, decided on 30th August, 2004.

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

----S.19---Suit for recovery of amount due to plaintiff-agent from defendant principal under agency agreement, dated 9-8-1982---Filing of suit on 7-2-2002, while its cause of action being based on admission made by defendant in his letter, dated 24-9-1999 in respect of supply made by plaintiff in pursuance of such agreement---Defendant's plea that suit was barred by time, was repelled in circumstances.

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

----S.120, O. VII, R.10 & O.XLIX, R.3---Suit for recovery of amount---Parties having registered offices at Karachi---Accrual of cause of action to plaintiff at Rawalpindi; while filing of suit in High Court at Karachi---Defendant's application' seeking return of plaint for its presentation at proper forum at Rawalpindi---Validity---Both provisions of S.120 and O. VII, R.10, C.P.C. 'Were not applicable to High Court exercising original civil jurisdiction---Such application was dismissed in circumstances.

Talmiz Burney and Dilawar Hussain for Plaintiff.

Muhammad Akram Shaikh for Defendants.

2010 M L D 614

[Karachi]

Before Amir Hani Muslim, J

IQBAL AHMED and another---Applicants

Versus

THE STATE---Respondents

Criminal Bail Application No.886 of 2009, decided on 10th February, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 498-A---Penal Code (XLV of 1860), Ss.420/468/471/506/34---Cheating, forgery, using forged document as genuine---Pre-arrest bail, refusal of---Case of fraud and forgery had been made out against accused persons---One of accused after grant of interim bail before arrest remained absent before the Trial Court on several occasions---One of medical certificate submitted by one of the accused was found bogus---Cases of bail before arrest fell under S.498-A, Cr. P. C. and protection to female accused was not available under S.498-A, Cr.P.C.---Delay in lodging the F.I.R. was self-explanatory---Allegation against accused persons was that they had threatened to kill the complainant, which offence was covered under proviso to S.506, P.P.C., which was non-bailable---Challan in the proceedings had been submitted, which implied that the objection that Police could not register the case under Ss.468/471, P.P.C. without permission of the Magistrate, was covered once the Trial Court took cognizance and accepted the challan---One of the accused persons had misused the concession of bail by avoiding appearance---Counsel for accused had failed to show that complainant had lodged the F.I.R. with ulterior motive, besides one of the accused had past, criminal record---Order of interim bail before arrest, was recalled and bail application was dismissed.

Muhammad Azam v. State 2005 PCr.LJ 906, Muhammad Arshad Kausari v. State 2007 YLR 1282; Razia Shaheen PLD 1997 Lah. 659 and Muhammad Arshad v. Muhammad Rafique PLD 2009 SC 427 rel.

Muhammad Ashraf Kazi for Applicants.

M.A. Qureshi, Assistant Prosecutor-General, Sindh.

Noman Jamali, Advocate along with Complainant Syed Ikramullah.

MLD 2010 KARACHI HIGH COURT SINDH 627 #

2010 M L D 627

[Karachi]

Before Maqbool Baqar, J

ASSOCIATE CONSTRUCTION---Plaintiff

Versus

FEDERATION OF PAKISTAN and others---Defendants

Suit No. 201 of 2009, heard on 28th August, 2009.

Specific Relief Act (I of 1877)---

----S. 54---Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for permanent injunction and damages---Construction of Cardiac Centre in Hospital---Plaintiff's prayer for restraining defendant from removing plaintiff from project and awarding contract to another contractor without due course of law---Application for grant of temporary injunction---Defendant's plea that for non-completing project within stipulated time, defendant terminated plaintiff's contract ten days before filing of suit and awarded remaining work to another contractor, who had started work---Validity---Plaintiff had obtained ad interim injunction by not only suppressing such facts, but by misleading court into believing that defendant had been served with notice of such application and had avoided to appear before court---Such project was of a crucial public importance---Defendant had terminated plaintiff's contract for his indolent behaviour---Another contractor had already started work---Plaintiff had failed to make out a prima facie case in his favour---Balance of convenience was not in favour of plaintiff, who could be compensated in terms of money for termination of contract---Plaintiff had already sought damages in suit---High Court dismissed such application, resultantly ad interim injunction earlier granted stood vacated.

Chaudary Khalid Rahim Arain for Plaintiff.

Chaudary Muhammad Iqbal for the Defendants Nos. 2 and 3.

Syed Tariq Ali, Federal Counsel.

MLD 2010 KARACHI HIGH COURT SINDH 635 #

2010 M L D 635

[Karachi]

Before Shahid Anwar Bajwa, J

ANDAL---Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No. 1097 of 2609, decided on 7th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302(b)---Qatl-i-amd---Grant of bail, application for---Out of 11 accused persons, 8 had been granted bail---Two of accused persons were absconders and interim challan of the accused was submitted, but charge had not been framed because of the absconding accused---Accused was not responsible for the delay and had been languishing in jail for the last more than four years without any single tangible step having been taken in the trial---Person could not be kept in custody indefinitely, particularly when he was not responsible for delaying the trial---Even otherwise mere factum of delay in trial on its own could not be treated as sufficient ground for grant of bail---High Court while exercising its supervisory jurisdiction, should not only ensure that a person be not indefinitely kept behind bars and the trials allowed to go on and on with no end---High Court should also intervene in such like cases and pass appropriate directions to the courts below for expeditious trial---In the present case offence was of very serious nature as six human beings had lost their lives---Propriety demanded that the Trial Court be directed to separate the case of the accused and those who were in attendance from the case of absconders and to frame the charge---Trial Court was further directed to record evidence of the complainant and after statement of at least one witness had been recorded (that exercise should be completed within a period of two months), accused would be at liberty to file a fresh bail application.?

Manzoor Khan v. Kamir and 4 others 1972 SCMR 207; Ghulam Abbass alias Abasi and others v. The State PLD 2005 Kar. 255 and Munawar alias Munoo v. The State 2008 YLR 80 ref.

Amanullah G., Malik for Applicant.

Zulifqar Ali Jatoi, DPG for the State.

MLD 2010 KARACHI HIGH COURT SINDH 644 #

2010 M L D 644

[Karachi]

Before Khilji Arif Hussain and Arshad Siraj Memon, JJ

NISHAT BEGUM---Appellant

Versus

SINDH KATCHI ABADI AUTHORITY and others---Respondents

High Court Appeal No. 89 of 2003 decided on 21st May, 2009.

Specific Relief Act (I of 1877)---

----Ss. 42, 54 & 55---Cantonments Act (II of 1924), Ss. 43-A & 44---Cantonment Land Administration Rules, 1937, Sched. VII1---Suit for declaration, temporary injunction and mandatory injunction requiring authority to execute lease deed in favour of plaintiff under Katchi Abadi Regularization Scheme or in alternative recovery of damages---Notification No.888(I)/82, dated 16-9-1982 issued by Federal Government under S.43-A of Cantonments Act, 1924 declaring area specified in its Schedule as "bazaar" in Karachi Cantonment---Authority in evidence produced list of persons occupying houses in area notified as "bazaar", wherein plaintiff's name did not appear---Effect---Evidence an record showed that after declaration of such area as bazzar, authority had surveyed same and prepared list of occupants and issued them lease for 30 years on payment of yearly rent---Burden heavily lay on plaintiff to prove that he was in possession of suit property at the time of issuance of such notification, which burden he had failed to discharge---Suit was dismissed in circumstances.

Collector of Central Excise and Land Customs v. Azizullah Industries Chitagoing PLD 1970 SC 439; Pakistan v. Muhammad Himayaullah Farukh PLD 1970 SC 407 and Gatron (Industries) Ltd. Government of Pakistan 1999 SCMR 1072 distinguished.

Ahmed Hassan Rana for Appellant.

Muhammad Jamil for Respondent No.1.

Dilawar Hussain for Respondent No.2.

Date of hearing: 15th of April, 2009.

MLD 2010 KARACHI HIGH COURT SINDH 651 #

2010 M L D 651

[Karachi]

Before Shahid Anwar Bajwa, J

IMTIAZ ALI---Applicant

Versus

THE STATE---Respondents

Criminal Bail No. 683 of 2009 and M.A. No.91 of 2010 decided on 18th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/114/34---Qatl-i-amd---Bail, refusal of---One of co-accused had been granted bail because his role was stated to be that of instigation only---Other co-accused had been granted bail for the reason that in the statement under S.161, Cr.P.C. nothing was mentioned about injuries relating to pulling and breaking of the nails of the body of deceased and that he had not been alleged to have caused fatal shot; and that his case was that of further inquiry---Role alleged against accused was that of causing the fatal shot---Role of accused, in circumstances, was quite distinguishable from that of said two co-accused---Deceased who was wife of accused, had been murdered in the house of accused---Prima facie, allegations of severe torture were present against accused and medical evidence supported the ocular evidence in that regard---If wife of accused was so severely tortured and was then murdered, it was responsibility of accused/husband to protect his wife---Stand of accused that deceased had committed suicide, was prima facie belied by the medical evidence---Bail application of accused was dismissed, in circumstances.

Ali Nawaz v. The State 1995 PCr.LJ 1316 ref.

Ghulam Ali A. Samtio for Applicant.

Shamsuddin Abbasi along with the complainant.

Naimatullah Bhurgri for the State.

MLD 2010 KARACHI HIGH COURT SINDH 661 #

2010 M L D 661

[Karachi]

Before Mushir Alam, ACJ

WILLIAM JOHN alias WILLIAM MASIH---Applicant

Versus

Mst. NASEEM BIBI ---Respondents

Family Transfer Application No. 44 of 2009, heard on 26th October 2009.

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

----S. 5 & Sched.---Divorce Act (IV of 1869), S. 8---Suit between Christian spouses---Application for transfer of suit to other Family Court---Plea of applicant that Family Court seized of case was not fully conversant with Christian Personal Law, thus, same could not hear and decide dispute between Christian spouses---Validity---Unless there was some tangible grounds to seek transfer, merely on apprehension that Court was not familiar with particular law would not be a ground to seek transfer---High Court dismissed transfer application.

Muhammad Hanif for Applicant.

Masood Anwar Ausaf for Respondent.

MLD 2010 KARACHI HIGH COURT SINDH 665 #

2010 M L D 665

[Karachi]

Before Faisal Arab, J

MUHAMMAD ASGHAR---Petitioner

Versus

ABDUL REHMAN and 8 others---Respondents

Constitution Petition No. S-765 of 2003, decided on 9th March, 2010.

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

----S. 15(2)(vii)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Bona fide personal need of landlord---Landlord had contended that he was jobless and had no other place to establish his own business---Tenants during pendency of proceedings had pointed out that the landlord in the same building had come in possession of two vacant shops, without first establishing the fact that said two shops in his possession were neither suitable nor sufficient for his need, landlord thus could not have been granted eviction of tenants---Validity---Without giving any explanation as to why the premises already in possession of the landlord were not sufficient or suitable to meet his personal requirement, the personal need could not be regarded as bona fide---Fact that the landlord had come in possession of two shops during pendency of proceedings, it was rightly held by the Appellate Court that no case for bona fide personal need was made out.

S.M. Nooruddin and 9 others v. Saga Printers 1998 SCMR 2119; Qamruddin through his Legal Heirs v. Hakim Mahmood Khan 1988 SCMR 819; Iqbal Book Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197; Saghiruddin v. Muhammad Qasim and 6 others 1994 MLD 487; Muhammad Saleem Qureshi v. M. Mohsin Butt 1996 CLC 381 ref.

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

----Ss. 15(2)(iii)(c) & 15(2)(iv)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Impairing material value or utility of premises by making additions and alterations---Landlord sought ejectment of tenant on the ground that tenant by making additions and alterations in the premises in question had impaired its material value and utility--- "Additions "--- "Alteration "---Connotation---Under terms of settlement arrived at between the parties during earlier round of litigation, it was stipulated that the landlord would not make any addition or alteration in the premises without the written permission of the landlord-'Addition' would mean to add a new structure to the existing structure that was originally rented out---Nature of any addition', whether temporary or permanent would be regarded as addition---'Alteration' would mean that portion of the existing structure was so altered that it wholly or partially had changed its original shape or utilization---Additions' and `alterations' were only permissible if tenant would obtain prior written permission from his landlord; however, where any repair and renovation work was carried out with the object of putting the rented premises to only a more comfortable or effective utilization and such repairs and renovations by no means added to or altered the original structure which was handed over at the time of creation of tenancy, there also was no likelihood that repairs and renovations would impair the material value or utility of the rented premises, then the landlord would not become entitled to seek ejectment of tenant on such account---Unless while carrying out repairs and renovations such acts were committed which were likely to diminish the material value or utility of the premises, ejectment could not be granted---Any likelihood of impairment in the value and utility of the premises was to be established through evidence and burden to establish that solely rested with the landlord---Appellate Court having found no evidence with regard to impairment in the value and utility of the premises; and no expert/technical witness was examined by the landlord, it had rightly reverted the findings of the Rent Controller on such ground---No addition or alteration had been established so as to warrant eviction of tenants on such ground, in circumstances. ?

Messrs Organon Pakistan (Pvt.) Ltd. v. Rafat Ali Khan 1999 SCMR 54; Khalifa Fateh Muhammad v. Ahmad Nasir Khan 1988 SCMR 689; Rasheed Alam v. Ewaz Yar Khan 1987 MLD 888; 1989 CLC 599; 1993 CLC 2380; 1993 MLD 219 and 1982 SCMR 8 rel.

----"Additions and alterations "---Connotation.?

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

---Ss. 15(2)(iii)(a) & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on ground of subletting---Landlord seeking ejectment of tenant on ground of subletting had submitted that originally the business of the restaurant was being run by the father of the respondents, but subsequently a partnership firm was formed and respondents were inducted as tenants; and that by itself amounted to subletting which had made them liable for eviction---Validity---Business of the firm was being run by a firm wherein father and sons were partners and after the death of father only his sons were continuing with the business of said firm---As it had not been established that any outsider had been inducted in the partnership business of the firm, it could not be said that there was any act of subletting committed on such account---Such act could not be regarded as subletting just because after the death of the father his sons, as his successors and co-partners continued with the business of the firm. ?

Manek J. Mobed and another v. Shah Behram and others PLD 1974 SC 351; Muhammad Subhan and another v. Mst. Bilquis Begum through Legal heirs and 3 others 1994 SCMR 1507; Sultana Jafery v. Muhammad Ali Abidi through Lrs. 2000 CLC 997; Messrs Premier Mercantile Service and another v. S.M. Younus and 2 others PLD 1982 SC 79; Muhammad Iqbal and another v. Mst. Saba and others PLD 2005 Kar. 30 and Muhammad Shafi v. State Life Insurance Corporation of Pakistan PLD 1996 Kar. 109 ref.

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

----S. 15(2)(iii)(a)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Subletting---Proof of---Tenant had admitted in his cross-examination that two occupants of shops in the premises in question were paying rent; he however, did not specify the amount as according to him rent was being collected by his brother which had clearly proved that strangers who were running business in part of the rented premises, were paying rent which was clear admission of creation of sub-tenancies---If at all subletting existed prior to settlement of compromise in the first round of litigation and landlord at the time of reaching the compromise intended to condone same, then that should have been stated so in the said compromise, but that was not done---Whole compromise proceeded on the assumption that the rented premises, in its entirety, would be exclusively under the use and occupation of the tenant---Right of any stranger or a sub-tenant was not recognized in the compromise---By allowing strangers to occupy part of the rented premises against payment of rent, tenants had indulged in the act of subletting making them liable for eviction---Constitutional petition was allowed only on the ground that part of the rented premises had been let out by the tenants on rent, thereby committing the act of subletting without seeking written permission of the landlord.?

Iftikhar Javed Kazi for Petitioner.

Mushtaq A. Memon for Respondents Nos. 1 to 9.

Date of hearing: 17th February, 2010.

MLD 2010 KARACHI HIGH COURT SINDH 680 #

2010 M L D 680

[Karachi]

Before Shahid Anwar Bajwa and Aqeel Ahmad Abbasi, JJ

GHULAM SARWAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 955 of 2009, heard 5th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302(b)---Qatl-i-amd---Bail, refusal of---First Information Report showed that seventeen persons were alleged to have waylaid the complainant and his sons---In terms of the role stated in F.LR., said seventeen persons could be categorized in two groups: Firstly three persons who had been granted bail and accused who fired on deceased who consequently died of firing; secondly other thirteen persons who fired on complainant and his other son, but the complainant and the other son of complainant escaped injuries---Role ascribed to first group of four persons, including the accused, was different to the second group of thirteen persons---Role of said two groups was not at par with each other---Specific role had been attributed to three co-accused persons who had been granted bail including the accused---Order passed by the Trial Court granting bail to three co-accused appeared to be based on misreading and it could not help the case of accused on the principle of consistency---Person who was named in the F.I.R. and to whom definite role was attributed of being armed with deadly weapons and having caused injuries to deceased, would not be entitled to facility of bail---Prima facie, there was sufficient material available to connect the accused with the offence under S.302, P.P.C.---Bail application of the accused was dismissed, in circumstances.

Mitho Pitafi v. The State 2009 SCMR 299 ref.

Abdul Haque G. Udho for Applicant.

Zulifqar Ali Jatoi, APG for Respondent.

MLD 2010 KARACHI HIGH COURT SINDH 687 #

2010 M L D 687

[Karachi]

Before Faisal Arab, J

MUHAMMAD JALILULLAH through Attorney---Plaintiff

Versus

Messrs A-ONE HOUSING MANAGEMENTS through Owners ---Defendants

Suit No.1199 of 2007, decided on 9th March, 2010.

Specific Relief Act (I of 1877)---

----S. 12---Limitation Act (IX of 1908), Art.113---Suit for specific performance of contract---Limitation---Plaintiff who booked an apartment, paid its amount as advance---Thereafter said booking was cancelled and in lieu of said cancellation, defendant allotted another apartment to the plaintiff in the said project on new terms and total amount was paid by the plaintiff, but despite that said apartment was not handed over to the plaintiff and the plaintiff had filed the suit---Was not at all necessary that any particular calendar date was agreed upon between the contracting parties in order to attract the provisions of the first part of third column of Art.113 of Limitation Act, 1908---When a contract was to be performed on the happening of a future event without specifying any particular calendar date, then the time from which the period of three years for filing suit for specific performance of a contract as envisaged by the first part of the third column of Art.113 of the Limitation Act, 1908 would commence from the date when the specific future event happened---Where performance was subject to happening of a future event and that future event did happen, then it could not be said that as a calendar date for performance of the contract was not specified, the time for filing the suit for seeking specific performance had not begun and would begin only when the defendant had intimated the plaintiff of his refusal to perform---When the performance of a contract was subject to happening of a future event then whenever that future event happened it was bound to happen on a particular calendar date; and it was that date to be considered to have been fixed between the parties for the performance of the contract---Second part of the third column of Art.113 of the Limitation Act, 1908 would be attracted only when in a contract neither any date was fixed nor its performance was subject to a certain future event.?

M. Aminullah Siddiqi for Plaintiff.

MLD 2010 KARACHI HIGH COURT SINDH 699 #

2010 M L D 699

[Karachi]

Before Shahid Anwar Bajwa, J

NAVEED GHANGHRO and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 789 of 2008 and M.A. No. 1926 of 2009, decided on 12th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149/504/109---Qatl-i-amd---Bail, grant of--Bail application of one accused was withdrawn--Allegations against three remaining accused persons were; firstly, being members of an unlawful assembly; and secondly while escaping they resorted to aerial firing---It was not alleged in the F.I.R. that they caused any injury to the deceased or even fired at the deceased---Bail application to the extent of remaining three accused, was allowed and those were admitted to bail.

Mumtaz Hussain and 5 others v. The State 1996 SCMR 1125; Attaullah v. The State and another 1999 SCMR 1320; Faraz Akram v. The State 1999 SCMR 1369; Muhammad Saddique and another v. The State 1996 SCMR 1654; Ifitkhar v. The State 2000 MLD 1925; Ali Nawaz v. The State 2008 YLR 2957; Meero alias Mir Muhammad v. The State 2000 MLD 262; Muhammad Ashraf v. The State 2006 SCMR 966; Muhammad Waseem Nawaz alias Chhina Loola v. The State 2002 SCMR 1279; Dilmir Hussain v. The State 2004 YLR 1810; Ghulam Hussain v. Mst. Parveen Bibi and others 2004 YLR 2269 ref.

Habibullah Ghauri for Applicant No.3.

Abdul Rehman Bhutto for Applicants Nos.2 and 4.

Ghulam Shabir Shar for the Complainant.

Nisar Ahmed G.Abro for the State.

MLD 2010 KARACHI HIGH COURT SINDH 708 #

2010 M L D 708

[Karachi]

Before Mushir Alam and Safdar Ali Bhutto, JJ

SHAHID UMER---Appellant

Versus

CITY DISTRICT GOVERNMENT and others---Respondents

H.C.A. Nos. 257 and 258 of 2006 decided on 31st March, 2009.

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

----Ss. 12(2) & 96---Decision rendered in a proceeding and affirmed in appeal---Application under S.12(2), C.P.C. against such decision---Scope---Such decision could not be annulled in a collateral proceeding by way of such application.

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

----Ss. 12(2) & 96---Order based on erroneous assumption or interpretation of law---Application under S. 12(2), C.P.C., against such order---Scope---Misrepresentation with contemplation of S.12(2), C.P.C., being of fact and not of law---Such order could always be challenged in appeal.

M.A. Khan for Appellant.

Manzoor Ahmed for Respondent No.1.

K.A. Wahab for Respondent No.5.

Faisal Siddiqui for Respondents Nos.7,10,15, 18, 26, 28 and 31.

Sohail Abbas, for Respondents Nos.9, 21, 22, 23 and 38.

Salahuddin Ahmed for Respondents Nos.10, 15, 18, 26, 28, 31, 34, 35, 40, 41, 42 and 48.

Date of hearing: 31st March, 2009.

MLD 2010 KARACHI HIGH COURT SINDH 716 #

2010 M L D 716

[Karachi]

Before Shahid Anwar Bajwa, J

BARKAT ALI SHAIKH---Applicant

Versus

QURBAN SHAIKH and 3 others---Respondents

Criminal Miscellaneous Application No. S-23 of 2009, decided on 26th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.302/34---Qatl-i-amd---Application for cancellation of bail on the ground that accused (on bail) had given threats to the other party---More important in an application for cancellation of bail was conduct of the party after bail was granted to it and factors to be considered for cancellation Of bail were as to whether the party misused the facility of bail; whether the party abused the facility of bail; was the party likely to abscond from Pakistan or outside the control of the surety and jumped the bail and whether the party hampered investigation or threatened the witnesses; or in any other way obstructed the course of justice---Apart from such grounds, there could be other grounds which had to be taken into consideration by a court considering cancellation of bail---In the present case, on the date when statement with regard to alleged threats by accused was filed, accused was behind the bars and he could not have in any case given any such threats---Statement with regard to threats, prima facie, was not credible---As many as 14 grounds were stated in the application for cancellation of bail, but there was no statement whatsoever to the effect that facility of bail granted to accused had been misused---Paradigms for consideration of cancellation of bail were vastly different than the ones for consideration in grant of bail---Cancellation of bail was declined in circumstances.

Raza Mohsin Qazilbash v. Muhammad Usman Malik 1999 SCMR 1794; Shahzamain v. The State PLD 1994 SC 65; Zulfiqar Ali v. Azizullah 2004 PCr.LJ 923; Khalid Javed v. The State 2003 SCMR 1419 and Shabbir-ul-Hassan v. Zahid Hussain 2008 MLD 449 ref.

Safdar Ali Bhutto and Altaf Hussain Surahio for Applicant.

Ahsan Ahmed Qureshi for Respondents Nos. 2 and 3 and Habibullah G. Ghori for Respondent No.1.

2010 M L D 776

[Karachi]

Before Syed Zakir Hussain, J

GHULAM RASOOL and 3 others--- Plaintiffs

Versus

BOARD OF REVENUE SINDH through Member and 6 others---Defendants

Suit No. 805 of 1999, and C.M.A. 3815 of 2000 decided on 18th March, 2010.

Specific Relief Act (I of 1877)---

---Ss. 42, 54 & 56---Civil Procedure Code (V of 1908), Ss. 10, 11 & O. VII, R.11---Rejection of plaint---Res judicata, principle of---Applicability---Scope---Earlier a suit was dismissed and certain other suits on the same subject-matter were tagged to be heard together---Transaction of sale in question pertained to date falling after the date of grant of status quo order on the same subject-matter in the suit earlier dismissed---Effect---Suit filed by plaintiff was hit by the provisions of Ss. 42, 54 and 56 of Specific Relief Act, 1877, as well as by doctrine of res judicata, hence barred by S.11, C.P.C.---Pendency of earlier suits on the same subject, between the same parties, involving directly and substantially the same issue by itself operated as bar against proceedings of the suit being filed subsequently and such proceedings were bound to be stopped under S.10, C.P.C.---Plaint was rejected in circumstances.

Government of Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi and others 2010 SCMR 115 and Secretary, B & R Government of West Pakistan 4 others v. Fazal Ali Khan, PLD 1971 Kar. 625 rel.

Ms. Sana Minhas for Defendants.

MLD 2010 KARACHI HIGH COURT SINDH 784 #

2010 M L D 784

[Karachi]

Before Syed Zakir Hussain, J

IQBAL AHMED and 3 others---Plaintiffs

Versus

Mst. AZIZ BANO and 2 others---Respondents

Suit No. 418 of 2008, and C.M.As. Nos. 2304, 2305, 6325 of 2008 and 6933 of 2009, decided on 9th March, 2010.

Partition Act (IV of 1893)---

----S.2---Specific Relief Act (I of 1877), S.54---Partition of property---Joint undivisible property---Effect---Provisions of S.2 of Partition Act, 1893, made it generally permissible that in a suit of such nature, a property if found incapable of being partition by metes and bounds, the same might be sold out and proceeds thereof might be distributed among the share-holders/co-owners to resolve the controversy between them in respect thereof as once for all---High Court directed Nazar of the Court to take over possession of suit property and put the same to auction and distribute sale proceeds amongst the parties according to their respective shares---High Court further directed to deposit title documents with Nazar of the Court---Order accordingly.

2008 YLR 2965; Muhammad Din v. Illahi Noor and others PLD 1975 Lah. 1393; Directorate of Small Industries, Government of Balochistan through Sales Manager, Karachi Airport, Karachi v. Civil Aviation Authority through Director-General and another 1993 MLD 1836 and Fateh Muhammad through L.Rs. and others v. Fida Hussain Shah through L.Rs. 2007 CLC 1885 ref.

Messrs Azizuddin Qureshi and M. Hanif Bandhani for Plaintiff.

R.F. Virjee for Defendants.

MLD 2010 KARACHI HIGH COURT SINDH 794 #

2010 M L D 794

[Karachi]

Before Muhammad Tasnim, J

ALBERT JOHN---Appellant

Versus

THE STATE-Respondent

Criminal Appeal No.55 of 2007, decided on 16th March, 2010.

Penal Code (XLV of 1860)---

----Ss. 320 & 323---Qatl-i-khata by rash or negligent driving---Appreciation of evidence---Allegation against accused was that he hit a pedestrian by driving car rashly and negligently who was seriously injured and later on died---Record had established that no direct or indirect evidence was available before the court to hold that accused was driving the vehicle in a rash and negligent manner; as neither any witness had seen the accused driving in rash and negligent manner; nor any one had seen accused hitting the deceased on the road; nor any parson had seen the accident---Case of prosecution having not been established without any shadow of doubt, conviction and sentence awarded to accused, was set aside.

Liaquat Ali and Patras Pyara for Appellant.

Muntazir Mehdi, A.P.G. for Respondent.

Date of hearing: 9th March, 2010.

MLD 2010 KARACHI HIGH COURT SINDH 810 #

2010 M L D 810

[Karachi]

Before Muhammad Tasnim, J

ALI ASGHAR---Applicant

Versus

THE STATE and 6 others---Respondents

Criminal Miscellaneous Application No.203 of 2009, decided on 26th March, 2010.

Criminal Procedure Code (V of 1898)---

---Ss. 561-A & 182---Penal Code (XLV of 1860), Ss.395, 435, 506-B & 106---Dacoity and mischief by fire or explosive substance---Quashing of order---Application for---Police investigated the case, on complaint, and Investigating Officer submitted a report in "B" class for disposal of the case as false---Judicial Magistrate after taking into consideration the facts of the case, approved report under "B" class submitted by Investigating Officer and initiated proceedings under S.182, Cr.P.C. against the complainant---Complainant had filed application under S.561-A, Cr.P.C. for quashing of order of Judicial Magistrate---Validity---If the Police did not find it fit to submit challan in the case, the complainant could not force it to do so, however a remedy was available to the complainant, if he was not satisfied with the investigation conducted by the Police, he could file a direct private complaint---By filing direct private complaint, complainant would be at liberty to produce evidence to establish guilt of accused---Order accordingly.

Raja Meer Muhammad for Applicant.

Shahadat Awan, Prosecutor-General along with Inspector Ch. Manzoor Ahmed of AVCC.

Muntazir Mehdi, APG.

MLD 2010 KARACHI HIGH COURT SINDH 824 #

2010 M L D 824

[Karachi]

Before Syed Zakir Hussain, J

NAWAB JAN alias NAWAZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 84 of 2010, decided on 9th March, 2010.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/353/34---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Attempt to commit qatl-e-amd, assault, recovery of arms and possession of narcotics---Bail, grant of---Further inquiry---First Investigating Officer visited the site under a memo. before official Mushirs, which had shown no recovery of crime empties and incriminating articles---Major part of investigation had already been acted upon before the F.LRs. were registered and nothing was left on the spot to be secured as incriminating, evidence by the Investigating Officer---Both the memo. of recovery and that of place of vardat had been witnessed by the Police witnesses and there was no mention of any genuine attempt made to procure services of public witness---There could be cases when public witnesses were reluctant to join or were not available, but the duty of making a genuine attempt to join public witness, could not be avoided---Prosecution could not absolve itself of its duty to prove such attempt in such like cases---In the present case, one of accused persons had been challaned for narcotic substances, while other though was occupant of car in question, had not been charge-sheeted---Both the occupants of the car, in circumstances, could prima facie jointly be made liable to the said narcotic substances along with the owner of the car, particularly where co-accused who was the driver of car who had an unlicensed .30 bore pistol, had fired at Police party---Such aspect had reasonably connected said co-accused with the crime of narcotic substances together with the other---Samples of the secured charas were received after 16 days' delay, which too needed a plausible explanation to ensure that the said sample parcels remained untampered during the said intervening period of time---Secured arms and ammunition according to Ballistic Expert's report was also obtained with such delay---Such an inordinate delay had made said report cloudy---Memo of recovery did not bear signatures of witnesses/mashirs---No doubt, a prima facie presumption of fairness was attached with the public officials, entrusted with the task of criminal justice system respectively, as to watch and ward and prevention of crime, investigation, etc., but such presumption would not absolve them of the duty to ensure prima facie fairness of the reported crime---Case having been fallen within the purview of a case of further inquiry, accused was admitted to bail, in circumstances.

(b) Criminal trial---

----Appreciation of evidence---Principles---Duty of the court---Court must call for the unplaced connected record to consider the former in conjunction with the latter for coming to a positive possible conclusion in the interest of justice---Being seized of the matter, the court could take judicial notice of each relevant factual aspect and record even in bail matter to ensure justice carefully and judicially screen the evidence of search, arrest and seizure etc.; to have a constant check on the conduct of the Police Officials who detected the crime and investigated the same, to ensure their fairness in terms of transparency committed by the system---Duty of the court to do justice according to law, was not limited in an off-shoot nature case only to the evidence to be produced in court, but also to ensure justice, the court would take into consideration the entire available record of the investigation---Investigation record or proceedings of the incident of crime, which culminated in other distinct offence subject of trial either by same or different courts in point of jurisdiction the court trying an off-shoot crime case was duty bound to ensure verification whether such main incident had taken place as reported against, for if the foundation was weak, the structure thereon, could hardly be strong and there could be no structure without foundation---Justice should not only be done, but it must appear to have been done---Said principle would apply not only to courts, but to all essentials of the justice system, who were equally bound to practically demonstrate the application of the same.

Rasool Bux Dal for Applicant.

Abdullah Rajput, Asst. Prosecutor-General along with Investigating Officer for the State.

Muhammad Saleem of Jackson Police Station Karachi.

MLD 2010 KARACHI HIGH COURT SINDH 839 #

2010 M L D 839

[Karachi]

Before Amir Hani Muslim and Syed Zakir Hussain, JJ

MUHAMMAD ARSHAD---Appellant

Versus

THE STATE---Respondent

Jail Appeal No.201 of 2009, decided on 1st April, 2010.

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

----S. 9(b)---Possessing narcotics---Appreciation of evidence---Accused during examination under S.342, Cr.P.C. had accepted the charge and pleaded guilty---No evidence was available in the case except the deposition of the Police Officer who was examined as mashir by the prosecution---Other witnesses could not be produced despite coercive method adopted by the court which resulted in closing the side of the prosecution---Co-accused was acquitted by the Trial Court, but on the same evidence and for the same reasons, Trial Court convicted accused merely on the basis of his plea of guilty, which was turned down and was not acted upon---Held, if a case on merits was not made out, mere confession, would not be made basis for conviction, as the confession alone of an accused would carry no evidentiary value in law; and the court was duty bound to ensure that a plea of 'guilty' or confession was proper, voluntary, without any temptation, promise or coercion---Confession must have nexus with the evidence prima facie establishing such guilt of accused---In the present case, the trial had been concluded and finding was of the court that no evidence had been led to establish the charge against both accused persons---Result should not have been different for accused---In case of plea of guilt and conviction recorded in the impugned judgment, the plea of guilt should have been dealt with by the Trial Court at the relevant time and not after conducting the whole case on merits---If the Trial Court had found that there was no evidence against co-accused, how can the court could hold otherwise for the accused on same evidence and convicting the accused on the sole ground of plea of guilty---Impugned judgment was set aside being unsustainable in law, in circumstances.

Sanaullah Qamar for Appellant.

Ms. Abida Parveen Channa for the State.

Date of hearing: 30th March, 2010.

MLD 2010 KARACHI HIGH COURT SINDH 850 #

2010 M L D 850

[Karachi]

Before Muhammad Ali Mazhar, J

MUHAMMAD USMAN and others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-749 of 2009, decided on 2nd April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 147, 148, 149, 504 & 337-H(ii)---Qatl-e-amd---Bail, refusal of---Further inquiry---Determination---Principles---Specific role having been assigned to accused persons in the F.I.R., they were not entitled to the concession of bail---To determine the question whether bail was to be granted or not, the court was bound to make tentative assessment of the material placed before it---Court, however had to refrain, directly or indirectly; from giving any conclusive finding on the question of guilt or innocence of accused---Question of further inquiry should be such which should have nexus with the result of case and could show or tend to show that accused was not guilty of the offence with which he was charged---What would constitute as sufficient grounds for further inquiry, would depend on the result on the peculiar facts of each case and no hard and fast rule could be laid down for that purpose, however, hypothetical question which could be imagined would not make a case of further inquiry simply for the reasons that it could be answered by the Trial Court subsequently after evaluation of evidence--Condition laid down in clause (2) of S.497, Cr.P.C. was that sufficient grounds were present for further inquiry into the guilt which would mean that the question should be such which had nexus with the result of the case and could show or tend to show that accused was not guilty of the offence with which he was charged---In the present case, the material placed before the court was not only the F.L R., but also the statement of two eye-witnesses including the postmortem and medical report fully supporting the prosecution version; accused persons had failed to point out any enmity or dispute on any issue; not only the eye-witnesses had fully identified accused and supported the version of the complainant, but also specific role had been assigned to them in the F.I.R.; neither the present case could be treated as a case of counter version nor at bail stage it could be held to be a case of further inquiry---Accused, in circumstances, being not entitled to the concession of bail, bail application was dismissed in circumstances.

1996 SCMR 1845; 2005 SCMR 1402; 1992 SCMR 501; 2004 SCMR 1018; 2009 SCMR 324 and PLD 1994 SC 65 ref.

Amjad Ali Sahito for Applicants.

Shahid Ahmed Shaikh, Asst. Prosecutor-General, Sindh for the State.

Jawaid Chaudhry for the Complainant.

MLD 2010 KARACHI HIGH COURT SINDH 864 #

2010 M L D 864

[Karachi]

Before Muhammad Ali Mazhar, J

KHUDA BUX---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. S-182 of 2009, decided on 19th March, 2010.

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

----Ss. 265-K & 561-A---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Dismissal of application for acquittal under S.265-K, Cr.P.C.---Quashing of order of dismissal of application---Application for acquittal filed by accused under S.265-K, Cr.P.C. having been dismissed by the court, accused had filed application under S.561-A, Cr.P.C. for quashing order of dismissal of application---Co-accused had already been acquitted against whom the allegations were same as against the accused---On the basis of evidence led in the case there was no probability of accused being convicted of any offence---Sufficient incriminating material was lacking connecting accused with the commission of alleged offence---Under S.265-K, Cr.P.C. accused could be acquitted, where on the evidence available on the record, there was no probability of accused. being convicted of the offence he was charged with---Trial Court in the present case had not applied its mind properly and the impugned order was based on presumption of additional evidence, which was not at all relevant for the decision of the application under S.265-K, Cr.P.C.---Trial Court had to consider on the basis of available evidence, whether there was any probability of accused being convicted of any offence, but the Court decided the application on mere presumption which was against the spirit of S.265-K, Cr.P.C.---Application under S.561-A, Cr.P.C. was allowed and order was quashed.

1989 PCr.LJ 2044; 1991 MLD 540; 1985 SCMR 662: 1972 SCMR 194; 2004 PCr.LJ 1492 and 2007 SCMR 1812 ref.

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

----S.561-A---Quashing of order---Inherent jurisdiction of High Court-Scope---Jurisdictional requirements for the exercise of the powers under S.561-A, Cr.P.C. were; to give effect to any order under the Criminal Procedure Code; to prevent abuse of process of any court; and to secure the ends of justice---In order to seek interference under S.561-A, Cr.P.C., three conditions to be fulfilled were that the injustice which came to light, should not be of a trivial character; that the injustice which was noted was of a clear and palpable character and not of a doubtful character; and that there existed no other provisions of law by which the party aggrieved could have sought relief---Purpose of invoking provisions of S. 561-A, Cr.P.C. was mainly to prevent abuse of process of court; and to secure the ends of justice.

Agha Khuda Bux for Applicant.

Shahid A. Shaikh, A.P.G. for Respondent.

Dates of hearing: 23rd February and 1st March of 2010.

MLD 2010 KARACHI HIGH COURT SINDH 877 #

2010 M L D 877

[Karachi]

Before Sarmad Jalal Osmany, C. J.

Master GHULAM MUHAMMAD and others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.1019 of 2009, decided on 19th September, 2009.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 147, 148, 149 & 504---Qatl-i-amd and attempt to qatl-i-amd---Bail, grant of---Further inquiry---No active role had been attributed to accused except for being present at the scene of the crime duly armed---Case of accused was one of further inquiry---Common intention of an accused which he had stated to have shared with the other accused in committing the crime in question, was always subject to further inquiry, unless there was overwhelming evidence to the contrary---Prosecution witnesses did not speak the entire truth---Enmity existed between the parties over matrimonial affairs and possibility of false implication also existed---Confession of co-accused who had taken the entire responsibility upon his shoulders for the murder of the deceased and causing injuries to injured, could not be ruled out---Case of two co-accused was also one of further inquiry---Bail was granted to accused.

Abdul Malik v. State 1998 MLD 1307; Irshad v. State 2004 PCr.LJ 1246; Liaquat Ali v. State PLD 1994 SC 172 and Abdullah Khan v. State 2001 PCr:LJ 1679 rel.

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

----Art. 43---Confession of co-accused---Confession of co-accused was admissible and could be taken into consideration when circumstantial evidence was proved against the maker thereof---Although the stage of the proof of confession would no doubt come at the trial, however the same could be taken into consideration along with all surrounding circumstances.

Muhammad Ilyas Khan for Applicant.

Imdad Haider Solangi for the Complainant.

Abdul Rehman Kolachi, Addl: Prosecutor-General for the State.

MLD 2010 KARACHI HIGH COURT SINDH 885 #

2010 M L D 885

[Karachi]

Before Khadim Hussain M. Sheikh, J

HADI BUX and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.464 of 2008, decided on heard on 25th May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17---Haraabah---Bail, grant of---Delay of 19 hours in lodging F.I.R., while distance between the place of incident and Police Station as shown in the F.I.R. was only 5/6 K.M.---No recovery of robbed money had been effected from accused persons and accused from whom the gun and five cartridges were shown to have been recovered, had been acquitted of the charge under S.13 of West Pakistan Arms Ordinance, 1965 and no appeal against such acquittal was filed by the complainant party---Accused having made out a case for concession of bail, they were granted bail, in circumstances.

Noor Nabi and another v. The State 2007 YLR 2340 ref.

Jai Jai Veshnu Mangeram and Syed Aijaz Ali Shah for Applicants.

Altaf Hussain Surahio for the Complainant.

Naimatullah Bhurgri for the State.

MLD 2010 KARACHI HIGH COURT SINDH 892 #

2010 M L D 892

[Karachi]

Before Amir Hani Muslim and Ahmed Ali Shaikh, JJ

KASHIF AZEEM---Petitioner

Versus

Mst. TAHIRA ANJUM and 5 others---Respondents

C.P. No.D-787 and Criminal Miscellaneous No. 531 of 2009, decided on 23rd December, 2009.

Penal Code (XL V of 1860)---

----S. 395---Constitution of Pakistan (1973), Art.199---Criminal Procedure Code (V of 1898), S.561-A---Dacoity---Quashing of proceedings---Car on lease---Consent order was passed to the effect that bank would settle the account with respondent, who would pay the entire lease amount within specified period, failing which she would surrender the car in dispute with Additional Registrar of the court---Proceedings initiated by respondent against the petitioner was devoid of mens rea as definition of S.395, P.P.C. was distinct and was not covered by the act alleged to have been committed by the petitioner, who in discharge of his duties as an employee had taken possession of the car in dispute in presence of the Police---Proceedings culminating from the F.I.R. against the petitioner, were liable to be quashed as continuation of such proceedings would not end in conviction of the petitioner.

Ishrat Ali Lohar for Petitioner.

Allah Bachayo Soomro, Addl: Advocate-General Sindh for Respondent No.1.

Mrs. Tahira Anjum present in person.

Haji Khan Hingoro on behalf of Manager, Collection UBL Gul Centre Hyderabad.

Mahboob Illahi Saham on behalf of Waqar Alam Proprietor Access World Service Karachi.

MLD 2010 KARACHI HIGH COURT SINDH 899 #

2010 M L D 899

[Karachi]

Before Muhammad Tasnim, J

SALMAN ALVI and another---Plaintiffs

Versus

UNITED BANK LTD. through President and 3 others-Defendants

C.M.As. Nos. 3603/09, 6133 of 2007 in Suit No. 831 of 2007, decided on 5th April, 2010.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2 & S.151---Suit for declaration and injunction---Suit plot was leased out to private defendant in year, 1974---Subsequent sub-division of suit plot in three smaller plots by private defendant---Purchase of one subdivided plot by plaintiff in year, 1987 through registered document from private defendant and taking over its physical possession---Defendant-Bank claiming to be mortgagee of entire suit plot---Plaintiff's application for granting of temporary injunction against defendants---Validity---Object of seeking interim injunction under O. XXXIX, Rr. 1 and 2 read with S.151, C.P.C., would be to preserve situation as obtaining on date of suit, prevent an injury to plaintiff during pendency of suit and creation of a new situation---Court while granting such application would consider whether a prima facie case existed in favour of applicant; whether an irreparable loss/damages/ injury might occur to him in case of refusal of injunction prayed for; and whether balance of convenience would lie in his favour or not---Genuineness or otherwise of documents relied upon by parties could not be judged without recording evidence---Prima facie case existed in favour of plaintiff for being in continuous possession of suit plot since year, 1988 under registered instruments---Non-granting of injunction to preserve subject-matter of suit would cause an irreparable loss and injury to plaintiff---Balance of inconvenience was in favour of plaintiff---Fate of suit could not be decided without recording evidence, thus, till its decision, protecting subject-matter of suit from changing hands would necessary---Interim injunction was granted in circumstances.

PLD 2007 SC 249; PLD 1958 SC 10; PLD 1968 SC 1025 and 2001 CLC 838 ref.

Balagamwala Oil Mills (Pvt.) Ltd. v. Shakarchi Trading A.G. and others PLD 1990 Kar. 1 rel.

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

----O.XXXIX, Rr. 1 & 2---Interim injunction, grant of---Object---Scope---Objection of interim injunction would be to preserve situation as obtaining on date of suit, prevent an injury to plaintiff during pendency of suit and creation of a new situation---Court while granting such injunction would consider prima face case, balance of convenience and irreparable loss/damage/injury to plaintiff.

----O.XXXIX, Rr. 1 & 2---Interim injunction, grant of---Prima facie case, establishment of---Scope---Plaintiff in establishing a prima facie case would not be required to establish his title, rather raising a fair question as to existence of his right would be sufficient.

Nadeem Akhtar for Plaintiffs.

Abdul Haleem Siddiqui for Defendant No.1.

Muhammad Idrees Alvi for Defendant No.3.

None for Defendants Nos. 2 and 4.

MLD 2010 KARACHI HIGH COURT SINDH 907 #

2010 M L D 907

[Karachi]

Before Khadim Hussain M. Shaikh, J

Mst. AFROZE alias AFSHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 760 of 2008, decided on 29th May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(1) [as amended by Criminal Procedure Code (Second Amendment) Ordinance (XXXVI of 2007)]---Penal Code (XLV of 1860), Ss.302, 304, 147 & 149---Qatl-e-amd---Bail, grant of---After framing charge against lady accused, case was adjourned on various dates, but accused was not produced from jail before the Trial Court and the case could not proceed and not a single witness had been examined---Delay in the trial had not been occasioned by any act of omission of the accused or her advocate---Prosecution could not be absolved or given any latitude on account of inability to produce accused from jail for lack of resources---State was bound to make arrangement for providing logistics to prosecution to ensure production of accused in courts on each and every date---Accused and her husband both were in jail and their minor daughter aged 3 years needed constant care of her mother--Said minor was also languishing in jail---Accused who deserved to be released on bail, she was granted bail.

Ghulam Abbas alias Abbasi and others v. The State PLD 2005 Kar. 255 ref.

Abdul Rahman Bhutto for Applicant.

Abdul Hamid Bhurgi, Addl: Advocate-General for the State.

MLD 2010 KARACHI HIGH COURT SINDH 913 #

2010 M L D 913

[Karachi]

Before Muhammad Tasnim, J

SADIQ BROTHERS through Proprietor ---Petitioner

Versus

II-ADDITIONAL DISTRICT JUDGE KARACHI South and 2 others---Respondents

Constitutional Petition No.S-776 of 2009, decided on 31st March, 2010.

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

----Art.199---Constitutional jurisdiction---Scope---Question of fact recorded by competent forum---Interference---High Court in constitutional jurisdiction could not sit as a court of appeal on such question---High Court could interfere in such question, if same was based on no evidence or recorded by ignoring material evidence on record---Possibility of a different view on basis of same evidence could not be a ground for High Court to interfere in finding of fact.

Abdul Razzaq v. Messrs Ihsan Sons Ltd. and 2 others 1992 SCMR 505 and PLD 2006 SC 24 ref.

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

----S.8---Fair rent Application for fixation of---Rent of premises fixed in year, 1955 @ Rs.12 per month subsequently enhanced to Rs.130 per month was sought by landlord to be further raised due to going up manifold cost of construction and land---Validity---Landlord had not raised any construction on premises since 1955, but cost of land had gone up manifold---Premises having an area of 264 square feet was located in heart of the city---Record showed drastic increase in property tax and water and conservancy taxes of premises---Rent of other premises located in same building and adjoining building fixed nine years ago was ranging between Rs.7 and Rs.8 per square feet---Tenant for last many decades had been paying very nominal monthly rent of Rs.130---Rent of premises was fixed @ Rs.12 per square feet (i.e. total Rs.3168) from date of institution of such application, and in view of hardship resulting from disposal of case with delay, tenant was directed to pay arrears of rent in six equal instalments within period of 18 months.

Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103; State Life Insurance Corporation of Pakistan v. Habib Safe Deposit Vault (Pvt.) Ltd. and 2 others 2008 CLC 517; Banasri Silk Cloth Museum v. Mst. Amna Bai 1986 CLC 1570; Abdul Razzaq v. Messrs Ihsan Sons Ltd. and 2 others 1992 SCMR 505; Mst. Masudah Jawad through her Daughter v. State Life Insurance Corporation of Pakistan, Karachi and another PLD 2007 Kar. 485; Messrs Eastern Automobiles (Private) Ltd., Karachi v. Pakistan National Shipping Corporation, Karachi PLD 1993 Kar. 9; Muhammad Shafi Khan v. Meher Sultan 1991 CLC 351; Abdul Hamid v. Abdul Ghani 1992 MLD 1588; Messrs Shamim Akhtar v. State Life Insurance Corporation of Pakistan, Karachi and 2 others PLD 2005 Kar. 554; State Life Insurance Corporation of Pakistan v. Pakistan National Shipping Corporation 1993 CLC 1726; H. Cooper and others v. State Life Insurance Corporation of Pakistan 1994 SCMR 2115; Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103 and State Life Insurance Corporation of Pakistan, Karachi v. Messrs Victor Restaurant through Partners and others 2009 YLR 1124 ref.

Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103 and H. Cooper and other v. State Life Insurance Corporation of Pakistan 1994 SCMR 2115 rel.

Khalid Javed for Petitioner.

K.A. Wahab for Respondent.No.3.

None for other Respondents.

Date of hearing: 17th March, 2010.

MLD 2010 KARACHI HIGH COURT SINDH 927 #

2010 M L D 927

[Karachi]

Before Mrs. Qaiser Iqbal, J

ABDUL MANNAN BHUTTO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.99 of 2009, decided on 12th September, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), 8s-324/353/392/34-Attempt to commit qatl-e-amd and robbery---Bail, grant of---Further inquiry--In absence of any injury sustained by both sides in the encounter, non-availability of empties, coupled with delay shown between the time of occurrence and the time of arrest of accused, case against accused fell within the purview of further enquiry---Prima facie the offence committed under Ss.353 and 324, P.P.C. were not spelt out from the facts and circumstances of the case---Accused was admitted to bail, in circumstances.

Rab Nawaz v. The State 1990 SCMR 1085 and Khawand Dino alias Dadoo v. The State 2003 YLR 918 rel.

Mahmood A. Qureshi for Applicant.

Zafar Ahmed, Additional P.G. Sindh for the State.

MLD 2010 KARACHI HIGH COURT SINDH 937 #

2010 M L D 937

[Karachi]

Before Muharram G. Baloch, J

IMDAD ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.135 of 2007, decided on 13th March, 2009.

Penal Code (XLV of 1860)---

----S. 320---Qatl-e-khata---Appreciation of evidence---Two prosecution witnesses had not said anything in respect of rash and negligent driving on the part of accused---In absence of act of rash and negligent driving, accused was entitled for benefit of doubt---State Counsel had frankly conceded to the fact that since there was no direct evidence of rash and negligent driving on the part of accused, conviction and sentence awarded to accused by the Trial Court vide impugned judgment could not sustain and State Counsel did not support the impugned judgment---Conviction under S.320, P.P.C. required conclusively established act of rash and negligent driving on the part of accused, but the Trial Court had lost sight of that fact and seemingly remained oblivious of that aspect altogether---Prosecution having failed to prove its case beyond shadow of reasonable doubt, conviction and sentence, recorded by the Trial Court against accused, were set aside and accused was acquitted, in circumstances.

Muzaffar Ali alias Nannah v. The State 1999 MLD 567; Noor Khan v. The State 1974 PCr.LJ 56; Muhammad Yaqoob v. The State PLD 1959 (W.P.) Kar. 30; Muhammad Akhtar v. The State 1980 PCr.LJ 103; Falak Sher v. The State 1989 PCr.LJ 2107; Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 and Yasin alias Ghulam Mustafa v. The State 2008 SCMR 336 ref.

Mahmood A. Qureshi for Appellant.

Date of hearing: 13th March, 2009.

MLD 2010 KARACHI HIGH COURT SINDH 943 #

2010 M L D 943

[Karachi]

Before Khadim Hussain M. Shaikh, J

JAVED ALI---Petitioner

Versus

Mst. SHABIRAN---Respondent

Constitution Petition No. 410 of 2009, decided on 19th May, 2009.

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

----Ss. 7, 12 & 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for temporary custody of minor---Respondent/mother filed a guardianship application under Ss. 7 & 25 of Guardians and Wards Act, 1890, along with application under S.12 of the Act, seeking temporary custody of her minor daughter of tender age---Said application had been accepted directing handing over the custody of minor to the mother---Validity---Minor who was of tender age of two years, would definitely need constant care of mother and there could not be any substitute for a mother as the lap of mother was God's own cradle for a child---Till the matter regarding custody of the minor was decided, the minor was to be given in proper custody keeping in view her tender age---No infirmity or illegality was found in the impugned orders passed by the courts below, which were founded on the appreciation of material on record---Appellate Court in view of the father's contumacious conduct, was perfectly justified in raising adverse inference against him .

Imran Ali v. Mst. Iffat Siddiqui and others SBLR 2008 Sindh 719 ref.

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

----Art. 199---Constitutional jurisdiction---Scope---Awarding of discretionary relief under the Constitution mainly depended upon the conduct of the parties---Petitioner in the present case had acted contumaciously with sole object to prolong the litigation and to add the agonies of the respondent---No equitable relief could be granted in discretionary jurisdiction to such like person---Petition was dismissed.

Miss Razia Sultana Meo Rajpur for Petitioner.

MLD 2010 KARACHI HIGH COURT SINDH 948 #

2010 M L D 948

[Karachi]

Before Muhammad Iqbal Mahar, J

SHABBIR AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.770 of 2009, decided on 22nd July, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code(XLV of 1860), Ss.302/397---Juvenile Justice System Ordinance (XXII of 2000), S.10(7)(a)---Qatl-e-amd and robbery---Bail, grant of---Identification parade in the case was held 6 days after arrest of accused and no explanation had been given by the prosecution for said delay---Accused remained in custody for 19 months, but there was no progress in the case---Case property and Police papers were not collected by the Trial Court and not a single witness had been examined in the case---Age of accused being in between 16 to 17 years, otherwise was entitled to bail under S.10(7)(a) of Juvenile Justice System Ordinance, 2000---Accused was admitted to bail, in circumstances.?

2009 PCr.LJ 47; 2006 PCr.LJ 1648; 2006 MLD 507 and 1970 SCMR 30 ref.

Miss Shaista Khan Kundi for Applicant.

Miss Rahat Ehsaan, D.P.G. for the State.

MLD 2010 KARACHI HIGH COURT SINDH 956 #

2010 M L D 956

[Karachi]

Before Muhammad Afzal Soomro, J

MIANDAD and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.179 of 2004, decided on 19th March, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/109/34---Qatl-e-amd---Bail, grant of---Counsel for accused had contended that case against them was false and they had been involved in the background of enmity and suspicion; that F.I.R. was belated by eight hours and no satisfactory explanation was forthcoming for said delay; that it was an unwitnessed crime as none had seen the incident; that statements of the witnesses under S.161, Cr. P. C. were recorded after long delay of 48 days and that statements under S.164, Cr.P.C. were recorded after the delay of 50 days; that accused were shown to be armed with hatchets, but no hatchet wounds were found on the person of deceased---State Counsel conceded to the said legal position and raised no objection to the grant of bail to accused---Counsel for accused having been able to make out a case for grant of bail to accused, they were admitted to bail, in circumstances.

Khadim Hussain M. Shaikh for Applicants.

Mumtaz Alam Leghari for the State.

MLD 2010 KARACHI HIGH COURT SINDH 972 #

2010 M L D 972

[Karachi]

Before Khadim Hussain M. Shaikh, J

BARKAT ALI---Applicant

Versus

YAAR ALI and 3 others-Respondents

Criminal Miscellaneous Applications Nos. 80, 81 and 117 of 2009, decided on 20th July, 2009.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.324, 327, 109, 148 & 149---Attempt to commit qatl-i-amd---Cancellation of bail, application for---Two accused persons were not shown to be present at the time of incident and only abetment in absentia was attributed to both of them; involvement of said accused persons in the commission of the offence required further inquiry and thus were rightly granted bail by the Trial Court---Application whereby the complainant had sought for cancellation of bail granted to the accused persons by the Trial Court, was dismissed, in circumstances.

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

----S.497(5)---Penal Code (XLV of 1860), Ss.324, 327, 109, 148 & 149---Attempt to commit qatl-i-amd --Application for cancellation of bail---Three co-accused were duly armed with lethal weapons, namely, kalashnikovs, pistols and guns and they caused multiple fire-arm injuries to the complainant and prosecution witnesses on various parts of their bodies, including their vital parts by firing from their respective weapons at them---Medico-legal certificates of injured complainant and other prosecution witnesses, had revealed that complainant had sustained five fire-arm injuries on different parts of his body including chest and abdomen with entry and exit wounds---Other prosecution witnesses also received fire-arm injuries on vital parts of their bodies---Names of said three co-accused found place in the F.I. R. which was promptly lodged at the Police Station---Prima facie, sufficient evidence available was to indicate that attempt was made by the co-accused on the life of the complainant and prosecution witnesses---Case of said co-accused persons was covered by Ist part of S.324, P.P.C., which fell within prohibitory clause of S.497, Cr.P.C.---Co-accused were not entitled to be enlarged on bail---Order granting bail to said co-accused was patently illegal, arbitrary and was the result of exercise of discretion against well-settled principles governing the bail matters---Bail granted to said co-accused, was cancelled in circumstances.

Ghulam Muhammad v. Khan Muhammad and 11 others 1975 PCr.LJ 604; Muhammad v. The State 1998 SCMR 454 and Mumtaz Hussain and 5 others v. The State 1996 SCMR 1125 ref.

Liaqat Ali Balouch for Applicant.

Ali Nawaz Ghanghro for Respondent.

Naimatullah Bhurgri, State Counsel.

MLD 2010 KARACHI HIGH COURT SINDH 1000 #

2010 M L D 1000

[Karachi]

Before Syed Zakir Hussain, J

Mst. SEEMA BEGUM and 12 others---Plaintiffs

Versus

Syed GHULAM HAIDER and 2 others---Respondents

Civil Suit No. 759 and C.M.As. 4722, 7279 of 2008, decided on 23rd March, 2010.

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

----S.151, O.XIII, Rr.1, 2 & O.XI, R.14---Specific Relief Act (I of 1877), S.53---Application for production of documents---Plaintiffs filed application under O.XIII, Rr.1, 2 read with S.151 C.P.C. on the ground that the plaintiffs had observed all the formalities required under law for registration of sale-deed but the Sub-Registrar did not register the sale-dead and further prayed for production of the registered sale-deed---Relief sought in the application did not cover by the provisions referred by the plaintiffs, which was covered by the provisions of O.XI, R.14, C.P.C. which related to production of documents in possession of either party at the request of opposite side, on oath---Relief became purposeless for the plaintiffs after the Sub-Registrar had submitted the unregistered sale-deed and application had become infructuous being impracticable in terms of relief claimed---Relief sought for, in the application if granted, would amount to disposing of the entire suit, which was to be avoided by the court in the interest of rights of the parties to the suit---When no prima facie case was made out; interim relief was not open to be granted---Application for production of documents was dismissed by High Court.

Secretary, B & R., Government of West Pakistan and 4 others v. Fazal Ali Khan, PLD 1971 Kar. 625 ref.

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

----S. 53---Interim relief---When no prima facie case was made out; interim relief was not open to be granted, and similarly where the main relief should (indirectly) stand granted, by merely granting a temporary relief, the latter might be refused in the best interest of the parties to the suit.

Iftikhar Siddique v. Clifton Cantonment Board and others PLD 1998 Kar. 373 rel.

----O. I, R.10(2)---Necessary or proper party---Plea of---Application to join as party---No privity of contract---Effect---Applicant had already filed a civil suit in his own right, governed under the alleged contract executed between the parties---No privity of contract existed between the applicants and parties to the suit under which an application for joining as party was made---Joining of applicants as party would be unnecessary and improper---Application for joining as party was dismissed by High Court.

Messrs Ghuiam Ali Khokhar and Muhammad Younas for Plaintiffs.

Salahuddin for Intervener.

Azeem Majid, A.A.-G. for Official Defendants.

MLD 2010 KARACHI HIGH COURT SINDH 1008 #

2010 M L D 1008

[Karachi]

Before Mrs. Qaiser Iqbal, J

MIANDAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-154 of 2006, decided on.6th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324, 337-A(ii), 337-F(i), 504, 147, 148 & 149---Attempt to commit qatl-e-amd---Pre-arrest bail, grant of---Case of accused was on better footing than that of co-accused, who was admitted to interim pre-arrest bail by the Trial Court--Injury attributed to accused caused to the victim had been declared as "Shajjah-i-Khafifa"---Past enmity existed between the parties on petty affairs which resulted in registration of case against accused---Accused was admitted to pre-arrest bail on the same terms and conditions as were contained in his interim pre-arrest bail order.

Mumtaz Alam Leghari for Applicant.

Amir Ali Tahir for the State.

Sher Baz Khan, Advocate holding brief for Ayaz Latif Palejo for the Complainant.

MLD 2010 KARACHI HIGH COURT SINDH 1015 #

2010 M L D 1015

[Karachi]

Before Muhammad Ali Mazhar, J

SALEEM MEHTAB---Plaintiff

Versus

Messrs REFHAN BEST FOOD LTD. COMPANY through Chief Executive and 9 others---Defendants

Suit No. 858 and C.M.A. No. 9829 of 2005, decided on 7th May, 2010.

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

----O. VII, R.10---Return of plaint---Coram non judice---Scope---Provision of O. VII, R.10, C. P. C. was mandatory in nature---Adjudication by a court without jurisdiction was a determination coram non judice---Plaint was to be returned for presentation to the proper court.

Messrs Kadir Motors (Regd.), Rawalpindi v. Messrs National Motors Ltd. Karachi 1992 SCMR 1174; State Life Insurance Corporation v. Rana Muhammad Saleem 1987 SCMR 393; E.F.U. General Insurance Ltd. v. Fahimul Haq 1997 CLC 1441 and Chaudhry Mehtab Ahmed and another v. Mir Shakil-ur-Rehman and 4 others 2004 MLD 662 ref.

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

----O. VII, R.10---Return of plaint---Jurisdiction---Question of---Where parties were at issue regarding jurisdiction, it was necessary that court should decide the question first in order to determine where the court had jurisdiction; the suit was rightly framed or instituted.

----O. VII, R.10---Return of plaint---Institution of action---Agreement---Competency of court---Effect---If the parties had agreed that suit was to be filed in a particular court and the suit was filed in another court, the proper course for the court was to return the plaint for presentation to the court agreed upon by the parties.

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

----S. 20(c) & O. VII, R.10---Territorial jurisdiction---Determination of---Effect---Validity of an agreement by which the parties preferred one of two courts depended upon the fact that both the courts must have jurisdiction to decide the matter---Had the parties not chosen the territorial jurisdiction of particular court in the agreement, the territorial jurisdiction could have been determined in view of S.20(c) C.P.C., which provided a right to sue at any place on account of cause of action in whole or in part.

Mehfooz Yar Khan for Plaintiff.

Muhammad Muzaffar for Defendants.

MLD 2010 KARACHI HIGH COURT SINDH 1027 #

2010 M L D 1027

[Karachi]

Before Maqbool Ahmed Awan, J

TAHIR AHMED ZAHID---Applicant

Versus

THE STATE-Respondent

Criminal Bail Application No. 1301 of 2008, decided on 8th June, 2009.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.379 & 427---Theft and mischief causing damage---Ad interim pre-arrest bail, confirmation of--Accused was granted pre-arrest bail, but the Police had not submitted the challan---Was yet to be seen at the time of evidence, whether accused had committed the offence for which he had been charged---Punishment for which accused was charged, would not fall within prohibitory clause of S.497, Cr.P.C.---No such allegation that accused had misused the concession of bail granted to him---Bail earlier granted to accused was confirmed.

PLD 1995 SC 34 and 1993 PCr.LJ 446 rel.

Muhammad Nawaz for Applicant.

Tahir Ahmed, present in person.

Zafar Ahmed Khan, Additional Prosecutor-General.

Asadullah Balouch, State Counsel.

MLD 2010 KARACHI HIGH COURT SINDH 1032 #

2010 M L D 1032

[Karachi]

Before Salman Hamid, J

Messrs TAHIR OMER INDUSTRIES (PVT.) LTD.---Plaintiffs

Versus

Messrs SIDDIQUI SONS SYNDICATE and 2 others---Respondents

Suit No. 1204 and C.M.A. No. 8057 of 2007, decided on 1st March, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXVIII, R.5---Attachment of property before pronouncement of judgment---Effect---Plaintiff filed application under O. XXXVIII, R.5 C.P.C., for attachment of defendants' property before judgment on the ground that defendants had produced a buyer who was willing to purchase the property and that the property be attached as there was no other property/asset of the defendants to be recovered as decretal amount, if eventually the decree would be passed in their favour---Defendants contested application and denied that they had any intention or they were negotiating with any buyer for disposal of the property which would intend to obstruct and/or delay the execution of any decree that would be passed against them---Validity---Neither the name of the buyer who was willing to purchase the property was shown in the application nor any other proof had been filed to substantiate such an apprehension on the part of the plaintiff---Provisions of O.XXXVIII, R.5 of C.P.C., being penal in nature must be exercised with caution and not as a matter of course---High Court dismissed the application in circumstances.

PLD 1979 Kar. 734; 1982 CLC 1360; 1987 CLC 984 and PLD 1996 Kar. 339 ref.

Mazhar Lari for Plaintiffs.

Anjum Ghani for Defendants.

MLD 2010 KARACHI HIGH COURT SINDH 1040 #

2010 M L D 1040

[Karachi]

Before Salman Ansari, J

SULEMAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 959 of 2008, decided on 17th February, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.397/34---Bail, refusal of---Robbery---Two F.I.Rs. were lodged, one being the present and second was registered under Ss. 302/353/324/34 P.P.C.---No person had witnessed the incident of shooting in which deceased had died---Accused, after having committed the offence, were chased and subsequently an encounter with the Police had taken place---Witnesses who had taken part in the encounter and the prosecution witnesses before whom accused were put to identification parade (as both the incidents were so interconnected) should have been examined by the Trial Court before bail in that matter was considered---Trial Court, in circumstances, was directed to examine within one month, the witnesses who had witnessed the incident of encounter and before whom accused were put to identification---Trial Court was further directed to conclude the trial within specified period---Bail was declined.

Rao Liaquat Ali Khan for Applicant.

2010 M L D 1065

[Karachi]

Before Khadim Hussain M. Shaikh, J

IRSHAD JATOI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.162 of 2009, decided on 29th April, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6/9---Possession of narcotic---Bail, refusal of---Number of pieces of Charas weighing 100 grams as samples for chemical analysis were sent to the Chemical Examiner whose report regarding such samples was positive--Accused had not placed on record any material to show enmity of the complainant with accused---Prima facie there was no question of false implication of accused in the crime and case was covered by prohibitory clause of S.497, Cr.P.C.---Accused having failed to make out a case for concession of bail, his bail application was dismissed---Trial Court, however, was directed to conclude the trial within three months by procuring the attendance of prosecution witnesses, who were Police Officials, even through coercive process.

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

Habibullah G. Ghori for Applicant.

Miss Robina Dhamraho for the State.

MLD 2010 KARACHI HIGH COURT SINDH 1068 #

2010 M L D 1068

[Karachi]

Before Ali Sain Dino Metlo and Syed Shafaqat Ali Shah Masoomi, JJ

MUHAMMAD SALEEM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. D-62 of 2004, decided on 7th May, 2009.

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

----S.9(c)---Appreciation of evidence---Accused had contended that Police Inspector had falsely implicated him because he was serving as cook of said Inspector who suspected him to be involved in the murder of his son---No substance was found in the plea of accused as said Police Inspector had categorically denied the suggestion that accused was his cook and he had also stated that he did not know accused previously---Even otherwise son of said Police Inspector was murdered in 1999 and case against accused pertained to 2002---Plea of total denial and lack of knowledge about the presence of Charas in the secret cavity of the vehicle driven by accused being self-contradictory, could not be given any weight---Accused did not give any explanation for the Charas recovered from the secret cavity of the vehicle driven by him---Finding of the Trial Court holding accused guilty of transporting the Charas was unexceptionable in circumstances---Not necessary to send whole property to the Chemical Examiner when samples were taken from each bundle---Accused never stated that some other substance was recovered from him---Neither the manner of transporting Charas was necessary to be mentioned in the charge nor accused was misled in his defence nor failure of justice had in fact been occasioned---Contention of accused that he had no knowledge about the Charas having been concealed in the secret cavity in the floor of Pick-up was repelled---Accused was driving the vehicle knowing that the Charas had been kept in the secret cavity, but his case was of total denial---When the prosecution had successfully proved that accused was driving the Pick-up containing 342 kilograms of Charas in its secret cavity, his plea of total denial was found false---Accused could not absolve himself by pleading ignorance about the Charas having been kept in the secret cavity of the vehicle which was in his charge---Accused, in circumstances, was rightly convicted and sentenced---Appeal of accused was dismissed.?

Nadir Khan and another v. The State 1988 SCMR 1899 and Zahoor Ahmed Awan v. The State 1997 SCMR 543 ref.

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

----Ss.222, 223, 225 & 535---Object of framing of charge---Charge would contain such particulars as to the time and place of the alleged offence and the person against whom, or the thing in respect of which it was committed, as were reasonably sufficient to give accused notice of the matter with which he was charged---Not necessary to mention the manner in which the offence was committed, unless it was shown that the particulars regarding time and place of alleged offence and the person or the thing in respect of which it was committed, were not reasonably sufficient to give accused notice of the matter with which he was charged---Object of framing charge was to inform accused about the offence he was being tried for so that he could be able to defend himself properly---Any error in framing the charge or omission to frame the charge would not invalidate the trial unless appellate or revisional court would think that accused was misled in his defence; or failure of justice had in fact been occasioned.?

Abdul Baqi Jan Kakar for Appellant.

Muhammad Akram Shaikh for the State.

Date of hearing: 7th May, 2009.

MLD 2010 KARACHI HIGH COURT SINDH 1075 #

2010 M L D 1075

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

MAHMOOD NAWAZ alias MITHOO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 232 of 2009, decided on 15th May, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic---Bail, grant of---Further inquiry---1200 grams of charas was allegedly recovered from accused in the shape of pieces, while only 200 grams were taken out of the entire recovered material for the purpose of chemical analysis, but was not mentioned that as to 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---Proper and final finding, was yet to be recorded at the trial---Accused had already been granted bail in main case---Since out of the entire contraband allegedly recovered from accused only 200 grams were sealed separately for sending it to chemical analyzer, at the most case against accused fell under S.9(b) of Control of Narcotic Substances Act, 1997, which carried punishment for 2 years---Case of accused falling within purview of subsection (2) of S.497, Cr.P.C., he was granted bail, in circumstances.

Muhammad Nawaz v. The State 2007 MLD 1846 ref.

Ali Gul Shaikh for Applicant.

Miss Rubina Dhamrah for the State.

MLD 2010 KARACHI HIGH COURT SINDH 1082 #

2010 M L D 1082

[Karachi]

Before Khadim Hussain M. Shaikh, J

SANHOON alias SANAULLAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-137 of 2009, decided on 22nd April, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.337-F(i) & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(2)(3)---Damiyah and haraabah---Bail, grant of---Further inquiry---F.I.R. was lodged with delay of 17 days, the statements under S.161, Cr.P.C. of prosecution witnesses were recorded after 22 days of the incident; and no plausible explanation was offered by the prosecution for such an inordinate delay in lodging the F.I.R.; and recording statements under S.161, Cr.P.C. of the prosecution witnesses, which prima facie had created doubt as the possibility of introducing the name of accused after deliberations and consultations could not be ruled out---Case of accused falling within the purview of S.497(2), Cr.P.C., accused was granted bail, in circumstances.

1982 SCMR 440; 2005 PCr.LJ 452; 2007 MLD 806 and 1993 SCMR 550 rel.

Asif Ali Abdul Razak Soomro and Arif Safdar Ghauri for Applicant.

Miss Rubina Dhamrah for the State.

MLD 2010 KARACHI HIGH COURT SINDH 1084 #

2010 M L D 1084

[Karachi]

Before Ali Sain Dino Metlo, J

HAMAL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-237 of 2009, decided on 8th June, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 337-A(i), F(i), 147, 148 & 149---Qatl-e-amd---Bail, grant of---Further inquiry---Conduct of the complainant, in whose presence, his son was done to death, in not reporting the matter to Police immediately, and going to his village first and coming back to the place of incident, not finding the dead body at the place of incident; and then searching for it in the hospitals, and then finding the dead body at the same place, militated against reasonableness of grounds put forward by the prosecution for believing accused guilty of the offence, particularly when the ocular evidence stood controverted by the medical evidence---Case of accused, in circumstances was fully covered by subsection (2) of S.497, Cr.P.C., entitling him to bail---Accused could not be refused bail on the ground of his abscondence, particularly when he was not shown to have been declared proclaimed offender by the Trial Court and no proceedings under Ss.87, 88, Cr.P.C. were shown to have taken against him---Accused was admitted to bail, in circumstances.

1994 PCr.LJ 541; 2000 PCr.LJ 2053; 2002 PCr.LJ 791; 2002 PCr.LJ 1062; Liaqat Ali v. The State, 2005 P.S.C. 61; 1989 SCMR 239; 2006 PCr.LJ 184; 1999 PCr.LJ 898; 1999 PCr.LJ 1105; 2001 PCr.LJ 134; 2009 PCr.LJ 472; 2009 PCr.LJ 540 and 2009 MLD 384 rel.

Ashique Illahi Sundrani for Applicant.

Altaf Hussain Surahio for the Complainant.

Naimatullah Bhurgri for the State.

MLD 2010 KARACHI HIGH COURT SINDH 1089 #

2010 M L D 1089

[Karachi]

Before Shahid Anwar Bajwa, J

DAIMUDDIN and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos. 360 and 1044 of 2009, decided on 23rd October, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 147, 148 & 149---Qatl-e-amd---Bail, grant of --Karo Kari, case of---Affidavit of husband of deceased---Deceased girl was murdered just because she had contracted marriage of her own choice---Nobody shed even single tear for the helpless victim who bled to death in front of eyes. of her own mother, sister and brothers--Two ladies who were present in the house did not even scream---Affidavit of husband of deceased girl was filed in which he adumbrated that two accused had no objection to his marriage with deceased and he had no objection if bail was granted to accused persons---Validity---Karo Kari was crime which was a blot on fair name of Sindh, a land of Sufis and Saints which had always overflowed with milk of lumen kindness---Sindh had in the unity of nations always sullied Pakistan and Muslim society as a whole---Present was a case where conspiracy of murder was floating on the surface---Bail was declined in circumstances.

Maskhoor v. State 2009 PCr.LJ 110; Asghar Ali v. State 2009 PCr.LJ 660; Nazir Ali v. State (2009 PCr.LJ 700), Shafi Mohammad v. State 2002 PCr.LJ 494 and Safdar alias Javed alias Jaji v. State 2009 YLR 660 distinguished.

Ghulam Shabbir Shar for. Applicants.

M.A. Qureshi Assistant Prosecutor-General Sindh for Respondent.

2010 M L D 1180

[Karachi]

Before Muhammad Tasnim, J

Mst. AQEELA HAI and others---Plaintiffs

Versus

PROVINCE OF SINDH through the Secretary Land Utilization Department and others---Defendants

Suits Nos. 209, 210, 211, 511, 512, 513, 514 and 515 of 2009 decided on 16th June, 2010.

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

----S. 3---Scope and application of S.3, Karachi Port Trust Act, 1886---Section 3 of the Act protects the right to private property falling within the limits of port area---Demarcation of limits of Karachi Port Trust does not mean that Karachi Port Trust owns all the property falling within the limits within 50 square yards of High Water---Mark or demarcation of the limits of Port of Karachi does not give any proprietary right to Karachi Fort Trust to lease, rent or sell of the properties within its limits---Schedule "A" of Karachi Port Trust Act, 1886 does not confer any ownership right in the Karachi Port Trust Board with regard to such land---Government may by notification in the official Gazette define the limits of the Port for the purpose of Karachi Port Trust Act, 1886 and from time to time alter such limits---Such limits may extend to any part of the navigable approach to the Port, and may include any wharves, tramways, warehouse, sheds and other works made on behalf of the public for convenience of traffic, for safety of vessels or for the improvement, maintenance and good government of the port, whether within or without high-water mark, and subject to any right of private property therein, any portion of the shore within fifty yards of high-water mark.

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

---Ss. 25, 26, 27 & 18---Scope and application of Ss.25, 26, 27 & 18 of the Act.

----O. XXXIX, Rr.1 & 2---Karachi Port Trust Act (VI of 1886), S.3---Specific Relief Act (I of 1877), Ss.42 & 56---Suit for declaration---Application under O.XXXIX, Rr.1 & 2, C.P.C.---Plaintiffs had prayed for grant of interlocutory injunction against the defendants, their employees, officers, servants, agents, persons acting under or through them and their police force restraining them from interfering in the peaceful physical possession, use and enjoyment and construction of boundary wall around the suit property and further from dispossessing the plaintiffs therefrom or carrying out any construction of any nature over the suit property and/or establishing part or creating third party right, title or interest therein---Factual and legal position, in the present case, was that plaintiffs held properties under the registered instruments and the same had not been challenged by any party till date before any court of law---Record established that plaintiffs were in possession of suit-land at the time of filing suits---Report of Nazir of the court showed construction of the foundation of the boundary wall of the suit-land was being constructed by the plaintiffs after seeking permission from the relevant authorities, when the government agencies intervened and tried to encroach upon the land of the plaintiffs---Plaintiffs approached the court for seeking the relief to protect their proprietary right in the suit property---While deciding application under O. XXXIX, Rr.1 & 2, C. P. C. it was to be seen whether prima facie case had been made out by the plaintiffs for grant of injunction; balance of convenience lay in favour of the plaintiffs and if injunction was not granted irreparable loss shall be caused to the plaintiffs---Plaintiffs, in circumstances, had successfully made out a case for grant of injunction as balance of convenience lay in their favour---Conduct of the authorities/government agencies showed that if injunction, as prayed for, was not granted serious prejudice shall be caused to the plaintiffs---High Court passed interim order and allowed the relief prayed for---High Court observed that since the parties were contesting with regard to the ownership of the suit-land, it would be appropriate that issues be settled at the earliest and evidence of the parties be recorded through Commissioner--Office was directed to fix the matters for settlement of issues.

Mirza Mehboob Baig and others v. Deputy Settlement Commissioner (Land) and others 2002 MLD 1512; Khawaja Ammar Hussain v. Muhammad Shabbiruddin Khan PLD 1986 Kar. 74 and Habibur Rehman and another v. Mst. Wandania and others PLD 1984 SC 424 distinguished.

Mirza Mehboob Baig and others v. Deputy Settlement Commissioner (Land) and others 2002 MLD 1512; Balagamwal Oil Mills (Pvt.) Ltd. v. Shakarchi Trading A.G. and others PLD 1990 Kar. 1; S.N. Gupta and Co. v. Sadanada Ghosh and others PLD 1960 Dacca 153 and Muhammad Saleem v. Salamatullah Baig 1988 CLC 2313 ref.

Messrs Abid S. Zuberi and Haseeb Jamali for Plaintiff (in Suit No.209 of 2009).

Syed Khizar Askar Zaidi, Assistant Advocate General Sindh for Defendants Nos. 1 and 5 to 7 (in Suit No.209 of 2009).

Khawaja Naveed Ahmed for Defendants Nos. 2 and 3 (in Suit No.209 of 2009).

Muhammad Idrees Alvi for Defendant No.4 (in Suit No.209 of 2009).

Abid S. Zuberi and Haseeb Jamali for Plaintiff (in Suit No.210 of 2009).

Syed Khizar Askar Zaidi, Assistant Advocate General Sindh for Defendants Nos. 1 and 5 to 7 (in Suit No.210 of 2009).

Khawaja Naveed Ahmed for Defendants Nos. 2 and 3 (in Suit No.210 of 2009).

Muhammad Idrees Alvi for Defendant No. 4 (in Suit No.210 of 2009). .

Abid S. Zuberi and Haseeb Jamali for Plaintiff (in Suit No.211 of 2009).

Syed Khizar Askar Zaidi. A Msistant Advocate General Sindh for Defendants Nos. 1 and 5 to 7 (in Suit No.211 of 2009).

Khawaja Naveed Ahmed for Defendants Nos. 2 and 3 (in Suit No.211 of 2009).

Muhammad Idrees Alvi for Defendant No. 4 (in Suit No.211 of 2009).

Abid S. Zuberi and Haseeb Jamali for Plaintiff (in Suit No.511 of 2009).

Syed Khizar Askar Zaidi, Assistant Advocate General Sindh for Defendants Nos. 1 and 5 to 7 (in Suit No.511 of 2009).

Shaiq Usmani and Ahmed Subhani for Defendants (Nos. 2 and 3 (in Suit No.511 of 2009).

Muhammad Idrees Alvi for Defendant No.4 (in Suit No.511 of 2009).

Defendant No.8 called absent (in Suit No.511 of 2009).

Abid S. Zuberi and Haseeb Jamali for Plaintiff (in Suit No.513 of 2009).

Syed Khizar Askar Zaidi, Assistant Advocate General Sindh for Defendants Nos. 1 and 5 to 7 (in Suit No.513 of 2009).

Shaiq Usmani and Ahmed Subhani for Defendants Nos. 2 and 3 (in Suit No.513 of 2009).

Muhammad Idrees Alvi for Defendants No. 4 (in Suit No.513 of 2009).

Defendant No.8 is called absent (in Suit No.513 of 2009).

Abid S. Zuberi and Haseeb Jamali for Plaintiff (in Suit No.514 of 2009).

Syed Khizar Asker Ziadi, Assistant Advocate General Sindh for Defendants Nos. 1 and 5 to 7 (in Suit No.514 of 2009).

Shaiq Usmani and Ahmed Subhani for Defendants Nos. 2 and 3 (in Suit No.514 of 2009).

Muhammad Idrees Alvi for Defendants No. 4 (in Suit No.514 of 2009).

Defendant No.8 is called absent (in Suit No.514 of 2009).

Abid S. Zuberi and Haseeb Jamali for Plaintiff (in Suit No.515 of 2009).

Syed Khizar Askar Zaidi, Assistant Advocate General Sindh for Defendants Nos. 1 and 5 to 7 (in Suit No.515 of 2009).

Shariq Usmani and Ahmed Subhani for Defendants Nos. 2 and 3 (in Suit No.515 of 2009).

Muhammad Idrees Alvi for Defendants No. 4 (in Suit No.515 of 2009).

Defendant No.8 is called absent (in Suit No.515 of 2009).

MLD 2010 KARACHI HIGH COURT SINDH 1211 #

2010 M L D 1211

[Karachi]

Before Shahid Anwar Bajwa, J

ISMAIL and 3 others---Applicants

Versus

THE STATE---Respondent

Bail Application No.948 of 2009, decided on 8th October, 2009.

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

----S.497---Penal Code (XLV of 1860), Ss.302, 147, 148, 149, 109 & 504---Qatl-e-amd---Bail, refusal of---Counsel for accused persons, did not press bail application in respect of one accused even before the Trial Court---Bail application in respect of said accused was rejected---Role of the other accused was that he gave hatchet blow which hit at the left arm of the deceased---Medico-legal report showed that injury on the left arm was bone deep and doctor's opinion was that cause of death was cardio-respiratory failure due to haemorrhage, though head injury alone, in the opinion of the doctor, was also sufficient to cause death of deceased---Role of the other accused was that of causing a serious injury which was bone deep and could not be lost sight of---Bail application to the extent of said accused was also dismissed.

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

----S.497---Penal Code (XLV of 1860), Ss.302, 147, 148, 149, 109 & 504---Qatl-e-amd---Bail, grant of---Accused was stated to have given backside hatchet injury to deceased which hit him on head as well as other parts of body of deceased---Post mortem report showed no specific mention of any breaking of the skull by blunt weapon and injuries on the legs were said to be only skin deep---Other accused was said to have fired pistol shots, but both injuries on the body of deceased were only skin deep---Both the accused, in circumstances were entitled to bail.

Shah Nawaz and another v. The State and another 2008 SCMR 1436; Bhooro and another v. The State 2003 MLD 125 and Muhammad Bashir and others v. The State 2004 PCr.LJ 1760 ref.

Ali Gohar Soomro for Applicants.

Imtiaz Ali Jalbani, A.P.-G. for the State.

Date of hearing: 5th October, 2009.

MLD 2010 KARACHI HIGH COURT SINDH 1241 #

2010 M L D 1241

[Karachi]

Before Mushir Alam and Tufail H. Ebrahim, JJ

Dr. Syed MUHAMMAD ALI SHAH through Attorney---Petitioner

Versus

CHAIRMAN, PAKISTAN CRICKET BOARD, LAHORE and 2 others---Respondents

C.P. No.D-1409 of 2010, decided on 21st May, 2010.

(a) Pakistan Cricket Board Constitution, 2007---

----Arts. 38 & 40(2)---Pakistan Cricket Board Constitution, 1995, Arts.11 & 44(1)(d)---District Cricket Associations Election Regulations, 2003---Sports (Development and Control) Ordinance (XVI of 1962), Ss.3 & 4---General Clauses Act (X of 1897), Ss. 20 & 24---Election of District Cricket Association---Non-framing of Election Regulations by Governing Board in terms of Art. 38 of Pakistan Cricket Board Constitution, 2007---District Cricket Associations Election Regulations, 2003 framed under repealed Pakistan Cricket Board Constitution, 1995 was not approved by Federal Government---Applicability---Power to make Regulations for holding of elections in terms of Art. 44(1)(d) of repealed Constitution, 1995 vested in "Council", while same vested in "Governing Board" under Art. 38 of Constitution, 2007 subject to approval of Federal Government---Cumulative effect of S.20 read with S.24 of General Clauses Act, 1897 would be that where any Act or Regulation was repealed and re-enacted with or without modification, then any Regulation etc., would continue in force and deemed to have made or issued under provisions so re-enacted---Mere repeal of Constitution, 1995 would not make any difference as deeming provisions of S.24 of General Clauses Act, 1897 would keep Regulations, 2003 alive, unless found to be in conflict or nugatory with Constitution, 2007---Regulations, 2003 would be deemed to have been validly made by Governing Board and continue uninterruptedly with full force till their replacement by Election Regulations made by Governing Board in accordance with and in manner provided in Art.38 of Constitution, 2007.

State v. Shafi M. Sehwani and others PLD 1997 Lah. 563; Chief Inspector of Mines v. K.C. Thapar AIR 1961 SC 838; Queen Empress against Madasami, Indian Law Reports 1888; Crown v. Wali Dad PLD 1954 Lah. 236 relevant at 239; Mohan Lal v. State of West Bengal AIR 1961 SC 1543; Hari Pada Roy v. Howrah AIR 1931 Calcutta 481 at page 482 and Rajan Bibi v. Custodian of Evacuee Property 1992 CLC 321 ref.

North Eastern Railway and another v. Ram Lal AIR 1960 Patna 160 para. 13 rel.

(b) General Clauses Act (X of 1897)---

----S.24---Deeming provisions of S.24 of General Clauses Act, 1897---Object---Purpose of protecting and saving orders etc., under repealed Act would be to maintain continuity and avoid any vacuum between interval, when such orders etc., may be framed under re-enacted statute---Principles.

Mrs. Saify Ali Khan for Petitioner.

Mazhar Jaffery for Respondents Nos. 1 and 2.

Date of hearing: 21st May, 2010.

MLD 2010 KARACHI HIGH COURT SINDH 1251 #

2010 M L D 1251

[Karachi]

Before Shahid Anwar Bajwa, J

ABDUL QAYOOM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-958 of 2009, decided on 23rd November, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Foreigners Act (XXXI of 1946), Ss.3(2)(b), 13 & 14---Penal Code (XLV of 1860), Ss.419/420/468/471/109---Cheating and forgery---Bail, grant of---Further inquiry---In the present case it was not alleged that National Identity Card issued to accused was a forged document; allegation was that same had been obtained while giving fraudulent information---Investigating Officer was unable to say anything whether any show-cause notice was issued to accused or he was heard before cancellation of National Identity Card or any other inquiry was conducted in that regard---Investigating Officer had stated that he had no material with him in that regard---No action was taken against the concerned official of NADRA who allegedly issued National Identity Card or passport to a person who according to him was not a Pakistan national---When a person was accused of having committed a crime which he could not commit without either involvement of duping of State functionary unless such role of the State functionary was also on record; and if circumstance so warranted, no action had been taken against the State functionary; it was unfair to prosecute helpless citizen only---Accused had also produced photocopies which he claimed to be National Identity Card of his father issued to him in year 2002 as well as National Identity Card allegedly issued to him in 1974---Case, in circumstances being of further inquiry, accused was admitted to bail in circumstances.

Muhammad Yousaf v. The State 1995 PCr.LJ 1348; Muhammad Siddique v. The State, 2007 YLR 697; Muhammad Younus and another v. The State 2001 PCr.LJ 157 and Faisal Khawaja v. The State 2001 MLD 1237 rel.

Kher Muhammad for Applicant.

Ahmed Ali Shah for the State.

MLD 2010 KARACHI HIGH COURT SINDH 1267 #

2010 M L D 1267

[Karachi]

Before Muhammad Ali Mazhar, J

Sayyid YOUSAF HUSAIN SHIRAZI---Plaintiff

Versus

PAKISTAN DEFENCE OFFICERS' HOUSING AUTHORITY and 2 others---Defendants

Suit No. 1610 of 2009, decided on 4th June, 2010.

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

----O.XXXIX, Rr. 1 & 2---Temporary injunction, grant of---Essential conditions to be considered by Court stated.

An old age golden rule of granting injunction: (i) the prima facie existence of right in the plaintiff and its infringement by the defendant or the existence of a prima facie case in favour of the plaintiff; (ii) an irreparable loss, damages or injuries which may occur to the plaintiff, if the injunction is not granted; (iii) the inconvenience which the plaintiff will undergo from withholding the injunction will be comparatively greater than that which is likely to arise from granting it or in other words the balance of convenience should be in favour of the plaintiff. All three essential ingredients must be fulfilled. Absence of anyone of such ingredients would not warrant grant of injunction. Court at this stage has to make only a tentative assessment of the case for enabling itself to see whether three requisites for grant of injunction exist in favour of plaintiff or not. Relief of injunction is discretionary and is to be granted by Court according to sound legal principles and ex debito justitiae. Existence of prima facie case is to be judged or made out on the basis of material/evidence on record at the time of hearing of injunction application and such evidence of material should be of the nature that by considering the same, Court should or ought to be of the view that plaintiff applying for injunction was in all probability likely to succeed in the suit by having a decision in his favour. The term "prima facie case" is not specifically defined in the Code of Civil Procedure. The Judge-made-law or the consensus is that in order to satisfy about the existence of prima facie case, the pleadings must contain facts constituting the existence of right of the plaintiff and its infringement at the hands of the opposite party. Balance of convenience means that if an injunction is not granted and the suit is ultimately decided in favour of the plaintiff, the inconvenience caused to the plaintiff would be greater than that would be caused to the defendant, if the injunction is granted. It is for the plaintiff to show that the inconvenience caused to him would be greater than that which may be caused to the defendant. Irreparable loss would mean and simply such loss, which is incapable of being calculated on the yardstick of money.

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

----S. 11---Res judicata, application of---Conditions stated.

In order to press provisions of section 11, Cr.P.C., five conditions have to be spelt out: (i) the matter directly and substantially in issue in the subsequent suit must be the same matter, which was directly and substantially in issue actually or constructively in former suit; (ii) the former suit must have been a suit between the same parties or between the parties whom they or any of them claim; (iii) the parties as aforesaid must have litigated under the same title in the former suit; (iv) the Court which decided the former suit must have been a Court competent to try the subsequent suit in which such issue is subsequently raised; and (v) the matter directly and substantially in issue in subsequent suit must have been heard and finally decided by the Court.

----"Amenity plot"---Meaning.

"Amenity plot" means a plot reserved for parks, gardens, playgrounds, graveyards, hospitals, schools, colleges, libraries, community centres, mosques or such other purpose in a scheme.

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

----Ss.52, 53, 54, 55 & 57---Injunction, grant of---Scope---Party seeking such an equitable relief must satisfy Court that his own acts and dealings in matter have been fair, honest and free from any taint or illegality---Principles stated.

An injunction is a writ framed according to the circumstances of the case commanding an act which the Court regards as essential to justice or restraining an act, which it esteems contrary to equity and good conscience. An injunction as is well known is an equitable remedy and accordingly is to conform to the well known maxim of the Law of Equity that "he who seeks equity must do equity". The law as contained in the Specific Relief Act is governed by the aforesaid principle, therefore, a plaintiff who asks for an injunction must be able to satisfy the Court that his own acts and dealings in the matter have been fair, honest and free from any taint or illegality and that if in dealing with the person against whom he seeks the relief, he has acted in an unfair or unequitable manner, he cannot have this relief.

Jeremy's Equity Jurisprudence 307 (C.M. Row, Law of Injunction, Seventh Edition 1994) fol.

(d) Equity---

----Equitable remedies---Classification stated.

Equitable remedies are distinguished by their flexibility, their limitless varieties, their adaptability to the exigencies of case and the natural rules which govern their use. According to their essential nature, they may be classified into (1) Declaratory remedies are those whose main object is to declare, confirm and establish the right, title, property or estate of the suit or (plaintiff) whether it be equitable or legal. (2) Restorative remedies are those by which the plaintiff is restored to the full enjoyment of the right, title, property or estate to which he is entitled, but which use and enjoyment have been hindered, interfered with, prevented or withheld by the wrong-doer. They are often granted in combination with other kinds of relief which as cancellation of instruments or remove a legal obstacle to the full enjoyment of plaintiff's right and to render them efficient in restoring him to that enjoyment. The mandatory injunction belongs to this class of restoratory remedies. (3) Preventive remedies, are those by which the violation of a primary right is prevented before the apprehended injury is done, or by which further violation is prevented after the partial infliction of injury so that some other relief for the wrong actually done can be granted. The injunction whether final or preliminary belongs to this class. (4) Remedies of specific performance are those by which the party violating his primary duty is compelled to do the very acts which his duty and the plaintiff's primary right required from him. (5) Remedies of reformation, correction or re-execution are those by means of which a written instrument, contract, deed or other muniment which for some reason or other does not conform to the actual rights and duties of the parties thereto, is reformed, corrected or re-executed. (6) Remedies of rescission or cancellation are those by which an instrument, contract, deed, judgment and even sometimes a legal relation itself subsisting between the parties is, for some cause, set aside, avoided or annulled or rescinded. (7) Remedies of pecuniary compensation are those in which the relief consists in awarding a sum of money for the damage caused to the plaintiff. (8) The remedy of accounting is analogous to the remedy of compensation, and is generally used in connection with an auxiliary to some forms of it. It has to be a great extent becomes an equitable remedy though it partakes of the character of a legal remedy.

Pomeroy's Equity Jurisprudence, section 112, (C.M. Row, Law of Injunction, Seventh Edition 1994) fol.

Arshad Tayebally for Plaintiff.

Munawar Malik for Defendant No.1.

Khalid Anwer for Defendants Nos. 2 and 3.

MLD 2010 KARACHI HIGH COURT SINDH 1290 #

2010 M L D 1290

[Karachi

Before Aqeel Ahmed Abbasi, J

Mst. NAJMA and another---Petitioners

Versus

DISTRICT POLICE OFFICER, BADIAN and 9 others---Respondents

C.P. No.S-212 of 2010, decided on 4th June, 2010.

Penal Code (XLV of 1860)---

----Ss. 365-B, 496-A, 382, 458, 506(2), 337-H(ii), 504, 147, 148 & 149---Constitution of Pakistan (1973), Art.199---Abduction, theft and house breaking---Constitutional petition---Quashing of proceedings---Alleged abductee was deaf and dumb, her statement was recorded by the Investigating Officer with the assistance of Principal, Special Education Institute and Assistant Referencer from Special Education Institute concerned---Such statement reflected that petitioner/alleged abductee on having understood the questions put by Investigating Officer regarding her alleged abduction, categorically stated that she had not been abducted by any one, that she, out of her own free-will had entered into a valid contract of marriage with the male petitioner---Alleged abductee further stated that she was happy with her husband, and wanted to go and live with him---Police Officer and Investigating Officer had conceded that no useful purpose would be served by keeping the proceedings emanating from F.I.R. and that same could be quashed---Since the very allegation of abduction had been falsified in view of statement of the alleged abductee, remaining allegations also stood falsified---Proceedings were quashed and petitioner would be at liberty to go and live with her husband---Authorities were directed not to cause any harassment whatsoever to the petitioners.

Bhagwan Das Bheel for Petitioners.

Mukhtar Ahmed Khanzada, A.A.-G. along with A.S.-T./I.O. M. Yakoob.

Roshan Ali Chandio for Respondents Nos.3 and 6. (in person) Ghulam Mustafa alias Nawab Respondent No.3.

Riazul Rehman Kerio, Principal, and Ahsan Ahmed Talpur, Assistant Referencer from Special Education GOR Colony, Hyderabad.

MLD 2010 KARACHI HIGH COURT SINDH 1300 #

2010 M L D 1300

[Karachi]

Before Sajjad Ali Shah, J

PERVEZ and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.456 266, 315, 355 and 388 of 2009, decided on 22nd April, 2010.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 337-H(ii), 147, 148, 149 & 114---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---No overt act had been attributed to three accused persons---No allegation in the F.I.R. that said accused had abetted the commission of crime---Very fact, that during the entire episode accused though armed, kept sitting in the vehicle, had made case of further inquiry regarding determination as to whether they were sharing common intention---Accused were behind the bars for the last two years and the trial had not commenced---Accused were entitled to concession of bail.

Muhammad Farhad Sididqui v. The State PLD 2009 SC 58; Faraz Akram v. The State 1999 SCMR 1360; Syed Maqbool Muhammad v. The State 2005 SCMR 635; Arifuddin v. Aamil Khan 2005 SCMR 1402; Amjad Jawaid v. The State PLD 2007 Kar. 336; Gulzar Khoso v. The State 2006 PCr.LJ 1984 and Mamaras v. The State PLD 2009 SC 385 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 337-H(ii), 147, 148, 149 & 114---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, refusal of---One of co-accused had directly fired on the complainant party; and not only the gun had been recovered from him, but also the empties---Co-accused, in circumstances, was not entitled to the concession of bail---Other co-accused though had fired a single shot from his pistol which hit the complainant on the non-vital part of his body, but it could not be said that said co-accused had no intention to kill the complainant:--Brother of complainant was shot dead, while he fell down on the complainant in an attempt to cover him up---Plea taken on behalf of said accused regarding the case of two versions, fell to ground as the complainant had placed on record order of the Magistrate, passed in 2008 whereby the disposal of the counter case was accepted---No case for bail having been made out, bail applications of said two co-accused were dismissed.

Abdul Sattar Kazi, Nisar Ahmed Durrani and Nandan A. Keela for Applicants.

Madad Ali Shah and Ayaz Ali Gopang, for the Complainant.

Shahid Ahmed Shaikh, Asst. P.-G.

MLD 2010 KARACHI HIGH COURT SINDH 1329 #

2010 M L D 1329

[Karachi]

Before Amir Hani Muslim and Syed Zakir Hussain, JJ

NIZAMUDDIN---Applicant

Versus

NOOR HASSAN and 3 others---Respondents

Criminal Revision Application No.97 of 2008, decided on 13th April, 2010.

Penal Code (XLV of 1860)---

----S.302(c)---Qatl-e-amd---Enhancement of sentence---Eye-witnesses including the complainant had supported the prosecution version---Judicial confession made by accused carried no infirmity---Conviction of accused was well founded---Accused was first offender and he had made judicial confession---Accused had co-operated with the police in investigation and got recovered crime weapon---Accused had a motive for commission of offence beyond his control being matter of self-prestige and family honour---Accused had been provoked by the unwarranted embarrassing conduct of the complainant side as indicated in his judicial confession---Such facts had collectively served as mitigating circumstances in favour of accused and he did not deserve enhancement in his sentence---Revision petition was dismissed accordingly.

Javed Ahmed Mufti for Applicant (in Criminal Revision No.95 of 2008).

Abdul Mujeeb Pirzada for Respondents.

Ali Haider Saleem, APG for the State.

Date of hearing: 13th April, 2010.

MLD 2010 KARACHI HIGH COURT SINDH 1342 #

2010 M L D 1342

[Karachi]

Before Shahid Anwar Bajwa, J

MUHAMMAD SHARIF---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application No.1125 of 2009, decided on 7th January, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, refusal of---Case of co-accused, who had been granted bail by High Court, was distinguishable from that of accused, because no crime weapon was recovered from co-accused---Kalashnikov was reported to have been recovered from the accused and three crime empties secured from the place of occurrence had matched with the same---Contention that the complainant and the accused being residents of the same village, complainant should have identified the accused at the time of incident and nominated him in the F.I.R., was not correct--Bail application filed by accused and the F.I.R. lodged by the complainant had indicated that they were residents of different villages---Bail was declined to accused in circumstances.

Muhammad Khan v. The State 2001 PCr.LJ 1628 and Criminal Bail Application No. 267 of 2008 distinguished.

Munawar v. The State 1981 SCMR 1092 and Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427 ref.

Rizwana Jabeen for Applicant.

Shyam Lal Ladhani, A.P.G. for the State.

Manzoor Ahmed Junejo for the Complainant.

MLD 2010 KARACHI HIGH COURT SINDH 1354 #

2010 M L D 1354

[Karachi]

Before Muhammad Ali Mazhar, J

MUHAMMAD ASAD and another---Plaintiffs

Versus

MUHAMMAD TARIQ and 3 others---Defendants

Suit No. 1614 and C.M.A. No.9293 of 2006, decided on 4th June, 2010.

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

----Ss. 12 & 54---Sindh Rented Premises Ordinance (XVII of 1979), S.15---Transfer of Property Act (IV of 1882), S. 53-A---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for specific performance of sale agreement and permanent injunction---Sale of suit property through receipt executed by first defendant for self and on behalf of other defendants without having any authority on their behalf--Pendency of ejectment petition filed by defendants-vendors against plaintiff-vendee---Plaintiff's application under O.XXXIX, Rr. 1 & 2, C. P. C., for staying ejectment proceedings and creation of third party interest in suit property by defendants---Validity---Such receipt was doubtful as other defendants had disputed its authenticity---Such receipt had been executed prior to execution of power of attorney by other defendants in favour of first defendant---Provisions of S. 53-A of Transfer of Property Act, 1882 would not apply to the present case---Plaintiff was enjoying possession as tenant and had not come into possession of suit property under sale agreement---Ejectment proceedings being totally separate and distinct from suit for specific performance---Judicial proceedings initiated under special law would regulate relationship of landlord and tenant---Suit for specific performance could not override provisions of Sindh Rented Premises Ordinance, 1979, unless sale agreement provided in clear terms that on its execution. relationship of landlord and tenant would cease to exist, tenant would enjoy possession as prospective buyer and parties would be bound by its terms and conditions---No agreement existed between parties giving right to plaintiff to enjoy suit property as owner and not tenant---Question of entitlement of plaintiff to specific performance could not be decided without recording evidence of parties---Neither ejectment proceedings could be stopped nor any restraining order could be passed merely on basis of pendency of suit for specific performance---If plaintiff at subsequent stage succeeded to prove his case for decree of specific performance, then law would take its own course---Discretionary relief of temporary injunction was declined to plaintiff, in circumstances.

Kalimuddin Ansari v. Director Excise and Taxation Karachi PLD 1971 SC 114; Ahmad Din v. Faiz Ali PLD 1954 Lah. 414; Dr. Abdul Haki Abrash v. ACE Securities (Pvt.) Ltd. 2009 CLC 731; Iqbal and others v. Mst. Rabia Bibi and others PLD 1991 SC 242; Nabi Bux v. Mst. Naseem 2000 SCMR 1604; PLD 1991 SC 242; Imam Bux v. Senior Civil Judge/Rent Controller, District Malir Karachi 2002 CLC 876 and Javed Iqbal v. Abdul Ghafoor 2006 CLC 802 ref.

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

----O.XXXIX, Rr. 1 & 2---Temporary injunction, grant of---Essential conditions to be considered by Court stated.

While granting the injunction, the Court has to consider an old age principle; (i) the prima facie existence of right in the plaintiff and its infringement by the defendant or the existence of a prima facie case in favour of the plaintiff; (ii) an irreparable loss, damages or injuries which may occur to the plaintiff, if the injunction is not granted, (iii) the inconvenience which the plaintiff will undergo from withholding the injunction will be comparatively greater than that which is likely to arise from granting it or in other words the balance of convenience should be in favour of the plaintiff. All three essential ingredients must be fulfilled. Absence of anyone of such ingredients would not warrant grant of injunction. Court at this stage has to make only a tentative assessment of parties case for enabling itself to see whether three requisites for grant of injunction exist in favour of a party or not.

Mubarak Ahmed for Plaintiffs.

Nemo for Defendant No.1.

K.A. Wahab for Defendants Nos. 2 to 4.

MLD 2010 KARACHI HIGH COURT SINDH 1390 #

2010 M L D 1390

[Karachi]

Before Imam Bux Baloch, J

DIL MURAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.S-1 of 2005, decided on 19th April, 2010.

Penal Code (XLV of 1860)---

----Ss. 302, 337-H(ii), 147, 148 & 149---Qatl-e-amd and hurt---Appreciation of evidence---Two prosecution witnesses who were unanimous on each and every aspect of the commission of offence, had corroborated evidence of each other---Medical evidence was clearly in conformity with the ocular evidence---Counsel for accused had failed to point out any material contradiction in the evidence of prosecution witnesses and also could not point out any contradictory piece of evidence in ocular evidence and in medical evidence---Prosecution had established circumstantial evidence and had produced cogent and trustworthy evidence---Recovery of rifle and iron pipe was proved from the reliable evidence of prosecution witnesses---Prosecution witnesses, though were related to accused, but they. had deposed against him---Accused had not denied the evidence that three dead bodies of deceased ladies had been recovered from his house---Motive was proved from ocular evidence---Counsel for accused had failed to establish that the witnesses were interested or hostile----No hard and fast rule existed that the evidence of related witnesses were not to be relied upon---Prosecution having succeeded to establish its case against accused without any shadow of doubt, conviction and sentence awarded by the Trial Court to accused, was maintained, in circumstances.

Saeed Ahmed Bijarani for Appellant.

Muhammad Saleem `GN' Jesar for the Complainant.

Naimatullah Bhurgari for the State.

Date of hearing: 19th April, 2010.

MLD 2010 KARACHI HIGH COURT SINDH 1412 #

2010 M L D 1412

[Karachi]

Before Shahid Anwar Bajwa and Imam Bux Baloch, JJ

ALLAH NAWAZ and another---Applicants

Versus

THE STATE---Respondent

Criminal Revision No.D-41 of 2010, decided on 22nd June, 2010.

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

----Ss. 6, 7 & 23---Explosive Substances Act (XI of 1908), Ss.3, 4 & 5---Criminal Procedure Code (V of 1898), Ss.435, 439 & 561-A---Constitution of Pakistan (1973), Art. 199---Possession of heavy material of explosive substance---Transfer of case from Anti-Terrorism Court to regular court---Accused who were found carrying heavy material of explosive substance, had disclosed that they had been given a task for explosion and that they were on the way to implement their plans---Application filed by accused under S.23 of Anti-Terrorism Act, 1997 for transfer of their case from Anti-Terrorism Court to ordinary/regular court, had been dismissed by the Anti-Terrorism Court---Validity---Neither revisional jurisdiction under Ss.435/439, Cr.P.C. nor jurisdiction under S.561-A, Cr.P.C. could be invoked to challenge and impugn an order passed by the Anti-Terrorism Court; however, that would not close the chapter---If no adequate remedy was available or provided under law, High Court could always use its constitutional authority under Art.199 of the Constitution---Discretion was always available with High Court to treat any application or proceedings, in appropriate cases, as application under Art.199 of the of Constitution---High Court, in the present case, treated revision petition as constitutional petition and decided the same ---Prima facie, from the statement of accused, it appeared that attempt to explode explosive substance was admitted---Order passed by Anti-Terrorism Court, whereby application for transfer of case to ordinary court was dismissed, could not be taken exception to in circumstances.

Razi v. The State 2005 YLR 1679 and Muhammad Sabir Roshan v. The State 2000 PCr.LJ 1195 ref.

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

---Art. 199---Constitutional jurisdiction of High Court---Scope---If no adequate remedy was available or provided under law, High Court could always use its constitutional authority under Art. 199 of the Constitution---High Court had discretion to treat any application or proceedings, in appropriate cases, as application under Art. 199 of the Constitution and decide the same accordingly.

Hadi Bux Bhatt for the Applicants.

Shyam Lal, APG.

MLD 2010 KARACHI HIGH COURT SINDH 1433 #

2010 M L D 1433

[Karachi]

Before Zahid Hamid, J

MUHAMMAD SOHAIL SIDDIQUI and 2 others---Appellants

Versus

Mst. PARVEEN alias MUNNI---Respondent

Miscellaneous Appeal Nos.31 and 32 of 2009, decided on 2nd June, 2010.

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

----O.11, R.2 & S.11---Constructive res judicata---Applicability---Preconditions---Application of constructive res judciata is based on invocation of two principles; that no one should be twice vexed on the same cause of action and that there should be an end to litigation---In absence of opposite party or in presence of consorting party either of the said two principles could not apply.

(b) Succession Act (XXXIX of 1925)---

----Ss. 278, 299, 372 & 384---West Pakistan Civil Courts Ordinance (II of 1962), S.9---Succession certificate and Letter of Administration--Consolidation of proceedings---Pecuniary jurisdiction---Two separate proceedings were initiated one for grant of succession certificate and the' other for Letters of Administration in respect of immovable property---Both the proceedings were consolidated and by adding up the value of immovable property, rash and saving certificates, the Trial Court concluded that the pecuniary jurisdiction of two subject-matters had exceeded its pecuniary jurisdiction and the same was returned for presentation in High Court---Validity---Succession Certificate was meant for movable property i.e. debts and securities and Letters of Administration for immovable property---Succession of immovable property was regulated by Law of country in which person had his domicile at the time of his death and succession of immovable property in Pakistan of a person deceased was regulated by Law of Pakistan wherever such person might have had his domicile at the time of his death---Grant of Succession Certificate and Letter of Administration were not only governed by separate sections but under separate Chapters under Succession Act, 1925---Petition for Letters of Administration under S.278 of Succession Act, 1925, could be made for administration of assets belonging to deceased which were likely to come to petitioner's hand whereas Succession Certificate which was granted to petitioner under S.372 of Succession Act, 1925, was made in respect of debts and securities left by deceased---Application for Succession Certificate could be made in respect of debt or debts due to deceased creditor or in respect of portions thereof which implied that more than one applications for grant of Succession Certificate could be made---Legal heir could make a consolidated claim by including assets and debts and securities in the same application and if resultantly the valuation had exceeded amount of Rupees Thirty Lacs, the same would have been filed before High Court---Such was true for Karachi only where pecuniary jurisdiction of District Judge had been limited to Rupees thirty Lacs under West Pakistan Civil Courts Ordinance, 1962---High Court set aside the order passed by Trial Court and remanded the matter for adjudication of two applications separately and speedily in accordance with law---Appeal was allowed accordingly.

In Re: Succession Certificate in Respect of Assets and Liabilities of Muhammad Hanif Qureshi Deceased (Filed by Muhammad Saleem son of the Deceased 1985 MLD 1559; Ghafur Khan v. Kalandari Begum ILR 33 All. 237; Sharif-un-Nisa Bibi v. Masum Ali and another ILR 42 Al. 347; Muhammad Abdul Hussain v. Sarifa 16 C W N 321; Mrs. Sufia Khanam and others v. Abdul Haq Khan and others PLD 1.968 Dacca 952; Fateh Muhammad v. Mst. Arshad Hifza. 1999 MLD 1481 and Iqbal Sultan v. Miss Chand Sultan and 2 others 1990 CLC 366 ref.

----S.372---Debts' andSecurities'---Connotation---Word debts' in S.372 of Succession Act, 1925, means such amounts of deceased lying with any bank---Wordsecurities' is referable to common securities which generated profits in shape of dividends any saving certificate issued by government, the bank or any other financial institution---Letters of Administration in respect of any estate give right to administer it and release the respective share to legal heirs.

(d) Words and phrases---

----'Assets'-Meaning---Word `assests' means property of all kinds real and personal tangible and intangible including inter alit' for certain purposes obtained and causes of action which belonged to any person.

Judicial Dictionary 13th Edition K. J AIYAR and Black's Law Dictionary 6th Edition ref.

Muhammad Inayat for Appellant (in C.M.A. No.31 of 2009).

Nemo for Respondent.

Muhammad Inayat for Appellants (in C.M.A. No.32 of 2009).

Nemo for Respondent.

Date of hearing: 3rd March, 2010.

MLD 2010 KARACHI HIGH COURT SINDH 1460 #

2010 M L D 1460

[Karachi]

Before Munib Akhtar, J

Messrs AXACT (PVT.) LTD. Through Company Secretary---Plaintiff

Versus

ASAD MANZOOR and 3 others---Defendants

Civil Suit No. 1555 of 2009, decided on 5th July, 2010.

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

----S.54---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Interim injunction, grant of---Club facilities---Temporary membership, withdrawal of---Injunction and recovery of monetary claim---Scope---Plaintiff deposited a heavy amount and had become temporary member of the Club providing water sports facilities---Pending consideration of application, nominees of plaintiff-company were allowed to use all Club facilities including club house who were also permitted to moor plaintiff's yacht at the club---On the allegation of misconduct, the Club administration suspended temporary membership of plaintiff---Plea raised by defendant was that plaintiff was not entitled to injunction as it had also made monetary claim---Validity---Monetary claim made. in suit was in respect of injury and damage allegedly caused to plaintiff on account of allegedly unlawful arrest and detention of security guards, whereas injunctive relief sought was related to the order of suspending the use of club facilities by plaintiff---Two reliefs sought by plaintiff were distinct although both had arisen of out of the same incident---Claim for monetary compensation did not, therefore, bar the claim for injunctive relief---Basic purpose for which the Club was set up was to enable its members to enjoy water sports, such as boating, sailing and yachting---Applicant for membership of the Club must own a boat unless special exemption had been granted by Executive Committee of the Club---Plaintiff-company owned a boat, which was moored at the club and for which plaintiff used club facilities---Yacht was expensive, both to own and to maintain, therefore, balance of convenience law in favour of plaintiff in allowing it to use Club facilities for the purpose and to the extent of yacht; as it was not easily possible for plaintiff to shift its yacht on permanent basis to some other facility, irreparable loss and injury might be caused to it if it was not allowed to use the Club facilities to such extent---High Court suspended the order passed by Club administration suspending club facilities of plaintiff---Application was allowed accordingly.?

D.M. Malik v. Jockey Club of Pakistan and others PLD 1960 Kar.325 and Khawaja Muhammad Saeed v. Mr. Justice Shabir Ahmad and others PLD 1965 Lah. 92 rel.

Pakistan. International Airlines Corporation v. Hazir (Pvt.) Ltd. and another PLD 1993 Kar 190; Qasimabad Enterprises v. Province of Sindh and others 1998 CLC 441; Universal Business Equipment (Pvt.) Ltd. v. Kokusai Commerce, Inc. and others 1995 MLD 384; Haji Abdul Karim v. Builders Incorporated and others 1993 MLD 269 and Pakistan International Airlines Corporation v. Tanweer ur Rehman SBLR 2010 SC 303 distinguished.

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

----O.XXXIX, Rr. 1 & 2---Interim injunction, grant of---Subsequent events---Court, in appropriate circumstances, can take into consideration events subsequent to institution of suit while considering relief, if any, to which plaintiff may be entitled.

----Personal hearing---Scope---Right of personal hearing is an integral aspect of the rules of natural justice.?

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

----O.XXXIX, Rr. 1 & 2---Prima facie case---Pre-condition--Requirement as to what constitute a prima facie case is that a plaintiff needs to show that there are one or more issues that need to go to trial.?

Abdul Karim Khan for Plaintiff.

Khalid laved for Defendants.

MLD 2010 KARACHI HIGH COURT SINDH 1496 #

2010 M L D 1496

[Karachi]

Before Sajjad Ali Shah and Aqeel Ahmed Abbasi, JJ

ZULFIQAR AHMED---Petitioner

Versus

Mst. RUBINA and 2 others---Respondents

C.P. No.D-511 of 2009, decided on 6th April, 2010.

Civil Procedure Code (V of 1908)---

----O.IX, Rr. 8 & 9---Application for restoration of suit dismissed on 12-12-2006 for non-prosecution-Plaintiff's plea that he was arrested on 22-6-2005 and released on 24-6-2009, thus, could not prosecute his suit---Validity---Such undisputed facts were sufficient cause, which prevented plaintiff to appear and prosecute his suit---Application for restoration of suit was accepted by restoring suit to its original position.

Raja Khan for Petitioner.

Naimatullah Soomro for Respondent No.1.

Muhammad Aslam Sipio, State Counsel.

MLD 2010 KARACHI HIGH COURT SINDH 1543 #

2010 M L D 1543

[Karachi]

Before Aqeel Ahmed Abbasi, J

GHULAM NABI through Attorney---Petitioner

Versus

NOUSHAD ALI and 2 others---Respondents

C.P. No.S-78 and M.A. No. 778 of 2010, decided on 4th June, 2010.

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

----S. 15(2)---Ejectment petition---Ground ,of default in payment of rent---Tenant's plea having sent rent through money order denied by landlord---Effect---Burden to prove payment of rent of defaulting period would shift upon the tenant.

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

---S. 15(2)---Ejectment petition---Bona fide personal need of landlord and default in payment of rent by tenant---Tenant in written reply while disputing ownership of landlord claimed to have sent rent for defaulting period through money order to landlord and annexed thereto receipts of rent for earlier period issued by landlord---Effect---Tenant's knowledge about ownership of shop in name of landlord not only stood established, but also acknowledged by him by tendering rent throughout to same landlord without any objection---Such grounds had remained unshaken due to tenant's failure to adduce evidence contrary thereto---No other claimant of demised shop existed---Ejectment petition was accepted in circumstances.

Muhammad Hanif and another v. Muhammad Jamil Turk and 5 others 2002 SCMR 429; Hafiz Shafatullah v. Mst. Shamim Jahan and another PLD 2004 Kar. 502; Saifullah v. Muhammad Bux and 2 others 2003 MLD 480 ref.

Muhammad Hanif and another v. Muhammad Jamil Turk and 5 others 2002 SCMR 429 and Hafiz Shafatullah v. Mst. Shamim Jahan and another PLD 2004 Kar. 502 rel.

Javed Khalique v. Muhammad Irfan 2008 SCMR 28; Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398 and Hafeezuddin and 2 others v. Badaruddin and 2 others PLD 2003 Kar. 444 distinguished.

----S. 15(2)---Ejectment petition --- Bona fide personal need of landlord-Proof-Landlord's affidavit in support of such ground, if remained unshaken or unrebutted by tenant, would be considered sufficient evidence in support thereof.

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

----Art. 199---Constitutional jurisdiction---Scope---Concurrent findings of fact by courts below---Validity---Finding of Appellate Court could only be discarded, if same was not based on correct appreciation of evidence or was contrary to material on record or arbitrary or perverse---Burden would lie upon petitioner to show that such concurrent findings were arbitrary or perverse.

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

----S. 18---Notice of transfer of property in favour of landlord---Proof---When tenant was made sufficiently aware of such transfer, then strict compliance of service of notice under S. 18 of Sindh Rented Premises Ordinance, 1979 would not be required.

Saifullah v. Muhammad Bux and 2 others 2003 MLD 480 rel.

Jagdish R. Mullani for Petitioner.

Shakeel Ahmed Shaikh for Respondent No.1.

MLD 2010 KARACHI HIGH COURT SINDH 1578 #

2010 M L D 1578

[Karachi]

Before Muhammad Tasnim, J

Syed JAMIL HASSAN---Appellant

Versus

Syed MOAZAM ALI---Respondent

Second Appeal No.39 of 2009, decided on 25th May, 2010.

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

----O.XLI, R.19---Application for re admission of appeal dismissed for non prosecution---Validity---Appellant had availed more than seven (7) opportunities including last, further last, further and further last and final chances and also a caution given to his counsel---Appellant's counsel used to come late in court and show every time his inability to argue appeal on one pretext or the other despite having given undertaking that in case of his failure to proceed with case on next date of hearing, appeal might be dismissed or any appropriate order be passed therein---Appeal on relevant date was called thrice i.e. 9-30 a. m., 10-30 a. m., 12-00 noon, and was lastly dismissed at 12-30 a.m., when none appeared on appellant's behalf---Appellant and his counsel, in circumstances, were negligent in prosecuting appeal---Application for re-admission of appeal was dismissed.

Muhammad Yousaf v. Munawar Hussain and others 2000 SCMR 204; Mumtaz Hussain Khan and others v. Muhammad Hussain and others 2001 CLC 946; Muhammad Bashir v. Haji Muhammad Siddique and others 1997 CLC 466; Fauja v. Mst. Karim Khatoon and others 1993 MLD 1078; Mst. Begum and others v. Mst. Begum Kaniz Fatima Hayat and others 1989 SCMR 883; The Municipal Corporation of the City Karachi v. Messrs Dalmia Cement, Ltd. PLD 1959 (W.P) Kar. 395; Zulfiqar Ali v. Lal Din and another 1974 SCMR 162; Rafiq Ahmad Khawaja v. Abdul Haleem 1982 SCMR 1229; Yusuf v. Mst. Rabia 1985 SCMR 1066 and Haji Abdul Hameed through legal heirs v. Mrs. Mumtaz Ayub 1985 SCMR 1595 ref.

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

---Ss. 100, 104, O. XLI, R. 19 & O. XLIII R.1(t)---Limitation Act (IX of 1908), Art. 156---Application for re-admission of appeal dismissed for non-prosecution-Dismissal of the application and filing second appeal thereagainst inseated of appeal under S.104, C.P.C., read with O. XLIII, R.1(t), C.P. C.-Maintainability-Limitation of 30 days was provided for filing an appeal under S.104, C.P.C., against an order in terms of O. XLIII, R.1(t), C.P.C.-Provisions of S.100, C.P.C. were not available to appellant as none of the grounds mentioned therein would apply to his case---Appellant was negligent in prosecuting his appeal before lower Appellate Court---Period of 90 days was provided under Art. 156 of Limitation Act, 1908 for filing appeal under S.100, C.P.C.---Present appeal was time barred, even if converted and treated as appeal under S.104, C.P.C.-High Court dismissed the appeal in circumstances.

Zahid Hussain for Appellant.

S.M. Akhtar Rizvi for Respondent.

Dates of hearing: 9th March, 20th May, 2010.

2010 M L D 1631

[Karachi]

Before Muhammad Tasnim, J

ABDUL RAHEEM-Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-510 of 2010, decided on. 19th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 353, 427, 148 & 149---Attempt to commit qatl-e-amd, assault and mischief---Bail, grant of---Further inquiry---Counsel for accused had argued that as per prosecution story encounter had taken place between accused and Police party and that no injury whatsoever had been caused to any one---Counsel had stated that Police had implicated accused due to old enmity which had flashed in the newspapers; that case did not fall under S.497, Cr.P.C. and that it was a case of further enquiry as it was yet to be decided as to whether accused was present at the scene or had fired upon the Police party---Additional Prosecutor-General had admitted the position that no injury had been caused, however, bullet marks could be found on the Police Van and that it was case of further enquiry---Prosecution had not seriously opposed the bail application---Accused was admitted to bail, in circumstances.

Nisar Ahmed Bhambhro for Applicant.

Syed Sardar Ali Shah, A.P.-G. for the State.

MLD 2010 KARACHI HIGH COURT SINDH 1635 #

2010 M L D 1635

[Karachi]

Before Imam Bux Baloch, J

GHULAM MUSTAFA---Applicant.

Versus

SHAH MURAD alias SHAH NAWAZ and another---Respondents

Criminal Miscellaneous Applications Nos.1 of 2010, S-241 of 2009 and M.A. No. 667 of 2010, decided on 3rd May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302, 337-H(ii), 148 & 149---Qatl-e-amd, hurt by rash or negligent driving---Bail, cancellation of---F.I.R. in the case was lodged with promptitude and the names of accused persons did appear in the F.I.R. with specific roles---Mashirnama of Wardat had clearly shown that six empties of .30 bore were recovered on the same date from the place of wardat---Medical evidence also corroborated the ocular evidence---F.I.R. had shown that deceased was being suspected to be murderer of a relative of accused party, had further strengthened the case of prosecution---Counsel for accused had failed to point out mala fide on the part of complainant party to falsely implicate accused in the case---Trial Court had not given any cogent and plausible reasons for granting bail to accused---Order of Trial Court on the face of it, appeared to be arbitrary and perverse---Accused having no case on merits for grant of bail, bail granted to accused, was cancelled in circumstances.

Rafique Ahmed K. Abro for Applicant/Complainant in both Application.

Aftab Ahmed Gorar for Respondents Nos. 1 and 2 (in Criminal Miscellaneous Application No. S-241 of 2009).

Sarfraz Khan Jatoi for Respondent No.1 (in Criminal Miscellaneous Application No. 1 of 2010).

Naimatullah Bhurgri, State Counsel.

MLD 2010 KARACHI HIGH COURT SINDH 1681 #

2010 M L D 1681

[Karachi]

Before Muhammad Tasnim, J

DAMSAZ---Applicant

Versus

ASSISTANT MUKHTIARKAR REVNEUE/SPECIAL JUDICIAL MAGISTARTE and 2 others---Respondents

Criminal Miscellaneous Application No. 307 of 2009, decided on 6th July, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 174, 176(2) & 561-A---Exhumation of dead body in order to discover the cause of death of the deceased---Application for quashing of order---On application of sister of deceased, Special Magistrate ordered that Director General Health be directed for constituting a Special Medical Board for exhumation of dead body of deceased in order to determine the real cause of death of the deceased---Applicant had filed application under S. 561-A, Cr. P. C. for quashing of said order of Special Magistrate---Validity---Impugned order was just and proper as Special Magistrate while passing the order had taken note of the correct legal position---Exhumation of dead body could be ordered on the request or information of even a stranger for the purpose to know the actual cause of death, so that criminal machinery be set into motion---In the present case sister of the deceased was justified in making an application for exhumation of dead body of deceased to know cause of death---Application filed under S.561-A, Cr.P.C., was dismissed, in circumstances.

Ghulam Nabi v. D.M. Okara 1989 MLD 4147; Syed Riaz-ul-Hassan Shah v. Additional Sessions Judge, Vehari and 3 others 2006 YLR 2953; Javaid Iqbal v. The State 1996 MLD 626; Mansab and others v. D.M. and others NLR 1996 Criminal 742; Mst. Haleema Bibi v. D.M. Sheikhpura and another 1988 PCr.LJ 2366; Mansab and others v. District Magistrate and others PLJ 1996 CR.0 (Lahore) 1442; and Mansha v. The District Magistrate, Toba Tek Singh 1997 PCr.LJ 126 ref.

Ghulam Shabir Shar for Applicant.

Sadaruddin Buriro for Respondents Nos. 2.

Zulifqar Ali Jatoi, Deputy Prosecutor-General for the State.

MLD 2010 KARACHI HIGH COURT SINDH 1692 #

2010 M L D 1692

[Karachi]

Before Rehmat Hussain Jaffri and Mrs. Yasmeen Abbasey, JJ

Messrs KARACHI CHARITABLE ASSOCIATION through President---Appellant

Versus

THE STATE---Respondent

Criminal Accountability Appeal No. 61 of 2002, decided on 1st November, 2006.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9, 10, 12, 13 & 18---Corruption and corrupt practices---Freezing of property---Appreciation of evidence---Reference was filed against accused alleging therein that he had accumulated various properties, disproportionate to his known sources of income; and that one of said properties was gifted by accused to appellant/Charitable Association---Contention of appellant Association was that said properly should have not been included in the Reference as it was not the property of accused, but same belonged to the appellant (Charitable Association)---Application filed by appellant under S.13 of National Accountability Ordinance, 1999, objecting such freezing had been dismissed by the Trial Court---Validity---Prayer of the appellant being quite different from the provisions of S.13 of the National Accountability Ordinance, 1999, the Trial Court should have concentrated on the prayer and not on section 13---Trial Court, in circumstances, had not considered the application in its true perspective and went in wrong direction---If a wrong section was quoted in the application, then it would not debar the court from passing legal order, which was permissible under the law---State Counsel had no objection if the matter was remanded to the Trial Court for deciding the application in accordance with law---Impugned order was set aside and Trial Court was directed to consider prayer clause of the application and then decide the same in accordance with law---Said application would be deemed to be pending.

M. Shafi Rajput for Appellants.

Shafaat Nabi Sherwani, D.P.G.A. NAB.

MLD 2010 KARACHI HIGH COURT SINDH 1699 #

2010 M L D 1699

[Karachi]

Before Imam Bux Baloch, J

ASHIQUE---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-297 of 2010, decided on 8th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302(b)/34---Qatl-e-amd---Bail, refusal of---F.I. R. was lodged promptly within half an hour in which specific role was assigned against accused who along with others had formed an unlawful assembly and in consequence of their common intention had attacked upon unarmed person in which deceased lost his life---Motive behind the crime was landed dispute between the deceased and accused party---Witnesses in their statements under S.161, Cr.P.C. had fully implicated accused in the commission of crime---Empty cartridges recovered from the place of wardat had corroborated the version of the complainant and witnesses-Postmortem report had further revealed that the deceased received injuries on his back---Tentatively assessment of the evidence available on record showed that accused had no case for bail---Bail application was dismissed, in circumstances.

Yaroo v. The State 2004 SCMR 864; Shafiq v. The State 2008 MLD 1447; Saleh v. The State 2003 YLR 844; Muhammad Aslam v. The State 2009 YLR 1150; Muhammad Rafique and 4 others v. The State through Advocate-General 2003 PCr.LJ 351; Syed Mehboob Shah v. The State 1995 SCMR 1099 and Mureed and 2 others v. The State 2003 SCMR 64 ref.

Ghulam Shabbir Shar for Applicant.

Shyam Lal A.P.G. for the State.

Ali Gul Abbasi for the Complainant.

MLD 2010 KARACHI HIGH COURT SINDH 1718 #

2010 M L D 1718

[Karachi]

Before Khilji Arif Hussain, J

THE STATE through Chairman National Accountability Bureau---Appellant

Versus

ADAM KHAN JOKHIO and 2 others---Respondents

Criminal Accountability Acquittal Appeal No. 3 of 2008, decided on 1st December, 2008.

Penal Code (XLV of 1860)---

----Ss.468 & 471---National Accountability Ordinance (XVIII of 1999), Ss.9, 10 & 18---Criminal Procedure Code (V of 1898), S. 417---Corruption and corrupt practice, forgery, using as genuine a forged document---Appeal against acquittal---Allegation against accused was that he purchased 30 acres of land, but subsequently got it changed into 330 acres, fraudulently and with connivance and collaboration of co-accused---Accused having been acquitted of the charge under S.265-H(i), Cr.P.C., State had filed appeal against such acquittal--Counsel for NAB had stated that land in question was lying vacant and was not in possession of any one---No third party interest had been created on said land---Prosecution in his cross-examination had stated that he had never seen any agreement; and that he had no concern with said agreement whether of 30 acres or 330 acres---Appellant/ complainant having failed to point out any misreading or non-reading of evidence, appeal against acquittal was dismissed, in circumstances.

Muhammad Aslam Butt, DPGA, NAB for Appellant.

Muhammad Ashraf Kazi for Respondent No. 1.

Muhammad Shafi Rajput for Respondent No.2.

MLD 2010 KARACHI HIGH COURT SINDH 1724 #

2010 M L D 1724

[Karachi]

Before Nadeem Azhar Siddiqi, J

MUHAMMAD ASIF---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.330 of 2009, decided on 15th April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.380/381/34---Theft in dwelling house and theft by clerk or servant---Bail, refusal of---Name of accused had been mentioned in a promptly lodged F.I.R. ---Robbed articles were recovered from the possession of accused which was sufficient to connect him with the alleged offence---Only tentative assessment of the material available on record had to be made at bail stage, and deeper appreciation had to be avoided---No mala fide on the part of the complainant and the Police was established on record---Grant of bail in non-bailable offences, was not a right, even though the same did not fall under the prohibitory clause of S. 497, Cr.P.C.---Every case had to be decided on its own merits and the case-law could not be applied as a rule---Bail was refused.

Tariq Bashir v. The State PLD 1995 SC 34; Muhammad Sachal v. The State 2005 SD 684; Ghulam Sarwar v. The State 2005 PCr.LJ 2004; Muhammad Farooq v. The State 2005 YLR 1672; Khatoor v. The State 2005 PCr.LJ 626; Sarwar v. The State 2000 PCr.LJ 82; Rab Nawaz v. The State 2009 YLR 62 and Muhammad Siddiq v. Imtiaz Begum 2002 SCMR 442 ref.

Muhammad Nasirullah Siddiqui for Applicant.

Ms. Rehana Akhtar, Additional Prosecutor-General Sindh along with Investigating Officer Shoaib-ur-Rehman for the State.

MLD 2010 KARACHI HIGH COURT SINDH 1740 #

2010 M L D 1740

[Karachi]

Before Imam Bux Baloch, J

Haji MUNIR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-204 of 2010, decided on 7th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860); S.302/34---Qatl-e-amd---Bail, grant of---Further inquiry---Name of accused did not transpire in the F.I.R. and allegation against accused was of last seen which was to be considered after adducing evidence at the trial as no evidence was available on record that the deceased was seen lastly in the company of accused---Nothing incriminating was recovered during investigation from the possession of accused---Case of accused fell under purview of S.497(2), Cr. P. C. calling further enquiry.

Gadal v. The State 2010 PCr.LJ 280 and Sajid and 2 others v. The State 1998 PCr.LJ 1455 ref.

Ghulam Muhammad Khan Durrani for Applicant.

Shyam Lal, A.P.G. for the State.

MLD 2010 KARACHI HIGH COURT SINDH 1749 #

2010 M L D 1749

[Karachi]

Before Muhammad Tasnim, J

MANZOOR HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-437 of 2010, decided on 19th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302, 324, 337-H(ii), 148, 149 & 114---Qatl-e-amd, attempt to commit qatl-e-amd and hurt by rash or negligent act---Pre-arrest bail, confirmation of----Further inquiry---Only allegation against accused was that he instigated other accused to make firing upon the complainant party; and on his instigation accused made firing which had resulted in the death of two persons---Injured had filed affidavit to the effect that accused was not available at the scene of offence; and he had not taken part in the commission of offence-With regard to instigation it was yet to be determined, whether accused was present at the scene or he had instigated the co-accused to make firing upon complainant party---Such question could only be determined once the prosecution evidence was recorded---Counsel for accused had submitted that accused had been implicated only due to reason that his brother/co-accused had fired upon the deceased persons and just to harass the entire family, he had been implicated---Interim pre-arrest bail already granted to accused was confirmed, in circumstances.

Muhammad Arshad v. The State 2006 SCMR 966; Sanaullah and 3 others v. The State 1983 SCMR 15 and Liaquat Ali v. The State 1995 MLD 1254 ref.

Haji Shamsuddin Rajper for Applicants.

Sardar Ali Shah, A.P.G. for the State.

MLD 2010 KARACHI HIGH COURT SINDH 1754 #

2010 M L D 1754

[Karachi]

Before Imam Bux Baloch and Nisar Muhammad Shaikh, JJ

Mst. SAIMA---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeals Nos. D-97, D-108 and D-109 of 2009, decided on 6th May, 2010.

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

----S.9(c)---Trafficking of narcotics---Appreciation of evidence---Recovery witnesses were unanimous on material points of arrest of accused, recovery of "charas" and of the vehicle used in the commission of offence---Prosecution evidence had no important contradictions---Witnesses had no enmity with the accused to connect them with a false case by foisting a huge quantity of 90 kilograms of "charas" on them---Narcotic dealers those days used to accompany with them ladies and children to avoid suspicion of police and other State functionaries and search of their vehicles---Dispatch of "Chants" to Chemical Examiner was not delayed and his report was in positive---Impugned judgment was well-reasoned and did not suffer from any illegality or irregularity---Conviction and sentence of accused were maintained in circumstances.

Zahoor Ahmad Awan v. The State 1997 SCMR 543; Jamil Shah v. The State 1997 SCMR 1494 and Gul Alam v. The State NLR 201 Criminal 59 ref.

Faiz Muhammad Larik for Appellants.

Ali Raza Pathan, State Counsel.

Date of hearing: 24th March, 2010.

MLD 2010 KARACHI HIGH COURT SINDH 1762 #

2010 M L D 1762

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

ALI GUL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-597 of 2009, decided on 28th July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 337-H(ii), 147, 148 & 149---Qatl-e-amd---Bail, refusal of---Prosecution witnesses who were available at the time of occurrence, had fully implicated accused in commission of crime---Identification of accused was shown in light, but it was not mentioned whether that was torch light or on electricity light---Accused, after incident escaped and remained absconder and did not appear before the Investigating Officer during investigation---Accused remained absconded for a period of one year and eight months---Accused was also involved in another criminal case under Ss.395, 353, 324, P.P.C. and in that case a kalashnikov had also been recovered from him---Name of accused appeared in F.I.R., where specific role had been assigned to him---Accused being relative of complainant party, identity of accused by name in the F.I.R. was not doubtful---Blood-stained earth and 20 empties of kalashnikov had been recovered from place of occurrence, which corroborated the version of eye-witnesses---Post mortem report revealed that deceased died due to fire-arm injury, which also supported the version of the ocular evidence---As accused along with other co-accused was involved in a double murder case he was not entitled for any concession of bail---Accused having not been able to make out a case of further inquiry, his bail application was dismissed.

1982 PCr.LJ 30; 1917 SCMR 251; 2006 SCMR 71 and PLD 1997 SC 545 rel.

Abdul Haque G. Odho for Applicant.

Shayme Lal, A.P.-G.

MLD 2010 KARACHI HIGH COURT SINDH 1775 #

2010 M L D 1775

[Karachi]

Before Bhajandas Tejwani and Imam Bux Balouch, JJ

GHULAM SARWAR---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. D-158 of 2009, decided on 9th July, 2010.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.540---Qanun-e-Shahadat (10 of 1984), Art.133---Qatl-e-amd---Appreciation of evidence---Cross-examination of accused---Counsel for accused had argued that eye-witnesses were cross-examined by accused himself, though he had engaged a counsel for conducting his case, but counsel had failed to conduct the case---Trial Court examined said witnesses without affording an opportunity to accused to ask his counsel for cross-examination---As the offence against accused carried capital punishment and accused was convicted and sentenced to death, it was an essential right of accused that in such-like cases where accused was illiterate and did not know about the cross-examination---Vested right was denied by the Trial Court and accused was convicted and sentenced to death---Counsel for accused had prayed that case could be remanded for fresh cross'-examination of the witnesses---Cross-examination of the witnesses by accused was different from cross-examination by the counsel---Cross-examination by accused himself, was not a substitute of cross-examination by the counsel---Conviction and sentence awarded to accused by the Trial Court was set aside and case was remanded for cross-examination of the witnesses by counsel so that accused should be given a chance to put his case before the Trial Court.

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

----S. 302(b)--Criminal Procedur4 Code (V of 1898), S.540---Qanun-e-Shahadat (10 of 1984), Art.133---Qatl-e-amd---Appreciation of evidence---Summoning of witness---Engaging counsel on government expenses for cross-examination of prosecution witnesses---Under provisions of S.540, Cr.P.C., powers had been given to the court to summon or recall any witness, if his evidence was essential to the just decision of the case---Section 540, Cr.P.C. was divided into two parts; one where it was discretionary for the court to summon a court witness suo motu or on application; and second part was where it was mandatory for the court to do so---Main precondition for exercise of mandatory duty was the satisfaction of the court that the evidence of the witness was essential for just decision of the case---In the present case Trial Court had not taken any pain to engage a counsel who would be able to cross-examine the witnesses on behalf of accused on government expenses as the case carried capital punishment of death---Accused had a vested right that he be represented by a counsel, if private counsel were not coming forward to cross-examine the witnesses---Trial Court was bound to engage a senior counsel on State expenses, so that accused should be given a chance to put his case before the Trial Court, which right was denied by the Trial Court---Conviction and sentence recorded by the Trial Court, was set aside and case was remanded to the Trial Court with the direction to afford an opportunity to accused to defend himself in the Trial Court, if accused was unable to engage a senior counsel---Trial Court was directed to appoint a senior counsel as an Advocate for pauper accused on State expenses.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Qalandro alias Nazro v. The State 1997 MLD 1632; Muhammad Javed and another v. The State and another 2006 PCr.LJ 1170; Emperor v. Kasmallai Mirzalli AIR (29) 1942 Bombay 71 Full Bench and Muhammad Alam Shah v. The State PLD 1987 SC 250 ref.

Ghulam Murtaza Korai for Appellant.

Zulfiqar Ali Jatoi, D.P.G. for the State.

Date of hearing: 16th June, 2010.

MLD 2010 KARACHI HIGH COURT SINDH 1782 #

2010 M L D 1782

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

SABIR HUSSAIN SHAH and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.648 of 2009, decided on 21st July, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, refusal of---F.I.R. in the case had been promptly registered without any delay---Name of accused had transpired in the F.I.R. with specific role---Injured eye-witnesses had categorically stated in their statements under S.161, Cr.P.C. that accused along with co-accused had trespassed in their house and that accused was present at the time when other accused was committing the murder of deceased; and that they also caused firearm injuries to the injured prosecution witnesses---Since two injured witnesses had confirmed that accused came along with co-accused who were armed with deadly weapons entered into the house of the complainant and committed murder of the deceased and injured them also, both accused persons had shared their common intention; and that they went all along with the other accused who were armed with guns and pistol entered in the house in furtherance of common intention---Accused having not made out a case of further inquiry, their bail application having no merits, was dismissed.

Athar Iqbal Shaikh for Applicants.

Agha Athar Hussain, A.A.-G. for the State

MLD 2010 KARACHI HIGH COURT SINDH 1795 #

2010 M L D 1795

[Karachi]

Before Salman Ansari, J

HIKMAT KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 60 of 2009, decided on 6th February, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Possession of narcotics---Bail, grant of---Further inquiry---Very small amount of heroin having been recovered, matter would require further enquiry to consider whether narcotic was. for personal consumption of accused or for selling---Even otherwise it was yet to be seen whether case of accused would fall within the prohibitory clause of S.497(1), Cr.P.C.---Accused was released on bail, in circumstances.

Said Muhammad Khan for Applicant.

None present for the State.

MLD 2010 KARACHI HIGH COURT SINDH 1797 #

2010 M L D 1797

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

FAIZ MUHAMMAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-29 of 2009, decided on 11th May, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 337-H(ii), 148 & 149---Qatl-e-amd---Bail, grant of---Further inquiry---F.I.R. had revealed that active role had been assigned to co-accused who had allegedly fired at deceased---Enmity between the parties was admitted---Role assigned to accused was that he was armed with gun---F.I.R. was silent in respect of firing on the deceased or on any of the witnesses by accused---Accused was in jail since 23-7-2002 and not a single witness had come forward to record his evidence, only one mashir had been examined during tenure of four years---Vicarious liability could not be determined at bail stage---Presence of accused at the place of vardat and his involvement in the commission would be determined only at the time of trial---Case against accused was of further inquiry for the purpose of determining vicarious liability and sharing common intention---Accused was admitted to bail, in circumstances.

Jai Jai Veshnu Mange Ram for Applicant.

Miss Rubina Dhamrah State Counsel.

MLD 2010 KARACHI HIGH COURT SINDH 1813 #

2010 M L D 1813

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 588 and M.As. Nos. 1971 and 1972 of 2009, decided on 20th July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, refusal of---Incident took place in broad-daylight while the F.I.R. was lodged on the same day revealing the facts and motive of the incident---Names of accused persons appeared in the F.I.R. and all the eye-witnesses had implicated accused persons with specific role---Postmortem conducted by the Doctor had corroborated the version of the eye-witnesses---Finger marks of accused also had been found present over both the sides of the neck of the deceased---Doctor in his opinion had declared that deceased died of asphyxia due to throttling--Accused had failed to make out a case of further enquiry and since accused had committed the murder of young boy of 5/6 years which carried capital punishment, bail application of accused was dismissed, in circumstances.

Sadaruddin Buriro for Applicant.

Sardar Ali Shah, A.P.-G. for the State.

MLD 2010 KARACHI HIGH COURT SINDH 1818 #

2010 M L D 1818

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

ABDUL SHAKOOR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 614 of 2009, decided on 23rd July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Penal Code (XLV of 1860), Ss.324, 353, 397, 148 & 149---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Haraaba and attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Name of accused did not transpire in the F.I.R. with no specific role---No recovery of any crime weapon had been effected from accused---Eye-witnesses had not identified accused in the identification parade, nor the prosecution had called them for identification of accused---Accused was put to identification parade before the Magistrate after 10 days of his arrest and the only person who identified accused was S.H.O. who brought accused before Judicial Magistrate for his identification parade---Said identification, itself was not reliable and the evidence of said S.H.O. was not confidence-inspiring---Case of further inquiry having been made out, accused was admitted to bail, in circumstances.

Ghulam Mustafa Sahito for Applicant.

Agha Ather Hussain A.A.-G. for the State.

MLD 2010 KARACHI HIGH COURT SINDH 1827 #

2010 M L D 1827

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

KHAIR MUHAMMAD and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 185 of 2009, decided on 11th May, 2009.

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

----S.497(2)---Penal Code (XVL of 1860), Ss.302, 337-H(ii), 114, 148 & 149---Qatl-e-amd---Bail, grant of---Further inquiry---Enmity existed between the complainant and accused party---Mostly all members of one and same family had been involved by the complainant---No overt act of causing injuries to deceased had been attributed to coaccused/accused, who had been alleged the only role of instigation---Said co-accused had been shown at the place of occurrence duly armed with hatchet, but it was nowhere mentioned in the F.I.R. that he had caused any hatchet injury either to the deceased, complainant or to prosecution witnesses nor the alleged hatchet had been recovered from co-accused---Allegation of vicarious liability or instigation was yet to be decided after recording of evidence---Co-accused had been able to make out a case of further inquiry in circumstances---Co-accused was granted bail, in circumstances.

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

----S.497---Penal Code (XLV of 1860), Ss.302, 337-H(ii), 114, 148 & 149---Qatl-e-amd---Bail, refusal of---Accused allegedly armed with gun was present at the spot along with co-accused and facilitated co-accused and extended support to him by restraining other people not to come near to them by making aerial firing---Accused, in circumstances, had played active role along with co-accused, even after committing murder of deceased and by opening fire in air along with other accused persons restraining prosecution witnesses and other villagers from coming near to them so that no one should rescue deceased---Accused, in circumstances, had not been able to make out a case for grant of bail to him---Accused was declined bail, in circumstances.

Aftab Ahmed Gorar for Applicants.

Nisar Ahmed G. Abro for the State.

MLD 2010 KARACHI HIGH COURT SINDH 1836 #

2010 M L D 1836

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

MURTAZA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-567 of 2009, decided on 20th July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 337-H(ii), 148 & 149---Qatl-e-amd---Bail, grant of---Further inquiry---Record and police papers had disclosed that accused was armed with hatchet, while whole prosecution case was silent on the fact that accused had inflicted any hatchet blow to complainant or prosecution witnesses at the spot---Main role had been assigned to co-accused, who had directly fired on deceased with his pistol---Post-mortem report had also revealed that there was no hatchet injury on the body of the deceased---High Court had ordered that the Trial Court should conclude the trial within three months, but that had not been complied with---No active role was played by accused in commission of offence, mere presence of accused armed with hatchet, was not sufficient to keep accused in jail for an indefinite period---Accused having made out a case of further, inquiry, he was admitted to bail.

1999 SCMR 2147 ref.

Muhammad Hamzo Buriro for Applicant.

Sardar Ali Shah A.P.-G.

MLD 2010 KARACHI HIGH COURT SINDH 1842 #

2010 M L D 1842

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

GHULAM SHABIR and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 472 of 2009, decided on 27th July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.324, 353, 148 & 149---Attempt to commit qatl-e-amd---Bail, refusal of---F.I.R. had revealed that the names of accused persons appeared in the F.I.R. who had been shown armed with guns and recovery of one buffalo had been effected from them---Accused were involved in four other cases and those cases were pending against them in the Trial Court--- F.I.R. also revealed that 12 empties of 12 bore gun had been recovered from the place of incident---Accused persons had failed to make out a case of further enquiry---Bail application having no merits, was dismissed, in circumstances.

Gulzar Ali Gilal for Applicant.

Shyam Lal Ladhani, A.P.G. for the State.

MLD 2010 KARACHI HIGH COURT SINDH 1846 #

2010 M L D 1846

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

GHULAM HUSSAIN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-647 and M.As. Nos.2116, 2117 of 2009, decided on 21st July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.457 & 380---Lurking house trespass and theft in dwelling house---Bail, grant of---Benefit of doubt---Further inquiry---Assistant Sub-Inspector of Police along with a Police constable empty-handed reached the place of occurrence and apprehended one of accused who was armed with gun---Fact that empty-handed Police Officials, apprehended accused who was armed with a gun had created dent in the prosecution story and benefit of the same would go in favour of accused even at bail stage---Accused having been able to make out a case of further inquiry into the guilt of accused, they were admitted to bail, in circumstances.

Athar Iqbal Shaikh for Applicants.

Shayme Lal A.P.G. for the State.

MLD 2010 KARACHI HIGH COURT SINDH 1860 #

2010 M L D 1860

[Karachi]

Before Salman Ansari, J

NAJEEB ULLAH---Applicant

Versus

THE STATE---Respondent

Bail Application No. 14 and M.A. No. 56 of 2009, decided on 27th January, 2009.

Criminal Procedure Code (V of 1898)---

---S.497---Penal Code (XLV of 1860), S.392/34---Robbery---Bail, refusal of---Accused was apprehended on the spot and recovery was effected from him---Prima facie, case against accused had been made out under S.392/34, P.P.C., which was not bailable---Bail application was dismissed, in circumstances.

Noor Marjan Khattak for Applicant.

M. Iqbal Kalhoro, Additional Prosecutor-General for the State.

MLD 2010 KARACHI HIGH COURT SINDH 1868 #

2010 M L D 1868

[Karachi]

Before Salman Ansari, J

FAROOQ---Applicant

Versus

THE STATE---Respondent

Bail Application No. 1426 of 2008, decided on 28th January, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.392/397/34---Robbery and dacoity---Bail, refusal of---Complainant had identified accused who had on the point of pistol, along with his accomplices had snatched Rs.17,000 while complainant was sitting in coach---Rupees 14,000 were recovered from accused who was apprehended on the hue and cries of the complainant---Mashirnama of arrest and recovery were prepared on the same date, which had shown that no delay was made in preparation of the same---Reasonable grounds existing that accused had committed non-bailable offence, his bail application was dismissed.

S. Nadeemul Haq for Applicant.

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

MLD 2010 KARACHI HIGH COURT SINDH 1875 #

2010 M L D 1875

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

SHAMAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.375 of 2009, decided on 27th July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 147, 148 & 149---Attempt to commit qatl-e-amd---Bail, refusal of---Charge in the case had been framed and delay caused was on the part of accused as he remained absconded and had been declared a proclaimed offender---Name of accused appeared in the F.I.R. with specific role that he was armed with gun, had directly fired at deceased which hit him and he died on the spot due to such gun fire---As the Trial Court was proceeding with the case expeditiously and there was no delay was on the part of the prosecution, accused had not been able to make out a case for grant of bail---Bail application of accused was dismissed, in circumstances.

Farman Ali Kanasiro for Applicant.

Sardar Ali Shah, A.P.G. for the State.

MLD 2010 KARACHI HIGH COURT SINDH 1892 #

2010 M L D 1892

[Karachi]

Before Mushir Alam and Muhammad Athar Saeed, JJ

Syed ALI SHAH---Petitioner

Versus

THE STATE---Respondent

C.P. No.1276 of 2009.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for registration of criminal case---Petitioner had impugned order passed by District and Sessions Judge/Justice of Peace, whereby application filed by him under S.22-A, Cr.P.C. was dismissed after notice to the concerned Police---No direction of the court was needed to lodge a complaint---Court of law had dealt with the matter appropriately and had also discussed the option which could have been invoked by the petitioner to seek the redress of the grievance---Constitutional petition was dismissed.

Muhammad Atiq Qureshi for Petitioner.

Patras Piyaray Lal for Interveners.

Shafi Muhammad Memon, A.A.-G. for the State

MLD 2010 KARACHI HIGH COURT SINDH 1896 #

2010 M L D 1896

[Karachi]

Before Amir Hani Muslim and Syed Zakir Hussain, JJ

THE STATE/ANTI NARCOTICS FORCE through Deputy Director---Appellant

Versus

MEHBOOB UR REHMAN AFRIDI---Respondent

Criminal Acquittal Appeal No. 105 of 2010, decided on 12th May, 2010.

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

---Ss. 12, 13, 48 & 68---Criminal Procedure Code (V of 1898), S.417(2-A)---Possession of narcotics---Prohibition of acquisition and possession of assets derived from narcotic offences---Appeal against acquittal---Special Court recorded the evidence of the parties and trial ended in acquittal of accused and dismissal of the claim of prosecution of forfeiture of property allegedly derived by accused from narcotic offences---Prosecution had filed appeal against acquittal---Prosecution seemed to have failed to establish accused as drug peddler, being the first and foremost element of facts justifying for proceedings against perpetrator of crime and his property---Besides no record of narcotic business or dealings against accused in the matter existed---Mere pendency of any case under Control of Narcotic Substances Act, 1997, either in investigation or at trial, alone, would not prove the subject "drugs dealer" and the property as crime proceeds so as to attract the provisions of law applied in the case---Prosecution should have reasonably carried out the investigation of the property in question being crime proceeds, together with the indictment of accused after his arrest and effecting recovery of the narcotic substances culminating in prosecution and trial thereagainst--Charge and claim under Ss.12 & 13 of the Control of Narcotic Substances Act, 1997 should have been levelled together with the charge of possession and recovery of the narcotic substances-Material collected thereagainst should have been placed before the Trial Court together with the charge-sheet---Same having not been done by the prosecution, impugned judgment was well reasoned and there appeared to be no misreading or non-reading of evidence---Judgment of lower forum was upheld and appeal against acquittal was dismissed.

Syed Ashfaque Hussain Rizvi, Special Prosecutor, ANF.

MLD 2010 KARACHI HIGH COURT SINDH 1908 #

2010 M L D 1908

[Karachi]

Before Mushir Alam, J

ZIARAT KHAN---Applicant

Versus

THE STATE---Respondent

Bail Application No.1110 of 2009, heard on 26th November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c) & 51---Possession of narcotics---Bail, grant of---Further inquiry---Bail could not be granted in cases which fell within the exception to S.497, Cr. P. C. or S.51 of Control of Narcotic Substances Act, 1997, however, High Court while hearing the bail application, had to determine without going into deeper appreciation of evidence, whether a prima facie case had been made out for establishing that accused had been implicated in the case on the basis of mala fide or enmity and whether some prima facie evidence existed which could require further inquiry---High Court had the jurisdiction and authority to grant bail in the cases, where accused had made out a case of mala fide---Whenever accused was able to show by cogent reason, the possibility of his false involvement in the case it could be considered a good case for grant of bail---No firearm was recovered by the Police from accused who allegedly was taking heavy load of heroin and he had not tried to rush away when stopped by the Police and stopped at their signal---Prima facie, case subject to further inquiry, had been made out---Accused could have been implicated on the basis of his previous attitude and altercation with Police Authority---Accused was admitted to bail, in circumstances.

Imtiaz Ali v. The State 2006 MLD 1961; Muhammad Nawaz v. The State 2007 MLD 1846; Saeed Ahmed v. The State 2003 PCr.LJ 821; Shaukat Mehmood and another v. The State 2000 PCr.LJ 1752; Arab Kori v. The State PCr.LJ 4 and Barat v. The State 2002 PCr.LJ 971 ref.

Sheikh Rehan Farooq for Applicant.

Ms. Rehat Ehsan, D.P.-G. for the State.

MLD 2010 KARACHI HIGH COURT SINDH 1913 #

2010 M L D 1913

[Karachi]

Before Tufail H. Ebrahim J

ATHER HUSSAIN---Petitioner

Versus

THE STATE through

Prosecutor-General, Sindh---Respondent

Criminal Miscellaneous Applicant No. 181 of 2001, decided on 27th August, 2010.

Penal Code (XLV of 1860)---

----S. 394/34---West Pakistan Arms Ordinance (XX of 1965), S.13(b)-Criminal Procedure Code (V of 1898), Ss.397 & 561-A---Robbery/dacoity and possessing arms---Sentence of offender who was already sentenced for another offence---Application that two sentences be ordered to run concurrently---Applicant/accused who along with others committed robbery/dacoity, case was registered against him under Ss.394/34, P.P.C. and Trial Court convicted and sentenced him to four years' R.I.---Another F.I.R. under S.13(b) of West Pakistan Arms Ordinance, 1965 was registered against the accused in the same Police Station and Judicial Magistrate had convicted and sentenced him to two years' R.I.---Accused filed application before Trial Court praying that two convictions passed in two separate cases of the same crime be ordered to run concurrently as such request for inadvertent reasons was not made at the relevant time---Additional Advocate-General gave his no objection to the grant of application of accused, however, Trial Court came to the conclusion that order within the meaning of S.397, Cr.P.C. was required to be passed at the time of deciding the case; and for any reason or due to some inadvertent omission if such order was not passed, then same could not be passed at that stage as it would amount to modification of judgment which was not permissible under S.369, Cr.P.C.---Trial Court further observed that such order as to concurrent running of sentence could only be passed by the High Court in exercise of its powers under S.561-A, Cr.P.C.---Validity---Held, that there was an inadvertent omission in the order of trial Court to grant the relief of concurrent sentence to the applicant, as the applicant under trial before the Court was in respect of the same crime but of different offences---Applicant, in circumstances, was entitled to the benefit of S.397, Cr.P.C.---Application filed by accused was allowed and it was ordered by High Court that two sentences awarded to accused would run concurrently.

Shah Hussan v. The State PLD 2009 SC 460 and Nek Muhammad and another v. The State PLD 2007 Kar. 62 ref.

Athar Hussain for Petitioner.

Muhammad Iqbal Awan, A.P.G. Sindh for Respondent.

MLD 2010 KARACHI HIGH COURT SINDH 1916 #

2010 M L D 1916

[Karachi]

Before Amir Hani Muslim, J

Haji ABDUL AZIZ---Applicant

Versus

KARACHI PORT TRUST and another---Respondents

C.R.A. No. 27 of 2009, decided on 24th February, 2010.

Civil Procedure Code (V of 1908)---

----O. VII, R.11---Karachi Port Trust Act (VI of 1886), Ss. 4 & 87---Port Authorities Lands and Buildings (Recovery of Possession) Ordinance (IX of 1962), S.3(1)---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Rejection of plaint---Trial Court rejected the plaint of the plaintiff, on the ground that suit was barred under Ss.4 & 87 of Karachi Port Trust Act, 1886---Appeal filed by the plaintiff against judgment of the Trial Court had been dismissed by Appellate Court---Validity---Plaintiff had filed suit against the Karachi Port Trust through its Chairman, who was also head of the Board of Trustees---Objection that suit was liable to be dismissed under S.4 of Karachi Port Trust Act, 1886 as Board of Trustees of Karachi Port Trust, was not impleaded as the defendant, was misconceived---Suit was not filed against the department, but was filed against Karachi Trust Port Trust through its Chairman---Such defect, if any, was otherwise curable and the courts below should have granted time to the plaintiff to cure such defect, instead of rejecting the plaint---If the party pleaded mala fide on the part of the Authority, then bar provided under S.87 of the Act, would not be attracted and no notice in terms of said section was required to be served---Application of the provisions of O. VII, R.11, C.P.C. had limited scope---Courts could neither travel beyond the contents of the plaint for the purpose of its rejection, nor could they look into the defence of the other side---No justifiable reason existed to uphold the impugned orders of the courts below as same were passed overlooking the scope of O. VII, R.11, C.P.C.---Impugned orders of the courts below, were set aside and matter was remanded to the Trial Court which would proceed with the matter on merits.?

Mohd. Ismail and Co. Ltd. v. Karachi Port Trust, PLD 1978 Kar. 892 ref.

Amir Malik for Applicant.

Syed Yousaf Ali for Respondent No.1.

MLD 2010 KARACHI HIGH COURT SINDH 1920 #

2010 M L D 1920

[Karachi]

Before Aqeel Ahmed Abbasi, J

MUHAMMAD ALI---Applicant

Versus

ABDUL HAQ and 2 others---Respondents

Criminal Revision Application No. S-09 of 2010, decided on 18th June, 2010.

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

----Ss. 3, 4, 5, 7 & 8---Illegal dispossession---Application filed by the complainant under S.7 of Illegal Dispossession Act, 2005 against his illegal dispossession,. was allowed by the Trial Court and accused was directed to hand over the possession of land in question to the complainant within 7 days---Validity--- Complainant appeared to have made out a prima facie case of having invoked the provisions of Illegal Dispossession Act, 2005 as complainant had produced the title documents along with the registered sale deed, which not only created a legal presumption of ownership of the land in question, in favour of the complainant, but also reflected the confirmation of possession of the complainant on the land---Accused had not been able to produce any valid evidence or documents, creating any right or entitlement in the subject land, nor had been able to satisfy his possession over the land---Accused had not been able to point out any factual error or illegality in the proceedings undertaken by the Trial Court, particularly the impugned order, which was otherwise an interim order and was subject to final decision by the Trial Court under S.8 of Illegal Dispossession Act, 2005---Accused had also failed to produce any evidence showing any prima facie entitlement or any legal justification of keeping the possession of the land in question---Trial Court had rightly taken cognizance of the complaint filed by the complainant, which was duly supported by the title documents---Revision application was dismissed, in circumstances.

Habibullah and another v. The State and 9 others 2009 MLD 1162; Muhammad Akram and 9 others v. Muhammad Yousaf and another 2009 SCMR 1066; Nabi Bux and 6 others v. Ghulam Muhammad and others PLD 2008 Kar. 518; Shafi Muhammad v. The State and others PLD 2008 Kar. 480; Alia Hussain v. Syed Ziauddin PLD'208 Quetta 27; Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423; Ghulam Ali and others v. Nasira Malik and others 2007 PCr.LJ 224; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2007 SCMR 1192; Jalal and 11 others v. Kapri Khan and another PLD 2008 Kar. 369 and Abdul Aziz and another v. Sharif and another Criminal Revision Application 79 of 2008 ref.

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

----Preamble, Ss.3, 4, 5, 6 & 7---Cognizance of case---Procedure---Scope of Illegal Dispossession Act, 2005 was different and distinguishable from other remedies including civil and criminal available to a party seeking entitlement and possession over the property---Act provided an altogether alternate and efficacious remedy to the aggrieved party within a stipulated period with an intent to curb the land mafia and provide maximum relief to the aggrieved party---Preamble of Illegal Dispossession Act, 2005, reflected that the Act had been enacted to protect the lawful owners and occupiers of the immovable property from their illegal and forcible dispossession by the land grabbers and further to discourage the unauthorized and illegal occupants---Complaint was required to be filed by a person who was either the owner or the occupier of the property at the time of filing such complaint; on being dispossessed by accused without due process of law---Illegal Dispossession Act, 2005 being special law, empowered the court to conduct special investigation within the stipulated period and after receipt of the investigation report, the court was required to apply its mind as to whether to proceed further with the matter under S.5(2) of Illegal Dispossession Act, 2005 or not---If the court after examining such investigation, would reach to a conclusion that a prima facie case was made out for taking cognizance, the court thereafter was required to proceed with day to day trial and to decide the case within 6 days---Section 6 of Illegal Dispossession Act, 2005, authorized the court to pass an interim order of attachment of property till final decision of the case---Cognizance was required to be taken by the Trial Court on a complaint for contravention of provision of S.3 of Illegal Dispossession Act, 2005, special investigation was required to be conducted from the concerned S.H.O. and another Authority regarding complaint, whereafter, if cognizable case was made out in terms of the Act the court was required to proceed with the day to day trial as expeditiously as possible.

Muhammad Akram and 9 others v. Muhammad Yousuf and another 2009 SCMR 1066; Rahim Tahir v. Ahmed Jan and 2 others 2007 SC 423 and Ghulam Ali and others v. Nasira Malik 2007 PCr.LJ 224 ref.

Ejaz Ali Hakro for Applicant.

S. Madad Ali Shah for Respondent No.1.

Shahid Ahmed Shaikh, A.P.G. for the State.

MLD 2010 KARACHI HIGH COURT SINDH 1931 #

2010 M L D 1931

[Karachi]

Before Amir Hani Muslim and Syed Zakir Hussain, JJ

DARAYUS CYRUS MINWALA---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through its Chairman and 2 others---Respondents

Constitutional Petition No. 259 and Criminal Miscellaneous No. 1026 of 2010, decided on 27th May, 2010.

National Accountability Ordinance (XVIII of 1999)---

---Ss. 9, 10 & 18---Criminal Procedure Code (V of 1898), S.403---Constitution of Pakistan (1973), Arts.13(a) & 199---Civil Procedure Code (V of 1908), Ss.11 & 13---Constitutional petition---Corruption and corrupt practice---Reference to Accountability Court---Double punishment---NAB filed a Reference with Accountability Court against the petitioner alleging therein that the petitioner and his co-accused had by corrupt, dishonest or illegal means obtained for themselves pecuniary advantage and that foreign Airlines intentionally and deliberately engaged the petitioner to sell out its discarded fleet of aircrafts to Pakistan Airline at exorbitant rates for which said foreign Airlines paid sum to the petitioner as commission/illegal gratification---Royal Court of Jersey (foreign Court), after hearing the parties, had held that assets in the petitioner's account were not the proceeds of criminal conduct, fraud under the Jersey Laws---Against said judgment of Royal Court of Jersey, no appeal was preferred by any of the parties including Government of Pakistan---Said foreign judgment of the Jersey Court being passed by the .court of competent jurisdiction, had attained finality and was conclusive, binding the parties---Petitioner having been prosecuted and found not guilty of the charge of earning amount by corrupt means, was entitled to the protection guaranteed under Art.13(a) of the Constitution---If the entire material collected by the NAB was brought on record same would not land into conviction of the petitioner or any of the co-accused as the proceedings before the Accountability Court, inter alia, were barred under Art. 13(a) of the Constitution, 5.403, Cr.P.C. besides the provision of Ss. 11 and 13, C.P.C.---National Accountability Bureau had taken cognizance of the matter on its own and had not collected material to establish any loss or damage caused either to the PIA or to the National Exchequer--Insufficient material was on record to connect the petitioner or his co-accused with the alleged offence Constitutional petition was allowed in circumstances.

Muhammad Asif Marghoob v. Pakistan and others 2008 MLD 1735; Muhammad Irshad Khan v. Chairman, NAB 2007 PCr.LJ 1957 and Chairman, NAB v. Muhammad Irshad Khan 2008 SCMR 1012 ref.

Abdul Hafeez Pirzada, Aamir Raza Naqvi, Abdul Sattar Pirzada and Rana Ikramullah for Petitioner.

Mehmood A. Qureshi and Jamshed Iqbal for Applicant. Muhammad Aslam Butt, Deputy Prosecutor-General, NAB along with Muhammad Wasif Bhatti, Deputy Director, NAB

Shafi Muhammad Memon, Additional A.G.

MLD 2010 KARACHI HIGH COURT SINDH 1948 #

2010 M L D 1948

[Karachi]

Before Aqeel Ahmed Abbasi, J

GHULAM QADIR alias AZEEM and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No. S-150 of 2004, and M.A. No.987 of 2010, decided on 18th June, 2010.

Penal Code (XLV of 1860)---

----S. 302/34---Criminal Procedure Code (V of 1898), S.426---Qatl-e-amd---Application for suspension of sentence on the ground of considerable delay in the trial and the hearing of the appeal and hardship as well as acquittal of one of co-accused, almost on the same set of allegations---Accused had undergone a sentence for 10 years, 9 months, 20 days and remission earned was 9 years, 1 month and 9 days, whereas unexpired portion with compensation was 5 years, 4 months and 1 day---Almost similar position was that of co-accused---Accused were behind the bars since 1999, whereas appeal was pending in High Court since 2004 and matter could not proceed on account of heavy pendency of cases in the High Court---On the same set of allegations and the similar role assigned to all three accused persons, one of co-accused had been acquitted by the Trial Court by giving benefit of doubt, whereas accused were convicted---Accused persons had made out a prima facie case of hardship and inordinate delay in disposal of their appeals---Accused were admitted to bail by suspending conviction during the pendency of appeal, in circumstances.

Shahid v. The State 2008 SCMR 1595; Muhammad Tariq v. The State 2006 MLD 511; Anwar-ul-Haq v. National Accountability Bureau PLD 2009 SC 388; Amjad Hassan Gurchani v. Sajjad Haider Khan 2004 SCMR 12; Mumtaz Ali and another v. The State 2009 MLD 61; Muhammad Azam v. The State 2003 MLD 1731; Mian Munir Ahmad v. The State PLD 2002 Kar. 497; Tanvir v. The State PLD 2010 Lahore 156; Jawad Ali v. The State 2001 PCr.LJ 700; Shahid v. The State 2008 SCMR 1599 and Makhdoom Javed Hashmi v. The State 2008 SCMR 165 ref.

S. Madad Ali Shah.for Appellants.

Shahid Shaikh APG for the State.

Ayaz Hussain Tunio for the Complainant.

MLD 2010 KARACHI HIGH COURT SINDH 1971 #

2010 M L D 1971

[Karachi]

2010 M L D 10

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

REHMAT ALI and 11 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, KOT ADDU DISTRICT MUZAFFARGARH and 7 others---Respondents

Writ Petition No. 10680 of 2000, heard on 28th May, 2009.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), S.153 & O. VIII, R.2---Constitution of Pakistan (1973), Art.199---Suit for declaration---Application of defendants to produce evidence---Rejection of application---After receipt of written statements of the respective defendants in both the suits, the Trial Court proceeded to consolidate both the suits---Application filed by the defendants under S.153, C.P.C. to allow them to record their evidence in said consolidated suits having been dismissed by the Trial Court, they preferred revision petition, which having also been dismissed, they had filed constitutional petition---Validity---Both courts below had given elaborate and cogent reasons for rejecting the prayer made by the defendants---Concurrent orders passed by two courts below were legal and no jurisdictional error had been found therein---Defendants had sought setting aside of the concurrent findings of the courts below in a discretionary jurisdiction of High Court, which could not be done unless any illegality or irregularity was pointed out therein---Counsel for the defendants had not been able to point out any irregularity muchless any illegality in the impugned orders which were based on sound reasons and no interference was called for---Both the courts below had concurrently found that the evidence of the defendants, who were pro forma parties, was not essential for the decision of the case---Application of defendants was rightly dismissed by the courts below, in circumstances.

Mst. Sharifan Bibi and others v. Asghar Ali and others 1991 CLC 1470 ref.

Ch. Muhammad Iqbal Ghazi for Petitioners.

Nemo for Respondents.

Date of hearing: 28th May, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 20 #

2010 M L D 20

[Lahore]

Before Sh. Azmat Saeed and S. Ali Hassan Rizvi, JJ

MUHAMMAD ALAM SHER---Appellant

Versus

MUHAMMAD SHAFI---Respondent

Regular First Appeal Case No.466 of 2006, heard on 30th June, 2009.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.1 & 2---Suit on the basis of pro note and receipt under O.XXXVII, Rr.1 & 2, C.P.C.---Trial Court dismissed suit---Defendant asserted -that he did not borrow any amount from the plaintiff and was illiterate and old person having very weak eye-sight---Further assertion of the defendant was that in fact the plaintiff and his son were defaulters of one of the banks and in order to file an application to set aside ex parte decree, the plaintiff had tricked to put his thumb-impression and no consideration amount was paid and the witnesses appeared were fictitious---Defendant denied the receipt of any consideration amount---Age of the defendant, being a village simpleton, was admitted---Plaintiff and defendant's son were defaulter of the bank---Plaintiff witnesses were not reliable and trusted because one of the witnesses` alleged that he was not involved in criminal case lodged against him whereas it stood proved that he was an accused---No witness was available of passing on of any transaction and a simpleton villager was tricked into putting his thumb-impression on the pro note while none of the witnesses was present---Burden of proving of consideration had not been discharged by the plaintiff---Appeal was accepted by High Court.

Sardar Muhammad Ramzan for Appellant.

Dr. Muhammad Akmal Saleemi for Respondent.

Date of hearing: 30th June, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 27 #

2010 M L D 27

[Lahore]

Before Hasnat Ahmad Khan and Zubda-tul-Hussain, JJ

MAJID RASHEED---Petitioner

Versus

THE STATE---Respondent

Writ Petitions Nos. 8796 of 2007 and 2799 and 2678 of 2008, decided on 10th July, 2009.

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

----Preamble---Intent and object of National Accountability Ordinance, 1999---Preamble and the following provisions of the National Accountability Ordinance, 1999, indicate the object of this special legislation of providing expeditious trial for scheduled offences, which is also represented by S.16 of the said Ordinance, wherein a period of 30 days has been prescribed for holding the trial on day to day basis and concluding the same within the said period after submission of challan---Intent and object of the Ordinance is to ensure the expeditious trial and its conclusion within the shortest possible time.

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

----S.497---National Accountability Ordinance (XVIII of 1999), S.10(a)---Constitution of Pakistan (1973), Art. 199---Corruption and corrupt practices---Bail, grant of---Accused were under arrest for the last four years for an offence which provided maximum punishment of 14 years R.I.---Progress of trial was almost insignificant, which apparently would be needing many years to conclude--Law never intended to punish the accused for the' offence the trial whereof was still pending---Concept of punishment was essentially relatable to the conclusion of the trial and the punishment would only be imposed after the end of the trial---Nobody could be incarcerated during the trial merely as a matter of punishment---Mere fact that the challan. had been submitted and the trial was pending, would not constitute a bar against grant of bail to accused---Out of 910 cited prosecution witnesses only 19 witnesses had so far been examined in twenty months---However, the element of delay alone in the case could not be sufficient and the sole ground for concession of bail---Even on merits despite the enormous volume of financial implications the role ascribed to the accused and the liabilities alleged against them were proportionately much less than the overall liabilities of the company and the same were subject to determination by further inquiry at the time of trial---Accused were admitted to bail in circumstances.

Muhammad Nadeem Anwar and another v. National Accountability Bureau and others PLD 2008 SC 645 and Faisal Hussain Butt v. The State and another 2009 SCMR 133 ref.

----S.497---Bail---Delay in concluding trial---Accused not to be incarcerated during trial as a punishment---Rule of caution---Law as emphatically available in the criminal jurisprudence and repeatedly ordained by Superior Courts aims at ensuring that the accused are made to be available-for trial, but it has never been nor it can ever be the intention of law to punish the accused for the offence the trial whereof is still pending against him---Concept of punishment is essentially relatable to the conclusion of the trial and the punishment can only be imposed after the end of the trial----Fact that unless otherwise specifically prohibited under the laws, the benefit of S.382-B, Cr.P.C. is generally available to a convict also indicates that nobody can be incarcerated during the trial merely as a matter of punishment.

Mian Abdul Qadoos for Petitioner.

Sikandar Zulqarnain for Petitioner (in Writ Petition No.2678 of 2008).

M.A. Malik, for Petitioner (in Writ Petition No. 2799 of 2008).

Ch. Abdul Hafeez, Senior Special Prosecutor for NAB.

MLD 2010 LAHORE HIGH COURT LAHORE 36 #

2010 M L D 36

[Lahore]

Before Ali Akbar Qureshi, J

Mst. SAEEDA SULTANA and 6 others---Petitioners

Versus

DISTRICT COORDINATION OFFICER and another---Respondents

Writ Petition No. 13720 of 2009, decided on 15th July, 2009.

Miani Sahib Graveyard Ordinance (XLIV of 1962)---

----Ss. 2(d) & Sched.---West Pakistan Graveyard (Preservation and Maintenance) Act (XXV of 1958), Ss. 5, 6 & 12---Transfer of Property Act (IV of 1882), S.41---Constitution of Pakistan (1973), Arts. 199 & 250---Constitutional petition---Land falling in Specific Khasra included in Schedule appended to Miani Sahib Graveyard Ordinance, 1962 purchased by petitioner from private person---Removal of encroachments by Graveyard Committee---Petitioner's plea that he was bona fide purchaser of such land through registered sale-deed executed in year, 2005; that no notification as required by law had been issued; and that he was not heard by Committee before starting such campaign---Validity--Only transactions completed before 18th June, 1962 were past and closed for all practical purposes for being saved by President's Order No.29 of 1962 and Art. 250 of Constitution---As per report made by Senior Member, Board of Revenue, petitioner after conducting survey, encroachments had been made upon land owned by Miani Sahib Graveyard---Petitioner, if purchased land owned by Miani Sahib Graveyard, could not blame others---Duty of petitioner was to firstly enquire from relevant quarters about status of such land as required by provisions of Transfer of Property Act, 1882---Petitioner had approached High Court for equitable relief, but with unclean hands for being an encroacher---Petitioner was not entitled to any discretionary relief---High Court dismissed constitutional petition.

Noor v. The Chairman, Miani Sahib Graveyard Committee, Lahore PLD 1973 SC 17 and C.P.L.A. No.305 of 2002 rel.

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Professor Yameen-ud-Din, Advocate v. Lahore Graveyard' Committee through Deputy Commissioner/Chairman and another 2003 CLC 1718; Muhammad Din and 9 others v. Province of the Punjab through Collector, District Rahimyar Khan and 3 others PLD 1990 Lah. 58; Dr. Nusrat Ullah Chaudhry and 2 others v. Government of the Punjab through Secretary, Cooperative Department, Lahore and 2 others PLD 1994 Lah. 353; Shahab-ud-Din and others v. Mst. Mariam Bibi and others 1995 MLD 45; Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034 and Abdul Khaliq Doossani v. Mst. Farida Saba 2003 YLR 2206 distinguished.

Tasawar Hussain Qureshi for Petitioner.

Malik Maqbool Sadiq for Respondent No.2 Miani Sahib Graveyard Committee.

MLD 2010 LAHORE HIGH COURT LAHORE 42 #

2010 M L D 42

[Lahore]

Before Jamila Jahanoor Aslam, J

Mst. MUHAMMAD JAN---Petitioner

Versus

DISTRICT JUDGE, ATTOCK and others---Respondents

Writ Petition No. 1052 of 2009, heard on 29th July, 2009.

Constitution of Pakistan (1973)---

----Art.199---Criminal Procedure Code (V of 1898), S.491---Guardian and Wards Act (VIII of 1890), S.7---Constitutional petition---Habeas Corpus---Custody of minor---Welfare of minor---Respondent/mother of the minor after the death of her husband continued residing with her in-laws along with minor, but later on she was expelled by the grandmother of the minor retaining the custody of minor---After being turned out of her home, she being mother of the minor filed petition under S.491, Cr.P.C. for recovery of the minor, which on the statement of minor that he would prefer living with his paternal grandmother/the petitioner, petition was dismissed---Mother of the minor later on filed petition under S.7 of Guardians and Wards Act, 1890 to appoint her as guardian of person and property of the minor, which again was dismissed on the statement of minor in favour of his paternal grandmother---Appeal filed by the mother of the minor against judgment and decree, however having been accepted, judgment and decree of the Guardian Judge, was set aside with direction to the Guardian Judge, to hand over custody of minor to the mother---Grandmother had impugned said order in constitutional petition---Minor was brainwashed to the extent that he abhorred his real mother and was making up stories of her having inflicted physical violence on him even in the court, which was abnormal---Petitioner/grandmother of the minor had not adhered to the visitation schedule as determined by the Guardian Court and was teaching the child how to lie and hate---Danger to a child's life was not only physical, but it was also mental---Extent of the mother's sacrifice for her minor son was that despite being a young woman she had not remarried after the death of minor's father; she was educated, holding a job and seemed to be intelligent woman---Initially the minor may not be happy in his mother's custody, but the tie of the umbilical cord was too strong to be severed---Lady was mother of minor and knew the best of her child---No one take place of real mother--Moreover under Islamic Law the custody of paternal grandmother was subservient to the custody of the mother---What had to be taken into consideration at each and every stage of litigation involving minors and their custody, was the welfare of the minor---Welfare of the minor in the case lay with his real mother---Constitutional petition dismissed.

2009 MLD 33 ref.

Azhar Masood Khan for Petitioner.

Nasir Mahmood for Respondent.

Date of hearing: 29th July, 2009.

JUDMENT

JAMILA JAHANOOR ASLAM, J.---Facts of the case are that after the death of her husband; Mst. Asima continued residing with her in-laws along with minor Bilal Ahmad, but after a while she was expelled by the present petitioner after retraining the custody of the minor. After being turned out of her home respondent No.3, being real mother of the minor, filed a petition under section 491, Cr.P.C. before the District and Sessions .Judge Attock for recovery of the minor. However, based on the statement of a minor aged 5 years, that he is studying in a school in the village and prefers living with his paternal grandmother, the District and Sessions Judge, Attock dismissed the petition under section 491 vide order dated 18-12-2008. Thereafter respondent No.3 filed a petition under section 7 of the Guardians and Wards Act, 1890 on 22-12-2008, to be appointed as guardian of the person and property of the minor. Along with the petition under section 7 she also filed application under section 12 for the interim custody of the minor before learned Guardian Judge, Attock which was again dismissed on the statement of the minor in favour of the petitioner (his paternal grandmother) vide judgment, dated 25-3-2009. Respondent No.3 preferred an appeal against the judgment/decree of the Guardian Judge, which was accepted vide judgment, dated 14-5-2009. The judgment of the Guardian Judge was set aside with directions to the learned Guardian Judge to hand over custody of the minor to respondent No.3 and to proceed in accordance with law.

The petitioner being aggrieved of the judgment, dated 14-5-2009 has impugned the same in this constitutional petition.
The counsel for the petitioner argues that under the provisions of section 47 Guardians and Wards Act, respondent No.3 could not have appealed the judgment of the Guardian Court as the petition dismissed was under section 12 which is qua the interim custody of the minor and that the judgment, dated 14-5-2009 was ultra vires and void ab initio, due to the fact that the District Judge could not have adjudicated upon the matter and the Court of competent jurisdiction was this Court. However, he admits that he had not brought up the matter of jurisdiction at the time of hearing of appeal. This fact is also apparent from the record. He further contends that section 12 of the Guardians and Wards Act is only to be invoked when there is imminent danger to the life and health of the minor and that these grounds were not available to respondent No.3 when she filed the application under section 12.
Further contended that the appellate Court has relied upon PLD 2004 Lahore 395 and 2009 MLD 33, which .rulings were distinguishable from the matter in hand as in those two circumstances the minors were at the suckling stage. He is of the opinion that as respondent No.3 resides in Haripur there is imminent danger to the life of the minor.
On the other hand the counsel for respondent No.3 has contested the arguments extended by the counsel for the petitioner.
I have heard both the counsel for the parties and perused the record with their able assistance.
Record reveals and it is admitted by the counsel for the petitioner that he did not raise any objections to the jurisdiction of the learned District Judge at the time, the appeal was before him. Having surrendered to the jurisdiction at the relevant time the petitioner cannot now agitate the matter of jurisdiction.
I have personally questioned the minor and he has been brainwashed to the extent that he abhors his mother and is making up stories of her having inflicted physical violence on him even in Court. This is abnormal. To start with the petitioner has not adhered to the visitation schedule as determined by the Guardian Court and to top it all she is teaching the child how to lie. The minor's abhorrence towards his real mother is abnormal and unnatural. Danger to a child's life is not only physical it is also mental. He is being brainwashed into hating his real mother, who is the first woman a boy loves in his life. If he hates his mother he will be unable to form a healthy lasting relationship with his wife when he gets to the age of marriage, thus I am inclined to observe that the child's mental health is in extreme danger. The extent of the mother's sacrifice for her son is that despite being a young woman she has not remarried after the minor's father's death, which was more than six years ago. She is educated, holds a job and seems to be an intelligent woman. Her longing for her child is apparent from the fact that she has not given up the fight for her child's custody all this time and has been constantly pursuing the matter of custody of the minor. I grant that initially the minor may not be happy in his mother's custody but the tie of the umbilical cord is too strong to be denigrated or severed. She is a mother and knows the best for her child. Nobody can take the place of a real mother. Moreover, under Islamic Law the custody of the paternal grandmother is subservient to the custody of the mother and even the maternal grandmother. What has to be taken into consideration at each and every stage of litigation involving minors and their custody is the welfare of the minor. In this particular case the welfare of the minor lies with real mother. I do not undermine the love, the petitioner must have for her grandson but it is to be borne in mind that she has other grandchildren as well while respondent No.3 has only her son.

MLD 2010 LAHORE HIGH COURT LAHORE 45 #

2010 M L D 45

[Lahore]

Before Pervaiz Inayat Malik, J

MUHAMMAD SAEED---Petitioner

Versus

Haji MEHMOOD-UL-HASSAN through Special Attorney and 2 others---Respondents

C.R. No. 865 of 2003, heard on 22nd June, 2009.

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

----S. 13---Civil Procedure Code (V of 1908), S.103 & O.XXI, R.100---Ejectment of tenant---Agreement to sell---Claim as owner of the house--Scope---Predecessor-in-interest of the plaintiffs filed ejectment petition of the disputed house against the defendant---Petitioner filed application to be impleaded as party on the basis of agreement to sell---Rent Controller dismissed application and allowed the ejectment petition---Appellate Court also dismissed the appeal filed by the petitioner---Execution petition filed by predecessor-in-interest of the plaintiffs was allowed and the possession was handed over to the predecessor-in-interest of the plaintiffs by the executing court---Petitioner filed an application under O.XXI, R.100 read with S.103, C.P.C., in the executing Court seeking restoration of possession which was allowed---Appeal filed by plaintiffs was accepted and possession was restored to plaintiffs---Assertion of the petitioner was that the petitioner being owner in possession of the disputed property, no ejectment petition could be filed by any other person without impleading the petitioner as a party---Petitioner based his claim upon agreement to sell---No sale-deed, in fact, was ever executed by the plaintiffs in favour of the petitioner---Agreement to sell per se created no rights in favour of a person and the only right which was available to such person was to file a suit for specific performance---Tenant taking over possession as such to vacate the premises obtained by him on the basis of such a tenancy and thereafter if his suit was decreed for specific performance, he could take the possession back on the strength of such decree---Petitioner was not even a tenant and had no right to file any objection . petition---Possession in question was rightly handed over to the plaintiffs by the executing court---Petitioner, through suppression of facts, was successful in obtaining a stay order from the, High Court which was allowed to him for one date of hearing only and was never extended, which order was misconstrued by him as well as by the courts below---High Court was not satisfied with the bona fides of the petitioner and by engaging the plaintiffs in false and frivolous litigations, the petitioner wanted to usurp the property owned and possessed by his own real sister, a widow and her orphan children---Petition was dismissed by High Court.

PLD 1999 SC 1101 and 2003 SCMR 1014 ref.

Mian Habib ur Rehman Ansari for Petitioner.

Sayed Qamar Uz Zaman Nasak for Respondents.

Date of hearing: 22nd June, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 52 #

2010 M L D 52

[Lahore]

Before S. Ali Hassan Rizvi, J

Mst. SAMINA AFZAAL and 5 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and another---Respondents

Writ Petition No.643 of 2009, decided on 5th March, 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 for children and herself by wife---Appeal against interim order passed by the Family Court, competency of---Word "decision"---Family Court directed defendant to pay interim maintenance amount at the rate of Rs.3000 per head---Defendant who did not pay even a single penny to the plaintiff, preferred appeal against order of the Family Court which was pending before the Appellate Court, though Family Court had decreed the suit to the extent of children of the plaintiff---Validity---No appeal lay against interim order passed by the Family Court and only final order would be covered by the word "decision"---Appeal before the Appellate Court against order of Family Court directing interim maintenance, was not competent and order passed thereon had no legal efficacy---Even otherwise suit having already been decreed by the Family Court to the extent of the children of the plaintiff, said appeal had also become infructuous to that extent.

Muhammad Akram v. Mst. Raheela and others PLD 1999 Lah. 33 ref.

Muhammad Tanveer Ejaz for Petitioners.

Respondent No.2 in person.

MLD 2010 LAHORE HIGH COURT LAHORE 58 #

2010 M L D 58

[Lahore]

Before Pervaiz Inayat Malik, J

Raja KARIM ELAHI---Applicant

Versus

MUHAMMAD ARIF and others---Respondents

C.M. Nos. 1705-C, 1708-C of 2001 in C.R. 31 of 1984, heard on 22nd June 2009.

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

----S. 12(2)---Fraud and misrepresentation---Setting aside of decree--Disputed document of general power of attorney was, executed in the year 1974 and it was never assailed before any forum---Compromise between the parties was effected in presence of their counsel who had net been arrayed as party in the applications nor the power of attorney given to them had been disputed---Executor of general power of attorney was not a minor during the year 1999 when compromise between the parties was effected and prior to decision of the revision petitions, he never disputed the authority of general attorney---One of the executants had opted to dispute a part of the acts done by general attorney on his behalf, whereas, he had neither denied the execution of documents nor the general power of attorney---Party could not be allowed to approbate and reprobate in the same breath nor could a party be allowed to take benefit of part of the document or transaction---Document has to be read as a whole---Applications had been filed by applicant for ulterior motive and the applicant also appeared to have approached the court with unclean hands---High Court declined to interfere in the matter.

1987 SCMR 171; 1997 SCMR 938; 1992 SCMR 2184; 2001 SCMR 1316; 1988 SCMR 1703; PLD 1975 Kar. 930; PLD 1987 SC 107 and 1984 CLC 2499 ref.

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

----S. 41---Professional duties---Loss---Remedy---Counsel representing a party has full authority to make any statement on behalf of his client and if a party was aggrieved of any acts of the counsel, regarding professional duties performed by him, in case of loss suffered by it, the remedy available to such a litigant was to file suit for damages against such counsel or approach the concerned Bar Council for initiation of proceedings for commission of alleged gross professional misconduct in view of provisions of Legal Practitioners and Bar Councils Act, 1973 and rules made thereunder.

Mirza Muhammad Salim Baig for Applicant.

Mian Shams ul Haq Ansari for Respondents.

Date of hearing: 22nd June, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 63 #

2010 M L D 63

[Lahore]

Before Zubda-tul-Hussain, J

MUHAMMAD KHALID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6979-B of 2009, decided on 6th July, 2009.

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

----S.498---Penal Code (XLV of 1860), Ss.420/468/471---Cheating, forgery and using as genuine a forged document---Pre-arrest bail, grant of---Accused had allegedly sold out his land measuring one kanal to a Society through cheating, forgery and misrepresentation---Proprietory rights of accused were based upon registered sale-deed executed in his favour by the real owners of the land, who were duly reflected as owners in the revenue record---Record did not show, nor the investigation had revealed that the sale deed and the mutation of land in favour of accused were false, fictitious or manoeuvred for the purpose of any fraudulent transaction---Matters relating to demarcation and exact location of the land would be determined during investigation or at the time of trial of the case---Title of the accused as per revenue record being not defective, case essentially was one of further inquiry to establish his guilt---If accused was, prima facie, not liable for any unfair practice, he could not be handed over to the police custody and subjected to harassment and humiliation, merely because the complainant had also suffered some embarrassment---If for the purpose of pre-arrest bail, malice had to be found out in the complaint, absence of mala fide and ulterior motive on the part of accused was also an important factor towards his right of bail, because if he was a bona fide purchaser and had sold out the same property without any mens rea, he should not be blindly subjected to arrest and criminal liability, only because he had not, been able to allege or indicate mala fide against the complainant or the police---Ad interim pre-arrest bail granted to accused was confirmed in circumstances.

Muhammad Ismail v. Ghaus Bakhsh and another 1990 PCr.LJ 2013 and Aftab Gul v. The State 1989 PCr.LJ 1599 ref.

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

----S.498---Penal Code (XLV of 1860), Ss.420/468/471--- Cheating, forgery and using as genuine a forged document---Pre arrest bail--Malice---Principle---For the purpose of pre arrest bail if the malice has to be found out in the complaint, the absence of mala fide and ulterior motive on the part of accused is also an important factor towards his right of bail.

Muhammad Ismail v. Ghaus Bakhsh and another 1990 PCr.LJ 2013 and Aftab Gul v. The State 1989 PCr.LJ 1599 ref.

Shahryar Sheikh for Petitioner.

Malik Muhammad Jamil Awan, for the Complainant.

Ms. Tahira Sultan, ADPP with Sabir A.S-I.

MLD 2010 LAHORE HIGH COURT LAHORE 68 #

2010 M L D 68

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

UMAR AHMAD---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, BUREWALA, DISTRICT VEHARI and 2 others---Respondents

Writ Petition No. 3285 of 2009, heard on 28th May, 2009.

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

----O. VII, Rr.2 & 11---Limitation Act (IX of 1908), Ss.23 & 24---Constitution of Pakistan (1973), Art.199---Defamation---Suit for Compensation---Limitation---Defendant filed application under O. VII, R.11, C.P.C. for rejection of plaint on ground that suit was barred by time---Said application was dismissed by the Trial Court, but on filing revision by the defendant against order of the Trial Court, Appellate Court allowing revision, accepted application of defendant for rejection of plaint and rejected plaint being barred by time---Plaintiff had filed constitutional petition against the judgment of the Appellate Court---Validity---Suit was filed on basis of F.I.R. lodged against the plaintiff at Police Station concerned which offence against the plaintiff was also published in the newspapers---Plaintiff faced agony of trial and ultimately earned acquittal from the court of Magistrate---Plaintiff after about 16 months of his acquittal filed suit for compensation on the basis of defamation---Sections 23 and 24 of Limitation Act, 1908 had provided limitation for filing of a suit for compensation on the basis of malicious prosecution as one year and the limitation would start when the plaintiff was acquitted or the prosecution otherwise terminated---Under S.24 of Limitation Act, 1908 the limitation to file suit for compensation for libel would start from the publication of defamatory material---Appellate Court while allowing revision petition had minutely considered each and every aspect of the matter and had rightly come to the conclusion that the right to file suit for defamation accrued to the plaintiff, when he earned acquittal, but he had filed suit :After about sixteen months of his acquittal, while it was to be filed within one year---Reasons advanced by the Appellate Court were elaborate and no infirmity or illegality had been found therein to call for interference by High Court in its constitutional jurisdiction---Constitutional petition was dismissed.

Muhammad Yousaf v. Syed Ghayyur Hussain Shah and others 1993 SCMR 1185 rel.

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

----Preamble, Ss.3 & 5---Object of law of limitation---Object of law of limitation was to help the vigilant and not the indolent; and that the law of limitation was required to be construed strictly, coupled with the maxim that each day of delay to be explained by the party concerned.

Muhammad Khalid Farooq for Petitioner.

Malik Muhammad Naeem Iqbal for Respondent No.3 with Zulifqar Ahmad Food Inspector.

Date of hearing: 28th May, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 78 #

2010 M L D 78

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

NASIR SHAHZAD---Petitioner

Versus

UNIVERSITY OF HEALTH SCIENCES, LAHORE, through Vice-Chancellor and 2 others---Respondents

Writ Petition No.410 of 2009, decided on 27th May, 2009.

Educational institution---

----Admission in medical college---Reserved seats---Petitioner was declined admission in medical college on seat reserved for underdeveloped districts on the ground that he completed his initial education from underdeveloped districts other than that against which he claimed his admission---Validity---Petitioner should not suffer for posting of his father to another district which was also under developed---Petitioner was totally dependent upon his parents and it was not possible for him to stay alone at the initial stage of class 6, when there was no hostel facility available in the school---Fact remained that petitioner had completed his entire education from underdeveloped districts and stood at serial No.2 in the merit prepared by university---High Court keeping in view the peculiar facts and circumstances and being hardship case, directed university authorities to consider the case of petitioner in next year in accordance with law---Petition was dismissed accordingly.

Arif-ur-Rehman v. Govt. of N. W. F. P. through Secretary Education and others 2005 SCMR 340; Syed Faiz-ur-Rehman v. Principal, Sheikh Zayed Medical College, Rahimyar Khan and 4 others 2004 CLC 661; Yasir Arfat's v. Vice-Chancellor, Mehran University 2000 CLC 393; Nayyar Abass v. Government of Punjab 2004 MLD 876; Shafique Ahmad and others v. The Province of Punjab PLD 2004 SC 168; Ali Yousaf and others v. Chairman Academic Dow Medical College Karachi and other 2008 SCMR 1222 and Muhammad Ilyas v. Bahauldin Zakariya University, Multan and another 2005 SCMR 961 ref.

Muhammad Arif Alvi for Petitioner.

Nadeem Afzal Lone and Mian Abbas Ahmed, Additional Advocate General for Respondent.

Date of hearing: 13th May, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 82 #

2010 M L D 82

[Lahore]

Before Ijaz ul Ahsan, J

TAHIRA BEGUM---Appellant

Versus

Syeda SAIRA AWAIS---Respondent

First Appeal from Order No.378/I of 2009, decided on 27th October, 2009.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), S.12---Irreparable loss---Question of---Monetary value---Effect---Plaintiff filed suit for specific performance of agreements along with an application under O.XXXIX, Rr.1, 2, C.P.C. in respect of disputed property alleging therein that she had paid a sum of Rs. thirty lacs as an earnest money and the balance amount was also subsequently paid---Defendant contested suit on the ground that she was daughter-in-law of the plaintiff and the suit property had been gifted to her by her husband with whom she had lately fallen out and that she had neither signed any agreement to sell nor had she received any consideration amount---Trial Court dismissed application of the plaintiff---Validity---Only documents the plaintiff had relied upon in support of her claim were the agreements to sell which had specifically been denied by the defendant---Complete absence of proof of payment of Rs. seventy lacs to the defendant and it was not possible to believe that such a substantial amount had been paid either in cash or through a mode of which documentary evidence was not available---Monetary value was attached to the property and the question of irreparable loss did not arise---Suit property would be disposed of/alienated, during pendency of the suit, was adequately addressed by the doctrine of lis pendens---Plaintiff had failed to point out any illegality or material irregularity in the order of Trial Court---High Court dismissed first appeal in limine with clarification that observations made in the order were of tentative in nature and should not affect merits of the case.

Muhammad Arif Yaqoob Khan for Appellant.

MLD 2010 LAHORE HIGH COURT LAHORE 88 #

2010 M L D 88

[Lahore]

Before Pervaiz Inayat Malik, J

GHULAM RASOOL---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SAHIWAL---Respondent

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

----S.5, Sched. & S.14---Constitution of Pakistan (1973), Art.199--Constitutional petition---Suit for dissolution of marriage and recovery of dowry articles---Plaintiff/wife filed suit for dissolution of marriage and recovery of dowry articles---Family Court decreed suit for dissolution of marriage and suit for recovery of amount of dowry articles was decreed to the extent of Rs.70,250 only---Plaintiff being dissatisfied, filed appeal and Appellate Court enhanced amount of dowry articles from Rs.70,250 to Rs.2,20,000, which had been assailed by the defendant through constitutional petition---Validity---Family Court had erred in law by not granting the decree for a higher amount in spite of the fact that sufficient evidence was available on the record, which error was rightly rectified by the Appellate Court---Both the impugned judgments and decrees on principle were concurrent in nature and misreading of part of the record by the Family Court, stood rectified---No illegality or material irregularity worth-mentioning had even been pointed out---Well-reasoned judgment passed by the Appellate Court could not be interfered with---Constitutional petition was dismissed.

Muhammad Siddique Chaudhary for Petitioner.

Nemo for the Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 89 #

2010 M L D 89

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

NAZIR AHMAD and 6 others---Petitioners

Versus

GHULAM MUSTAFA and 20 others---Respondents

Civil Revision No. 503-D of 1998, heard on 5th June, 2009.

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

----S.42---Declaration of title---Concurrent findings of fact by two courts below---Both the courts below considered oral and documentary evidence produced by parties and after considering all material available on file gave their findings in favour of plaintiff---Both the courts concluded that general power of attorney coupled with mutation in question and other surrounding circumstances indicated that defendants divested themselves of ownership rights over land in dispute and other land which were allotted to them through R. L. II and they had no entitlement to. or interest in suit-land---Validity---Plaintiff was persuading the case even after cancellation of allotment and had acquired right and interest in suit property---Defendants failed to rebut such aspect of the case whereas plaintiff proved his claim-L-Findings of both the courts below could not be interfered with as defendants failed to rebut evidence of plaintiff---Conclusion arrived at by both the courts below were elaborate and were based on cogent reasons---No misreading' or non-reading of evidence or any other legal infirmity was pointed out by defendants in judgments rendered by the courts below warranting interference by High Court in revisional jurisdiction.

Aurangzeb through Legal heirs and others v. Muhammad Jaffar and another 2007 SCMR 236; Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368 and Rashid Ahmad v. Said Ahmad 2007 SCMR 926 rel.

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

----S.115---Revisional jurisdiction of High Court---Concurrent findings of fact by two courts below---Scope---High Court has very limited jurisdiction to disturb concurrent findings of fact recorded by courts below.

Mian Shamasul Haq Ansari for Petitioner.

Nemo for Respondent.

Date of haring: 5th June, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 95 #

2010 M L D 95

[Lahore]

Before Ijaz ul Ahsan, J

M. RASHEED CHAUDHRY---Petitioner

Versus

Mst. CHANDRI---Respondent

Civil Revision No. 2247 of 20.09, decided on 2nd November, 2009.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), S.42---Plaintiff filed suit for declaration with permanent injunction and consequential relief to the effect that registered documents whereunder disputed property was alienated from their predecessor to the defendant were forged and fictitious---Defendants contested suit on the ground that they were bona fide purchasers of the disputed land and had registered sale deeds in their favour---Trial Court dismissed application of plaintiff for grant of temporary injunction---Plaintiff filed appeal against the order passed by Trial Court which was also dismissed by Appellate Court---Validity---Sale-deeds were executed and registered in the year 1980---Predecessor-in-interest of the plaintiff lived for six years after execution of the sale-deeds but never challenged the same---Mutations were sanctioned in the year 1991 and no objection was raised against these till 2009 when the suit was filed---Tentative conclusion could be drawn that in absence of any documentary evidence in favour of plaintiff and only on the basis of allegations that the sale-deeds as well as the mutations were forged and fictitious, a prima facie case in favour of the plaintiff was not made out--Ingredients of balance of inconvenience and irreparable loss did not favour the plaintiff---Plaintiff had failed to point out any misreading or non-reading of evidence---Petition was dismissed.

1998 CLC 362 ref.

Ch. Muhammad Arshad Ramay for Petitioners.

MLD 2010 LAHORE HIGH COURT LAHORE 103 #

2010 M L D 103

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Ms. FAIQA ALI---Petitioner

Versus

VICE CHANCELLOR, GOVERNMENT COLLEGE UNIVERSITY LAHORE and others---Respondents

Writ Petitions Nos. 14249, 14292, 14293, 14713, 14714, 14715, 14716, 14717, 14718 and 14345 of 2009, decided on 22nd July, 2009.

(a) Government College University, Lahore Ordinance (XLVIII of 2002)---

----S.10---Government College University, Lahore Examination Rules, 2007, Rgln. 3.1.7 & 3.6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Educational institution---Qualifying of semester---Criteria---Students did not score 2.50 Cumulative Grade Point Average (CGPA) in one semester and they were treated by university on probation but as they did not secure required CGPA, therefore, they were dropped for the semester---Validity---Students had to follow regulations which had been passed by Syndicate---According to criteria laid down in Government College University, Lahore Examination Rules, 2007, all students were required to earn 2.50 CGPA for promotion to next semester---If any of the students had attained 1.50 to 2.50 CGPA, such student was to be put on probation---Students, who were put on probation, failed to gain 2.50 CGPA and those students who failed to improve their CGPA in next semester which they were studying provisionally and failed to attain 2.50 CGPA in those papers in previous semester they had attained CGPA from 1.50 to 2.50 could be dropped from the semester---University did not make any effort for ousting students and had not made any. discriminatory regulations but the regulations were applied to all students who were admitted in same session in which 82% students had passed examination under same rules and regulations---Students who remained unsuccessful could not challenge the same as they failed to achieve 2.50 CGPA---High Court declined to issue writ against the university for not following criteria laid down by Higher Education Commission---Petition was dismissed in circumstances.

Muhammad Imran Siddique v. Bahauddin Zakariya University, Multan and 2 others 2006 MLD 913; Syed Yasir Hayat Shah v. Comsats Institute of Information Technology Islamabad through Rector and another 2006 MLD 686; Syed Faiz-ur-Rehman v. Principal Sheikh Zayed Medical College Rahimyar Khan and 4 others 2004 CLC 661; Arslan Aziz v.. Bahauddin Zakariya University, Multan through Vice-Chancellor and another 2007 CLC 132; Muhammad Rafique and another v. Director Inservice Agriculture Training Institute and another 2007 CLC 1492; Tehseen Mazhar and 24 others v. Vice-Chancellor, University of Punjab, Lahore and 2 others PLD 2008 Lah. 19; Aqsa Manzoor v. University of Health Sciences, Lahore Vice-Chancellor and 3 others PLD 2006 Lah. 482 and Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another 2005 SCMR 37 ref.

(b) Educational institution---

----Rules and regulations, making of---Scope---Making of rules and regulations of university/institution is within the domain of university and court cannot interfere.

Muhammad Ilyas v. Bahauddin Zakariya University Multan and another 2005 SCMR 961 rel.

----Art.199---Constitutional petition---Educational institution---Factual controversy---General allegation of mala fide---Effect---Grievance of students was that papers were not checked properly and syllabus was not considered at the time of re-checking of papers as some questions were carelessly put in question papers---Validity---Such objections were factual controversies which could not be resolved by High Court in constitutional jurisdiction as the controversy could only be resolved after recording of evidence---General allegation of mala fide was levelled but no specific mala fide had been levelled against university for dropping students in semester as per regulations which were framed by competent authority of university in year, 2007 at the time of initiation of session---High Court declined to issue writ against university on the basis of general allegations---Petition was dismissed in circumstances.

Rashid Ali, v. National College of Arts through Principal and another 2001 YLR 1428; Nazia Syed v. District Education Officer, Okara and 2 others 2004 YLR 801; 2005 SCMR 37; 2006 SCMR 276; The Federation of Pakistan through the Secretary Establishment Division, Govt. of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 1501 and Muhammad Faisal Haseeb Khan Baloch and 2 others v. Vice-Chancellor, Bahauddin Zakariya University Multan and 2 others 2006 YLR 413 rel.

(d) Government College University, Lahore Examination Rules, 2007---

----Rgln. 3.1.7 & 3.6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Semester system---Passing of examination---Criteria---Petitioners could not attain 2.50 CGPA therefore, they were dropped from semester---Plea raised by students was that Punjab University adopted criteria for dropping of student if they failed to attain 2 CGPA but Government College University had adopted CGPA at the highest rate of 2.50---Validity---Every university had a right to make standard for their students---Government College University, Lahore adopted criteria for their students and no guarantee had been given to students that if they failed to achieve CGPA less than 2.50, they would not be dropped---Students were bound to do their job diligently and to do hard work to meet requirement of regulation to pass examination but if students failed to do so High Court could not come to their help by discarding criteria laid down by University, which was within the domain of the University and under which majority had succeeded---High Court declined to interfere in the affairs of university---Petition was dismissed in circumstances.

Kamran Babar for Petitioners (in Writ Petition Nos. 14249/09, 14292/09, 14293/09, 14713/09, 14714/09, 14715/09, 14716/09, 14717/09 and 14718/09).

Ch. Nazir Ahmad Sadiq for Petition (in Writ Petition No. 14345/09).

Waqas Qadeer Dar, Assistant Advocate General.

Ali Masood Hayat for Respondents Nos. 1 to 5.

Muhammad Qasim Ali, Assistant Controller Examination GCU, Lahore with record.

MLD 2010 LAHORE HIGH COURT LAHORE 117 #

2010 M L D 117

[Lahore]

Before Ijaz ul Ahsan, J

NIAZ AHMED ---Petitioner

Versus

SAEED AKRAM---Respondent

Civil Revisions Nos. 1241 and 1242 of 2009, decided on 27th October, 2009.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Suit for declaration and permanent injunction---Sale-deed---Registration---Presumption of truth---Scope---Plaintiffs filed suit for declaration and permanent injunction to the effect that the predecessor-in-interest of the defendants had sold disputed land to the plaintiffs and executed registered sale deed in their favour and that plaintiffs further purchased the additional land from the predecessorin-interest of the defendant and had paid Rs.15,000 through cheque as consideration of the same---Defendants contested suit on the ground that in the alleged document there was a note to the effect that predecessor-in-interest of the defendants owned the entire property which was mentioned to have been sold to the plaintiffs, this according to the defendants was a forged addition and designed to deprive defendants to inherit the disputed property as legal heirs---Defendants further challenged the jurisdiction to entertain matter of demarcation---Trial Court decreed suit of the plaintiffs---Appeal filed against judgment and decree of Trial Court was also dismissed by Appellate Court---Validity---Disputed property was admittedly a residential property where plaintiffs had constructed a residential house and was occupying the same and it was nowhere alleged that same was agricultural land---Alleged note in the registered sale deed was in the same hand-writing and in the same sequence and it was a registered document which had a presumption of authenticity attached to it and that presumption was not rebutted by the defendants---Documentary evidence produced by plaintiffs was found more reliable, credible and plausible as compared to the evidence produced by defendants which mainly consisted of oral assertions unsubstantiated by documentary evidence---Defendants had failed to show that lower courts below had misread .or failed to read any piece of evidence or acted illegally or with material irregularity---Revision petition was dismissed.

Muhammad Sarwar Qamar for Petitioner.

MLD 2010 LAHORE HIGH COURT LAHORE 120 #

2010 M L D 120

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD ASIF---Petitioner

Versus

SURRYA TABASSAM and 3 others---Respondents

Writ Petition No. 5720 of 2009, decided on 23rd 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 and maintenance allowance---Family Court decreed the suit to the extent of dowry articles as per list and granted maintenance allowance of Rs.1000 to the three plaintiffs, per head and per month---Defendant did not file any appeal against judgment of the Family Court, however, plaintiff/decree holders filed appeal against judgment and decree of the Appellate Court---Appellate Court modified findings of the Family Court and held plaintiff entitled to recovery of Rs.15,000 as expenses incurred on delivery charges on the basis of certificate issued by the relevant hospital---Maintenance allowance was enhanced from Rs.1000 per month to Rs.2000 per month each with 10% annual increase till the minors attained the age of majority---In the grounds mentioned by the petitioner/defendant/judgment-debtor, no misreading or non-reading of any evidence was pointed out---Appellate Court being superior Court of fact, its findings could not be easily disturbed in constitutional jurisdiction of the High Court, when no misreading or non-reading and jurisdictional defect was brought on record---Judgment and decree rendered by Appellate Court based on evidence, could not be called in question in constitutional jurisdiction.

Muhammad Sohail Bhatti for Petitioner.

MLD 2010 LAHORE HIGH COURT LAHORE 128 #

2010 M L D 128

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD ASIF---Petitioner

Versus

UMAR FAROOQ KHAN, INSPECTOR POLICE and 5 others---Respondents

Writ Petition No. 17890 of 2009, decided on 21st May, 2009.

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

----S.154---F.I.R. sought to be registered for violation of fundamental right---Petition directly entertainable by High Court---Constitution guarantees the fundamental rights of every citizen and High Court being guardian of the fundamental rights of the citizens' can entertain such like petitions directly, especially when there is an allegation of sheer highhandedness of the police.

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

----S. 156---Investigation---Police in no case can take upon themselves the role of complainant, investigator, judge and the executor of the sentence pronounced by themselves.

----S.154---Penal Code (XLV of 1860), S.302---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Registration of independent F.I.R.---Case prima facie had two versions---Petitioner claimed that his brother had been killed in an illusory police encounter, while police claimed that he had died in a genuine police encounter---Petitioner had sought registration of an independent F.I.R. on the basis of the facts entirely different from the facts narrated in the F.I.R. lodged by the Police Inspector---Regarding the place of occurrence parties were at variance---Grievance of petitioner was that his brother was picked up from his house by the police in presence of witnesses and kept in captivity in Police Station, whereafter a demand of Rs.2,00,000 was made by the police officials for his release---Habeas Corpus petition filed by the petitioner thereafter had apparently supported his plea that his brother had been murdered in a fake police encounter---Registration of the case having been sought by the petitioner on the basis of entirely different facts, S.H.O. was under a statutory duty to register the case on his complaint, and in refusing to do so S.H.O. had committed an illegality---Registration of second F.I.R. regarding the same occurrence was not barred under the law, if a distinct and separate cognizable offence was disclosed and it was not a mere amplification of the first version---Station House Officer was accordingly directed to register a case on the written application of the petitioner.

Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119; 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 and Allah Ditta and 3 others v. The S.H.O., Police Station Basirpur, District Okrana and 3 others PLD 1983 Lahore 300 ref.

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

----S.154---Second F.I.R., registration of---Principle---Where a distinct and separate cognizable offence is disclosed and no factual inquiry or trial can be held without properly appreciating and considering the two versions, then another F.I.R. has to be registered---Only impediment to the said recourse is that the second F.I.R. should not be a mere amplification of the first version.

Imtiaz Ahmad Kaifi for Petitioner.

Fawad Mali, A.A.-G. with Irshad, S.I.

Rana M. Shams Iqbal, Advocate for and with Respondent No.1.

MLD 2010 LAHORE HIGH COURT LAHORE 147 #

2010 M L D 147

[Lahore]

Before Ali Akbar Qureshi, J

MUHAMMAD YOUSAF through Special Attorney---Appellant

Versus

Mst. MANAWAR BEGUM and 7 others---Respondents

F.A.O. No.152 of 2000, heard on 19th June, 2009.

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

----S. 17---Ejectment petition---Default in payment of rent and personal need, grounds of---Denial of relationship of landlord and tenant between parties as respondent claimed to have inherited property from his father---Acceptance of ejectment petition by Rent Controller---Validity---Both parties had not brought on record title documents of property---Evidence on record showed that in record of Cantonment Board, earlier property was owned by father of respondent, whereafter same was transferred in name of father of petitioner---Utility connections installed at property were in name of father of respondent--Default in payment of rent alleged in ejectment petition was for last three years, but petitioner during such period had not made any effort provided in law for its recovery---Both parties had examined only one witness, but had not summoned any witness from office of Cantonment Board in support of their contentions---Property was controlled and administered by Cantonment Board---Documentary evidence pertaining to record of Cantonment Board and other departments had not been proved in accordance with law---Rent Controller had not even read, discussed and interpreted documentary evidence available on record---Rent Controller in impugned order had not given any reason or finding regarding title of property---Legal obligation of Rent Controller was to discuss each and every document placed on record by parties to solve issue of relationship by giving definite findings thereon---High Court accepted appeal and remanded case to Rent Controller for its decision afresh after giving fair opportunities to parties to prove their respective contentions.

Muhammad Naeem v. Abdul Wahid and others 1999 MLD 1342; Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC 1; Rehmatullah v. All Muhammad and another 1983 SCMR 1064; Barkat Ali and another v. Additional District Judge, Lahore and others 1994 MLD 1920; Haji Muhammad Ramzan v. Mian Jamil Shah PLD 1967 Pesh. 380; Umar Hayat Khan v. Inayatullah Butt and others 1994 SCMR 572; Sharif Hussain and others v. Hay. Pir Bakhsh and others 1983 SCMR 857; Samiullah v. Mian Muhammad Salim, District Judge, Rawalpindi and others PLD 1966 (W.P.) Lah. 572; Roshan Din v. S.M. Bardruddin PLD 1969 Kar. 546 and Abdul Qayyum Ansari v. Salahuddin Qureshi PLD 1974 Kar. 10 ref.

Khan Muhammad Yusuf Khan Khattak v. S. M. Ayiub and 2 others PLD 1973 SC 160; Muhammad Naeem v. Abdul Wahid and others 1999 MLD 1342; Abdul Hameed v. Muhammad Iqbal and another 2002 YLR 2772; Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064 and Abdul Majeed represented by Legal Heirs v. Lufti Siddiqui and 2 others 1987 CLC 455 rel.

Abdul Wahid Chaudhry for Appellant.

Shahid Mobeen for Respondent.

Date of hearing: 19th June, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 152 #

2010 M L D 152

[Lahore]

Before Arshad Mahmood, J

Mst. SHAMIM---Petitioner

Versus

THE STATE and another---Respondent

Criminal Miscellaneous No. 2584/B of 2009, decided on 7th July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Qatl-i-Amd---Bail, grant of---Further inquiry---Accused was a woman and wife of main accused whom motive qua settlement of accounts with the deceased had been alleged-No doubt accused was named in F.I.R., but there was a delay of about two months in the lodging of F.I.R. which had shown that the law was put in motion after due deliberations---No motive was attributed to accused---Accused was not found by the complainant in the company of the deceased in the last seen evidence---Extra judicial confession was the weakest type of evidence veracity whereof would be determined at the time of trial---Case against accused was of further inquiry within the ambit of subsection (2) of S.497, Cr.P.C.---Accused was behind the bars and her corpus was no more required for the purpose of investigation, her further incarceration, in circumstances would not serve any useful purpose---Accused was admitted to bail, in circumstances.

Muhammad Bashir v. Mrs. Farhat Bibi and others 2001 PCr.LJ 1582; Mst Zubeda Bibi v. The State 2000 YLR 2088; Ghulatn Fatima and another v. The State 1987 PCr.LJ 1316; Mst. Amina v. The State PLD 1989 Kar. 40; Jalil Ahmad v. The State 1995 PCr.LJ 1583 and Malik Ibrar Hussain v. The State 1995 PCr.LJ 2040 rel.

Abdul Aziz Khan Niazi for Petitioner.

Muhammad Waseem Khan Baber, DDPP.

Tahir Shabbir Chaudhary for the Complainant.

Ali Sher, S.-I. with record.

MLD 2010 LAHORE HIGH COURT LAHORE 156 #

2010 M L D 156

[Lahore]

Before S. Ali Hassan Rizvi, J

GULAB DIN and another---Petitioners

Versus

Mst. JANNAT BIBI through Legal Representatives and others---Respondents

Civil Revision No.892 of 2008, heard on 21st July, 2009.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 64---Suit for declaration-Plaintiff claiming to be entitled to inherit share in land left by her father "D"---Defendant's plea that his paternal uncle "D" had died un-married and issueless---Proof---According to first witness of plaintiff, he had seen father of defendant and third deceased brother of "D"---Second witness of plaintiff of 60/70 years age stated that name of wife of "D" was not in his knowledge, but when "D" died, he was of young age---Plaintiff had stated that her three brothers expired after her marriage; that wife of one of her deceased brothers had remarried with brother of defendant---Plaintiff in reply to a cross-question asked by defendant denied to have sold her share in suit-land--Such cross-question would lead to a conclusion that plaintiff had always been claiming herself as daughter of deceased "D"---Defendant neither in his evidence nor while cross-examining plaintiff and her witnesses had pointed out name of her father---Defendant had not asked any witness of plaintiff that "D" had no relation with her--Defendant in rebuttal had not examined his brother, who was alleged to have married with widow of plaintiff's deceased brother---Defendant had failed to rebut plaintiff's statement with regard to her deceased brothers as sons of "D"---One witness of defendant had not denied relation of "Z" as wife of deceased "D"---Defendant had refused to accept offer of special oath on Holy Qur'an in trial Court and at appeal stage---Defendant had neither challenged identity card of plaintiff showing her as daughter of "D" nor asked her any question that same had been obtained by fraud---Third brother of defendant by non filing appeal or revision against judgment of Trial Court had accepted plaintiff's right---Suit was decreed in circumstances.

(b) Islamic Law---

----Succession, right of---Validity---Sharia being a supreme law, such right could not be defeated by law of limitation or on basis of principle of res judicata.

Ch. Tanveer Akhtar for Petitioners.

Ghulam Hussain Awan for Respondents.

Date of hearing: 21st July, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 163 #

2010 M L D 163

[Lahore]

Before Pervaiz Inayat Malik, J

FAYYAZ HUSSAIN and others---Petitioners

Versus

KHITIM HUSSAIN---Respondent

C.R. No.93 of 2009, decided on 4th May, 2009.

Civil Procedure Code (V of 1908)---

----O.XVII, R.3---Specific Relief Act (I of 1877), Ss.42. & 54---Initiation of proceedings against a party under O.XVII, R.3, C.P.C.---Essential ingredient---Suit for declaration and permanent injunction---Failure to produce evidence---Dismissal of suit---Suit had concurrently been dismissed by the Trial Court and Appellate Court---Validity---On adjourned date of hearing, plaintiffs did not produce their evidence---On next date of adjournment, when none appeared on behalf of. the plaintiffs, Trial Court had no option, but to proceed under O.XVII, R.3, C.P.C.---Opportunity for fulfilling obligation i.e. for producing evidence or conducting cross-examination or filing written statement, had to be fair and reasonable and even one or two opportunities could be sufficient---Essential ingredients for taking proceedings against a party under O.XVII, R.3, C.P.C. were that the date of hearing must be in the knowledge of the party and time given for doing certain act must be sufficient; and if adjournment wet; sought by a party, then there had to be a plausible explanation for such adjournment; and it would not be illegal either for the court to dismiss the suit of the plaintiff or proceed against defendants ex parte, if the court would reach a just conclusion that the concerned party was hampering the proceedings---Contention of counsel for the plaintiffs that fair opportunities were not given to the plaintiffs, was untenable and not borne out from the record---Concurrent judgments and decrees passes by the two courts below being well-reasoned and in accordance with law on the subject, called for no interference and were upheld.

Muhammad Yousaf Zubair for Petitioners.

Nemo for the Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 165 #

2010 M L D 165

[Lahore]

Before Arshad Mahmood, J

SIRAJ AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 2607/B of 2009, decided on 8th July, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.365---Abduction---Bail, refusal of---Offences which were not categorized as `bailable offences' would continue to remain "non-bailable" even if those stood outside the prohibitory clause of S.497(1), Cr.P.C. with the only concession to the persons accused of such-like offences that the courts of law Were not prohibited from releasing them on bail unlike prohibitory clause, but accused of such-like offences could not claim bail as of right---In the present case, missing of a young son was reported by the father implicating accused and others; it did not appeal to reason as to why a father would implicate accused falsely by letting off the real culprits--Accused was named in the F.I.R. and sufficient incriminating evidence was available against him in the shape of statement of witnesses supporting the complainant---Co-accused were absconding---Charge against accused had been framed and the case was fixed for recording of prosecution evidence---Accused being not entitled to the concession of bail, his bail application was dismissed.

Rana Khalid Mahmood for Petitioner.

Rana Maqsood Akbar Khan for the Complainant.

2010 M L D 187

[Lahore]

Before Abdul Sattar Goraya, J

SHER MUHAMMAD through Legal Heirs---Petitioner

Versus

MEMBER (JUDICIAL-I) BOARD OF REVENUE and 4 others---Respondents

Writ Petition No. 5091 of 2004, heard on 18th June, 2009.

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

----Ss. 11 & 48---Limitation Act (IX of 1908), Art. 181---Application for execution of decree---Scope---Any number of such applications could be filed, but principle of res judicata had to be observed.

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

----O.XXIII, R.3---West Pakistan Land Revenue Act (XVII of 1967), S.42(6)(7)---Pre-emption suit---Passing of consent decree---Mutation on basis of such decree, sanctioning of---Scope---Judgment-debtor on making a consent before Trial Court stood divested of all his rights in suit property---Decree holder on depositing decretal amount becomes absolute owner of suit property and sanctioning of mutation was only a formality to be done---Such decree was not required to be put to execution---Ownership of decree-holder would remain intact even if such decree was not put to execution---Revenue Officer was under statutory obligation to implement in Revenue Record such decree even if its execution petition had become time-barred or was dismissed by Executing Court---Illustration.

Inzar Gul Said Anwar and another v. Hajab Gul Taza Gul and others AIR 1941 Pesh. 26; Noor Hussain v. Bashir Ahmad and another 2000 SCMR 428; Muhammad Latif v. Bashir Ahmad and 7 others 2004 CLC 1010; Mahboob Khan v. Ijassan Khan Durrani PLD 1990 SC 778; Abdul Ghafoor and another v. Mst. Sahib and 3 others 2005 CLC 1745; Ali Ahmad and another v. Muhammad Fazal and another 1972 SCMR 322; Dost Muhammad v. Muhammad Rafiq 2003 YLR 1908 and Dr. Niaz Muhammad Mann and others v. Sh. Muhammad Ahmad and another 1988 SCMR 1016 rel.

Hassan Ahmad Khan for Petitioner.

M. Hanif Khatana, Additional Advocate General and Chaudhry Iqbal Ahmad Khan for Respondents.

Date of hearing: 18th June, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 198 #

2010 M L D 198

[Lahore]

Before Arshad Mahmood, J

THARPARKAR SUGAR MILLS---Petitioner

Versus

MASOOD AZIZ CHAUDHARY---Respondent

Civil Revision No. 313 of 2009, decided on 11th May, 2009.

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

----O. XXXVII, Rr.2, 3 & O. VII, Rr.10, 11---Suit for recovery of amount on basis of cheques---Leave to appear and defend suit---Application for return and rejection of plaint---On filing summary suit by the plaintiff under O.XXXVII, Rr.2, 3, C. P. C. for recovery of amount, defendant filed an application under O. VII, R.11, C.P.C. for rejection of plaint, which application was dismissed being pre-mature--Simultaneously defendant moved application for leave to appear and defend suit which was allowed and the defendant was granted conditional leave to appear and defend the suit---Instead of complying with the conditional order, defendant once again resorted to an application under O. VII, R.10, C.P. C. for return of plaint and Trial Court proceeded to dismiss application of the defendant filed for return of plaint---Defendant had filed revision against said order of dismissal---Defendant, in said application did not controvert the claim of the plaintiff and raised the core ground of jurisdiction---Defendant having submitted to the jurisdiction of the court as also questioning its jurisdiction in the application for leave to defend, which was appreciated and conditional leave was granted, he was estopped by its conduct to behave in a hasty manner---According to the assertion of defendant in the application of leave to appear and defend, the issues of law and fact required detailed consideration, but instead of waiting for their adjudication by' the Trial Court, defendant resorted to the provisions of R.10 of Order VII, C.P.C. praying for return of the plaint---Dismissal of said application by the Trial Court, in circumstances, was not open to any exception---Leave to appear and defend the suit conditional, without fulfilling the condition, defendant could not move a step forward much less questioning jurisdiction of the court---Question of jurisdiction was the pivotal question before the Trial Court and any finding on the question in revisional jurisdiction by High Court would amount to usurp the jurisdiction of the Trial Court---Defendant would be at liberty to urge the question of jurisdiction in the written statement-Impugned order being not whimsical, arbitrary, perverse or capricious, could not be interfered with in revisional jurisdiction.?

United Distribution Pakistan Ltd. v. Al Syed Agrochemical Services and others 2005 CLC 1659; Bashir Ahmad v. Meer Aslam Jan 2007 CLC 1544 and S. Raza Quli v. Miss Hyderi Quli and 13 others 2001 CLC 1494 ref.

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

----S.115--Revisional jurisdiction, exercise of---Scope---Remedy of revision, did not confer any substantive right which was merely a privilege---Revisional proceedings being between a higher court and a lower court the discretion could not be exercised where the matter could subsequently be challenged in proceedings against the ultimate order. ?

Hussain Bakhsh Saryo for Petitioner.

MLD 2010 LAHORE HIGH COURT LAHORE 201 #

2010 M L D 201

[Lahore]

Before Ch. Naeem Masood, J

NAZAR HUSSAIN and 7 others---Petitioners

Versus

HOTE KHAN and another---Respondents

Civil Revision No.527-D of 2000, heard on 5th May, 2009.

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

----S.13---Pre-emption suit---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Proof---Evasive assertion in plaint and evidence regarding date, time and place of performance of Talb-i-Muwathibat---Validity---Pleadings and evidence of plaintiff was not in consonance with law---Story about completion of Talbs appeared to have been concocted by plaintiff---Suit was dismissed in circumstances.

Fazal Din though L.Rs. v. Muhammad Anayat through L.Rs. 2007 SCMR 1; Muhammad Shahban and others v. Falak Sher and others 2007 SCMR .882 and Abdul Waheed v. Mst. Ramzanu and others 2006 SCMR 489 ref.

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

----S.115---Revision---Concurrent findings of fact of courts below---Validity---High Court under S.115, C.P.C., could interfere with such findings, if same were based on insufficient evidence, misreading or non-reading of material evidence, erroneous assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power or taking of unreasonable view not supported by evidence.

Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001; Habib Khan and others v. Mst. Bakhatmina and others 2004 SCMR 1668 and Abdul Sattar v. Mst. Anar Bibi and others PLD 2007 SC 609 rel.

Ch. Muhammad Hussain Jahanian for Petitioners.

Hafiz Muhammad Abu Bakr Ansari for Respondents.

Date of hearing: 5th May, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 218 #

2010 M L D 218

[Lahore]

Before Arshad Mahmood, J

SAFDAR NOOR COTTON GINNING AND PRESSING FACTORY---Petitioner

Versus

GHULAM MUSTAFA---Respondent

Civil Revision No. 241 of 2007, decided on 2nd July, 2009.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2, 3, O.XXI, Rr.10 & 30---West Pakistan Relief of Indebtedness Ordinance (XV of 1960), Ss.2 & 11-Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of amount on basis of cheques---Execution of decree---Suit having been decreed, plaintiff/decree-holder filed execution petition---Defendant/ judgment-debtor submitted application for making instalments of the decretal amount---Said application by the defendant was accepted by the Executing Court with the condition that defendant would pay Rs.50,000 till next date of hearing; and that if defendant would fail to pay said amount accordingly, application submitted by the defendant for instalment of the decretal amount would be deemed to be dismissed---Executing Court dismissed application of defendant due to non-compliance of order of the Executing Court and issued warrant of arrest of the defendant, who had filed constitutional petition---Defendant/judgment-debtor was trying to take shelter under the West Pakistan Relief of Indebtedness Ordinance, 1960, according to S.2(b) of said Ordinance, the debt would not include the debts incurred for the purpose of trade---Impugned judgment had revealed that parties had common, business and loan was advanced in connection with said trade---Defendant, in circumstances, could not claim benefit of the provisions of West Pakistan Relief of Indebtedness Ordinance, 1960---Constitutional petition was dismissed.

Malik Javed Akhtar Wains for Petitioner.

Messrs Haniayoun Syed Rasool and Malik M. Usman Bhatti for Respondent.

MLD 2010 LAHORE HIGH COURT LAHORE 220 #

2010 M L D 220

[Lahore]

Before Sardar Tariq Masood, J

PIR BAKHSH---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 2189-B of 2009, decided on 17h December, 2009.

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

----S.497---Bail, grant of---Rule of consistency---Rule of consistency was always taken into consideration by the courts, because a person could not be denied for the grant of bail whose case was at par with an accused who had already been released on' bail---Courts had to give equal treatment to accused having one and the same role in the same case.

Muhammad Fazal alias Bodi v. The State 1979 SCMR 9; Khadim Hussain v. The State 1983 SCMR 124; Manzoor Ahmad and others v. The State PLJ 1999 Cr.C. (Lah.) 570 and Muhammad Daud and another v. The State and another 2008 SCMR 173 rel.

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

----S.497---Penal Code (XLV of 1860), Ss. 379/148/149/337-A(iii), H(ii)---Theft and shajjah---Bail, grant of---Case of accused was at par with that of his co-accused who had already been allowed bail---Following the rule of consistency accused was also entitled to the bail---Accused was admitted to bail, in circumstances.

Syed Muhammad Jamil Anwar Shah for Petitioner.

Ch. Haq Nawaz, DDPP along with Matloob Hussain, A.S.-I. for the State.

MLD 2010 LAHORE HIGH COURT LAHORE 227 #

2010 M L D 227

[Lahore]

Before Arshad Mahmood, J

Mst. SHAMIM MAI---Petitioner

Versus

ALTAF HUSSAIN and others---Respondents

Civil Revision No. 1169 of 2001, decided on 23rd June, 2009.

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

----S.53---Civil Procedure Code (V of 1908), O.XLI, Rr.23, 24, 25 & 26---Scope and application of O.XLI, Rr. 23, 24, 25 & 26, C.P.C.-Suit challenging vires of mutation on the ground that same was illegal, fraudulent and based upon collusion and ineffective against plaintiff's rights---Suit was decreed by the Trial Court, but Appellate Court setting aside judgment and decree of the Trial Court, remanded case to the Trial Court for decision afresh after considering the documents available on record---Provisions of R.23 of O.XLI; C.P.C. covered a situation where the Trial Court decided the case on a preliminary point and the decree was reversed in appeal---Rule 24 of O.XLI, C.P.C. empowers the court to decide the matter itself where evidence on record was sufficient---Rule 25 of O.XLI, C.P.C. would apply where the Trial Court omitted to frame or try issue and enable the Appellate Court to frame issue and refer the same for trial to the court from whose decree the appeal was preferred---Order XLI, R.26, C. P. C. stipulated the procedure to handle with the proceedings recorded on the fresh issues framed under Rule 25 of O.XLI, C.P.C.---Impugned judgment and decree had revealed that Appellate Court proceeded to remand the case in absence of any of situations in Rules 23, 24, 25 & 26 of O.XLI, C.P.C. and said provisions of law did not permit the Appellate Court to remand case on failure of the Trial Court to decide the case on the basis of available record---Appellate Court in not deciding the case itself had failed to exercise the jurisdiction vested in it, whereas while remanding it to the Trial Court exercised the jurisdiction not so vesting---Judgment passed by the Appellate Court remanding case to the Trial Court, being illegal, was set aside---Appellate Court was directed to decide the case itself after hearing the parties on the basis of material available on record.

Kareem and Din Khilji for Petitioner.

Nemo for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 229 #

2010 M L D 229

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD SHAFIQUE---Petitioner

Versus

THE STATE---Respondents

Criminal Miscellaneous No. 8747-B of 2009, decided on 7th August, 2009.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.419, 420, 467 & 471---Cheating, forgery and using as genuine forged documents---Pre-arrest bail, refusal of---In the present case fraud had been committed with the Bank and huge amount had been got encashed from. the account of account holder---Fraud had been committed with the connivance of one of the employees of the Bank---Accused had deposited an amount of Rs.10 lac in the Bank, but he failed to explain the source for earning said huge amount---Prima facie sufficient material was available against accused to connect him with the alleged offence and he also remained fugitive from law for about 1-1/2 years---No mala fide on the Part of the Bank or account holder had been alleged to falsely implicate accused in the case---Recovery of amount was yet to be effected and ad interim pre-arrest bail already granted to accused, was recalled and bail petition was dismissed.

Shehbaz Ahmed for Petitioner.

Ahssan Masood for the Complainant.

Ahssan Rasool Chattha, Deputy Prosecutor General.

Rafaqat Hussain, S.-I. P.S. Shadman.

MLD 2010 LAHORE HIGH COURT LAHORE 240 #

2010 M L D 240

[Lahore]

Before Abdul Sattar Goraya, J

AFTAB AHMED and others---Petitioners

Versus

MUHAMMAD RIAZ and others---Respondents

Civil Revision No.379 of 2000, heard on 2nd June, 2009.

Lunacy Act (IV of 1912)---

----S.62---Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act (XXV of 1975), S.3---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), S. 11---Declaration of title---Limitation---Suit by lunatic---Principle of res judicata---Applicability---Suit land was transferred to widow in year, 1930, as limited owner who transferred the same to defendant vide gift deed executed in year, 1952---Plaintiff, in year, 1987, assailed the gift deed, which suit was dismissed by Trial Court on the ground of limitation---Judgment and decree passed by Trial Court was set aside by Lower Appellate Court and suit was decreed in favour of plaintiff---Validity---Any person aggrieved of any transaction could approach the Court of law under S.3 of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975, within a period of one year but none challenged the transaction of gift within the specified time---Suit was filed on 1-7-1987, after about more than three decades, thus the transaction could not have been reopened---In an earlier suit, gift had been declared valid by Civil Court; which judgment was not challenged anywhere and that judgment was clothed with finality thus principle of res judicata was applicable to subsequent suit on the same. subject matter---In absence of any declaration granted under S.62 of Lunacy Act, 1912, by District Judge, neither any medical evidence could have been produced nor decision could be made on the basis of such evidence---Medical report tendered by plaintiff in evidence before Trial Court to demonstrate that plaintiff was lunatic and he was not capable of understanding right or wrong, could not be relied upon for filing of a suit unless District Judge could have granted certificate---High Court, in exercise of revision al jurisdiction, set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed in circumstances.

Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407; Hashmat Ali and another v. Mst. Jantan and 6 others 1993 SCMR 950; Mst. Salamat Bibi through L.Rs. v. Yameen through L.Rs. and others 2006 CLC 726; Sahera Bibi and others v. Abdul Motaleb (minor) and others PLD 1967 Dacca 384; Shri Ramo Barman and others v. Smt. Dagripriya Kachari and others AIR 1992 Gauhati 72; Iftikhar Ahmed and others v. Syed Meharban Ali and others AIR 1974 SC 749; Fazal Dad and others v. Ahmed Ali and others PLD 1960 (W.P.) Lah. 106; Jalaluddin Shaikh v. Kshirode Chandra Tikadar and others PLD 1960 Dacca 948 and Zaighum Salim Khan v. Muhammad Salim Khan and another 1992 MLD 1388 ref.

Ch. Muhammad Rafique Warraich for Petitioners.

Mian Muhammad Ashraf Tanveer for Respondents Nos. 1 to 5.

Mrs. Khalida Abid for Respondent Bank.

Date of hearing: 2nd June, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 250 #

2010 M L D 250

[Lahore]

Before Arshad Mahmood, J

LIAQUAT ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 2568/B of 2009, decided on 7th July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324, 337-A6), 337-L(i), 148 & 149---Attempt to Qatl-i-amd, Shajjaah and other hurt---Bail, grant of---Further inquiry---No doubt accused had been named in the F.I.R. with active role of causing injuries to complainant side, but his case was that in ' fact complainant side was aggressor, which prima facie did not appear to be without basis as according to medico-legal , report accused had received four injuries, which had been suppressed by the prosecution in the F.I.R.---Concealment of injuries caused to accused was sufficient to demonstrate that complainant's version could not be considered sacrosanct and could not be safely relied upon---Civil litigation was going on between the parties---Conduct of Police in the matter of investigation of the case was not upto the mark---Injuries attributed to accused were not covered under the prohibitory clause of subsection (1) of S.497, Cr.P.C. as same were statedly simple in nature---Case against accused was that of further inquiry within the ambit of S.497(2), Cr.P.C.---Accused was behind the bars for the last about four months--Weapon of offence had already been recovered---Accused was no more required for the purpose of investigation---Accused was admitted to bail, in circumstances.

Muhammad Rashid v. The State 1979 SCMR 92 ref.

Tahir Mahmood for Petitioner.

Sardar Tanvir Haider Buzdar, ADPP.

Malik Javed Akthar Wains and Muhammad Imran Shahzad Bhatti for the Complainant.

Muhammad Mukhtar, S.-I. with record.

MLD 2010 LAHORE HIGH COURT LAHORE 261 #

2010 M L D 261

[Lahore]

Before Ch. Naeem Masood, J

MUHAMMAD AMIN and 4 others---Petitioners

Versus

PAIRA---Respondent

Civil Revision No.497 of 1992, heard on 30th March, 2009.

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

----S.13---Pre-emption suit---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Date, time and place of Talb-i-Muwathibat neither mentioned in plaint nor clear-cut reference made thereto during evidence by plaintiff and his witness---Notice of Talb-i-Ishhad not sent within 14 days---Validity---Requirements of both such Talbs had not been fulfilled---Suit was dismissed in circumstances.

2007 SCMR 221 ref.

Fazal Din v. Muhammad Inayat 2007 SCMR 1; Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 and Fazal Subhan v. Sahib Jamal PLD 2005 SC 977 rel.

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

----S.13---Civil Procedure Code (V of 1908), O.XIV, R.1 & O. XX, R.5---Pre-emption suit---Non framing of an independent issue of Talbs by Trial Court---Dismissal of suit by Courts below on ground-.of non-fulfilment of requirements of Talbs by plaintiff---Validity---Courts below had answered question of Talbs on basis of evidence and pleadings---Impugned judgments did not suffer from any jurisdictional error---High Court dismissed revision petition in circumstances.

2007 SCMR 221 ref.

PLD 1949 PC 26 rel.

----S.115---Revision---Ground not raised in memo. of appeal before Appellate Court---Effect---Such ground could not be taken at stage of revision petition.

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

----S.115---Revision---Concurrent findings of fact recorded by Courts below---Validity---Jurisdiction of High Court to disturb such findings being limited could not be exercised in absence of non-reading or misreading of record or violation of any principle laid down by superior Courts.

Abdul Ghafoor v. Kaloo 2008 SCMR 452 rel.

Saeed Ahmed Khan for Petitioner.

Muhammad Sarwar Awan for Respondent.

Date of hearing: 30th March, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 271 #

2010 M L D 271

[Lahore]

Before Ali Nawaz Chowhan, J

ALLAH RAKHI---Petitioner

Versus

THE S.H.O., and others---Respondents

Criminal Miscellaneous No. 1445-H of 1999, decided on 10th September, 1999.

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

----S.491---Habeas Corpus petition---Detenus were stated to have been arrested in a case registered under Ss. 458/380, P.P.C. on the basis of suspicion expressed by the complainant against them---Detenus present in Court appeared to be having a different description qua the description given in the F.I.R.---Neither any identification parade was conducted, nor there was any evidence showing identity of the accused by the complainant of the said F.I.R. or by any of his relations---Station House Officer could not justify detention of the detenus---High Court on the basis of an undertaking given by the detenus set them at liberty in circumstances.

AIR 1926 Patna. 560; Dumbell v. Roberts 1944, 1, All ER 326 CA; Dathson v. Caffery, 1964, 2, All ER 610; Ghulam Ali v. State PLD 1959 W.P. Lah. 669; Sheikh Zahoor Ahmad v. State PLD 1974 Lah. 256; Mst. Fatima Bibi v. Muhammad Iqbal, A-S.I. Police Station Sharaqpur 1988 MLD 483; Abdul Qayyum v. S.H.O. 1993 PCr.LJ 94; 1992 PCr.LJ 131; Muhammad Shafi v. Muhammad Boota PLJ Lah. 1891; Muhammad Siddique v. Province of Sindh PLD 1992 Kar. 358;; Nazeer Ahmad v. State 1970 SCMR 7 and Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14 ref.

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

----Ss. 54, 55 & 109---Arrest by police---Nature---Provisions of Ss. 54, 55 and 109, Cr.P.C. are of preventive nature giving the powers of arrest to the police for prevention of crime.

----S.54---Arrest by police without warrant---Scope---Section 54, Cr.P.C. confers very wide powers to police with a purpose that it may act swiftly in the prevention or detection of a cognizable offence without going through the formality of obtaining Magisterial orders of arrest, which may cause delay---However, the arrest and detention of persons without warrant cannot be left to caprice, but has to be covered by the rules and principles of law.

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

----S.54---When police may arrest without warrant---Unjustified arrest--Arrest of a person without justification is a most serious encroachment on his liberty---While S.54, Cr.P.C. grants powers of arrest in a cognizable case, it also imposes obligation on police to avoid mistaking of the innocent for the guilty.

AIR 1926 Patna 560 ref.

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

----S.54---Arrest without warrant---Scope---Police officer under S.54, Cr.P.C. cannot arrest a person in any cognizable offence at his sweet will and caprice and he was bound to fulfil the necessary conditions that there should be a reasonable complaint; that there should be a credible information and that there should be reasonable suspicion against the person to be arrested.

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

----S.54---Arrest without warrant---"Reasonable suspicion"---Connotation---Words "reasonable suspicion" do not mean a mere vague surmise, but a bona fide belief an the part of the police officer that an offence has been committed or is about to the committed---Such belief has to be founded on some definite averments tending to throw suspicion on the person arrested---Secret information that the alleged detenu used to commit such-like offences is in no way sufficient to believe that he was concerned with the commission of the offence.

Muhammad Shafi v. Muhammad Boota PLD 1975 Lah. 729 ref.

(g) Discretion---

----"Structuring discretion"---Connotation---Structuring discretion means regularizing it, organizing it, producing order in it, so that decisions will achieve a higher quality of justice---Seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reason, open precedents and fair informal procedure--When Legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasile time, and then as circumstances permit, should further confine their own discretion through principles and rules---Movement from vague statements to definite standards to broad principles to rules may be accomplished by policy statements in any form by adjudicatory opinion, or by exercise of rule-making power.

Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14 ref.

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

----S.54---Arrest without warrant---Misuse of discretion and authority

by police---Measures, guidelines and directions issued by High Court for the good and welfare of people.

Muhammad Anwar Spira for Petitioner.

Bashir Ahmad, A.A.-G. on Court call.

Malik Tanvir Rehmat Awan Court Bailiff.

Date of hearing: 10th September, 1999.

MLD 2010 LAHORE HIGH COURT LAHORE 291 #

2010 M L D 291

[Lahore]

Before Sardar Tariq Masood, J

MANZOOR AHMAD and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1538-B of 2009, decided on 23rd October, 2009.

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

----Ss.503 & 506---Criminal intimidation---Simpliciter threat would not constitute offence under S.506, P.P.C.---Definition of criminal intimidation as given in S.503, P.P.C., had made it clear that threats simpliciter were not sufficient to constitute a criminal intimidation within the definition of S.503, P.P.C., unless it was caused that person to do any act who was not legally bound to do or to omit to do any act which that person was legally bound to do.

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

----S.498---Penal Code (XLV of 1860), Ss.506/148/149---Criminal intimidation---Pre-arrest bail, confirmation of---Accused were not shown to be armed with any weapon---Though the allegations levelled in the F.I.R. did not constitute the offence punishable under S.506, P.P.C., but Police registered the case under that section---Arrest of accused persons indicated mala fide on the part of the Police and the complainant---According to the complainant, occurrence took place at Police Post where other Police Officials were also present--Investigating Officer had recorded the statements of the Police Officials during investigation and according to them, only altercation took place and no threats were given to the complainant---In the present case there was nothing to be recovered by the Police from accused persons, refusing them bail, especially when offence was not made out from the bare reading of the F.I.R. would not serve any useful purpose---Pre-arrest bail already granted to accused persons was confirmed, in circumstances.

Malik Manzoor Ahmad Misson for Petitioners.

Mirza Mukhtar Ahmad Baig DPG along with Shabbir Ahmad, A.S.-I.

MLD 2010 LAHORE HIGH COURT LAHORE 299 #

2010 M L D 299

[Lahore]

Before Iqbal Hameed ur Rahman, J

MUHAMMAD AKRAM---Petitioner

Versus

NAZIRAN BIBI---Respondent.

Civil Revision No. 1690 of 2009, decided on 10th November, 2009.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction, grant of Specific performance of agreement to sell---Agreement (Iqrarnama) relied upon by plaintiff showed that plaintiff entered into agreement to sell with defendant regarding suit property and defendant received Rs. 800,000 from defendant and only Rs.250,000 remained to be paid and the agreement also bore thumb-impression of defendant---Both the Courts below declined to grant interim injunction in favour of plaintiff---Validity---Plaintiff was in possession of suit property and huge amount was paid to defendant---Plaintiff had good case for permanent injunction and balance of convenience was also in his favour---If stay was not granted to plaintiff, he would suffer irreparable loss---Suit of plaintiff was pending and evidence was to be recorded and without recording of evidence it could not be determined as to whether the agreement (Iqrarnama) was genuine or not---High Court in exercise of revisional jurisdiction set aside the orders passed by two Courts below and temporary injunction was granted---Revision was allowed in circumstances.

Mian Muhammad Javaid for Petitioner.

M. Akhtar Qureshi for Respondent.

MLD 2010 LAHORE HIGH COURT LAHORE 308 #

2010 MLD 308

[Lahore]

Before Syed Zulfiqar Ali Bokhari, J

ALI SHER---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.56 of 1999, heard on 25th May, 2009.

Penal Code (XLV of 1860)---

----S.420---Prevention of Corruption Act (II of 1947), S.5(2)---Cheating and receiving illegal gratification---Appreciation of evidence---Benefit of doubt---Case against accused initially was registered under S.161, P.P.C., but Trial Court while taking cognizance of case, summoned accused under S.420, P.P.C. and S.5(2) of Prevention of Corruption Act, 1947 and the charge was framed under the said sections---No eye-witness was mentioned in the application filed by the complainant before Deputy Commissioner---Inquiry Officer also found that complainant had no documentary or oral evidence regarding the commission of offence---Complainant in his cross-examination had made dishonest improvement that at the time of giving amount/illegal gratification to accused, prosecution witnesses were present---Prosecution witness also made improvement in the statement and tried to connect accused with commission of offence---Three statements of the prosecution witnesses did not mention date, time and place of receiving of amount by accused---During inquiry name of any witness was not mentioned by the complainant, but later on the statement of two prosecution witnesses was managed and case was developed against accused dishonestly---Accused who was Naib Qasid Class-IV employee suffered a lot since 1995---Conviction and sentence awarded to accused by the Trial Court was set aside and he was acquitted from the charges by giving him benefit of doubt.?

Syed Ishraf Hassan Jaffari and Syed Jawad Jaffari for Appellant.

Ashfaq Ahmad Malik, D.P.G. for State.

Date of hearing: 25th May, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 313 #

2010 M L D 313

[Lahore]

Before Sardar Tariq Masood, J

FIDA HUSSAIN---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 1942-B of 2009, decided on 11th November, 2009.

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

----S.498---Penal Code (XLV of 1860), Ss.447/511/379/506---Criminal trespass, theft and criminal intimidation---Pre-arrest bail, confirmation of---Co-accused had been allowed bail after arrest and during physical remand of accused persons, nothing was' recovered and no useful purpose was likely to be served, if the bail of accused was not confirmed, because after arrest he could again be allowed bail on the ground that similarly placed other accused were already on bail---When bail application of co-accused having one and the same role was allowed, then it could also be given the benefit of such bail on the ground of consistency, even at the stage of bail before arrest---Ad interim pre-arrest bail already granted to accused was confirmed, in circumstances.

Muhammad Ramzan v. Zafar Ullah and another 1986 SCMR 1380 and Shafqat Hussain v. The State 2007 YLR 1159 rel.

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

----Ss. & 506---Criminal intimidation---Threat simpliciter would not constitute criminal intimidation within the definition of S.503, P.P.C., unless it was to cause that person to do any act which he was not legally bound to do so or to omit to do any act which that person was legally bound to do.

Syed Ali Ashgar Shah v. The State 1998 PCr.LJ 270 and Gohar Javed v. State and another 2007 YLR 441 ref.

Muhammad Farooq Warind for Petitioner.

Aftab Ahmad Goraya Additional P.G. along with Naseer-ud-Din Gillani, A.S.-I.

2010 M L D 340

[Lahore]

Before Ijaz ul Ahsan, J

Mst. ZAHIDA PARVEEN---Petitioner

Versus

MUHAMMAD NAWAZ and another---Respondents

Writ Petition No.20752 of 2009, decided on 25th November, 2009.

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

----S.25---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Minor son of 8 years age, custody of---Contest between mother and father of minor both having re-married---Father of minor employed as school teacher and owning agricultural land---Mother and step father of minor being illiterate and having no permanent source of income as step father was a labourer---Order of Guardian Judge handing over custody of minor to his mother set aside by Appellate Court---Validity---While determining question of custody of a minor, prime consideration would be his welfare---Record showed that father was financially stable, thus, he was in a better position to meet material needs of minor---Father having no child from second . wife could keep minor with him in school, supervise his activities and directly take care of his educational, financial, psychological and emotional needs---Present environment at which minor was living and role models which he had were of paramount importance and this was a stage for laying foundation of his career---Keeping minor in environment of uncertainty and having flaws in his educational foundation and upbringing would affect entire structure of his responsibility and future career---Obligation of father was to provide adequate funds to mother to meet needs of minor, which was likely to be misapplied by her for not having source of income---Depriving minor of opportunity of growing-up with support, in company and under direct supervision of his real father would not be in his welfare---All step-mothers were not Cinderella's step-mothers---Possibility of ill-treatment by step-mother in present case was quite remote as minor would spend most part of day and week in school in academic environment under supervision of his father---Record showed that mother could not cater educational needs of minor, who being about 8 years old was still in Class-I---Need of minor for maternal love and affection could be met by providing adequate visitation time to mother---Mother was allowed to meet minor on first Sunday of every month from 11-00 a.m. to 2-00 p.m., the one week during winter vacations and two weeks during summer vacations---High Court partly accepted constitutional petition in circumstances.?

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

----S.25---Minor son, custody of---Contest between mother who had remarried and father having second wife---Living of minor with step-mother, if his custody was handed over to father---Validity---All step-mothers were not Cinderella's step mothers---In absence of any direct evidence of cruelty or ill-will, High Court emphasized on avoiding such type casting in human relationship.?

----S.2S---Minor, custody of----While determining question of custody of minor, prime consideration would be welfare of minor.?

Raja Qamar Tabbasam, for Petitioner.

Ch. Muhammad Adrees for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 352 #

2010 M L D 352

[Lahore]

Before Ms. Jamila Jahanoor Aslam, J

MUHAMMAD NAWAZ---Petitioner

Versus

Mst. ABIDA BIBI and 2 others---Respondents

Writ Petition No.1049 of 2009, decided on 27th May, 2009.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Recovery of gold jewelry---"Barri" as Zar-e-Khula---Scope---Plaintiff filed suit for recovery of gold jewelry weighing 4 Tolas against defendant claiming that marriage had been dissolved on grounds of Khula and defendant was bound to' return jewelry given to her as "Barri" on the basis of Zar-e-Khula---Validity---"Barri" was normally construed to be the gifts given to the bride at the time of marriage and in exchange, the parents of the bride usually spent a substantial .amount of money for buying gifts practically for every close relative of the bridegroom these too fall in the ambit of gifts---Gifts were not something that could be recovered under the Injunctions of Islam---Gifts thus did not fall in the ambit of Zar-e-Khula---Once the bridegroom acknowledged that the gold jewelry were gifts he could not claim the recovery of the same---Gift also did not fall in the ambit of Hiba-Bil-Bwaz either because there was no mention of it in the Nikahnama---High Court declined to interfere in the concurrent findings of the Trial Court and the Appellate Court---Constitutional petition was dismissed in limine.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Zar-e-Khula---Concept---Benefits derived by wife would be something from which wife could gain continuous benefits.

----Marriage---Gift---Concept---Gold jewelry if acknowledged by the bridegroom as a gift could not be considered, as consideration of the marriage---Gift given in lieu of dower amount would be recoverable through a decree of competent court---Hiba (gift) cannot be consideration of the contract of marriage under Islamic law---Hiba means transfer of property in substance by one person to other "without" consideration which is a condition to be fulfilled in order to make a valid gift---Donor had to relinquish all rights and dominion over the gift and had to divest himself totally of all ownership over the subject of the gift, whether implied or implicit, because a condition would derogate from the completeness of the grant---Gift could be revoked before delivery of the same to the donee---Gift given by a husband to his wife and vice versa could be revoked after delivery only under the decree of a court of competent jurisdiction.

Muhammad Saeed for Petitioner.

MLD 2010 LAHORE HIGH COURT LAHORE 363 #

2010 M L D 363

[Lahore]

Before Maulvi Anwar-ul-Haq, J

ALI MUHAMMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2604-B of 2006, decided on 21st September, 2006.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.13/14---Penal Code (XLV of 1860), Ss.380/381-A/337-J/411---Theft---Bail, grant of---Further inquiry---Accused and his co-accused were named in a supplementary statement recorded seven months after the registration of F.I.R.---Co-accused had been granted bail---Case against accused being of further inquiry, he was granted bail, in circumstances.

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

Saeeda Asif for Petitioner.

Faheem Mumtaz for the State.

Malik Muhammad Saleem for the Complainant.

MLD 2010 LAHORE HIGH COURT LAHORE 371 #

2010 M L D 371

[Lahore]

Before Muhammad Akram Qureshi and Khalil Ahmed, JJ

MUHAMMAD RAMZAN---Appellant

Versus

THE STATE---Respondent

Murder Reference No.574 of 2003 and Criminal Appeal No.430 of 2003, heard on 26th January, 2009.

Penal Code (XLV of 1860)---

----Ss.302(b)(c) & 324,--Qatl-i-amd and attempt to commit qatl-i-amd--Appreciation of evidence---Sentence, reduction in---Motive of the occurrence had been fully established on record---Accused had a quarrel with the complainant party over the picking up of cotton sticks---It appeared that after the said occurrence, complainant party went to' the residence of accused where incident took place---During that period, the complainant party fired at the residence of accused by which father of accused was injured and thereafter accused in order to save his father made indiscriminate firing by which deceased and two persons were injured---Accused exceeded the right of self-defence; he should have not fired indiscriminately---Case of accused, in circumstances, did not fall within the ambit of S.302(b), P.P.C., rather it should have been dealt with under S.302(c), P.P.C.---Accused had caused the death of deceased and injured mother of complainant---Explanation having been tendered by the complainant party regarding the injury of father of accused, was not worth reliance---Accused in circumstances was liable to be convicted under S.302(c), P.P.C.---Death sentence awarded to accused was not confirmed and it was reduced to 25 years' R.I.---Amount of compensation fixed by the Trial Court was maintained---Sentence of ten years and fine of Rs.50,000 awarded to accused for attempt to commit qatl-i-amd of mother of complainant was also upheld---Both the said sentences would run concurrently---Accused would also have benefit of S.382-B, Cr.P.C. and reference was answered in negative.

1975 PCr.LJ 750 ref.

Saghir Ahmad Bhatti for Appellant.

Ch. Safraz Ahmad Zia, D.P.G. for Respondent.

MLD 2010 LAHORE HIGH COURT LAHORE 380 #

2010 M L D 380

[Lahore]

Before Tariq Javaid, J

UMAR NAJEEB KHAN LODHI---Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Vice Chancellor and 4 others---Respondents

Writ Petition No. 5834 of 2009, decided on 3rd November, 2009.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Educational institution---Admission in course of Fine Arts---Cancellation of admission---Petitioner had assailed the order whereby petitioner's admission in Fine Arts course was cancelled on the ground that at the time of filing application for admission, petitioner was over-age---Applications for admission were invited and after thorough scrutiny candidates were selected and were awarded admission---Petitioner who was awarded admission after having completed first semester, applied for transfer to B-Design academic course in the same department as one student had already shifted to another department and seat was lying vacant--Initially application of the petitioner was granted, but at the stage of final approval his application was turned down and his admission in the Fine Arts was cancelled on the ground that at the time of admission he was, over-age-Application for admission filed by the petitioner was scrutinized, dues were paid and admission was duly granted to the petitioner---Once the petitioner had been admitted, his admission could not be cancelled on the ground that he was over-age as vested right had accrued to the petitioner---Petitioner had already passed his first semester when his admission was "struck down---Such would result not only into vacant seat for the remaining years of the course, it would not anure any benefit either to the University or any one else---Petitioner, on the other hand, would suffer and his future prospects would be at stake---If his transfer to B-Design was not allowed solely on the ground of his being over-age then vacant seat in B-Design course would remain vacant for the remaining years of the course---University was being financed from the Public Exchequer---Public money could not be allowed to be wasted by keeping the seat vacant instead of allowing the student to carry on the course of study---No fraud or misrepresentation had been alleged in the case by the University as the petitioner had given his correct date of birth in his application form---If the petitioner was not entitled for admission his application form should have been turned down at initial stage---At belated stage it was unfair to allow the University to cancel the admission---Impugned order passed by the University was set aside and University authorities were directed to allow the petitioner to join his course of studies in Graduate Fine Arts programme.?

Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Waif Zamir Ahmad and another 1997 SCMR 15; Muhammad Rafiq and another v. Director In-service Agriculture Training Institute and another 2007 CLC 1492; Mian Muhammad Afzal v. Province of the Punjab and others 2004 SCMR 1570; Muhammad Arshad v. Bahauddin Zakariya University, Multan through Vice Chancellor and 3 others 1999 YLR 968; Syeda Saba Batool v. Bahauddin Zakaria University through Vice Chairman and 2 others 2009 YLR 1406; Mian Muhammad Afzal v. Province of the Punjab and others 2004 SCMR 1570 and Muhammad Sharif and others v. Abdul Rehman 2004 SCMR 1571 ref.

Zafar Ullah Khan Khakwani for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 399 #

2010 M L D 399

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

ZAKIR HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3882-B of 2009, decided on 11th November, 2009.

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

----S.497---Penal Code (XLV of 1860), Ss. 302/324/452/440/148/149/109---Qatl-i-amd, attempt to commit qatl-i-amd, house trespass, mischief after preparation for causing death or hurt, abetment---Bail, refusal of---Bail had already been declined to accused by High Court on merits---Said bail application had been filed by the accused prior to submission of the challan against the complainant party, whereafter the parties had effected a compromise---New circumstance, therefore, had arisen for the accused to move for bail before the Trial Court on the ground of the said challan having been submitted under S.173, Cr.P.C. on the basis of valid legal investigation---New ground for bail could not be agitated directly in the High Court without moving the court of first instance on the same---Plea that the nominated accused in the F.I.R. had been declared innocent and complainant party was found guilty and challaned, had not been accepted by High Court---Said plea, therefore, could not be deemed to be a fresh ground for bail---Similarly plea of old age of accused being one of the grounds in the previous bail petition before High Court, could not be considered a fresh ground---Bail application was dismissed in circumstances---Accused was at liberty to move the Trial Court on the fresh ground of compromise effected by the complainant side and accused with the legal heirs of the deceased.

1991 SCMR 1271; 2007 PCr.LJ 1542; 2005 PCr.LJ 147 and Khizar Hayat and others v. I.G. Punjab, and others PLD 2005 Lah. 470 ref.

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

----S.497---Bail---Fresh ground---Forum for agitation---Practice and procedure---Unless and until court of first instance is moved on fresh ground for bail, the same cannot be agitated directly in High Court.

Muhammad Sajjad Hussain for Petitioner.

Syed Mukhtar Masood Bukhari, DDPP for the State along with Muhammad Arshad, A.S.-I. with record.

Iftikharul Haq Khawar and Raja Khuramuz Zaman for the Complainant.

MLD 2010 LAHORE HIGH COURT LAHORE 408 #

2010 M L D 408

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and M.A. Zafar, JJ

AZHAR KHAN LODHI---Petitioner

Versus

RETURNING OFFICER, PP 141, LAHORE and another---Respondents

Writ Petition No. 7615 of 2008, decided on 25th June, 2008.

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

----S. 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Retirement from election---Nomination papers filed by the petitioner to contest By-Elections were accepted by the Returning Officer---Later on, the petitioner filed application seeking permission to retire from the elections, which was dismissed by the Returning Officer---Validity---Under S.17 of the Representation of the People Act, 1976, if a candidate would opt to retire from the election, he had to give notice to the Returning Officer on any day not later than four days before the polling day---In the present case By-Elections were scheduled for 26-6-2008 and the petitioner prepared his application for retirement from the election on 21-6-2008, but on said date office of the Returning Officer was closed and on the next day i.e. 22-6-2008, was holiday because of Sunday---Possibility that staff of the Returning Officer was not available, could not be ruled out and finally said application was moved before the Returning Officer on 23-6-2008---Saddling the petitioner with liability that he had approached the Returning Officer after the prescribed time limit, would be unjustified and unfair, in circumstances---Even otherwise, if the petitioner was not interested in contesting election, forcing him to go for the election would also not be justifiable.

Mian Muhammad Aslam for Petitioner.

Sarfaraz Ali Khan, Asstt. A.-G. on Court's Call.

MLD 2010 LAHORE HIGH COURT LAHORE 421 #

2010 M L D 421

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Ch. ABDUL QADEER and 3 others---Petitioners

Versus

GOVERNMENT OF PUNJAB through the Secretary Cooperative and 8 others---Respondents

Writ Petitions Nos. 18973, 20739, 21851, 21852, 21853 and 23348 of 2009, decided on 28th January, 2010.

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

----S.43---Holding of de novo probe into affairs of society after submission of earlier inquiry report---Powers of Registrar---Scope---Inquiry report earlier submitted by earlier Inquiry Officer, if not approved by Registrar, would not attain finality---Registrar had power to direct de novo probe.

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

----Ss. 43 & 44---Charges of misappropriation of money and commission of illegalities by Managing Committee of Society---Order of Registrar directing probe into affairs of Society---Inquiry report supporting such charges against Society---Issuance of show cause notice by Registrar without hearing Society-Validity-Registrar was not mandatorily required to provide opportunity of hearing to Society at the time of either probe or issuance of show cause notice and initiation of proceedings against Society.

Malik Muhammad Hussain v. District Returning Officer and others 2008 SCMR 488 and Imtiaz Ahmad's case PLD 1963 SC 382 ref.

Muzaffar Ali Shah and others v. Registrar, Co-operative Societies, Karachi and one another PLD 1968 Karachi 422; Karachi Administration Employee Cooperative Housing Society Ltd. v. Government of Sindh and others 2004 YLR 1070 (Karachi) and Pir Illahi Bukhsh Co-operative Housing Society Ltd. Karachi v. Registrar Co-operative Societies Karachi and others 1968 SCMR 423 rel.

----Ss. 43 & 44---Co-operative Societies Rules, 1927, R.35---Inquiry into affairs of society---Proceedings in arbitration proceedings---Application of Civil Procedure Code, 1908 and Qanun-e-Shahadat, 1984 to such proceedings---Scope---Registrar or his nominee was not bound to follow C.P.C. or Qanun-e-Shahadat, 1984---In absence of any procedure provided under R.35 of Co-operative Societies Act, 1925, Registrar had to adopt procedure in order to satisfy himself after considering evidence produced by either side and give decision/award in accordance with law, equity and good conscience.

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

----S.54---Price of property indicated in sale deed---Oral assertions of vendee that actual price paid by him was more than that indicated in sale-deed, but in order to save stamp duty; he had shown less price therein---Validity---Such oral assertion could not be accepted.

Sheikh Muhammad Ali for Petitioners (in Writ Petition Nos.18973 of 2009).

Zahid Saleem for Petitioners (in Writ Petitions Nos. 20739 21851, 21853 and 21852 of 2009).

Ahmad Waheed Khan for Petitioner (in Writ Petition No. 23348 of 2009).

Waqar A. Sheikh for Punjab Board of Revenue Employees Co-operative Society Ltd., Lahore and Imtiaz Ahmad Kaifi, Addl. A.-G. for Respondents..

Date of hearing: 16th December, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 430 #

2010 M L D 430

[Lahore]

Before Saif-ur-Rehman, J

MUHAMMAD SULTAN and another---Petitioners

Versus

ABDUL WAHID---Respondent

Civil Revision No.565 of 2005, heard on 22nd May, 2009.

Partition Act (IV of 1893)---

----S. 2---Civil Procedure Code (V of 1908), S.115---Suit for partition--Shop in question was jointly owned by the parties according to their shares---Plaintiff filed suit for partition in respect of said shop---Local Commissioner was appointed, with consent of parties who submitted his report proposing three modes of partition as given in three figures separately drawn---Trial Court decreed the suit according to one figure which was challenged by the plaintiff through appeal, which appeal was accepted by the Appellate Court while setting aside the judgment and decree passed by the Trial Court and suit was decreed according to another figure---Validity---No dispute between the parties that four shares were owned by the plaintiff, whereas defendants were owners of two shares---According to the figure, which was approved by the Appellate Court, from the front, four feet had fallen to the share of the plaintiff---Such was the only equitable distribution---Parties were real brothers---Had they shown soft corner for each other, any other settlement could be arrived at between them---No illegality having been found in the impugned judgment, revision was dismissed.

Ch. Muhammad Ashraf Anjum for Petitioners.

Amjad Pervaiz Ch. for Respondent.

Date of hearing: 22nd May, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 434 #

2010 M L D 434

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD ANWAR---Petitioner

Versus

ZAKA-ULLAH and 4 others---Respondents

C.R. No. 1618 of 2009, decided on 5th October, 2009.

Specific Relief Act (I of 1877)---

----S.54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 &, S.115---Electricity Act (IX of 1910), Ss.51 & 68---Telegraph Act (XIII of 1885), S.10---Suit for permanent injunction---Application for grant of temporary injunction---Defendant for the purpose of electricity connection to his tube-well wanted the aerial line through the properly of the plaintiff---Plaintiff's suit for permanent injunction and application for grant of temporary injunction, had concurrently been disallowed by the Trial Court and Appellate Court---Validity---If electricity connection could be had by the defendant directly to his property from the transformer by utilizing about 50 feet of the plaintiff's property, defendant could not insist that as he would save expenses,. if the line was stretched from the property in question and in circumstances was legally entitled to have the connection therefrom, was not legally tenable---Such aspect of the matter had not been taken into account by the courts below---Impugned orders were set aside, in circumstances however, if defendant wanted the connection, he could only use the property of the plaintiff to bear minimum damage, which was absolutely necessary and required for that purpose, otherwise, notwithstanding as to whatever amount of expenses he could have to bear, he must have the line through his own properly.

Jahangir A. Jhoja for Petitioner.

Awais Tauseef for Respondent No.1.

MLD 2010 LAHORE HIGH COURT LAHORE 435 #

2010 M L D 435

[Lahore]

Before Ijaz Ahmad Chaudhry, J

COOL INDUSTRIES (PVT.) LTD. through Manager---Petitioner

Versus

SHAFIQUE AHMED and 4 others---Respondents

Criminal Miscellaneous No. 11933-CB of 2009, decided on 10th November, 2009.

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

----S. 498---Penal Code (XLV of 1860), Ss. 419/381/420/468/471/109/34---Theft of property in possession of master, cheating, forgery and using as genuine of forged document---Pre-arrest bail---Undertaking given to Court---Effect---Undertaking given to the Court by a party or his counsel has exactly the same force as an order made or an injunction granted by the Court and the party is bound to fulfil the same---After the Court has sanctioned a particular course of action or inaction according to the statement of a party, the party places himself, in a perilous situation, if later he commits a breach of his undertaking and exposes himself to an action for contempt of Court.

PLD 1976 Lah. 580 ref.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 381/419/420/468/471/109/34---Theft of property in possession of master, cheating, forgery and using as genuine a forged document---Bail, cancellation of---Accused had been granted pre-arrest bail on the undertaking given to the Court that they would make payment of Rs.100,000 per month through cheques to the complainant---Commitment made before the Court amounted to an order of the Court and non fulfilment thereof had rendered the accused disentitled to remain on pre-arrest bail, which was meant to protect the innocent citizens, found to-have been involved for same ulterior motive---Commencement of trial was no bar in the way of cancellation of pre-arrest bail allowed to accused conditionally---Pre-arrest bail granted to accused was cancelled in circumstances.

PLD 1976 Lah. 580; 2007 PCr.LJ 1492 and Muhammad Sharif v. Shafqat Hussani alias Shaukat and another 1999 SCMR 338 ref.

Messrs Irtaza Ali Naqvi and Saqib Gardner for Petitioner.

M.A. Ghaffar-ul-Haq for Respondents Nos. 1 to 4.

Ch. Amjad Hussain, Deputy Prosecutor General for the State with Muhammad Suleman, A.S.-I. with record.

MLD 2010 LAHORE HIGH COURT LAHORE 444 #

2010 M L D 444

[Lahore]

Before M.A. Zafar, J

MUHAMMAD YAR---Petitioner

Versus

Mst. KARAM JAN and others---Respondents

Civil Revision No. 1833 of 2005, decided on 21st May, 2009.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement of sale had been decreed by the Trial Court---Appellate Court disposed of appeal against said order holding that decrees were passed by the Trial Court without framing issues and remanded the case to decide the same on the basis of issues framed by the Appellate Court---Validity---Appellate Court while remanding the case to the Trial Court had not taken into consideration the reasoning given by the Trial Court; and had not appreciated the evidence on record while reversing finding of the Trial Court---Appellate Court was obliged to meet the discussion/reasonings given by the Trial Court while taking contrary view of the matter---Allowing revision, case was remanded to the Appellate Court to re-hear the matter and decide appeals afresh according to settled law.

Madan Gopal's case PLD 1969 SC 617 rel.

Mian Israr-ul-Haq for Petitioner.

Respondent having proceeded ex parte.

MLD 2010 LAHORE HIGH COURT LAHORE 458 #

2010 M L D 458

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

WASEEM ZIKRIA---Petitioner

Versus

Brig. (R) SHAMS-UD-DIN and 7 others---Respondents

Writ Petition No. 19707 of 2009, heard on 14th January, 2010.

(a) Punjab Rented Premises Ordinance (XXI of 2007)---

----Ss. 5 & 6---Application for registration of landlord's name in Rent Register---Receipt showing payment of token money by prospective buyer and his willingness to pay earnest money at the time of execution of sale agreement by landlord and fixed monthly rent till execution of sale-deed by landlord---Non-execution of sale agreement and forfeiture of token money by landlord for failure of buyer to pay earnest money on stipulated date---Dehial of relationship of landlord and tenant between parties by such buyer on the ground that such receipt was not a rent note/deed---Validity---While taking into consideration spirit of such receipt, Court would adopt an interpretation, which might give meanings to each word of an enactment---Such receipt contained main ingredients for renting out a property i.e. particulars of landlord and tenant, description of property, period and rate of rent---On failure of parties to arrive at sale agreement and forfeiture of earnest money by landlord, tenancy clause of such receipt become effective establishing automatically relationship of landlord and tenant between parties---Buyer in his reply to such application had admitted his tenancy and deposited rent for current month in Government Treasury---Landlord was not obliged to file suit for specific performance in presence of specific tenancy clause in such receipt making buyer liable to pay monthly rent till execution of sale-deed---Landlord had adopted proper course by approaching Rent Controller---Such application was accepted in circumstances.

Abbas Ali Khan v. Mst. Farhat Iqbal and 2 others 2009 SCMR 1077; Muhammad Ali and, others v. Province of the Punjab and others 2009 SCMR 1079 and Zarin Qaisar and others v. Ahmad Faraz and others 2009 SCMR 1173 rel.

Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Aurangzeb through L.Rs. and others v. Muhammad Jaffar and another 2007 SCMR 236; Mst. Mariam Bibi and others v. Muhammad Ali through L.Rs. 2007 SCMR 281; Raja Ali Shan v. Messrs Essem Hotel Ltd. and others 2007 SCMR 741 and Ghulam Murtaza v. Abdul Salam Shah and others 2007 SCMR 1062 distinguished.

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

----Art. 199---Constitutional petition---Stance taken in Courts below---Validity---Such stance could not be substituted at level of High Court.

----Art. 199--Constitutional petition challenging validity of orders passed by Courts below--Validity---High Court would interfere only in case of glaring misreading or non-reading of any material floating on record.

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

----Art. 199---Constitutional jurisdiction---Scope---Concurrent findings of fact of Courts below arrived at on proper appreciation of material available on record---Validity---Constitutional petition would not be maintainable against such findings.

Khuda Bakhsh v. Muhammad Sharif 1974 SCMR 279 rel.

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

----Art.199---Constitutional petition---Concurrent findings of fact of Tribunal or Courts below---Validity---High Court had no jurisdiction to substitute its own findings in place of such findings of Courts below.

Mazhar-ul-Haq alias Mazhar Abbas v. Ghulam Muhammad and 2 others 2005 CLC 1169 and Messrs Airport Support Service v. The Airport Manager Karachi 1998 SCMR 2268 rel.

Malik Amjad Pervaiz for Petitioner.

Syed Samar Hussain Shah for Respondent.

Date of hearing: 14th January, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 468 #

2010 M L D 468

[Lahore]

Before Ch. Iftikhar Hussain, J

SARFRAZ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3932-B of 2009, decided on 4th November, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.395/411---Dacoity and dishonestly receiving stolen property---Bail, grant of---Four unknown persons, as per F.I.R., on fire-arm point had forcibly snatched the Tanker containing 24000 liters diesel worth Rs.16,25,000---Neither the accused was named in the F.I.R., nor he had been put to any identification parade---Driver and the conductor of the Tanker after sixteen days of the alleged occurrence, had for the first time named the accused as culprit in their supplementary statement---Liability of accused for the said offence would be determined by Trial Court after sifting the evidentiary worth of the supplementary statement---Till then, case of accused would be within the domain of S.497(2), Cr.P.C. calling for further inquiry into his guilt---Accused was not a previous convict and he was behind the bars for the last nine months---Accused was released on bail in circumstances.

Muhammad Arif Alvi for Petitioner.

Ishfaq Ahmad Malik, Deputy Prosecutor General for the State Muhammad Ashraf, S.-I. with police record.

MLD 2010 LAHORE HIGH COURT LAHORE 475 #

2010 M L D 475

[Lahore]

Before Imtiaz Rashid Siddiqui, J

Messrs KARACHI PIPE MILLS through Managing Director---Petitioner

Versus

GOVERNMENT OF PUNJAB through Chief Secretary, Civil Secretariat Lahore and 2 others-Respondents

Civil Revision No. 1109/D of 2009, decided on 24th July, 2009.

Civil Procedure Code (V of 1908)---

----O. XVII, R.3---Specific Relief Act (I of 1877), S.54---Suit for permanent injunction---Closing of evidence---Plaintiff having failed to lead evidence despite numerous dates granted for said purpose, his right to tender evidence was closed under O.XVII, R.3, C.P.C. by the Trial Court---Trial Court then proceeded to decide the case on merits and vide its judgment and decree, dismissed the suit---Appeal filed by the plaintiff against judgment and decree passed by the Trial Court, had been dismissed by the Appellate Court---Validity---Plaintiff despite lapse of five years, before the Trial Court, did not tender evidence---Last and final opportunity was also not availed by the plaintiff and his evidence was closed and suit was decided on the basis of material available on record---No justification or reason existed on the basis of which interference could be made in the impugned order---Infact, even the memo of revision did not provide any basis" on account of which it could be held that courts below had acted with material irregularity or had committed any jurisdictional error in deciding the case of the plaintiff---Impugned orders being perfectly in accordance with law, revision petition against said judgment, was dismissed, in circumstances.

Nemo for Petitioner.

Syed Moazzam Ali Shah for Respondent No.2 along with Waseem Ahmed Saif, Administrator.

MLD 2010 LAHORE HIGH COURT LAHORE 477 #

2010 M L D 477

[Lahore]

Before Mian Saqib Nisar, J

Mst. NAZLI---Petitioner

Versus

MUHAMMAD ILYAS and another---Respondents

Writ Petitions Nos. 8445 and 18202 of 2009, decided on 2nd February, 2010.

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

----S.25---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Custody of minors---Welfare---Determining factors---Application for custody of minors filed by father was dismissed by Guardian Court but Appellate Court allowed the same and handed over the custody to father---Validity---Held, there could be no hard and fast rule, yardstick or litmus test to determine welfare of minor, rather it depended upon facts and circumstances of each case---Broadly, the criteria could be founded upon educational, health and upbringing aspects of minors; availability of better and congenial environment; ability of contestant (for the custody) to cater for welfare, coupled with love and affection and happiness, which minors might attain in the company of that particular person---Mother of minors comparatively being an educated lady had a clear edge over father's side and the same tilted in favour of welfare of minors as well, as she also had right of "Hizanat" of minor daughters---Love and affection of mother could not be substituted by paternal aunt who was supervising the minors and who could not settle down herself and had been divorced thrice---High Court set aside the order passed by Lower Appellate Court and minors were given in the custody of mother---Petition was allowed accordingly.

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

----S.25---Custody of minors---Right of togetherness---Scope---To compel minors to live aloof in ordinary course violates their right of togetherness, which is a natural right bestowed upon them by nature as being member of the clan of social animals (the human being)---Separation of minors seriously militates regarding welfare of minors; resultantly, keeping them intact should be determined by the court as to which parent (person) is more suitable to retain the custody---As such the same has nexus upon preponderance of the factors regarding minors' welfare.

Muhammad Shoaib Khokhar for Petitioner.

Khalid Aziz Malik for Respondent No.1.

Respondent No.1 in person.

MLD 2010 LAHORE HIGH COURT LAHORE 486 #

2010 M L D 486

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

MUHAMMAD TARIQ---Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY through Director-General, Lahore and another---Respondents

Writ Petitions Nos. 16579 and 23900 of 2009, heard on 20th January, 2010.

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

----Art.199---Constitutional petition---Locus standi---Petitioner assailed those auction proceedings in which he did not participate---Plea raised by petitioner was that he was forcibly prevented from participating in auction proceedings---Validity---Petitioner failed to convince the court that he was forcibly prevented from participating in auction proceedings---Whether the proceedings were fair or unfair; transparent or otherwise; legal or unlawful; petitioner had no concern-Dispute regarding subject-matter was between a Development Authority and another person---As petitioner got no lawful right to file constitutional petition, therefore, High Court declined to interfere in the matter---Petition was dismissed in circumstances.

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

----Art.199---Constitutional petition---Concluded contracts---Jurisdiction of High Court---Scope---Concluded contract commands respect and its sanctity is to be preserved as a matter of public interest/public policy but it does not mean that order in respect of its grant is sacrosanct and unassailable---High Court in exercise of its constitutional jurisdiction can examine validity of such order and strike it down on grounds of mala fide; arbitrary exercise of discretionary power, lack of transparency; discrimination; and unfairness etc., provided it is challenged promptly and contentious questions of facture not involved.

Brig Muhammad Bashsir v. Abdul Karim and others PLD 2004 SC 271 and Messrs Ittehad Cargo Service and others v. Messrs Syed Tasneem Hussain Naqvi and others PLD 2001 SC 116 rel.

---Art.199---General Clauses Act (X of 1897), S.24-A---Constitutional petition--- Auction proceedings--- Binding contract---Public functionaries, duties of---Petitioner was the highest bidder with regard to a plot sold in open auction and he was informed about acceptance of his bid by competent authority---Petitioner deposited full consideration amount and asked for possession of plot in question but he was informed that his bid had been cancelled by higher authorities---Validity---Public functionaries were bound under S.24-A of General Clauses Act, 1897, to act in accordance with law without fear, favour or nepotism and they were further enjoined to act justly, fairly, equitably and reasonably---Director-General of Development Authority having delegated his authority to Additional Director-General, therefore, the former in such a situation had no authority whatsoever conferred upon him to recall the order passed by the latter--Order recalling confirmation of bid was whimsical, arbitrary and capricious as rescission of validly concluded contract could not have been taken place in such a way---Such order passed by Director-General conveyed' to petitioner was unwarranted and could not be sustained and the same was set aside---Petition was allowed in circumstances.

Hudayibia Textile Mills Ltd. and others v. Allied Bank of Pakistan and others PLD 1987 SC 512; Muhammad Ikhlaq Memon v. Zakaria Ghani and others PLD 2005 SC 819; Mubashir Iqbal Cheema v. Cantonment Board PLD 2009 Lah. 506; Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and another v. Messrs Shoaib Bilal Corporation and 2 others 2004 CLC 1104; Haqbahoo Corporation v. PIA and others PLD 2003 Kar. 369; hived Iqbal v. PASSCO and another 2004 CLC 478; Messrs Airport Support Services v. The Airport Manager, Qauid-e-Azam International Airport, Karachi 1998 SCMR 2268; Messrs Ramna Pipe and General Mills (Pvt.) Ltd. v. Messrs Suit Northern Gas Pipelines (Pvt.) and others 2004 SCMR 1274; S.M. Ismail v: Capital Development Authority through Chairman and 5 others 2006 CLC 131; Puri Terminal Ltd. v. Port Qasim Authority and others 2003 CLC 153; PLD 1972 SC 279; PLD 2006 Lah. 49; PLD 2000 SC 2036; 1973 SCMR 342; PLD 1969 SC 223; PLD 2000 Kar. 224 and PLD 2006 SC 697 ref.

Fateh Muhammad Agha and another v. City District Government, Karachi and 5 others 2009 CLC 1104 rel.

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

----S.54---Sale, concluded---Proprietary rights---Scope---Proprietary rights in land commence from the date when sale price was paid by buyer and accepted by seller and not from the date when formal sale deed was executed.

Faiz Ali v. Mst. Rafia Jan and two others PLD 1956 Lah. 94 and Rehmat Ullah and others v. Muhammad Ismail and other's PLD 1958 W.P. (rev) 77 rel.

Mahmood A Sheikh for Petitioner.

Mian Muzaffar Hussain for Respondent.

Date of hearing: 20th January, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 515 #

2010 M L D 515

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Haji AHMED KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 14915-B of 2009, decided on 26th November, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/148/149/109, "Qatl-i-amd" in prosecution of common object, rioting armed with deadly weapons and abetment of the same---Bail, refusal of---According to final thorough investigation, accused after having purchased land on cheeper rates in joint khata of the complainant party, had tried to take possession of the said land forcibly by sending armed persons at the site, which had culminated in the incident---Accused, thus, was the main anchor of the occurrence---Evidence could not be deeply appreciated at bail stage---Offence charged against accused fell within the prohibitory clause of S.497(1), Cr.P.C.---Accused was unable to show any reason for his false implication in the case---Bail was declined to accused in circumstances.

PLD 2009 SC 385; PLD 2009 SC 440 and 2007 SCMR 1798 ref.

Ch. Nawab Ali Mayo for Petitioner.

Ch. Imran Raza Chadhar for Complainant.

Ijaz Ahmad Bajwa, Deputy Prosecutor General for the State with Muhammad Aslam, S.-I.

MLD 2010 LAHORE HIGH COURT LAHORE 521 #

2010 M L D 521

[Lahore]

Before Sh. Azmat Saeed, J

MUKHTAR AHMAD---Petitioner

Versus

SULTAN AHMAD---Respondent

Civil Revision No.1456/D of 2009, decided on 12th August, 2009.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XVII, R.3---Suit for declaration---Failure to produce evidence---Issues were framed and the plaintiff was directed to produce evidence, but he having failed to do so despite providing him various opportunities to produce evidence, his right to produce evidence, was closed and suit was concurrently dismissed by the Trial Court and Appellate Court---Validity---Plaintiff having failed to produce evidence without any reasonable cause, whatsoever, despite ample opportunity was granted to him, his right to produce evidence had been rightly closed and suit was dismissed in accordance with law---No illegality or irregularity having been pointed out warranting interference by the High Court in exercise of its revisional jurisdiction petition was dismissed.

Ch. Muhammad Shafique for Petitioner.

Nasir Mehmood Ch. for Respondent.

MLD 2010 LAHORE HIGH COURT LAHORE 533 #

2010 M L D 533

[Lahore]

Before Nisar Saeed Sheikh and Khawaja Imtiaz Ahmad, JJ

GOVERNMENT OF PAKISTAN through Secretary Ministry of Interior, Islamabad---Appellant

Versus

DR. ABDUL QADEER KHAN---Respondent

Writ Petition 1503 of 2008, C.M. No. 3428 and Intra-Court Appeal No.153 of 2009, heard on 22nd December, 2009.

(a) Appeal---

----Concept.

Appeal is a complaint made to a superior court against the decision of a subordinate court with the object of getting such order set aside or revised.

(b) Appeal---

----Scope---No party had an inherent right of appeal, unless expressly granted by a particular law dealing with matter---Principles.

The right of appeal is a right, which is always the creation of a particular statute dealing with the matter, and it can only be availed of where it is expressly granted by the law, and there is no concept of an inherent right of appeal exercisable by a party consequent upon the judgment or order or decree.

Pakistan Telecommunication Company Limited, Islamabad and another v. Rizwan Ahmed Bhatti and 2 others 2007 CLC 414; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; The Chief Settlement Commissioner, Lahore v. Raja Mohammad Fazil Khan and others PLD 1975 SC 331; Bahadur v. Muhammad Shoaib and 9 others PLD 1981 Kar. 788; Mst. Gul Bibi v. Muhammad Saleem and another PLD 1978 Quetta 118; Haji Suleman v. Messrs Eastern Rice Syndicate, Karachi and 3 others PLD 1976 Kar. 263' and Ohene Moore v. Akesseh Tayee AIR 1935 Privy Council 5 rel.

----Meaning.

Concise Oxford English Dictionary ref.

(d) Words and phrases---

---- "Interlocutory"---Meaning.

Black's Law Dictionary Fifth Edition ref.

(e) Words and phrases---

---- "Interim"-Meaning.

Black's Law Dictionary Fifth Edition and Volume-II of Words and Phrases by Mian Muhibullah Kakakhel ref.

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

----S.3(3) [as amended by Law Reforms (Amendment) Act (VIII of 1972)]---Code of Civil Procedure (Amendment) Ordinance (XX of 1980), S.15---Constitution of Pakistan (1973), Art.199---Intra-Court appeal against an interlocutory order of Single Bench of High Court granting interim relief to respondent in miscellaneous application still pending alongwith main constitutional petition---Maintainability---Appeal being a complaint made to a superior court against decision of a subordinate court with object of getting such order set aside or revised---No party had an inherent right of appeal, unless expressly granted by a particular law dealing with matter---Term "interlocutory order" would mean an order made provisionally during pendency of a legal action---Impugned order passed on miscellaneous application was an interim/interlocutory order, which did not have effect of disposing of entire case put up therein before Single Bench of High Court---No appeal against an interim order was competent under S.3(3) of Law Reforms Ordinance, 1972---Order passed by High Court under Art. 199 of the Constitution, in circumstances, could not be termed as order passed in original jurisdiction of High Court---Intra-Court appeal was dismissed in circumstances---Principles.

Asad Ali and 9 others v. Settlement and Claims Commissioner, Karachi and another PLD 1974 Kar. 345; Yusuf Ali Khan, Bar-at-Law v. Muhammad Javed Iqbal Cheema, Esq. Additional District Judge, Lyallpur and 6 others PLD 1975 Lah. 1339; Ahmad Khan v. The Chief Justice and the Judges of the High Court, West Pakistan through the Registrar, Lahore High Court, Lahore and others PLD 1968 SC 171; Muhammad Ismail v. Secretary to Government of N.-W.F.P. Settlement/Rehabilitation Department, Peshawar and 7 others PLD 1988 Pesh. 19; Mst. Inayat Bibi and another v. Settlement Commissioner and 2 others PLD 1982 Lah. 98; Pakistan Telecommunication Company Limited, Islamabad and another v. Rizwan Ahmed Bhatti and 2 others2007 CLC 414; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; The Chef Settlement Commissioner, Lahore v. Raja Mohammad Fazil Khan and others PLD 1975 SC 331; Bahadur v. Muhammad Shoaib and 9 others PLD 1981 Kar. 788; Mst. Gul Bibi v. Muhammad Saleem and another PLD 1978 Quetta 118; Haji Suleman v. Messrs Eastern Rice Syndicate, Karachi and 3 others PLD 1976 Kar. 263; Ohene Moore v. Akesseh Tayee AIR 1935 Privy Council 5; Concise Oxford English Dictionary; Black's Law Dictionary Fifth Edition; Volume-II of Words and Phrases by Mian Muhibullah Kakakhel; Messrs National Security Insurance Co. Ltd. v. Messrs Hoechst Pakistan Ltd., and others PLD 1990 SC 709; Sultan Singh v. Murli Dhar and others AIR 1924 Lah. 571; V.M. Abdul Rahman and others v. D.K. Cassim and Sons and others AIR 1933 Privy Council 58; Savitri Devi v. Rajul Devi and others AIR 1961 Allahabad 245; S.N. Gupta & Co. v. Sadananda Ghose and others PLD 1959 Dacca 330 and Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263 rel.

Mst. Sakina Begum and 21 others v. Khalid Mustafa and 11 others 2007 CLC 1865 and Sheri-CBE and others v. Lahore Development Authority and others 2006 SCMR 1202 distinguished.

Ahmer Bilal Sofi for Appellant.

Syed Ali Zafar for Respondent.

Mehir Malik Khattak, Deputy Secretary, Ministry of Interior.

Date of hearing: 22nd December, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 552 #

2010 M L D 552

[Lahore]

Before Ijaz Ahmad Chaudhry, J

HASSAN NASIR DAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 12674-B of 2009, decided on 15th December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302/324/1481149---Qatl-i-amd and attempt to commit Qatl-i-amd---Bail, grant of---Fire-arm injury suffered by the deceased was attributed to co-accused by the eyewitnesses---Guilt of accused, thus, needed further probe---Accused was behind the bars for the last two years and three months and according to Trial Court he was not responsible for the delay---After arrest of fugitive co-accused, his trial had also commenced---Speedy trial was the .right of the accused, which was not likely to conclude in near future---Accused could not be detained in jail for an indefinite period---Bail was granted to accused in circumstances.

Afzal Ahmad Siddique for Petitioner.

Ch. Amjad Hussain, DPG for the State.

Mansoor ul Rehman Khan Afridi for the Complainant.

Waseem Ahmad S.-I. with record.

MLD 2010 LAHORE HIGH COURT LAHORE 558 #

2010 M L D 558

[Lahore]

Before Abdul Sattar Goraya, J

SAHIWAL ANJUMAN-I-ARTIAN through President and 10 others---Petitioners

Versus

Messrs GULZAR AND SONS through Proprietor and 4 others---Respondents

Civil Revision No. 662 of 2009, decided on 30th July, 2009.

Civil Procedure Code (V of 1908)---

----O. VII, R.2, O.XXXIX, Rr.1, 2 & S.115---Suit for recovery of money---Application for grant of temporary injunction---Dismissal of application---Plaintiffs along with suit for recovery of money, filed application for grant of temporary injunction as well as for attachment of property of the judgment-debtor---Said applications were dismissed by the Trial Court----Revision---Scope for the purpose of revision was very limited and it could not be decided whether an injunction should or should not be issued during the pendency of the suit---All that High Court could consider was whether in circumstances of the case, the matter of decision on the application for grant of temporary injunction could be postponed for a date till the submission of the written statement or not---Trial Court had no jurisdiction whatsoever to postpone the decision on the application for grant of temporary injunction---If in such a situation, when the matter had been postponed for a date after the long summer vacations, the interim relief should have been granted---Impugned interim order neither gave an impression of a refusal nor acceptance---Till such time the defendants were served, the injunction should have been issued and Trial Court could only refuse the temporary injunction after getting reply from the defendants---Impugned order passed by the Trial Court was unknown to the scheme of law---High Court directed, in circumstances, that the Trial Court would decide the application for grant of temporary injunction, even if court had to fix the matter for shorter date and decide the same on merits---Impugned interim order passed by the Trial Court, for all purposes was laconic and illegal to the extent, it was directed that the decision would be made after getting written statement from. the defendants---High Court further directed that the Trial Court would attend to the application for temporary injunction and pass an appropriate order after getting reply to said application for interim relief---Till such time the appropriate orders passed by the Trial Court, the injunction would remain operative in the terms prayed for.

Muhammad Iqbal Khan for Petitioners.

Mian Hafeez-ur-Rehman for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 568 #

2010 M L D 568

[Lahore]

Before Ijaz Ahmed Chaudhry, J

MODEL TOWN COOPERATIVE HOUSE BUILDING SOCIETY LTD. through Managing Committee---Petitioner

Versus

SECRETARY COOPERATIVES and 2 others---Respondents

Writ Petition No. 21566 of 2009, decided on 21st December, 2009.

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

----S.43---Constitution of Pakistan (1973), Art. 199---Constitution petition---Order of Registrar for holding inquiry into serious allegations levelled against society in private complaints without issuing notice to society---Validity---Registrar was not mandatorily required to issue notice to society before holding such inquiry---Inquiry under S.43 of Cooperative Societies Act, 1925 had been ordered on basis of serious allegations---High Court repelled such plea and dismissed constitutional petition in circumstances.

Karachi Administration Employee Cooperative Housing Society Ltd. v. Government of Sindh and others 2004 YLR 1070 ref.

Pir Ellahi Bukhsh Co-operative Housing Society Ltd., Karachi v. Registrar Co-operative Societies, Karachi and others 1968 SCMR 423 and Muzaffar Ali Shah and others v. Registrar, Co-operative Societies, Karachi and Muhammad Zafar PLD 1968, Karachi 422 rel.

(b) Administration of justice---

----Lingering litigation on basis of technicalities---Validity---Such practice could not be appreciated in dispensing justice as technicalities should not come in the way of substantial justice and people should not be ousted on ground of technicalities.

Imtiaz Ahmad v. Ghulam Ali and 2 others PLD 1963 SC 382 fol.

Rana Nasrullah Khan for Petitioner.

Waqar A. Sheikh and Malik Mushtaq Ahmad for Respondent No.3.

Imtiaz Ahmad Kaifi, Addl. A.-G. with Muhammad Ilyas Mufti, Circle Registrar.

MLD 2010 LAHORE HIGH COURT LAHORE 579 #

2010 M L D 579

[Lahore]

Before Mazhar Hussain Minhas, J

ABDUL HAMEED---Petitioner

Versus

Chaudhary QUDRAT ULLAH---Respondent

Civil Revision No. 97 of 2006, heard on 11th June, 2009.

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

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Suit for pre-emption filed by the plaintiff had concurrently been decreed by the Trial Court and Appellate Court---Plaintiff, according to his own statement, must have acquired knowledge of sale on date and time when he received copy of registered sale-deed, but he did not make Talb-i-Muwathibat at that point of time---Requirement of first demand as provided by S.13(2) of Punjab Pre-emption Act, 1991, had not been fulfilled---Said discrepancy escaped notice of the Trial Court as well as Appellate Court---Courts below were not justified to observe that requirement of Talb-i-Muwathibat had been fulfilled---Since courts below had not properly appreciated the evidence of the plaintiff, both judgments and decrees of both courts below were unsustainable in law---Impugned judgments and decrees passed by Trial Court as well as Appellate Court, were set aside and suit of the plaintiff was dismissed for want of necessary talbs.

Mian Pir Muhammad and another's case PLD 2007 SC 302 ref.

Liaqat Ali Butt for Petitioner.

Zafar Ullah Cheema for Respondent.

Date of hearing: 11th June, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 585 #

2010 M L D 585

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Sayyeda ROBINA SHAHAB NAQVI---Petitioner

Versus

Sayyed SAFDAR HUSSAIN and another---Respondents

Writ Petition No. 1947 of 2009, decided on 5th October, 2009.

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

----S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Marriage---Proof---Recovery of dower and maintenance---Petitioner claimed to be wife of respondent and sought recovery of dower, dowry articles and maintenance allowances while respondent denied any relation with petitioner and filed suit for jactitation of marriage---Family Court decreed the suit filed by petitioner and dismissed that of respondent but Lower Appellate Court reversed the judgments---Validity---Petitioner was not able to tell particulars of family members of her husband i.e. respondent---Petitioner stated that Nikah ceremony was solemnized at about 3 p.m., whereas her witness stated that he recited Nikah of spouses after Maghreb (sunset) prayer---Respondent totally denied execution of Nikahnama tendered by petitioner and she never asked the Court to take specimen/sample of signatures of respondent for its comparison from finger print expert in order to show its truthfulness---All such facts cast doubt about credibility of petitioner's version and she failed to prove valid execution of Nikah of spouses as alleged by her---Nikah Khawan did not deliver copy of Nikah to respondent which was requirement of law and the same had also cast doubt about credibility of Nikah proceedings---Nikahnama revealed that two persons were cited as witness of Nikah but only one appeared as scribe of Nikahnama while other witness did not appear in witness box---Appraisal of evidence made by Lower Appellate Court was more convincing and believable as compared to appraisal of evidence recorded by Family Court---Lower Appellate Court rightly decreed suit of respondent for jactitation of marriage and rightly dismissed suit of petitioner for dower, dowry articles and maintenance allowance, as she had failed to prove valid Nikah with respondent---High Court declined to interfere in the judgment and decree passed by Lower Appellate Court---Petition was dismissed in circumstances.

Ch. Asif Karim for Petitioner.

Tahir Mehmood for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 588 #

2010 M L D 588

[Lahore]

Before Ijaz ul Ahsan, J

USAMA JAVAID---Petitioner

Versus

CHAIRMAN, HIGHER EDUCATION COMMISSION and 4 others---Respondents

Writ Petitions Nos. 567 of 2008, 954 and 1877 of 2009, heard on 3rd February, 2010.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Educational institution---Provisional admission---Non-issuance of degree---Candidates were given provisional admissions by the University with the condition that they would provide their complete documents within four weeks---Candidates completed their studies but University declined to award them their degrees on the ground that they failed to obtain minimum 50% marks in their bachelor degrees---Validity---Period of four weeks after commencement of semester was consciously fixed in order to ensure that candidates who had provisionally been admitted and did not meet eligibility criteria could be asked to leave at very initial stages of programme, so that time, effort and money was not wasted and candidates who did not meet minimum requirements could explore other career options with other institutions---If such would have been done, candidates would not have any cause for complaint, because they would have received refund of their fee, would not have invested their time, efforts and energy in studying for a programme for number of years and would have opted for other programmes and career paths/options available in other institutions, such was the basis and reason to put four weeks limit---University authorities had to exercise such option within four weeks or at least within reasonable time---To allow University to exercise such option two years down the line with retrospective effect was neither just nor fair---Candidates had attended classes for two to four years, they had completed their course work successfully qualifying number of semesters, had paid all dues and fees, which were received by University without cavil and demur---Candidates had invested two to four years of their young lives in pursuit of their educational careers with the University---High Court declined to put clock back and deprive the candidates of precious years of their educational careers---While candidates might have been negligent in submitting their results, University had been equally indolent in taking appropriate action, if results were not received within four weeks of commencement of the semester---Having knowingly and consciously allowed candidates to attend courses, take examination, receive results for years, University was even otherwise estopped from taking a position which might be detrimental to the interests of candidates---High Court directed the University to issue degrees to those candidates who had successfully completed their course works and academic requirements for that degrees---High Court further directed the University that those candidates who were still enrolled and had not completed their respective course work, those candidates would be treated as regular students and awarded degrees once they would complete their course works and pass / qualify requisite examination (if any)---Petition was allowed accordingly.?

Hamza Khan v. Province of Balochistan through Secretary, Department of Education, Civil Secretariat, Quetta and others 1995 SCMR 711; Riaz ul Haq v. Selection Committee Constituted for Admission to Bolan Medical College through Secretary and 6 others 1997 SCMR 1845; Mst. Asma Nadeem v. International Islamic University and others 2002 MLD 290; Mehvish Shabbier v. Chief Executive Nishter Medical College, Multan and 3 others 2008 YLR 57; Chairman, Selection Committee/Principal King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad 1997 SCMR 15; Director General Ordnance Services, General Headquarters, Rawalpindi v. Muhammad Abdul Latif 2003 SCMR 410 and Bashir Ahmad Solangi v. Chief Secretary, Government of Sindh Karachi and 2 others (2004 SCMR 1864 rel.

Khawaja Waseem Abbas for Petitioner.

Mian Muhammad Waheed Akhtar for Respondent.

Date of hearing: 3rd February, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 599 #

2010 M L D 599

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

ATIF ABAIDULLAH---Appellant

Versus

THE STATE---Respondents

Criminal Appeal No. 156 and M.R. No. 169 of 2004, heard on 3rd March, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 85---Criminal Procedure Code (V of 1898), S.376(b)--- Qanun-e-Shahadat (10 of 1984), Art.41---Qatl-i-amd---Appreciation of evidence---Conviction and sentence on basis of confession of accused---Accused was convicted on the basis of his confessional statement made before the Trial Court after framing of charge of murder and no prosecution evidence, whatsoever was recorded by the Trial Court before proceeding further with the case---As capital punishment was likely to be awarded to accused solely for the reason that accused had admitted his guilt, the Trial Court should have recorded the prosecution evidence, but it failed to do so---Trial Court, in circumstances, had acted in an undue haste and proceeded to record judgment warranting death penalty in a cursory and careless manner, rather, over zealous manner---In view of mandate of subsection (b) of S.376, Cr. P.C., impugned judgment was termed as no judgment in the eye of law and was set aside and case was remanded to the Trial Court either to try case itself or to entrust same to some other court for its trial from the stage of plea of guilt/confessional statement of accused on the same charge which was framed against accused.

Ashiq Hussain v. The State 1993 SCMR 417; Ali Sher v. The State and 3 others PLD 1980 SC 317; Mehmood Khan v. The State 1991 PCr.LJ 2158; Loung v. The State 1976 PCr.LJ 204; Khyzar v. The State 1974 SCMR 295; Ghulam Qadir v. The State 2007 SCMR 782; Khalil Ahmad v. The State 2006 SCMR 685; Tariq Mehmood v. The State 2000 PCr.LJ 837 and Khan Baig v. The State PLD 1984 Lah. 434 ref.

Shoaib Zafar for Appellant.

Muhammad Zafar Khan, DPG for the State.

Muhammad Taqi Khan for Complainant.

Date of hearing 3rd March, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 608 #

2010 M L D 608

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Mst. SALBIA ZAFAR---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, KHANEWAL and another---Respondents

Writ Petition No. 4916 of 2009, decided on 1st January, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dowry articles---Recovery of---Prosperous families---Effect---Plaintiff filed suit for recovery of dowry articles or its value to the sum of Rs.15,45,295 and bridal gifts of valuing Rs.4,02,750---Suit was contested by defendant on the ground that alleged list of dowry articles produced by plaintiff was not correct and produced his own list of dowry articles---Trial Court decreed the suit of the plaintiff to the sum of Rs.1,500,000---Appellate Court on appeal, reduced total claim of the plaintiff from Rs.1,500,000 to Rs.500,000---Contention of the plaintiff was that list of dowry articles was exhibited without any objection of defendant and the same was in the knowledge of defendant---Validity---Both parties belonged to prosperous families, plaintiff was the only sister of seven brothers who were well off while defendant was a big agriculturist---Trial Court accepted the list of dowry articles produced by plaintiff and no objection was raised by defendant at the time of accepting the same---Defendant had not denied the gold ornaments, brought by plaintiff with her, from her parents---Claim of plaintiff to the extent of Wari, that is, bridal gifts was unrebutted---Judgment passed by Trial Court was more rational, based on cogent reasons and convincing arguments as compared to judgment of appellate court which seemed to be based on misreading and non-reading of evidence---High Court allowed the constitutional petition by setting aside the judgment passed by appellate court and restored the judgment passed by Trial Court.

Muhammad Habib v. Safia Bibi 2008 SCMR 1584; Mirza Shahid Baig v. Mst. Lubna Riaz 2004 CLC 1545; Muhammad Javed Iqbal v. Mst. Tahira Nahid 2002 CLC 1396; Mst. Shahnaz Begum v. Muhammad Shafi PLD 2004 Lah. 290 and 1080; Export Promotion Bureau and others v. Qaiser Shafiullah 1994 SCMR 859; Abdul Wali Khan through Legal Heirs and others v. Muhammad Saleh 1998 SCMR760; Muhammad Ramzan v. Judge, Family Court and others 2005 MLD 631; Abdul Faheem v. Mst. Shahnaz Begum 2003 CLC 1450 and Mst. Shabnam v. Liaqat Ali and 3 others 2004 MLD 69 ref.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Letter-head---Receipts---Preparation of---Effect---Person who gave his letter-head to someone for its use or for preparation of receipts, statement of such a person would not be believed.

Syed Muhammad Ali Gillani for Petitioner.

Syed M. Asad Abbas for Respondent.

Date of hearing: 4th December, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 621 #

2010 M L D 621

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

MUHAMMAD QAYYUM---Appellant

Versus

THE STATE---Respondents

Criminal Appeal No.1726 and M.R. No. 720 of 2003, heard on 10th March, 2010.

Penal Code (XLV of 1860)---

----S. 302(a)(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Delay, if any in lodging of F.I.R., had stood explained---Motive part of occurrence had been proved as there was no denial qua the existence of enmity between the parties---No dispute about the time and place of occurrence, however the manner of occurrence was disputed---Prosecution case was that accused had fired at the deceased, while acquitted co-accused had taken deceased into Japha who also received fire-arm injuries as a result of firing of accused---Complainant who was real brother of deceased had reasonably explained his presence at the spot and the defence could shake nothing from his testimony which remained consistent on all material particulars---Other prosecution witness who had adjacent land to the spot, had also reasonably proved to have witnessed the occurrence---Testimonies of said witnesses was in line with medical evidence furnished by the doctor who conducted the postmortem examination on the dead body of deceased---Prosecution case also found support from recovery of two crime empties which were taken into possession, which was proved by prosecution witnesses---Report of Forensic Science Laboratory in respect of the crime empties was positive---Prosecution, in circumstances, had proved its case against accused beyond any shadow of doubt---Charge of murder of deceased in the case was proved against accused, because in such like cases substitution was a rare phenomenon---Conviction and sentence of accused, in circumstances, was maintained, but under S.302(b), P.P.C. and not under S.302(a), P.P.C. because the requirement of S.302(a), P.P.C. was not proved, however, mitigating circumstances were available in favour of accused---Acquitted co-accused was injured in the case; it was not clear as to what exactly happened at the spot, coupled with the facts that accused had not repeated the fire at the deceased and only one fire-arm injury was caused by him---Case being of mitigation, sentence of death was converted into imprisonment for life.?

Mirza Zaheer Ahmad and another v. State and others 2003 SCMR 1164 and Muhammad Tariq v. The State 2004 SCMR 783 ref.

Ch. Imran Raza Chadhar for Appellant.

M. M. Alam Chaudhary, Additional Prosecutor-General Punjab for the State.

Kamran Mirza for the Complainant.

Date of having 1st March, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 631 #

2010 M L D 631

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

SHAHID RAZA---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, D.G. KHAN and 9 others---Respondents

Writ Petition No. 9430 of 2009, decided on 11th December, 2009.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ex parte decree---Fraud and misrepresentation---Allegation of---Proof---Controversy between the parties could only be resolved after framing issues and recording the evidence.

Messrs Dadbhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation Karachi 2002 SCMR 1761; Shafi Muhammad and 13 others v. Muhammad Farooq and 3 others 1989 CLC 937; Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236 and Industrial Development Bank of Pakistan v. National Engineering Works and others 1993 MLD 1344 ref.

Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236 and Muhammad Akram Malik v. Dr. Ghulam Rabbani and others PLD 2006 SC 773 rel.

Syed Jawad Jafri for Petitioner.

2010 M L D 662

[Lahore]

Before Mansoor Akbar Kokab and Tariq Javaid, JJ

ZEENAT KHALID---Petitioner

Versus

DISTRICT CO-ORDINATION OFFICER and 10 others---Respondents

Writ Petitions Nos. 7069, 3069 and 754 of 2008, decided on 26th January, 2010.

Constitution of Pakistan (1773)---

----Art. 199---Constitutional petition---Merit list---Consideration of---Cut off date---Plea of---Effect---Petitioner challenged the legality of admission granted to candidates on reserved seats in M.B., B. S. class on the ground that respondents were not authorized to entertain applications for admission after the cut off date---Respondent contended that no date was fixed for filing application for admission on reserved seats and further asserted that petitioner having secured lesser marks had been denied admission---Validity---Schedule did not show any date for filing of application forms for admission on reserved seats----Ambiguity regarding the cut off date for filing applications on reserved seats did exist---Petitioner had been considered in the merit list but could not compete and had been dropped---Constitutional petition was dismissed by High Court.

Peer Masood-ul-Hassan Chishti for Petitioner.

M.A. Hiraj for U.S.H.

Javed Saeed Peerzada, A.A.-G.

Kh. Noor Mustafa for Respondents.

Muhammad Tariq Rajwana for Respondents.

Muhammad Qasim, Litigant Assistant for N.M.C.

MLD 2010 LAHORE HIGH COURT LAHORE 674 #

2010 M L D 674

[Lahore]

Before Sh. Azmat Saeed, J

MUHAMMAD SIDDIQUE and 2 others---Petitioners

Versus

KHAN AMIR and another---Respondents

Civil Revision No.249 of 2009, decided on 29th June, 2009.

Civil Procedure Code (V of 1908)---

----O. IX, Rr.8 & 13---Dismissal of suit in default---Application for restorations of suit---On date fixed for recording of the evidence of the plaintiff, they having failed to appear, suit was dismissed in default---Application filed by the plaintiffs for restoration of suit had been dismissed even by the Appellate Court---Ground taken for restoration was that their counsel had incorrectly written the date of hearing---Application for restoration of suit was not supported by the affidavit of the counsel for the plaintiffs---Neither a copy of the diary nor of the file of the counsel for the plaintiffs was produced before the trial Court---Application for restoration of suit as well the appeal was dismissed---Plaintiffs, in circumstances, could not substantiate the reason for non-appearance, their application therefore, was rightly dismissed---No illegality or material irregularity was found in the exercise of jurisdiction by the two courts below warranting interference by High Court in exercise of its revisional jurisdiction.

Malik Muhammad Azam Awan for Petitioner.

Muhammad Amir Khan Niazi for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 685 #

2010 M L D 685

[Lahore]

Before Ijaz Ahmad Chaudhry, J

AMJID ALI and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Revision No.38 of 2010, decided on 9th March, 2010.

Penal Code (XLV of 1860)---

----S. 324---Attempt to commit qatl-i-amd---Appreciation of evidence---Accused had concurrently been convicted and sentenced by the Trial Court and Appellate Court---Injured who appeared as witness had deposed against accused persons; he clearly pointed out accusing fingers toward accused persons as stated by him in his statement made before the Police under S.161, Cr.P.C.---Medical evidence had revealed that the existence of locale of injuries mentioned in the F.I.R., were borne out---Doctor who had medically examined injured and the Police Officials who conducted the investigation had no enmity with accused persons to falsely implicate them in a case of that nature---Both the courts below had passed the impugned judgments after assessing and evaluating the evidence led before the Judicial Magistrate---Conclusion arrived at by both the courts below were such that every court could have reached the same conclusion upon a fair assessment of evidence available on the record---Minor discrepancies in the prosecution's evidence could not be made basis for setting aside the judgments and acquitting accused person---Even otherwise no jurisdictional infirmity, illegality of approach, irregularity of procedure or perversity of reasoning had been pointed out by the counsel for accused persons so as to interfere in the impugned judgments passed against them in the case---Revision was declined by High Court. ?

Zafar Iqbal Chohan for Petitioners.

MLD 2010 LAHORE HIGH COURT LAHORE 690 #

2010 M L D 690

[Lahore]

Before Mian Saqib Nisar, J

TALLAT MAHBOOB---Petitioner

Versus

SUI NORTHERN GAS PIPE LINES LTD. Through General Manager, Distribution Officer, Sargodha Road, Faisalabad ---Respondents

Civil Revision No. 1137 of 2009, decided on 14th December, 2009.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & S.115---Suit for declaration---Application for grant of temporary injunction---Plaintiff had claimed that he had procured the gas connection by bearing all the expenses from the main pipeline of defendant department to his CNG Filling Station---Claim of the plaintiff was that pipeline being owned by him, defendant should not be permitted to give the connection to third party---Suit filed by the plaintiff was accompanied by an application for the grant of temporary injunction, which was refused by the Trial Court---Counsel for the plaintiff had alleged that grant of gas connection to defendant was violative of the policy of the department---Validity---Agreement arrived at between the plaintiff and the department, placed op record, had provided that proprietary right of the gas pipelines and its maintenance would rest with the department, which would have the right to supply through that system at its own cost and without any compensation to the plaintiff---Plaintiff in the light of said agreement was estopped by his own conduct and on account of the clear and unambiguous stipulation in the agreement precluded to maintain a cause of action---No case having been made out for interference in the revisional jurisdiction of High Court, revision petition was dismissed.

Mian Ijaz Hussain for Petitioner.

Umer Sharif for Respondent No.1.

MLD 2010 LAHORE HIGH COURT LAHORE 692 #

2010 M L D 692

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Mian KASHIF MAHMOOD-UL-HASSAN---Petitioner

Versus

JUDGE FAMILY COURT, KAROR and 2 others---Respondents

Writ Petition No. 9384 of 2009, decided on 16th December, 2009.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Framing of appropriate issues---Application for---Dismissal---Effect---Plaintiffs filed suit for dissolution of marriage and maintenance allowances---Defendant contested suit and filed an application before Trial Court to frame appropriate issues---Trial Court dismissed application of the defendant---Validity---Impugned order was interim in nature and did not reflect characteristic of final adjudication of the dispute---High Court declined to interfere in constitutional jurisdiction---Constitutional petition was dismissed in limine.

PLD 1987 Lah. 9 ref.

Ishfaq Ahmad v. Judge Family Court 2007 YLR 1550; Abdul Karim v. Ata Mansoor 2007 CLC 1671 and Muhammad Irfan v. Judge Family Court 2008 CLC 585 rel.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Interim order---Scope---In family matters interim orders could not be assailed through constitutional petition unless any interim order attained the characteristic of final order.

Syed Athar Hassan Bukhari for Petitioner.

MLD 2010 LAHORE HIGH COURT LAHORE 695 #

2010 M L D 695

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SHAYAN through Mst. Shamim alias Shama ---Petitioner

Versus

NISAR AHMAD alias BAGGA and 2 others---Respondents

Writ Petition No.6825 of 2008, decided on 16th February, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintenance for daughter---Denial by father---Effect---Plaintiff/daughter filed suit for maintenance against her father on the ground that father had not maintained her and claimed for, past as well as future, maintenance at the rate of Rs.6000 per month---Suit was contested by father on the ground that he had divorced the mother of the plaintiff in the year 1994 before a punchayat and it was resolved therein that he should pay an amount of Rs.175,000 to the mother of the plaintiff and the mother would not claim maintenance of her daughter and had executed divorce deed, agreement and receipt for the same---Trial Court decreed suit of the plaintiff at the rate of Rs,3000 per month from the date of institution of the suit---Appellate Court, on appeal, reduced the maintenance from Rs.3000 to Rs.2000 per month and past maintenance with effect from the year 1999---High Court in constitutional petition remanded the case to Trial Court for decision afresh---Trial Court again decreed the suit of the plaintiff and awarded maintenance at the rate of Rs.2000 per month with effect from the year, 1999 to 2005 and future maintenance from the date of institution of suit---Appellate Court on appeals filed by both the parties allowed the appeal of the defendant and turned down the claim of past maintenance and dismissed the appeal filed by the plaintiff---Validity---Held, it was inalienable right of the daughter to be maintained by her father---Plaintiff/daughter was entitled to receive the maintenance from her father till her marriage; she was entitled to receive maintenance at the rate of Rs.2000 per month which was fair and reasonable and the past maintenance as claimed by her---High Court allowed the constitutional petition by reversing findings of the Appellate Court regarding past maintenance and upheld the findings of Trial Court.

Rasheed Ahmed v. Mst. Shamshad Begum and 3 others 2007 MLD 803 ref.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Agreement by minor---Effect---Any agreement by the minor would be void unless court expressly appointed a guardian or next friend keeping in view the interest of the minor for execution of such agreement.

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Daughter---Maintenance of---Liability---Scope---Plaintiff was daughter of the defendant and under the law, father was bound to maintain her till her marriage.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Minor daughter---Right of maintenance---Waiver by mother---Effect---Any agreement by the minor would be void unless court expressly appointed a guardian or next friend keeping in view the interest of the minor for execution of such an agreement---Agreement deed and receipt of money by the mother of the minor were not binding on the minor; it was inalienable right of the minor to be maintained by her father till her marriage.

Ch. Imtiaz Ahmad Kamboh for Petitioner.

Nemo for Respondent No.1.

MLD 2010 LAHORE HIGH COURT LAHORE 705 #

2010 M L D 705

[Lahore]

Before Manzoor Ahmad Malik, J

JAHANGIR ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1210-B of 2009, decided on 12th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)-Penal Code (XLV of 1860), Ss.302/109/148/149---Qatl-i-amd---Bail, grant of---Further inquiry---Accused though was nominated in the F.I.R., but the allegation against him was of abetment only---Enmity existed between the parties and criminal cases in the past were got registered against each other---Accused was not present at the time of occurrence---Even co-accused with whom accused had allegedly abetted the commission of offence had been declared innocent by the Police---All such points had made the case of accused one of further inquiry within the ambit of subsection (2) of S.497, Cr.P.C.---Accused though was not entitled to the concession of bail on .the medical ground as the Medical Board had opined that the patient/accused could be treated in the jail, but, at the time of examination of accused at the Institute of Cardiology his age was seventy two years and even as per Police record he was of the same age---Accused, was admitted to bail, in circumstances.

Abdullah Khan v. Abdul Qayyum and another 1997 PSC (Crl.) 99; Syed Amanullah Shah v. The State and another PLD 1996 SC 241 Zahoor Ahmad v. The State KLR 2006 Crl. Cases 445 and Raja Muhammad Irshad v. Muhammad Bashir Goraya and others 2006 SCMR 1292 ref.

Muhammad Ramzan Chaudhry for Petitioner.

Syed Imdad Hussain Hamdani for the Complainant.

Ch. Muhammad Zafar Khan, Deputy Prosecutor-General.

Ghulam Muhammad S.-I. with record.

MLD 2010 LAHORE HIGH COURT LAHORE 713 #

2010 M L D 713

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD AKHTAR SHEHZAD---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Writ Petition No. 9021 of 2009, decided on 3rd December, 2009.

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

----S. 13(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appellate order---Attained finality---Execution proceeding filing of---Effect---Appeal filed against ejectment order of Rent Controller was not assailed further---Landlord filed execution petition---Validity---Tenant could not assail the execution proceedings as he had failed to assail the appellate order which attained finality---Executing Court had committed no illegality in passing order in execution proceedings against the tenant---High Court declined to interfere in constitutional jurisdiction---Constitutional petition was dismissed by High Court.

Rao Abdul Qayyum for Petitioner.

MLD 2010 LAHORE HIGH COURT LAHORE 722 #

2010 M L D 722

[Lahore]

Before Sagheer Ahmad Qadri, J

MUHAMMAD SHAHID MAQBOOL BHATTI---Petitioner

Versus

SAJID HUSSAIN and another ---Respondents

Writ Petition No.477 of 2010, decided on 9th March, 2010.

Penal Code (XLV of 1860)---

----Ss.420/468/471---Criminal Procedure Code (V of 1898), S.561-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Cheating, forgery and using as genuine a forged document---Quashing of F.I.R.---Petition for---Petitioner, allegedly after procuring a stamp paper had shown a false Iqrarnama allegedly executed by the complainant/respondents' brother---No original document whatsoever was ever produced by the Investigating Officer; nor it was recovered from the possession of the petitioner---No mention was found on the record as to how and in which circumstances copy of Iqrarnama was secured by the Investigating Officer as no recovery memo was annexed with the file---Said document was never sent to any of the Handwriting Expert nor any information was sought whether the petitioner had ever signed that document---Allegedly the petitioner thumb-marked the stamp paper, but his thumb-impression was not visible and was not comparable; no Investigating Officer ever tried to get compared the thumb-impression on alleged document---F.I.R. and the subsequent investigation in circumstances, was just a nullity and abuse of process of law---Judicial Magistrate on the basis of report under S.173, Cr.P.C. had charged the petitioner under Ss. 468/471/506, P.P.C.---Allegations levelled in the F.I.R. in circumstances, were itself vague and the document allegedly present on record was a photostat copy which too was not in such a state that it could be relied upon--Investigating Officer under some extraneous considerations without going through the record and the law on the subject seemed to have prepared the report under S.173, Cr.P.C. and submitted in the court---Magistrate also did not apply his judicial mind while framing charge against the petitioner---Registration of the case and subsequent investigation as well as submission of report under S.173, Cr.P.C. and the charges framed by Judicial Magistrate, were clearly the abuse of process of law---F.I.R. and proceedings were quashed by the High Court, in exercise of powers under S.561-A, Cr.P.C. and Art.199 of the Constitution.?

Iftikhar Hussain Butt for Petitioner.

Raja Muhammad Hameed, A.A.-G.

Nasir, A.S.-I. Police Station Civil Lines, Rawalpindi with Record.

MLD 2010 LAHORE HIGH COURT LAHORE 738 #

2010 M L D 738

[Lahore]

Before Hassan Raza Pasha, J

ZAFAR IQBAL MALIK and another---Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION LILLA and 3 others---Respondents

Writ Petition No. 1372 of 2009, decided on 24th February, 2010.

Penal Code (XLV of 1860)---

----Ss.379/411---Constitution of Pakistan (1973), Art. 199---Theft and receiving stolen property---Constitutional petition---Quashing of F.I.R.---Petition for---Revenue record available on record, showed that petitioners were co-sharers in the disputed land, but in `Khana Kasht' their names were not mentioned---Prima facie, complainant alleged that the petitioners and other co-accused while armed with deadly weapons, cut the trees from the land possessed by the complainant party---If such allegations were accepted as correct at their face value, then the same prima facie disclosed commission of some cognizable offence even other than the offences mentioned in the F.I.R.---Police, in circumstances, had no option, but to 'mister the impugned F.I.R.---Allegations levelled against the petitioners and their co-accused in the impugned F.I.R., were purely factual in nature and petitioner's rebuttal of such allegations advanced by the counsel for the petitioner also necessarily required holding of an inquiry into disputed question of facts---Such exercise could not be taken by High Court in proceedings under Art.199 of the Constitution---Impugned F.I.R. was at its investigation stage; it was a statutory duty of the Police to investigate a crime reported to it and High Court would not like to scuttle or stifle the said duty of the Police at such a premature stage---Besides availing the constitutional remedy, there was also alternate remedy for the petitioners by making application under S.249-A, Cr.P.C. after submission of challan or by invoking the jurisdiction of competent court---Petition was dismissed, in circumstances.

2006 PCr.LJ 1900; 2006 PCr.LJ 1795; 2006 SCMR 276 and PLD 2009 Kar. 273 ref.

Raja Ikram Amin Minhas for Petitioners.

Abrar Ahmad Qureshi for the Complainant.

Syed Jalil Hussain A.A.-G.

Shahbaz A.S.-I. with record.

MLD 2010 LAHORE HIGH COURT LAHORE 741 #

2010 M L D 741

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ANWAR and 8 others---Petitioners

Versus

STATION HOUSE OFFICER and another---Respondents

Writ Petition No. 23286 of 2009, decided on 15th December, 2009.

Penal Code (XLV of 1860)---

----Ss. 399/402---Constitution of Pakistan (1973), Art. 199---Making preparation and assembling for the purpose of committing dacoity--Constitutional petition---Quashing of F.I.R.---Allegation against accused was that they were standing while armed with lethal weapons for the purpose of committing dacoity---Police or the Court had no touchstone to read the mind of an accused that he was to commit the offence---Intention of an accused for the commission of an offence could only be ascertained from the acts performed before the commission of the offence---As to how the complainant was able to read the minds of accused that they were to commit dacoity, was very surprising---Law did not make the person having such intention guilty of an offence, unless he would take some positive steps towards the commission of the crime, because there was a possibility of change of . mind at a subsequent stage---Impugned F.I.R., even if allowed to be proceeded, could not be expected to culminate into conviction of accused and the whole exercise would be a mere abuse of the process of law and sheer wastage of precious time of the Court---F.I.R. was quashed accordingly.?

Mian Muhammad Ismail Thaheem for Petitioners.

Imtiaz Ahmad Kaifi, Addl. Advocate-General for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 743 #

2010 M L D 743

[Lahore]

Before Abdul Sattar Goraya, J

JAMAL DIN and others---Petitioners

Versus

MUHAMMAD ISHAQ---Respondent

Civil Revision No.635 of 2008, heard on 11th June, 2009.

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

----S.13---Talb-e-Muwathibat---Delay---Effect---Plaintiff filed suit for pre-emption on the ground that he was co-sharer in the property and had the common source of irrigation---Trial Court decreed the suit and Appellate Court dismissed the appeal---Contention of the defendant was that performance of the Talbs was not in accordance with law--Plaintiff's witnesses stated in cross-examination that when the plaintiff gained knowledge of the sale transaction, after 10/15 minutes he made a performance of Talb-e-Muwathibat---Other such witness stated that after about five minutes, jumping demand was made---Validity---If the necessary Talbs were not performed in accordance with law in a mode provided by S.13, Punjab Pre-emption Act, 1991, the right of pre-emption would be extinguished---Both the Trial Court and the Appellate Court had misread the evidence and made incorrect interpretation of the deposition of the two material witnesses---Petition was accepted by High Court.

Ghulam Abbas and 2 others v. Muhammad Ilyas 2007 MLD 1978; Muhammad Siddique v. Muhammad Sharif and others 2005 SCMR 1231; Muhammad Saba v. Akbar Ali 2008 YLR 43 and Nabi Bakhsh v. Fazal Hussain 2008 SCMR 1454 ref.

Abdul Sattar Chaudhry for Petitioners.

Wali Muhammad Chaudhry for Respondents.

Date of hearing: 11th June, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 749 #

2010 M L D 749

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

RAZA ALI and 11 others---Plaintiffs

Versus

PROVINCE OF PUNJAB through District Collector, District Multan and 2 others---Respondents

C.R. No.868-D of 1996, decided on 14th December, 2009.

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

----S. 42---Suit for declaration along with possession claiming to be owners of the disputed land through mutation sanctioned in the year 1964---Plaintiffs also challenged the orders passed by Revenue Courts---Defendants contested suit on the ground that their predecessor-in-interest had never admitted himself as a vendor rather he challenged the alleged sale and mutation on the plea of fraud and misrepresentation---Trial Court dismissed suit of the plaintiff--Appellate Court on appeal, also dismissed the same---Validity---Concurrent findings of both courts below were based on best appraisal of evidence which were not arbitrary and fanciful---Plaintiffs had failed to point out any misreading or non-reading of evidence in the impugned judgments---High Court declined to interfere in revisional jurisdiction---Revision petition was dismissed by High Court.

Manzoor Ahmad v. S. Taslim Hussain and others 1980 SCMR 314; A.R. Khan v. P.N. Boga PLD 1987 SC 107 and Noor Samad v. Muhammad Aslam and 16 others 1986 MLD 431 distinguished.

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

----S. 115---Concurrent findings---Revisional jurisdiction---Scope---Concurrent findings with regard to facts of the case and law are not challengeable in revisional jurisdiction.

Mian Muhammad Jamal for Petitioner.

Rao Ubaid Ali Khan for Respondents Nos.3A to 3-G.

Mr. Aurangzeb Khan, A.A.-G.

MLD 2010 LAHORE HIGH COURT LAHORE 758 #

2010 M L D 758

[Lahore]

Before Ch. Iftikhar Hussain, J

PARGAT MASIH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 3490-B of 2009, decided on 5th November, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.420//468/471---Cheating, forgery for purpose of cheating and using as genuine a forged document---Bail, grant of---Accused was a previous non-convict and was in jail for the last about four and a half months---Offence under Ss.420/471, P.P.C. was bailable and the offence under S.468, P.P.C. did not fall within the prohibition contained in S.497(1), Cr.P.C.---Grant of bail in such like cases was a rule and refusal an exception---Alleged forged document i.e., agreement to sell was under determination in a suit of specific performance pending in a Civil Court---Till the decision by Civil Court case against accused was open to further inquiry into his guilt, as contemplated under S.497(2), Cr.P.C-Accused was granted bail in circumstances.

Safeer Hussain v. The State 2009 PCr.R 947 ref.

Ansa Naseem for Petitioner.

Ishfaq Ahmad Malik, D.P.G. for the State.

Muhammad Sarwar Respondent No.2. with Asad Hussain Ghalib for the Complainant.

Riaz Ahmad, A.S.-I. with police record.

MLD 2010 LAHORE HIGH COURT LAHORE 760 #

2010 M L D 760

[Lahore]

Before Hasnat Ahmad Khan, J

WAQAS SAJID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.10743-B of 2009, decided on 11th September, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, refusal of---Cheque issued by accused in favour of the complainant, having been dishonoured, documentary evidence was on record against the accused---Contention raised by accused that the facts of the case did not attract provision of S.489-F, P.P.C., required deeper appreciation of evidence, which was not permissible at bail stage---Even otherwise under S.118(a) of Negotiable Instruments Act, 1881, until the contrary was proved, it would be presumed that every negotiable instrument, was made or drawn for consideration---After registration of the case, accused did not opt to surrender himself before the Police, but he became a fugitive from law, consequently after completion of the process of law, he was declared proclaimed offender---Accused was not a man of clean slate, rather he stood involved in sixteen criminal cases of similar nature---Offence with which accused had been charged, though did not fall within the prohibitory clause of S.497, Cr.P.C.; and normally in such like cases grant of bail was a rule, but in exceptional cases bail could be refused, even in cases which did not fall within the prohibitory clause---Considering the credentials of accused, there was every likelihood of his abscondance in case of grant of bail in his favour---Bail was declined.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Muhammad Akram v. The State 2009 PCr.LJ 497; Nasrullah Khan v. The State 2007 PCr.LJ 1052; Zahoor Illahi and another v. Shahzad Ahmad and another 2007 PCr.LJ 1056 and Rashid Maqbool v. Mujahid Butt and another 2004 YLR 2251 rel.

Pir S.A. Rasheed for Petitioner.

Ch. Muhammad Zafar Khan, Deputy Prosecutor General with Arshad, A.S.-I.

Muhammad Shafiq Razi and Ch. Shahid Javed for the Complainant.

MLD 2010 LAHORE HIGH COURT LAHORE 763 #

2010 M L D 763

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

KAREEM BAKHSH---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 3 others---Respondents

Writ Petition No. 1999 of 2004, decided on 11th June, 2009.

(a) Conciliation Courts Ordinance (XLIV of 1961)---

----Ss.3, 5 & 7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Conciliation Court---Jurisdiction---Application for recovery of money was filed before Nazim of Union Council, who referred the matter to arbitrator---Arbitrator passed award for recovery of Rs.26,100/- in favour of respondent and Nazim prepared decree sheet for a sum of Rs.24,000/- against petitioner---Decree prepared by Nazim was maintained by lower Appellate Court---Validity---Word "refer" could not be equated with word "instituted" so Nazim as Conciliation Court could not entertain any plaint directly---Proceedings before Nazim were without jurisdiction and without lawful authority---Application by respondent could not be considered as plaint---Pecuniary jurisdiction and power of Conciliation Court was dealt under S.7 (2) of Conciliation Courts Ordinance, 1961, which was upto Rs.20,000/-under Part-I to Schedule of Conciliation Courts Ordinance, 1961, in matter of civil case---Nazim of Union Council in referring the matter to arbitrator committed illegality---Proceedings initiated by Nazim were without jurisdiction and subsequent proceedings before Lower Appellate Court and Executing Court could not sustain in the eye of law---If basic order was without jurisdiction or coram non judice, subsequent order would also meet the same fate and superstructure on the same would fall---Conciliation Court under S.5 of Conciliation Courts Ordinance, 1961, was a body consisting of Chairman and two representatives to be nominated in prescribed manner by each of the parties---Nothing was available on record which indicated that petitioner had nominated any person as his representative---Proceedings and order passed by Nazim were without lawful authority, without jurisdiction and the same were set aside---High Court remanded the case for deciding the matter afresh in accordance with law---Petition was allowed accordingly.

(b) Administration of justice---

----If law requires that an act must be done in a particular way, it should be done in that manner as prescribed by law.

Pir Muhammad Asif Rafi for Petitioner.

Nemo for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 766 #

2010 M L D 766

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD BILAL---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 3920/B of 2009, decided on 4th November, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Bail, grant of---Benefit of doubt---Accused was not nominated in the F.I.R. and it was a blind murder---Implication of accused being doubtful, benefit of doubt would go to accused even at bail stage---No evidence was available to connect accused with commission of the offence---Accused was admitted to bail, in circumstances.

Babar Hussain v. Muhammad Rashid Khan and another 2000 PCr.LJ 980 and Amir v. The State PLD 1972 SC 277 rel.

Ch. Faqir Muhammad for Petitioner.

Tanvir Haider Buzdar for the State.

Muhammad Akram, S.-I., with record.

MLD 2010 LAHORE HIGH COURT LAHORE 768 #

2010 M L D 768

[Lahore]

Before Abdul Sattar Goraya, J

MASOOD AHMAD---Petitioner

Versus

SENIOR MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and 4 others---Respondents

Writ Petition No.3707 of 2009, heard on 4th June, 2009.

Colonization of Government of Lands (Punjab) Act (V of 1912)---

---Ss. 10, 32 & 34---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Lease of State land under Temporary Cultivation Scheme---Deposit of price of land by petitioner after Collector declared him eligible to acquire proprietary rights thereof---Insertion of respondents' name in Khasra Girdawri in collusion with Revenue Staff before granting of proprietary rights to petitioner---Eviction of respondents from land by order of Collector passed on application of petitioner---Operation of eviction order suspended by Member, Board of Revenue in appeal filed thereagainst by respondents and directed to put them in possession of land, which was accordingly done by Collector---Validity---Respondents had got their names inserted in Khasra Girdawri with a view to get land cancelled from petitioner's name and, then get same transferred in their names---While passing injunctive order, Member, Board of Revenue had been misled by respondents---Collector instead of putting respondents into possession of land under cover of injunctive order, was bound to report to Member, Board of Revenue that before passing such order, possession of petitioner had already been restored---Such act of Collector was unlawful and mala fide---Resumption order could not be passed against petitioner after having paid sale price of land---Filing of suit by respondents for permanent injunction to protect their possession during pendency of constitutional petition was a mala fide act and misuse of process of law---Respondents had obtained interim order in such suit by keeping Trial Court in dark---High Court declared impugned order of Board of Revenue to the extent of suspending operation of order of Collector to be without lawful authority and of no legal effect, resultantly restitution of possession of petitioner would follow---High Court further directed Member, Board of Revenue to examine conduct of Collector and subordinate officials and proceed against them as they had made entries in Khasra Girdawri and put false reports in such matter.?

Secretary to Govt. of Pakistan West Pakistan v. PLD 1978 SC 242 ref.

Hassan Ahmad Khan Kanwar for Petitioner.

Malik Mushtaq Ahmad Khan Naunari for Respondents Nos. 4 and 5.

Amjad Ali Chattha, Asst: Advocate-General.

Ghulam Farid, EDO(R) and M. Qasim Siddiqui, DDO(R).

Date of hearing: 4th June, 2009.???????????

MLD 2010 LAHORE HIGH COURT LAHORE 773 #

2010 M L D 773

[Lahore]

Before Ijaz Ahmad Chaudhry and Sh. Najam ul Hassan, JJ

MUHAMMAD NADEEM---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.15336-B of 2009, decided on 15th December, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 25---Possession of narcotics---Bail, grant of---"Charas" weighing four kilograms was allegedly recovered from the possession of accused---Accused was behind the bars for the last three years anti only two prosecution witnesses had so far been examined in the case by Trial Court---Conclusion of trial in the near future was not likely---Early decision of the case was right of accused---Accused was not responsible for delay in conclusion of the trial and he could not be kept in jail for an indefinite period---Bail was allowed to accused in circumstances.

Muhammad Ahsan Nizami for Petitioner.

2010 M L D 800

[Lahore]

Before Sh. Azmat Saeed, J

LAHORE STOCK EXCHANGE LTD. through Managing Director and another---Petitioners

Versus

Messrs HASSAN ASSOCIATES through Managing Partner---Respondent

C.Rs. Nos. 2605 and 2893 of 2009, decided on 24th March, 2010.

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

----Ss.42, 21 & 56(f)---Arbitration Act (X of 1940), S.20---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration---Plaintiff filed a suit for declaration and grant of permanent injunction to restrain defendant from terminating the original arbitration agreement in consequence of a supplementary agreement---Plaintiff also filed an application for temporary injunction which was dismissed by the Trial Court---Appellate Court granted mandatory injunction restraining defendant from the breach of agreement with direction to the Trial Court before whom the appeal under section 20 of Arbitration Act, 1940 was stated to be pending to ensure expeditious conclusion of arbitration proceedings---Validity---Agreement could not be specifically enforced as the entitlement of plaintiffs could be measured in pecuniary terms; furthermore, the agreement pertained to and was dependent upon the professional qualifications of the plaintiffs and ran into minute and numerous details which could not be overseen by any court of law---Grant of injunction was barred by section 56(f) of Specific Relief Act, 1877 in respect of contracts which could not be specifically enforced---Appellate Court arrogated into itself powers which did not vest in it, by issuing directions qua arbitration to the court against the order whereof the appeal had been filed despite the fact that application under S.20 of Arbitration Act, 1940 was not pending in such court---Directions, therefore, were not only illegal but also without jurisdiction---Impugned judgment was set aside by High Court.

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

----S. 21---Contract not specifically enforceable---Where entitlement of a party could be measured in pecuniary terms, the agreement was specifically enforceable---Where agreement pertained to and was dependent upon the personal professional qualification and ran into minute and numerous details, the same could not be specifically enforced.

----S. 56(f)---Injunction, refusal of---Injunction could not be granted to prevent the breach of a contract which was not specifically enforceable.

Abid Aziz Sheikh for Petitioner.

Jawad Hassan for Petitioner (in C.R. No.2893 of 2009).

Ghulam Mustafa Shahzad for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 805 #

2010 M L D 805

[Lahore]

Before Nasir Saeed Sheikh and Mian Shahid Iqbal, JJ

SARDAR KHAN and another---Applicants

Versus

SADIQ alias MUHAMMAD SADIQ through legal heirs and others---Respondents

R.A. No.7 of 2005, in C.R. No. 1277 of 1997, heard on 24th March, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XLVII, R.1, O.XLI, R.27 & O.XXXIX, Rr.1, 2---Suit for declaration and permanent injunction---Plaintiffs assailed registered sale-deed---Trial Court dismissed suit---Appeal was accepted by Additional District Judge and decree of Trial Court was set aside---Revision was filed but the same was dismissed by single Judge of the High Court---Application for review---Scope---Petitioners in review application contended that revision was decided without disposing petitioners' civil miscellaneous application for producing additional evidence which amounted to miscarriage of justice---Petitioners' counsel further contended that the case was mishandled by the counsel who argued the revision in her place by making an incorrect admission that the possession of suit property lay with the respondents, therefore revision was incorrectly decided---Respondents alleged that under the pretext of review application the petitioners had attempted to argue the main petition on merits and that the counsel who argued the case, admittedly, belonged to the chamber of the original counsel but the fact was not mentioned in review application---Validity---Held, civil revision was decided by single Judge on merits after conscious application of mind on points raised at the time of hearing the revision petition---Petitioners' request for producing additional evidence was declined in review because the document sought to be produced had been in petitioners' possession when the suit was decided but the said document was neither produced before Trial Court nor before the Appellate Court---Counsel for the petitioners had made an attempt to re-argue the matter on merits which exercise could not be permitted while hearing an application for review---Counsel who argued the revision was fully authorized to argue the matter, a fact admitted by the counsel for the petitioners and no specific objection was raised to his authority in review application, therefore, the contention of the counsel that the case of petitioners had been prejudiced in the process, was without substance and was repelled---Review application was dismissed.

2006 SCMR 425; 2006 SCMR 1574; 2007 SCMR 755; 2008 SCMR 554 and 2008 SCMR 562 ref.

Mrs. Nasira Iqbal for Appellants.

Mrs. Naveed Shaheryar Sheikh and Zafar Iqbal Chohan for Respondents.

Date of hearing: 24th March, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 813 #

2010 M L D 813

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD SHAFIQ---Petitioner

Versus

Mst. SAADIA PARVEEN and 2 others---Respondents

Civil Revision No.871 of 2000, decided on 8th March, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXVII, R.2---Suit for recovery of money---Plaintiff asserted that defendant issued pay order in his favour but later got the same cancelled, resultantly, plaintiff could not receive the suit money of Rs.65,000 as the pay order could not be encashed---Suit was dismissed---Appellate Court accepted the appeal and passed a decree of Rs.65000---Validity---Evidence on record proved beyond shadow of doubt that petitioner issued pay order but subsequently got it cancelled and received back the amount of pay order which was not encashed by plaintiff---Appellate Court rightly passed the decree in circumstances.

Ch. Bashir Ahmad Chadhar for Petitioner.

Ch. Muhammad Abdullah for Respondent.

MLD 2010 LAHORE HIGH COURT LAHORE 830 #

2010 M L D 830

[Lahore]

Before Ch. Muhammad Tariq, J

Mst. BHAGHAN BIBI and 9 others---Petitioners

Versus

ATTA MUHAMMAD and 129 others---Respondents

Civil Revision No.753 of 2001, decided on 15th March, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), Ss.12(2), 24, 115 & O.XXXII, R.7---Suit for declaration---Plaintiffs claimed that they were occupancy tenants and entry in the revenue record to the effect that they were non-occupancy tenants was illegal and against the facts---Application for amendment of plaint with prayer to incorporate the plea of adverse possession was also filed but the same was rejected by the Trial Court---During pendency of revision before the District Judge, a compromise was filed before the court in the light whereof revision was dismissed and case was transferred/remanded to Trial Court which decreed the suit finally---Plaintiffs/petitioners challenged the compromise decree through an application under S.12(2), C.P.C. for setting aside the same and restoration of revision proceedings---Additional District Judge dismissed the application---Plaintiffs/ petitioners filed civil revision wherein they contended that Additional District Judge could not transfer the case under S.24, C.P.C. which empowered only a District Judge to transfer a case to original jurisdiction and that one of the plaintiffs was a minor, on whose behalf the compromise was effected in violation of O.XXXII, R.7, C.P.C.---Additional District Judge, after dismissing the revision had become functus officio, therefore, could not transfer the case to original jurisdiction; that respondents had failed to produce the original Power of Attorney in favour of the person who effected the compromise---Held, that before filing the application under S.12(2), C.P.C. the petitioners never challenged the said Power of Attorney---Simple denial of documents without any proof or cogent evidence was not warranted by law---Petitioners failed to point out any material discrepancy---Application under S.12(2), C.P.C. having been filed after ten years of compromise, was time barred and was not maintainable---Civil revision was dismissed.?

Malik Muhammad Akram Awan for Petitioners.

Muhammad Shahzad Awan for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 843 #

2010 M L D 843

[Lahore]

Before Sh. Azmat Saeed, J

MERAJ DIN---Petitioner

Versus

Mst. SARDAR BIBI and 5 others---Respondents

C.R. No. 148 of 2010, decided on 25th February, 2010.

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

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Gift---Essential ingredients-Suit for declaration and permanent injunction---Plaintiff called into question the alleged gift in favour of defendant---Suit was dismissed---Appeal also failed---Civil revision was accepted; appellate judgment and decree were set aside and the case was remanded to the first Appellate Court which accepted the appeal---Suit was decreed by Appellate Court and the gift was declared as ineffective against the interests of plaintiffs---Validity---Existence or absence of various factors might adversely affect the validity of the gift and its proof---Defendant failed to prove the transaction of gift and its ingredients i.e. offer, acceptance and transfer of possession---Mutation merely recorded the transaction which needed to be proved independently---Revenue Officer was never produced in evidence; only Patwari appeared and stated that mutation was recorded on the alleged statement of donor but made no mention of acceptance of the alleged gift by the defendant who never entered the witness box to prove his acceptance or transfer of possession---Transaction of gift and its ingredients were not proved---Appellate Court's findings did not suffer from any material irregularity in the exercise of jurisdiction warranting interference---Revision was dismissed.

(b) Islamic law---

----Gift---Necessary ingredients of a valid gift are offer, acceptance and transfer of possession.

----Gift---Mutation---Validity---Mutation merely recorded the transaction, which needed to be proved independently---Mutation in itself did not conclude the matter in the absence of proof of the transaction.

(d) Islamic law---

----Gift---Exclusion of heirs---Effect---Where gift was made to the exclusion of heirs, the absence of or reason or justification, thereof, adversely affected its validity.

(e) Islamic law---

----Gift---Validity---Where an oral gift was recorded through a mutation and the revenue officer attesting the same was not examined as a witness, serious doubt as to its validity would arise.

Amir Shah v. Ziarat Gul 1998 SCMR 593; Mst. Hajra Bibi and another v. Mst. Maryam Bibi and another 2000 SCMR 1021; Abdul Jabbar and others v. Muhammad Jabbar and others 2002 SCMR 1173; Khalil Ahmad v. Abdul Jabbar Khan and others 2005 SCMR 911; Abdul Mateen and others v. Mustakhia 2006 SCMR 50; Adam Khan and others v. Muhammad Sadiq 1995 MLD 506; Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana PLD 2003 SC 849 and Rahmat Ullah and other v. Saleh Khan and others 2007 SCMR 729 ref.

Abdul Rahim and others v. Mrs. Jannatay Bibi and 13 others 2000 SCMR 346 and Barkat Ali through Legal-Heirs and others v. Muhammad Ismail through Legal-Heirs and others 2002 SCMR 1938 rel.

M. Shehzad Shaukat for Petitioner.

Sh. Naveed Shaheryar for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 855 #

2010 M L D 855

[Lahore]

Before Iqbal Hameed ur Rahman, J

MUHAMMAD SAEED---Petitioner

Versus

MUHAMMAD SIDDIQUE and 10 others---Respondents

Civil Revision No.2556 of 2009, decided on 19th March, 2010.

(a) Islamic law---

----Preferential gift, mutation of---Scope---Gift mutation was presumed to be solemn till the same had been proved to be tainted with fraud, forgery or misrepresentation through cogent evidence---Concurrent findings of facts advanced by courts below were just and lawful---No interference was called for.

Section 149 of the Muhammadan Law ref.

(b) Islamic law---

----Preferential gift---Scope---Powers of a Muslim to dispose of the property by way of gift were unfettered---Gift could not be invalidated only because the heirs were deprived of their shares---No prohibition had been laid down under the Islamic law that a preferential gift could not be made.

----S.115---Revision---Scope---Revisional jurisdiction under S.115, C.P.C. could be exercised when the subordinate courts had exercised the jurisdiction not vested in them or had failed to exercise the jurisdiction so vested in them or material illegality/irregularity had been committed.

Mst. Nusrat Zuhra v. Mst. Azhra Bibi and others PLD 2006 SC 15 ref.

Mst. Nusrat Zuhra v. Mst. Azhra Bibi and others PLD 2006 SC 15; Umer Zad Shah and 2 others v. Karim Dad Khan 2004 CLC 1811; Alamgir Khan through L.Rs. and others v. Haji Abdul Sattar Khan and others 2009 SCMR 54 and Amir Abdullah Khan v. Kafaitullah Khan 2008 SCMR 756 rel.

Ali Abid Tahir for Petitioner.

Malik Amjad Pervaiz for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 870 #

2010 M L D 870

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD SIDDIQUE and 2 others---Petitioners

Versus

GOVERNMENT OF PUNJAB through Collector and another---Respondents

Civil Revision No.2200 of 2002, decided on 24th March, 2010.

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

----S. 42---Punjab Conferment of Proprietary Rights on Non-Proprietors Abadi Deh Act (I of 1995), Ss.3 & 5---Suit for declaration---Plaintiffs asserted that they were owners in possession through their forefathers, so allotment mutation in the name of defendant was liable to be cancelled---Trial Court decreed the suit---Appellate Court allowed appeal and set aside the order of Trial Court---Validity---Plaintiffs could not establish their possession and made inconsistent statements---Mere claim without corroboration had no status in the eye of law---Plaintiffs, being owners of other property, also, could not take the benefit of S.3 of Punjab Conferment of Proprietary Rights on Non-Proprietors Abadi Deh Act, 1995---Impugned judgment and decree were in accordance with law; no interference was called for---Civil revision was dismissed.

(b) Punjab Conferment of Proprietary Rights on Non-Proprietors Abadi Deh Act (I of 1995)---

---Ss. 3 & 5---Application of S.3, Punjab Conferment of Proprietary Rights on Non-Proprietors Abadi Deh Act, 1995---Scope---Section 3 of the Act was applicable only when a person was landless and person who owned other land could not take the benefit of S.3.

Ch. Muhammad Luqman, for Petitioners.

Ch. Muhammad Shabbir Gujjar, A.A.-G. for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 881 #

2010 M L D 881

[Lahore]

Before Ch. Muhammad Tariq, J

Mst. SHAZIA ZAHEER and 2 others---Petitioners

Versus

MUHAMMAD FAISAL and another---Respondents

Writ Petition No.1490 of 2010, decided on 17th March, 2010.

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

----S. 11(3)-Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dower, maintenance and dowry articles---Petitioner/plaintiff's counsel failed to appear---Family Judge closed the right of plaintiff's counsel to cross-examine the witnesses of respondent/defendant---Application of plaintiff's counsel for cross-examination of witnesses was also dismissed---Petitioner's counsel submitted an affidavit explaining the reason for his non-appearance that due to foot injury, he was unable to attend the court---Petition was accepted by High Court giving the petitioner one final opportunity to appear before Family Court and complete cross-examination---Constitutional petition disposed of accordingly.

Nadeem Iqbal Malik for Petitioners.

Saqib Gardner for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 888 #

2010 M L D 888

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

PROVINCE OF PUNJAB through Collector and 2 others---Petitioners

Versus

LIAQAT ALI---Respondent

Civil Revision No. 805 of 2002, decided on 15th March, 2010.

Specific Relief Act (I of 1877)---

---S. 42---Suit for declaration---Plaintiff asserted that the suit-land was allotted to him in the year 1959-60 under Grow More Food Scheme---Proprietary rights were granted to him vide order dated 5-6-1976 by Collector who later cancelled his allotment---Appeal against the said order was dismissed---Revision petition before the Board of Revenue also failed---Plaintiff assailed the above-mentioned three orders of Revenue authorities through civil suit---Trial Court found that father of defendant got the suit-land in his favour fraudulently and plaintiff, being a minor, was not entitled to allotment---Appeal was preferred before Appellate Court which was accepted---Validity---Defendants failed to establish that plaintiff was a minor at the time of allotment---Appellate Court had rightly set aside the judgment and decree passed by the Trial Court---Petition was dismissed.

Siraj-ul-Islam, Learned Assistant Advocate General for Petitioners.

Farooq Chishti Qureshi for Respondent.

MLD 2010 LAHORE HIGH COURT LAHORE 894 #

2010 M L D 894

[Lahore]

Before Ijaz-ul-Ahsan, J

Haji INAYAT ALI---Petitioner

Versus

Haji REHMAT ALI and 16 others---Respondents

Civil Revision No. 1246 of 2007, decided on 10th March, 2010.

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

----S. 42---Civil Procedure Code (V of 1908), O.XII, R.6, O.XXXIX, Rr.1, 2 & S.151---Suit for declaration and permanent injunction---Plaintiff alleged that he was in possession of suit-land which son of defendant sold to a third party through a Power of Attorney from the defendant---Trial Court ordered status quo and during the pendency of suit, with the consent of plaintiff's counsel, allowed the buyer of suit-land to raise construction at his own risk and on undertaking that the buyer would demolish the construction without any compensation in case the plaintiff succeeded in the suit---Trial Court, on the basis of statement/undertaking signed by the plaintiff, dismissed the application under 0.XII, R.6, C.P.C. and contempt petition filed by the plaintiff---Said order of the Trial Court was assailed but the Appellate Court dismissed the appeal---Plaintiff's counsel, in revision proceedings, contended that his signature on the order sheet of Trial Court did not signify his consent---Held, legal proceedings and order sheets of the courts carried a presumption of correctness and a certain sanctity was attached to them---Just on the basis of allegations, which were unsubstantiated, official records of the courts could not be brushed aside or disbelieved---Order sheet of the Trial Court indicated that relevant order was passed with the consent of the parties and the petitioner could not, at a belated stage be allowed to take a different position---Petitioner could not turn around and disown the order passed with his consent.

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

----O. XXXIX, Rr.1 & 2---Injunction, grant of---Scope---Successive applications for injunctive relief on the same facts was neither permitted by law nor could that trend be encouraged---In case, injunctive orders passed by the courts were flouted, the law conferred vast powers on the courts to enforce their orders in case the facts and circumstances required.

Ch. Binya Meen Khalil for Petitioner.

Sajid Javed for Respondents Nos. 2 to 8 and 10.

M. Khawar Saeed Saleemi for Respondent No.11 to 17.

Akram Shahid for Respondent No.9.

Date of hearing: 16th February, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 904 #

2010 M L D 904

[Lahore]

Before Ali Akbar Qureshi, J

Mst. SAJIDA BIBI---Petitioner

Versus

BABAR KHAN alias NASIR JAMAL AHMED KHAN and another---Respondents

Writ Petition No. 5377 of 2009, decided on 5th May, 2009.

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

----S. 5, Sched. & S.18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recovery of dowry articles and gold ornaments---Suit for---Appearance of husband as witness through special attorney---Validity---Legislature by way of provision of S.18 of the West Pakistan Family Courts Act, 1964 has only facilitated to wife to appear through attorney, whereas the husband is not permitted to do so.

Malik Zafar Iqbal for Petitioner.

Malik Salim Iqbal Awan for Respondent.

MLD 2010 LAHORE HIGH COURT LAHORE 910 #

2010 M L D 910

[Lahore]

Before Ch. Muhammad Tariq, J

Syed NAZAR HUSSAIN SHAH---Petitioner

Versus

MUHAMMAD AMEER---Respondent

Civil Revision No. 637 of 2008, decided on 1st April, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1, 2 & S.115---Interim injunction, application for---Trial Court dismissed application filed by the petitioner for grant of interim injunction and appeal filed against judgment of the Trial Court was also dismissed by the Appellate Court---Petitioner had challenged concurrent judgments of the two courts below alleging same to be illegal and against law and facts---Counsel for the respondent produced a certified copy of the judgment and decree and had stated that the main suit in which the petitioner had sought interim injunction, had been dismissed---Petitioner had left with no cause of action in view of said statement of respondent and certified copy of judgment and decree of said suit.

Allah Bakhsh Gondal for Respondent.

Rana Shamshad Khan, A.A.-G.

MLD 2010 LAHORE HIGH COURT LAHORE 911 #

2010 M L D 911

[Lahore]

Before Ali Akbar Qureshi, J

MUHAMMAD SHAH---Petitioner

Versus

HAIDER ALI SHAH through legal heirs and 3 others---Respondents

Civil Revision No.120 of 2009, decided on 30th June, 2009.

Limitation Act (IX 1908)---

----S.5---Civil Procedure Code (V of 1908), O. IX, R.13 & S.115---Application for condonation of delay---Application for setting aside ex parte decree was filed by defendant in a suit for possession through pre-emption---Along with the said application an application under S.5 of the Limitation Act, 1908 had also been filed---Both Trial Court and Appellate Court dismissed the application for setting aside ex parte decree---Contention of the defendant was that he was condemned unheard and the judgments impugned thereunder were violative of the principles of natural justice and were not maintainable---Validity---Record revealed that defendant filed an application for condonation of delay because of the reason, that the application for setting aside the ex parte judgment and decree was out of limitation but the same had not been disposed of by the courts below---Defendant had been non-suited on the question of limitation---Courts below were under legal obligation to dispose of the application under S.5 of the Limitation Act, 1908---No body should be condemned unheard and the court should decide the lis on merits instead of dismissing the same on technicalities---Courts below have failed to exercise the jurisdiction conferred upon them by law---High Court accepted revision petition and set aside the judgments and decrees passed by courts below and remanded the case to re-decide the same including application under S.5 of Limitation Act, 1908---Revision petition was allowed.?

Syed Lal Hussain Shah v. Lal Muhammad and 5 others 2005 CLC 1076 and Shah Muhammad Khan another v. Muhammad Haleem and 3 others 2000 YLR 101 ref.

Syed Sajjad Haideer Zaidi for Petitioner.

Syed Shabbar Hussain Bokhari for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 926 #

2010 M L D 926

[Lahore]

Before Saif-ur-Rehman, J

BASHIR AHMAD---Petitioner

Versus

NADAR and another---Respondents

Civil Revision No.2488 of 2002, heard on 22nd May, 2009.

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

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Suit had concurrently been dismissed by the Trial Court and Appellate Court---Validity---No time was mentioned by the plaintiff in his plaint as to when he came to know about sale in question and place was also not specified where he had received information that suit land had been sold---Plea not raised in the pleadings could not be considered---Suit, in circumstances was rightly dismissed concurrently by the two courts below.

1998 CLC 1001; PLD 1972 Pesh. 146; 1987 SCMR 1206; 1994 SCMR 1238; 1988 SCMR 1583; PLD 2003 Lah. 544; 1982 CLC 717; PLD 1993 Lah. 7; PLD 2007 SC 302; 2008 SCMR 404 & 1682 and 2003 YLR 3013 ref.

Ch. Abdul Hafeez for Petitioner.

Ch. Pervaiz Iqbal Gondal for Respondent.

Date of hearing: 22nd May, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 930 #

2010 M L D 930

[Lahore]

Before Ali Akbar Qureshi, J

GHULAM MURTAZA---Petitioner

Versus

NAZIA PARVEEN and another---Respondents

Writ Petition No.17117 of 2008, decided on 28th November, 2008.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dower amount/articles---Recovery of---Scope---Plaintiff filed a suit for the recovery of dowry articles or its value to the sum of Rs.1,11,100 and dower amount which was fixed at Rs.80,000 at the time of marriage, out of which Rs.500 had been paid and the remaining amount was yet to be paid---Defendant contested suit on the ground that dower amount was fixed Rs.500 only which had been paid to the plaintiff whereas Rs.80,000 was fixed as compensation/penalty, if the defendant divorced the plaintiff without any cause or contracted second marriage---Trial Court partially decreed the suit for an amount of Rs.20,000 on account of dowry articles and dismissed the claim of dower amount---Appellate Court allowed the appeal and decreed the dower amount of Rs.80,000 whereas the decretal amount of dowry articles was maintained---Validity---Record revealed that in column number 13, of nikahnama, the dower amount was mentioned as Rs.80,000 whereas in column number 14, the amount Rs.500 was mentioned in column number 15, it was mentioned that in case of "talaq" without any cause to the plaintiff or contracting second marriage, the defendant shall pay an amount of Rs.80,000--Defendant in circumstances, was liable to pay Rs.80,000 to the plaintiff on account of dower amount---Constitutional petition was dismissed in limine.?

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Nikahnama---Entry in .column number 19---Jurisdiction---Scope---Entry of amount made in column number 19, of Nikahnama to the effect that husband, in case of talaq without any cause or contracting second marriage, shall pay to the wife an amount of Rs.80,000---Wife can file a suit in the civil court for the recovery of the said amount, subject to proof of the condition mentioned therein as the Family Court had no jurisdiction to entertain such like matters. ?

Muhammad Yasin Hatif for Petitioner.

MLD 2010 LAHORE HIGH COURT LAHORE 933 #

2010 M L D 933

[Lahore]

Before Umar Ata Bandial, J

Mian MUHAMMAD ASIF---Petitioner

Versus

MUHAMMAD KASHIF QURESHI and 3 others---Respondents

Writ Petition No. 9129 of 2006, decided on 31st March, 2010.

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

----S. 13---Civil Procedure Code (V of 1908), O.I, R.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment petition---Application for impleadment as landlord by joint owner of the property under O.I, R.10, C.P.C.---Said application was allowed by the Rent Controller and petitioner's appeal thereagainst was dismissed---Tenant had been proceeded against ex parte in the petition filed against said two orders---Joint landlord made statement that he acknowledged the petitioner to be sole landlord and he had prayed that he would have no interest to join the ejectment petition pending before the Rent Controller---Joint landlords (Two brothers) had settled their dispute and on that account a statement had been made to the court by the respondent---Based on the statement made by joint landlord, impugned orders passed at his instance were recalled. ?

M. Ashraf Shagufta for Petitioner.

MLD 2010 LAHORE HIGH COURT LAHORE 934 #

2010 M L D 934

[Lahore]

Before Saif-ur-Rehman, J

MOONDA---Petitioner

Versus

FATEH MUHAMMAD and 2 others---Respondents

Civil Revision No.2061 of 2002, heard on 19th May, 2009.

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

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Suit of plaintiff had concurrently been dismissed by, the Trial Court and Appellate Court---Case of the plaintiff was that he had come to know about the sale on 16-6-1997 and he had made Talb-i-Muwathibat at once, but while appearing in the court as his own witness he stated that he came to know about the sale in question on 15-6-1997, when possession had been taken over by the defendants, which statement being mutually contradictory, was fatal---Contention of counsel for the plaintiff that said lapse occurred due to slip of tongue, was repelled---Said admission was extracted by the defendants through cross-examination---Said contradiction could not be taken as a minor discrepancy as same was material and substantial---Right of pre-emptian was a very weak right; if the law required to do a certain thing in a particular manner, it must have been done in accordance with the prescribed provisions of law---Punjab Pre-emption Act, 1991 required that Talb-i-Muwathibat should be made through a jumping demand; and within 15 days of the same Talb-i-Ishhad should be made---If a pre-emptor failed to make Talbs in accordance with the said requirements, his pre-emption right would be deemed to have been extinguished.

Budhu v. Liaqat Hussain and 18 others 1986 SC 2958; Saheb Khan through Legal Heirs v. Muhammad Pannah PLD 1994 SC 162; Haji Din Muhammad v. Mst. Hajran Bibi and others PLD 2002 Pesh. 21 and Hayat Muhammad v. Mazhar Hussain 2006 SCMR 1410 ref.

S. M. Tayyab for Petitioner.

Ch. Riasat Ali for Respondent.

Date of hearing 19th May, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 941 #

2010 M L D 941

[Lahore]

Before S. Ali Hassan Rizvi, J

ZULFIQAR HAIDER---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 7 others---Respondents

Writ Petition No. 6303 of 2009, decided on 5th June, 2009.

Punjab Rented Premises Ordinance (XXI of 2007)---

----S. 28---Constitution of Pakistan (1973), Art.199---Constitutional petition---Impleading as party in the appeal---Petitioner, pending the matter had filed an application for his impleading as party which application had been dismissed by the Special Judge (Rent)---Validity---Counsel for respondent had stated that he had no objection if constitutional petition was disposed of with the direction to the Appellate Court to decide the matter afresh and give decision on connected appeal---Impugned order was set aside and case was remanded to Appellate Court for decision afresh within stipulated period.

Muhammad Zafar Chaudhry for Petitioner.

Nadeem-ud-Malik for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 946 #

2010 M L D 946

[Lahore]

Before Pervaiz Inayat Malik, J

KHADIM HUSSAIN and 6 others---Appellants

Versus

Malik MUHAMMAD MUNIR---Respondent

F.A.O. No.60 of 2001, heard on 24th June, 2009.

Civil Procedure Code (V of 1908)---

----O. VI, R.17 & O. XLI, R.25---Amendment of pleadings---Appellate Court, jurisdiction of---Framing of additional issues---Scope---Suit filed by plaintiff was dismissed by Trial Court and during pendency of appeal, Lower Appellate Court allowed the plaintiff to amend his plaint and remanded the suit to Trial Court after framing additional issues---Validity---Amendments in pleadings could be allowed at any stage and appeal being continuation of suit / trial, Lower Appellate Court committed no illegality by allowing applications filed by plaintiff---By framing additional issue, Lower Appellate Court acted in accordance with law and such finding was unexceptionable calling for no interference---High Court declined to interfere in the order passed by Lower Appellate Court---Appeal was dismissed in circumstances.

1995 CLC 1889 and 1993 CLC 450 distinguished.

Tahir Mahmood for Appellants.

Sahibzada Nadeem Fareed for Respondent.

Date of hearing: 24th June, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 950 #

2010 M L D 950

[Lahore]

Before Nazeer Ahmad Ghazi, J

SHAHID IQBAL---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 613-B of 2009, decided on 17th March, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.337-F(v), 337-F(i) & 148/149---Causing damiyah and hashimah---Bail, grant of---Further inquiry---Accused was behind the bars since 29-11-2008 and was no more required for the purpose of further investigation---Recovery had not been effected from accused---Complainant party with the connivance of Medical Officer had got a fabricated Medico-legal Certificate with ulterior motive---Accused challenged said Medico-legal certificate of injured before the Judicial Magistrate, who constituted the Medical Board for re-examination of both the injured, but the injured did not appear before the said Medical Board---Case of accused was covered within the purview of S.497(2), Cr.P.C. and called for further inquiry into the guilt of accused ----Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

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

MLD 2010 LAHORE HIGH COURT LAHORE 952 #

2010 M L D 952

[Lahore]

Before Pervaiz Inayat Malik, J

GHULAM HUSSAIN KHAN through Legal heirs and 8 others---Petitioners

Versus

ALLAH BAKHSH through Legal heirs and 20 others---Respondents

C.R. No.958 of 2005, heard on 3rd June, 2009.

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

----S.28---Civil Procedure Code (V of 1908), S.115---Civil Court, bar of jurisdiction---Decision on merits---Trial Court and Lower Appellate Court concurrently declared that in view of S. 28 of West Pakistan Consolidation of Holdings Ordinance, 1960, Civil Courts had no jurisdiction---Validity---Once a Court or Authority reached to conclusion that it had no jurisdiction to entertain and adjudicate upon matter, in that eventuality, any observations or findings regarding merits were without jurisdiction and ab inito void---Judgments and decrees passed by courts below were upheld by High Court to the extent that suit filed by plaintiffs before Civil Court was barred in view of West Pakistan Consolidation of Holdings Ordinance, 1960, which stood dismissed on that score alone---Observations made in judgments and decrees passed by the courts below would be of no legal value being against law and were not to be taken into consideration by any forum by deeming that the same were non-existent---High Court declined to interfere in concurrent judgments and decrees passed by two courts below---Revision was dismissed in circumstances.

Amin ud Din Khan for Petitioners.

Mehr Haq Nawaz Hamayun for Respondent No.1.

Zafar Ullah Khan Khakwani, A.A.-G. on Court's call.

Date of hearing: 3rd June, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 954 #

2010 M L D 954

[Lahore]

Before Abdul Sattar Goraya, J

ZULFIQAR ALI KHAN---Petitioner

Versus

MUHAMMAD HAYAT and another---Respondents

Civil Revision No.990 of 2002, heard on 9th July, 2009.

Civil Procedure Code (V of 1908)---

----O.XX, R.5---Failure to record issue-wise finding---Scope---Appellate Court had recorded finding only to the extent of one issue---Remaining issues were left unattended---Counsel for the defendant conceded and stated that he had no objection if the case was remanded to Appellate Court for recording issue-wise finding---Validity---Appellate Court having not rendered judgment issue-wise, committed material illegality and irregularity in exercise of its jurisdiction.

Ch. Ehsan-ul-Haq for Petitioner.

Imran Javed Gill for Respondents.

Date of hearing: 9th July, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 958 #

2010 M L D 958

[Lahore]

Before Ali Akbar Qureshi, J

MEHMOOD ARSHAD and 9 others---Petitioners

Versus

KARAM RASOOL and 7 others---Respondents

Civil Revision No.2131 of 2007, decided on 27th May, 2009.

Civil Procedure Code (V of 1908)---

----S. 115---Revision---Limitation, question of---Maintainability---Scope---Judgment and decree was passed by Appellate Court on 12-7-2007---Petitioner applied for certified copy on 13-7-2007 which was obtained by him on 14-7-2007 from the copying agency whereas the revision was filed on 6-11-2007---Validity---Filing of civil revision after stipulated period was barred by time and the same was not maintainable in law---Revision petition was dismissed by High Court.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286; City District Government, Lahore through District Coordination Officer Lahore v. Mian Muhammad Saeed Amin 2006 SCMR 676; Dilbad Shah v. S. Rehmat Shah and others PLD 2007 Pesh. 103; Messrs Nida-e-Millat, Lahore v. Commissioner of Income Tax, Zone-I, Lahore 2008 SCMR 284; 11am Din v. Hassan Din and others PLD 2006 Lah. 121; Pakistan Telecommunication Mobile Ltd. v. Furqaan Hayat Khan and others. 2008 CLC 628; Abdul Qadir and 5 others v. Mst. Samina Zafar Khan and 32 others 2008 YLR 550; Said Muhammad v. Sher Muhammad and 2 others 2001 MLD 1546 and Muhammad Bashir and another v. Province of Punjab through Collector of District Gujrat and others 2003 SCMR 83 ref.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 rel.

Shoaib Zafar for Petitioners.

Nazir Ahmad Kamboh and Imtiaz Ahmad Kamboh for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 961 #

2010 M L D 961

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Maj (Rtd.) QAMAR-UD-DIN---Petitioner

Versus

MUHAMMAD IQBAL---Respondent

Criminal Miscellaneous No. 1153-M of 2009, decided on 15th December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 417(2-A)---Penal Code (XLV of 1860), S.489-F---Limitation Act (IX of 1908), S.5---Dishonouring of cheque---Appeal against acquittal---Daley, condonation of--- Application for---Appeal against order of acquittal was filed after about 5 months of passing of the order, whereas same should have been filed within 30 days of impugned order---Presumption of double innocence being available to acquitted accused, in appeal against acquittal, appellant had to explain and give the reasons for each and every day for filing the appeal, if it was time barred while in appeal against conviction, the delay was condoned favourably---Application under S.5 of Limitation Act, 1908 though was moved along with the appeal, but no sound reason had been given for filing the appeal with delay and for condonation of delay---Condonation of delay under S.5 of Limitation Act, 1908, otherwise was not available for filing appeal against acquittal under S.417(2-A), Cr. P. C.---Appeal was hopelessly time-barred and no sound ground being available to condone the delay in filing appeal, application for condonation of delay, was dismissed.

Roshan v. Muhammad Saleh and 2 others 2008 MLD 187 ref.

Ch. Faqir Muhammad for Petitioner.

MLD 2010 LAHORE HIGH COURT LAHORE 963 #

2010 M L D 963

[Lahore]

Before Abdul Sattar Goraya, J

SIRAJ DIN---Petitioner

Versus

Mst. SAJIDA PERVEEN---Respondent

Civil Revision No.1019 of 2008, heard on 15th June, 2009.

Specific Relief Act (I of 1877)---

----S. 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2---Suit for permanent and temporary injunction---Ingredients---Scope---Plaintiff filed a suit for permanent injunction to the effect that defendant might be restrained from interfering into the peaceful possession of the disputed land---Along with suit an application under O. XXXIX, Rr.1, 2, C.P.C. for grant of temporary injunction had also been filed---Trial Court granted application, restraining the defendant from interfering with the possession---Appellate Court on appeal accepted the same and set aside the order of the Trial Court---Validity--Dispute vested on the basis of Iqrarnama/lease---Amount of Rs.200,000 had been paid to the defendant---Validity of Iqrar nama or its authenticity could only be determined by the Trial Court---Plaintiff had been able to make out a prima facie and arguable case---In case of refusing temporary injunction, plaintiff would suffer an irreparable loss---Balance of convenience also was in favour of the plaintiff---High Court allowed the revision petition and set aside the appellate order.

Naseer Ahmad Bhutta for Petitioner.

Muhammad Sarwar Qamar for Respondent.

Date of hearing: 15th June, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 965 #

2010 M L D 965

[Lahore]

Before Ch. Naeem Masood, J

MUHAMMAD ALI and another---Petitioners

Versus

PROVINCE OF PUNJAB through District Collector Sahiwal and another---Respondents

Civil Revision No.867-D of 2003, heard on 20th April, 2009.

Specific Relief Act (I of 1877)---

----S.12---Colonization of Government Lands (Punjab) Act (IV of 1912), S.19---Specific performance of agreement to sell---State land, transfer of---Scope---Plaintiffs sought specific performance of agreement to sell by defendant for transfer of land allotted to her---Proprietary right was yet not granted in favour of defendant and her application for grant of such right was dismissed due to non-prosecution---Validity---Mere fact that defendant made application to Collector would not benefit plaintiffs as the same application was not granted---Patwari had clearly stated in his statement that property in question belonged to Provincial Government and proprietary rights of the same had not yet been granted to defendant---High Court declined to take any exception to judgment and decree passed by Lower Appellate Court whereby suit filed by plaintiffs was dismissed---No illegality or material irregularity was committed by Lower Appellate Court---Revision was dismissed in circumstances.

Mst. Rehmat Bibi and others v. Mst. Jhando Bibi and others 1992 SCMR 1510 and Muhammad Sadiq v. Muhammad Ramzan and 9 others 2002 SCMR 1821 ref.

Syed Muhammad Husain Shah Qadri for Petitioners.

Mian Abbas Ahmed, Addl. A.-G. for Respondent.

Date of hearing: 20th April, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 969 #

2010 M L D 969

[Lahore]

Before Arshad Mahmood, J

ALIA and others---Petitioners

Versus

SARDAR MUHAMMAD---Respondent

Civil Revision No. 315-D of 1993, decided on 24th June, 2009.

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

----S. 5---Suit for possession through pre-emption---Defendant contested suit---At the time of recording evidence of defendant's witnesses, the counsel for the plaintiffs made an offer that if lambardar made a statement on oath at Holy Quran that at the time of purchase of disputed land by the defendant, defendant had asked the plaintiffs to purchase the land, suit of the plaintiffs be dismissed---Trial Court after recording statement of lambardar dismissed the suit--Appellate Court also dismissed the appeal---Plaintiffs asserted that lambardar had not made the statement according to the terms of reference---Validity---Lambardar did make a statement on oath on the Holy Quran but stated that he himself had offered the property to the plaintiff before its purchase by the vendee---Lambardar had no authority to offer the land to the plaintiff before its purchase by the vendee, therefore, the statement made by him that he himself had offered the disputed property to the plaintiffs had no sanctity in the eyes of law---Statement on oath demanded by the plaintiff was never made either verbatim or in letter and spirit---Suit could not be dismissed on the said statement of lambardar---High Court allowed the revision petition and remanded the case to Trial Court after recording of remaining evidence and to decide the matter on merits.

Athar Rehman Khan for Petitioners.

Bashir Ahmad Chaudhry for Respondent.

Date of hearing: 3rd June, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 977 #

2010 M L D 977

[Lahore]

Before Manzoor Ahmad Malik, J

NOOR MUHAMMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 15057-B of 2009, decided on 27th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/337-L(ii)/148/149 & 109---Attempt to commit qatl-a-amd---Bail, refusal of---Specific allegation of causing injuries and outraging the modesty of a woman were levelled against accused duly supported by the medical evidence---Contentions raised by the counsel for accused required deeper appreciation of evidence which was not permissible at bail stage---Prima facie, sufficient implicating evidence was available against accused---Offence fell within the ambit of prohibitory clause of S.497, Cr. P. C. ---No ground for grant of bail having been made out, bail application was dismissed, in circumstances.

Sher Afgan Asadi for Petitioner.

Zahid Aslam Malik for the Complainant.

M.M. Alam Chaudhary, Addl. Prosecutor-General for the State.

MLD 2010 LAHORE HIGH COURT LAHORE 978 #

2010 M L D 978

[Lahore]

Before Sh. Azmat Saeed, J

ABDUL REHMAN and 2 others----Petitioners

Versus

ZAINAB BIBI---Respondent

Civil Revision No. 2765 of 2005, decided on 2nd April, 2010.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.59---Transaction of gift disinheriting a pardanashin lady---Suit for declaration challenging the mutation of Gift entered in revenue record transferring suit-land in favour of defendants---Trial Court dismissed the suit while Appellate Court set aside the judgment and decree of the Trial Court---Neither the attesting witnesses nor the Revenue Officer attesting the mutation was produced---Disputed thumb-impression also could not be produced---Effect---Held, in circumstances, it was not safe to rely upon the disputed transaction when the same disinherited a female who had no independent legal advice or the support of her male relatives.

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

----Art. 59---Expert opinion---Scope---Where the Handwriting Expert had noticed some similarities between the admitted thumb-impressions and the thumb-impression on the revenue record but the disputed thumb impression was not available, it was not safe to rely on the report of handwriting expert.

----Gift---Authenticity of gift transaction---Where disputed gift transaction disinherited a female who had no independent legal advice or the support of her male relatives, transaction in question could not be given effect to.

Imran Ahmed Malik for Petitioners.

Muhammad Yaqoob Sabir for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 981 #

2010 M L D 981

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD RAFIQ---Petitioner

Versus

PROVINCE OF PUNJAB through Collector District and another---Respondents

C.R. No.689 of 2010, decided on 22nd March, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2--Suit for declaration and permanent injunction---State land---Plaintiff alleged that defendant, in collusion with revenue field staff had obtained proprietary rights of suit land despite the fact that the plaintiff was owner in possession of the said land---Plaintiff failed to establish his physical possession on the disputed land---Trial Court dismissed the suit, appeal also met the same fate---Validity---Held, Revenue authorities rightly transferred proprietary rights of the State land to the defendant when the plaintiff had failed to establish his physical possession thereon.

Allah Wasaya Malik for Petitioner.

Muhammad Iqbal Mali for Respondent No.2.

Muhammad Siraj-ul-Islam Khan, Astt. A.-G., Punjab with Wahad Bukhsh, Litigation Clerk, DOR Office, Bhakkar.

MLD 2010 LAHORE HIGH COURT LAHORE 984 #

2010 M L D 984

[Lahore]

Before Jamshed Rahmat Ullah, J

MUHAMMAD SAJID---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 2624-B of 2009, decided on 10th July, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, grant of---Accused was empty-handed at the relevant time and only allegation of "Japha" had been attributed to accused---According to the Police investigation, accused was though present at the place of occurrence, but he had not committed any offence---Main accused had already been granted bail and role of accused was lesser than the role attributed to said co-accused---Accused had not caused any injury to the deceased and was behind the bars for the last about 6 months and he was no more required to the Police for the purpose of further investigation---Challan had been submitted in the Trial Court, but no progress had been made---Accused was admitted to bail, in circumstances.

Amjad Hussain and another v. The State 2007 PCr.LJ 1137 and Rasheed Ahmed v. The State NLR 2000 Crl. 514 ref.

Rana Asif Saeed for Petition r.

Ch. Sarfaraz Ahmad Zia, Deputy Prosecutor-General for State.

Irfan Ahmad Shami and Ch. Asif Karim for the Complainant.

MLD 2010 LAHORE HIGH COURT LAHORE 986 #

2010 M L D 986

[Lahore]

Before Ch. Muhammad Tariq, J

TANVEER AHMED and 8 others---Petitioners

Versus

JALAL KHAN and 20 others---Respondents

Civil Revision No. 1899 of 2006, decided on 26the March, 2010.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of oral agreement to sell---Plaintiff contended that possession was handed over to him after payment of total consideration of price of suit-land whereon plaintiff constructed boundary wall and double-storeyed building but defendant later on refused to execute sale-deed, instead, filed a suit for permanent injunction---Trial Court decreed the suit while Appellate Court dismissed the appeal against---Validity---Plaintiff had produced documentary evidence which supported oral evidence---Unconditional withdrawal of suit for partition and possession by defendants supported the plaintiff's contention that such withdrawal amounted to estoppel--Defendants knowledge of construction of boundary wall and double storeyed building by plaintiff also established the agreement between the parties and payment of consideration price to defendants-No one could allow a third person to occupy one's land and construct a house--Revision was dismissed in circumstances.

Fakhar ul Zaman Akhtar Tarar for Petitioners.

Liaqat Ali Butt for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 989 #

2010 M L D 989

[Lahore]

Before Umar Ata Bandial, J

Syeda WAJIHA HARIS---Petitioner

Versus

CHAIRMAN, UNION COUNCIL NO.7, LAHORE---Respondent

Writ Petition No. 20178 of 2009, decided on 25th February, 2010.

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

----S. 7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Notice of divorce---Reconciliation between the spouses---Forum---Petition was directed against notice received by the petitioner/wife from Chairman Union Council informing her about the notice of divorce served by husband and offering reconciliation proceedings under the Muslim Family Laws Ordinance, 1961---Both the petitioner/ wife and husband were residing abroad and for foreign resident Pakistanis, the law had created a remedy and forum for reconciliation between the spouses under Muslim Family Laws Ordinance, 1961 in the Pakistan Mission in the countries of their residence---Husband should avail that remedy and in case such remedy was not available, then any other competent forum could be approached for relief---High Court directed that husband should approach the Pakistan Mission in the country (abroad) to register the divorce pronounced by him upon the wife and for reconciliation proceedings visualized under Muslim Family Laws Ordinance, 1961 to be undertaken there---Proceedings before Chairman Union Council, in circumstances, were declared to be incompetent.

Taffazul H. Rizvi for Petitioner.

Saqib Majeed and Muhammad Nouman Shams Qazi for Respondents No.2.

MLD 2010 LAHORE HIGH COURT LAHORE 991 #

2010 M L D 991

[Lahore]

Before Mansoor Akbar Kokab, J

MUHAMMAD ARIF and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 3890-B of 2009, decided on 29th October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.426---Mischief---Bail, grant of---Further inquiry---Out of more than 1000 persons, only two accused persons were arrested who had suffered judicial detention for long period of more than 2-1/2 months despite the fact that neither any specific role was attributed to them nor specific arm was attributed in the F.I.R.---Making accused persons out of such a large number of mob and to confine them in the judicial lock-up for such a long period, appeared hard and harsh act, especially when the allegation against accused persons could be attributed to each and every member of the mob-Such discrimination had made accused persons to have a case of further inquiry---Accused were admitted to bail, in circumstances.

Rana Muhammad Asif Saeed for Petitioners.

Syed Mukhtar Masood Bukhari, DDPP for the State.

MLD 2010 LAHORE HIGH COURT LAHORE 992 #

2010 M L D 992

[Lahore]

Before Mian Saqib Nisar, J

NASREEN BIBI and 5 others---Petitioners

Versus

SHABBIR HUSSAIN---Respondent

Transfer Application No165-C of 2009, decided on 23rd June, 2009.

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

----S. 5, Sched. & S. 25-A---Guardians and Wards Act (VIII of 1890), S.25---Plaintiff (wife) filed suit for recovery pf maintenance allowance against the defendant (husband) in the court at place G', while defendant as a counterblast had instituted a suit for restitution of conjugal rights against the plaintiff in the court at placeL'---Defendant had also filed a petition for appointment of guardian and custody of minors, which was pending adjudication in the court at place L'---Under provisions of S.25-A of the West Pakistan Family Courts Act, 1964 the suit and the petition filed by the defendant in the court at placeL' were liable to be transferred to Family Court at place G' where the suit of plaintiff for recovery of maintenance allowance was pending adjudication---Suit and petition of the defendant pending in the courts at placeL' were to be withdrawn and transferred to the Family Court at place 'G', where the suit of the plaintiff was pending---Order accordingly.

Agha I.A. Imran for Petitioners.

Chaudhry Rashid Ahmad for Respondent.

MLD 2010 LAHORE HIGH COURT LAHORE 994 #

2010 M L D 994

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD AJMAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 13068-B of 2009, decided on 19th October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.452, 337-F(ii), 147 & 149---House trespassing and damiyah---Pre-arrest bail, confirmation of--In the present case a civil suit was filed by the complainant in which status quo order was recalled---During the Police investigation only bricks were used by both the parties---Co-accused with similar role had been granted bail---Section 452, P.P.C. had been deleted during the investigation---Accused having made out a case for confirmation of bail, same was confirmed, accordingly, in circumstances.

Zahid Aslam Malik for Petitioner.

Ch. Amjid Hussain, Deputy Prosecutor General for the State.

MLD 2010 LAHORE HIGH COURT LAHORE 995 #

2010 M L D 995

[Lahore]

Before Manzoor Ahmad Malik, J

NASEER AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 3199-B of 2010, decided on 5th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/337-A(i)/337-A(ii)/337-L(ii)/337-F(iii)/337-F(v)/148/149---Attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Accused was behind the bars for the last about eight months---During the investigation, Police had opined that accused though was present at the spot, but he was empty-handed---Law was set in motion by accused's side and it was a case of two versions, one set out in the F.I.R. and the other in the cross-version got recorded against accused's side, which had brought the case of accused, within the ambit of subsection (2) of S.497, Cr.P.C.---Question as to which party was the aggressor and which was aggressed upon was to be determined by the Trial Court after recording of the evidence of the parties---Accused was admitted to bail, in circumstances.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845; Fazal Muhammad v. Ali Ahmad 1976 SCMR 391 and Mst. Shafiqan v. Hashim Ali and others 1972 SCMR 682 rel.

Sardar Muhammad Ramzan for Petitioner.

Ch. Muhammad Zafar Khan, Deputy Prosecutor-General.

M. Sharif S.-I. with record.

Nemo for the Complainant.

MLD 2010 LAHORE HIGH COURT LAHORE 998 #

2010 M L D 998

[Lahore]

Before Chaudhry Iftikhar Hussain, J

YASIN alias BHUTTO---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 702-M of 2010, heard on 14th May, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 382-B & 561-A---Consideration of period of detention while awarding sentence to accused and giving benefit of S.382-B, Cr.P.C.---Inherent jurisdiction of High Court---Scope---Petitioner had prayed for grant of benefit of S.382-B, Cr.P.C. contending that it was mandatory upon the Trial Court to consider the question of grant or otherwise of the benefit of S.382-B, Cr.P.C., but same had not been done in the case of the petitioner---Validity---High Court had inherent jurisdiction to extend the benefit of the provisions of S.382-B, Cr.P.C. to a convict---Petition filed by the petitioner was allowed and he was extended the benefit of S.382-B, Cr.P.C.---Period of detention of accused as under-trial would be counted towards his sentence.

Gul Muhammad v. The State and another 2004 PCr.LJ 1802 ref.

Azhar Iqbal for Petitioner.

Ch. Abdur Razaq, Deputy Prosecutor-General for Respondents.

Date of hearing: 14th May, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1005 #

2010 M L D 1005

[Lahore]

Before Pervaiz Inayat Malik, J

AHMAD BAKHSH---Petitioner

Versus

MAKHAN KHAN---Respondent

Writ Petition No. 116 of 2005, heard on 25th June, 2009.

Specific Relief Act (I of 1877)---

----S. 9---Civil Procedure Code (V of 1908), O.XVII, R.3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for possession---Conduct of party---Effect---Plaintiff produced oral as well as documentary evidence whereas the defendant produced only the documentary evidence---Trial Court closed the evidence of the defendant under O.XVII, R.3, C.P.C. and decreed the suit of the plaintiff---Appeal preferred by defendant was dismissed by Appellate Court---Defendant filed a review application which was also dismissed by the Appellate Court---Defendant asserted that the Trial Court had not provided fair opportunity rather closed the evidence on erroneous assumptions and dismissed the appeal as well as review application without any cogent reasons---Validity---Conduct demonstrated by the defendant throughout the proceedings was indicative of the fact that he wanted to delay disposal, initially of the suit before the Trial Court and thereafter in appeal and in review application before the Appellate Court, the purpose whereof seemed to be to add to the agonies of the plaintiff, that conduct by itself disentitled him from discretionary relief---Defendant, despite repeated opportunities had failed to produce evidence; therefore, no option was left with the Trial Court except to close the evidence under O.XVII, R.3, C.P.C. which order was unexceptionable---Sufficient evidence was available on record showing that the Trial Court had rightly decreed the suit and the Appellate Court had upheld the judgment and decree passed by Trial Court---Constitutional petition was dismissed by High Court.

2004 SCMR 2265; PLD 2004 Lah. 17; 2000 CLC 334, PLD 1982 SC 46; PLD 2006 Lah. 585 and 2007 YLR 1382 ref.

Tahir Iqbal Malik for Petitioner.

Mujtaba Aziz and Muhammad Najeeb Safdar for Respondent.

Date of hearing: 25th June, 2009.

2010 M L D 1035

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

MUHAMMAD ZAFAR and another---Petitioners

Versus

PROVINCE OF PUNJAB through D.O.R. Pakpattan Sharif and 7 others---Respondents

Civil Revision No. 515 of 2010, decided on 21st April, 2010.

Canal and Drainage Act (VIII of 1873)---

----S. 20---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and grant of temporary injunction---Divisional Canal Officer had accepted defendant's application for sanction of new outlet and forwarded the case to Superintending Canal Officer for confirmation---Case remained pending with the canal authorities for nine years whereafter the successor Superintending Canal Officer confirmed the order of Divisional Canal Officer without adverting to the observations made by his predecessor---Aggrieved by said order, plaintiff filed a suit for declaration and application for grant of temporary injunction to stay the sanction of outlet---Both Trial and Appellate Court dismissed the application for injunction---Validity---Plaintiffs contended that both lower courts had decided the application without recording their evidence despite the fact that the canal authorities neither conducted on spot inquiries nor issued notices to the concerned landowners before passing the impugned order as required by S.20 of Canal and Drainage Act, 1873---Plaintiffs had sufficient cause to suffer irreparable loss---Balance of convenience also lay in favour of plaintiffs who should have been served notices---Application for injunction was allowed by High Court and orders passed by courts below were set aside with a direction to lower court to decide the case within four months.

Mrs. Shahzadi Babar v. Hina Housing Project (Pvt.) Ltd. and others 1994 CLC 1601; Asif Khan Shamim v. The Government of Sindh and others 1996 CLC 456; Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another PLD 1970 SC 180; Ghazanfar Khan and others v. Taj Muhammad and others 1970 SCMR 139; Badar Din v. Bahandur Ali and others PLD 1968 Lah. 573; Muhammad Saeed and others v. Fateh Muhammad and others PLD 1962 (W.P.) Lah. 317 and Khan Muhammad and another v. Munawar Hussain and another 2002 CLC 333 ref.

Patras Masih v. Province of Punjab and others 2008 MLD 106 rel.

Muhammad Hanif Niazi for Petitioners.

Anwar Spira for Respondents Nos. 6 to 8.

Muhammad Azeem Malik, Addl. A.-G.

Liaqat Ali, SDCO and Shah Muhammad, Ziledar.

MLD 2010 LAHORE HIGH COURT LAHORE 1045 #

2010 M L D 1045

[Lahore]

Before Ch. Iftikhar Hussain and Muhammad Anwarul Haq, JJ

MUHAMMAD RASHID---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 2538-B of 2010, decided on 17th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15---Possessing narcotic---Bail, refusal of---Narcotic allegedly recovered from accused was of heavy quantity---Control of Narcotic Substances Act, 1997 was a special enactment having its own scheme and object---Intention of the legislature was evident from its different provisions that it was designed to curb the menace of narcotic drugs in the society, which was speedily increasing day by day---Offence with regard to narcotics, was not only against the society, but the mankind as well and thus entailed heavy punishment---Side of accused had not been able to show anything to say that accused had been involved in the case for any ulterior motive of the complainant or others---Each criminal case was to be adjudged in the background of its own facts and circumstances---Accused, in view of circumstances, was not entitled to bail; his bail petition was dismissed.

Saeed Chandio v. The State 2009 MLD 1409 ref.

Muhammad Anwar Naseem for Petitioner.

A.D. Naseem, Special Prosecutor for Respondent No.1.

MLD 2010 LAHORE HIGH COURT LAHORE 1049 #

2010 M L D 1049

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

SUMAIRA BIBI---Petitioner

Versus

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

Writ Petition No. 7163 of 2009, decided on 26th January, 2010.

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 claiming Rs.81,900 of value of said articles---Family Court, however, decreed the suit to the extent of dowry articles for Rs.60,000---Appellate Court dismissed the suit---Validity---Appraisal of evidence made by Family Court appeared to be convincing, rational and based on cogent reasons as compared to appraisal of evidence made by Appellate Court---Plaintiff by producing cogent and reliable evidence on record had proved that dowry articles mentioned in list of dowry produced on record, were given to her at the time of marriage---Judgment passed by the Appellate Court, based on conjectures, surmises, not based on convincing or rational reasons, was set aside and judgment and decree passed by the Family Court, were restored, in circumstances.

Khawaja Qaisar Butt for Petitioner.

Khawar Siddique Sahi for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 1057 #

2010 M L D 1057

[Lahore]

Before Hafiz Abdur Rehman Ansari, J

ZAFAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 2825-B of 2009, decided on 5th October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/322/34---Qatl-e-amd---Bail, refusal of---Deeper appreciation of evidence was not permissible at bail stage---Whether the fire which killed the deceased was accidentally fired or intentionally fired would be determined at the trial after recording evidence---Challan has been submitted in the court under Ss. 302, 322 and 34, P.P.C.---Accused was specifically nominated in the F.I.R. with the admission of having killed the deceased and saying to the family members of the deceased to do whatever they could do---Sufficient material was available on record to connect the accused with the commission of the offence---Findings of police were not binding on the court always and in each case---Bail was declined to accused in circumstances.

2009 PCr.LJ 187; 2008 MLD 531; PLD 1978 SC 256; 2008 YLR 72; 2004 MLD 335 and 1996 SCMR 1685 ref.

Muhammad Irfan Wyne for Petitioner.

Shahid Iqbal, Deputy District Public Prosecutor for the State with Abdul Rehman, S.I. along with record.

Ch. Faqir Muhammad for the Complainant.

MLD 2010 LAHORE HIGH COURT LAHORE 1063 #

2010 M L D 1063

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD RIAZ ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 3192-B of 2009, decided on 7th October, 2009.

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

----S.497---Penal Code (XLV of 1860), S.489-F---Dishonouring of cheque---Bail, grant of---Accused was behind the bars for the last five months---Accused was not a previous convict---Offence did not fall within the prohibitory clause of S.497(1), Cr.P.C. and grant of bail in such like cases was a rule and refusal an exception---Case of accused having become of bail, he could not be deprived of his liberty simply for the reason that he had remained an absconder---Factum of alleged absondence of accused was not an exceptional circumstance to warrant refusal of relief of bail to him---Bail was allowed to accused accordingly.

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

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

----S.497---Penal Code (XLV of 1860), S.489-F---Dishonouring of cheque---Bail---Case not hit by prohibitory clause of S.497, Cr.P.C.---General rule---Where the alleged offence does not fall within the prohibitory clause of S. 497(1), Cr.P.C. grant of bail is a rule and its refusal is an exception.

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

----S.497---Penal Code (XLV of 1860), S.489-F---Dishonouring of cheque---Bail---Abscondence of accused---Effect---When case of an accused becomes of bail, then he cannot be deprived of his liberty simply because he had remained an absconder.

Muhammad Wasim Shahab for Petitioner.

Ashfaq Ahmed Malik, D.P.-G. for Respondent No. 1 / for the State.

Muhammad Aslam for Respondent No2.

Muhammad Iqbal, S.-I. with police record.

MLD 2010 LAHORE HIGH COURT LAHORE 1077 #

2010 M L D 1077

[Lahore]

Before Ijaz Ahmed Chaudhry, J

NOOR HUSSAIN---Petitioner

Versus

PARVEEN AKHTAR and 6 others---Respondents

Criminal Miscellaneous No. 2400-CB of 2010, decided on 8th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.419/420/468/471---Cheating, forgery and using as genuine a forged document---Petition for cancellation of bail---All offences with which the respondents/accused persons had been charged, did not fall within the prohibitory clause of S.497, Cr.P.C. and High Court had accepted application for post-arrest bail after considering all the facts of the case---Addition and deletion of any evidence during the investigation was not a ground for cancellation of bail---Submission of counsel for the petitioner/ complainant that accused persons after their release had issued threats to the petitioner and his witnesses with dire consequences, was only supported by the affidavit---Levelling of such allegation by the complainant, had become a routine which could not be made a basis for cancellation of bail of accused, unless same was supported by the cogent evidence---Accused were facing agony of the trial for the last four years---No merit having been found in the petition for cancellation of bail, same was dismissed.

Syed Farooq Hasan Naqvi for Petitioner.

MLD 2010 LAHORE HIGH COURT LAHORE 1080 #

2010 M L D 1080

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD JAVED IQBAL---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 5 others-Respondents

Writ Petition No. 794 of 2010, decided on 1st February, 2010.

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 by the plaintiff for herself and for her three minor children was decreed by the Family Court fixing Rs.3000 per month for the plaintiff and Rs.2000 per month for each of minors---Judgment and decree passed by the Family Court had been maintained by the Appellate Court---Contention of the defendant was that maintenance allowance as concurrently fixed by the courts below was harsh, excessive and exorbitant and beyond the source of the defendant who hailed from a labour class---Defendant had failed to point out any illegality, irregularity or any jurisdictional error in concurrent findings of the two courts below---Defendant being father of three minors, could not deny the maintenance of his said children---Father/defendant was bound to earn and pay the same as fixed by the two courts below, which in these days of dearness was not harsh or excessive, but had little value keeping in view the price hike of daily use items---Findings of two courts below, were not disturbed in constitutional jurisdiction of High Court.

Khawaja Qaiser Butt for Petitioner.

MLD 2010 LAHORE HIGH COURT LAHORE 1087 #

2010 M L D 1087

[Lahore]

Before Muhammad Anwar Bhour, J

MUHAMMAD IMRAN and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1 in Criminal Revision No.208 of 2010, decided on 13th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.458 & 337-H(2)---Lurking house-trespass and causing hurt by rash or negligent act---Suspension of sentence---Sentence awarded to the petitioners/accused persons was three years and before the revision petition was set down for final hearing, it was quite possible that accused could have served out their entire sentence---Without touching the merits of the case, application for suspension of sentence was allowed and sentence passed by the Trial Court against accused persons was suspended and they were admitted to bail, in circumstances.

Abdul Hameed v. Muhammad Abdullah and others 1999 SCMR 2589; Makhdoom Javed Hashmi v. The State 2007 SCMR 246 and Fazal Muhammad and another v. The State 2002 SCMR 1211 ref.

Muhammad Inayat Ullah Cheema for Petitioners.

Agha A. Imran for the Complainant.

Syed Muhammad Imran Sherazi, Deputy Prosecutor-General Punjab for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 1093 #

2010 M L D 1093

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD SHAKEEB-UL-QADIR---Plaintiff/Petitioner

Versus

MUHAMMAD SHARIF and 2 others---Defendant/Respondents

Civil Revision No. 145 of 2010, decided on 10th February, 2010.

Specific Relief Act (I of 1877)---

----S. 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2---Suit for permanent injunction---Application for grant of temporary injunction---Plaintiff who claimed possession of specific portion of land of joint khata, had filed suit for grant of decree of permanent injunction against the defendants to the effect that defendants be restrained from interfering into possessed land of the plaintiff in the joint khata without partition---Plaintiff along with suit for permanent injunction, also filed application for grant of temporary injunction, which application was concurrently dismissed by the courts below---Both the courts below had observed that defendants being co-sharers, every co-sharer was presumed to be in possession on each inch of land in joint khata; and that the appropriate forum for the plaintiff was to file a suit for partition and not suit for permanent injunction---Concurrent findings of both the courts below with regard to dismissal of stay applications, were based on best appraisal of evidence, which were not arbitrary, fanciful and were based on cogent reasons---Plaintiff could not establish, prima facie, case for temporary injunction---Orders passed by the two courts below being quite legal and in consonance with law, needed no interference by the High Court---In absence of illegal exercise of jurisdiction or failure to exercise jurisdiction legally vested in the courts, revision petition against concurrent findings of the two courts below, was dismissed.

Allah Bakhsh and another v. Falak Sher 2004 SCMR 1581 and Baqar Khan v. Mst. Dil Jan and 21 others 2000 MLD 1165 ref.

Athar Rebman Khan for Plaintiff/Petitioner.

MLD 2010 LAHORE HIGH COURT LAHORE 1096 #

2010 M L D 1096

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Dr. MUHAMMAD AKBAR PASHA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 9478-B of 2009, decided on 11th August, 2009.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.406/420/468/471---Criminal breach of trust cheating and forgery---Pre-arrest bail, confirmation of--Dispute between the parties was of civil nature, and which party was at fault and which agreement had been correctly executed, was a question which could only be resolved by civil court, if any of the parties would approach said court---For the time being possibility of false implication of accused in the case due to chequered history of registration of cases between the complainant and accused, could not be ruled out; and no useful purpose could be served by sending accused behind the bars as accused claimed that he had purchased the property and made payment---Nothing was in the case to be recovered from the possession of accused and bail before arrest was meant to protect the innocent citizens if they were involved in a criminal case with mala fide intention or ulterior motive---Mala fide and ulterior motive on the part of the complainant was apparent in the case and civil dispute seemed to have been converted into criminal offence---Ad interim pre-arrest bail already granted to accused was confirmed, in circumstances.

Aleem Baig Chughtaie for Petitioner.

Muhammad Iqbal Bhatti for the Complainant.

Sahibazad M. A. Amin Mian Addl: Prosecutor-General for the State.

Muhammad Shafi S.-I. with record.

MLD 2010 LAHORE HIGH COURT LAHORE 1099 #

2010 M L D 1099

[Lahore]

Before Khawaja Muhammad Sharif C. J. and Khawaja Imtiaz Ahmed, J

NAZAR HUSSAIN SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 463 and M.R. No.393 of 2004, heard on 5th April, 2010.

Penal Code (KLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Name of co-accused figured nowhere in the F.I.R. and he was found innocent by the Police---Presence of complainant at the spot was doubtful, because had the complainant who was father of deceased present at the spot, his first anxiety could have been that he should take his injured son to the hospital for medical treatment, but he remained at the spot, unless the Investigating Officer came, recorded his statement, prepared injury statement etc.---Recovery memos. of blood-stained earth and that of ten crime empties from the spot, appeared to be prepared after death of the deceased and said memos were never signed by the witnesses---Co-accused had no motive to attack on the person of the deceased---Merely that accused persons remained absconder for three long years was no ground for conviction on capital charge---Such conviction neither could be awarded nor maintained, unless the court was satisfied with the prosecution evidence which could come from an impeachable source having intrinsic value, which was not available in the present case---Four injuries on the person of deceased were not mentioned by the doctor, whether those were caused with fire-arm or with blunt weapon nor anybody from prosecution side tried to explain about that---Prosecution did not say that injured while sitting in the vehicle also received blunt weapon injury---Prosecution, in circumstances, had failed to prove its case against accused persons, beyond any shadow of doubt---Conviction and sentence recorded against accused persons vide impugned judgment was set aside and they were acquitted of the charge.

2003 SCMR 567; 2008 SCMR 1228; PLD 2002 SC 786 and PLD 2004 SCMR 872 ref.

Muhammad Ilyas Siddiqui Advocate (in Criminal Appeal No.463 of 2004) and Malik Rab Nawaz Noon Advocate (in Criminal Appeal No.290 of 2004) for Appellants.

Syed Ali Shah Bukhari for the Complainant.

Raja Javed Ashraf D.P.G. for the State.

Date of hearing: 5th April, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1106 #

2010 M L D 1106

[Lahore]

Before Sardar Tariq Masood, J

BASHIR AHMAD and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 206 of 1998, decided on 3rd March, 2010.

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

----S.324---Attempt to commit qatl-e-amd---Appreciation of evidence---Place of occurrence was shrouded in mystery, prosecution according to its wishes had been trying to change the same, but the occurrence could not be presumed to have taken place in the house of the accused---Despite the incident having occurred in dark hours of the night, prosecution had failed to establish any source of light on the spot---F.I.R. had been lodged after consultation and deliberation- Motive having not been put to accused in his statement recorded under S.342, Cr.P.C., the same could not be used against him---Principal accused who was made responsible for the murder of the deceased had been acquitted by Trial Court and his acquittal was not challenged by the complainant side---Benefit of doubt given to the said principal accused, who had been attributed the fatal role by the eye-witnesses, must have been extended to the present accused---Deliberate and dishonest improvements made by eye-witnesses, who were closely related to the deceased, had made the prosecution case highly doubtful---Benefit of a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused, had to be given to him not as matter of grace or concession but as a matter of right---Accused were acquitted in circumstances.

(b) Criminal trial---

----Appreciation of evidence---Principle---Finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in the case---Finding of guilt should rest surely and firmly on the evidence produced in the case---Mere conjectures and probabilities cannot take the place of proof.

Sardar Mahboob for Appellants.

Muhammad Waseem Khan Babar for the State.

Date of hearing: 3rd March, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1123 #

2010 M L D 1123

[Lahore]

Before Khawaja Muhammad Sharif C.J. and Khawaja Imtiaz Ahmed, J

ABDUL JALIL and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 40 23, Criminal Revision No.19 and M.R. No. 124 of 2005, heard on 7th April, 2010.

Penal Code (XLV of 1860)---

----S. 302(a)/34---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Alleged occurrence was result of a previous altercation between the deceased and the accused who stabbed the deceased in the chest while he was allegedly caught hold by his arms by two co-accused---In order to cause a single injury with knife, there was no need to catch hold of the victim by co-accused as they themselves could have been hit by the blow of the accused---Co-accused, in circumstances, were given benefit of doubt; their conviction was set aside and they were acquitted of the charge as no motive was alleged against them---Prosecution had proved its case against the accused by recovery of blood-stained knife and corroboration of ocular evidence by the medical evidence---Held, in view of extenuating circumstances viz. insult suffered by accused at the hands of deceased, non-repetition of the blow; no previous enmity having been established, conviction of the accused was maintained under S.302(b), P.P.C., but his death sentence was converted to imprisonment for life with benefit of S.382-B, Cr.P.C.---Reference was answered in the negative.

Muhammad Tariq Dhamial for Appellants.

Waqar Azim Siddiqui for the Complainant.

Sh. Muhammad Munir, DPG for the State.

Date of hearing: 7th April, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1127 #

2010 M L D 1127

[Lahore]

Before Syed Akhlaq Ahmad and Sardar Tariq Masood, JJ

RIAZ HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 680 Criminal Revision No.387 and Criminal Appeals Nos. 658, 680 and 820 of 2003, decided on 1st March, 2010.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Ocular testimony furnished by related eye-witnesses having no motive for false implication of accused being consistent on each and every point, was trustworthy and inspired confidence---Motive asserted by prosecution was true---Promptly lodged F.I.R. containing the names of eye-witnesses, names of accused with their specific roles and even the motive, had eliminated the chance of fabrication and consultation---Medical evidence, wilful abscondence of accused and recovery of pistol supported by positive report of the Forensic Science Laboratory, had corroborated the ocular account of occurrence---Confession of one accused at the trial was nothing but an afterthought and an attempt to frustrate the prosecution version---Convictions and sentences of accused were maintained in circumstances; however, co-accused who was the brother of main accused and had been found innocent during investigation, appeared to have been involved due to said relationship and he was acquitted on benefit of doubt accordingly.

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

----S.103---Penal Code (XLV of 1860), S.302(b)---Qatl-e-amd---Search to be made in presence of witnesses of the locality---Scope---Section 103, Cr.P.C. is applicable only where search is to be made by the police officials of a house or place, but it is not applicable where an accused himself leads and gets recovered something.

Sahibzada Farooq Ali for Appellant.

Malik Muhammad Rafiq Khokhar, D.A.G. for the State.

Badar Raza Gillani for the Complainant.

Date of hearing: 1st March, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1143 #

2010 M L D 1143

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD SADIQ ABID---Petitioner

Versus

KHALID MAHMOOD---Respondent

Civil Revision No. 1091 of 2009, heard on 26th January, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.1, 2 & O. VII, R.11---Suit for recovery of amount on the basis of cheque---Rejection of plaint, application for--Defendant filed written statement and thereafter the defendant submitted an application for rejection of plaint under O. VII, R.11, C.P.C., contending that suit was time-barred---Said application of the defendant had been dismissed, in appeal---Validity---Question of limitation in the case was a mixed question of fact---When cheque in question was presented for encashment and same was dishonoured, those facts also needed recording of evidence to prove the same---Defendant though did not take the plea of limitation in the written statement, but the question of law could be raised at any time in the proceedings---Question of limitation which was mixed question of law and facts, should have been decided after recording of evidence of the parties---Trial Court should have framed the issues in the light of he pleadings of the parties and asked the parties to produce their respective evidence; and after that it should have decided the application filed under O. VII, R.11, C.P. C. for rejection of plaint---Order passed by the Trial Court was set aside with direction to frame the preliminary issue on the point of limitation and after recording the evidence of the parties decide the application of defendant filed under O. VII, R.11, C.P.C.

Najma Sugar Mills Ltd., Mirpurkhas v. Messrs Mega Trading Company 2008 MLD 114 = 2008 CLD 1616 and Muhammad Farooq and others v. Abbas Lakadwala and others 2003 CLC 1879 ref.

Nafees Ahmed Ansari for Petitioner.

Rao Amanullah Khan for Respondent.

Date of hearing: 26th January, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1146 #

2010 M L D 1146

[Lahore]

Before Manzoor Ahmad Malik, J

IMTIAZ AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 2163-B of 2010, decided on 23rd April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.161 & 162---Prevention of Corruption Act (II of 1947), S.5(2)---Police Order (22 of 2002), Art.155-C---Receiving illegal gratification and conducting dishonest investigation of criminal case---Bail, grant of---Further inquiry---Whether alleged recovery had connected accused with the commission of crime, would be determined by the Trial Court after recording the evidence---Offence against accused was outside the prohibitory clause of S.497, Cr.P.C.---Grant of bail in such like cases was a rule and its refusal was an exception---Accused was behind the bars for the last about four months---Accused was admitted to bail, in circumstances.

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

Azhar Hameed Chaudhry for Petitioner.

Ansar Ali Warraich for the Complainant.

Ch. Jamshaid Hussain, Deputy Prosecutor-General along with Imtiaz Ahmad.

Munawar Hussain Langarial, Assistant Director (Investigation) Anti-Corruption Establishment MB Din.

MLD 2010 LAHORE HIGH COURT LAHORE 1148 #

2010 M L D 1148

[Lahore]

Before Sh. Ahmad Farooq, J

Mst. KANEEZ AKHTAR---Petitioner

Versus

STATION HOUSE OFFICER and 2 others---Respondents

Writ Petition No. 12726-Q of 2003, heard on 19th March, 2010.

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

----Ss.10 & 16---Penal Code (XLV of 1860), S.498---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Offence of zina, enticing away a woman and detaining with criminal intent a married woman---Quashing of F.I.R.---Accused petitioner, admittedly, was married to her former husband and whether she had been divorced orally by him was a question of fact---Validity of the marriage of accused with her second husband and their continuous cohabitation for a period of seven years and again a controversial question of fact---Adjudication of both the facts was only possible after production of relevant evidence in possession of parties---Accused had filed a suit for dissolution of marriage on the basis of "khula", against her former husband, which had been dismissed for non-prosecution-In her present "Nikahnama" accused had been shown as a "maiden "---Present husband of the accused was alleged to have prepared a forged and fake divorce deed, which had been submitted in the Union Council concerned---Serious allegations had been made against the accused and her present husband in the impugned F.I.R. and during investigation both of them had been found guilty-High Court had no jurisdiction to give a finding on the disputed questions of fact in exercise of its constitutional jurisdiction---Ordinary course of trial before a competent court could not be allowed to be deflected by resorting to constitutional jurisdiction---Quashing of F.I.R. carrying serious allegations against the accused and her co-accused would amount to throttling the investigation, which was not permissible in law---Constitutional petition was dismissed in circumstances.

2008 SCMR 76 and 2008 SCMR 1192 rel.

Syed Sahabat Hussain Hamdani for Petitioner.

Shakeel-ur-Rehman Khan, Addl: A.-G with Muhammad Akram A.S.-I. Police Station Urban Area for Respondent.

Date of hearing: 19th March, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1155 #

2010 M L D 1155

[Lahore]

Before Manzoor Ahmad Malik, J

IRFAN alias FANI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 988 of 2009, beard on 7th April, 2010.

Penal Code (XLV of 1860)---

---Ss. 376/511 & 337-L(ii)---Attempt to commit rape and causing hurt---Appreciation of evidence---Eye-witness was a school teacher and resident of the area---Victim girl had categorically stated that it was the accused who had attempted to commit rape with her---No enmity of any sort with the accused was suggested to any of the prosecution witnesses---False implication of accused in the case was out of question---Quality and not the quantity of evidence mattered in a criminal case---Minor victim girl had narrated the whole event in a natural manner and nothing adverse had been brought on record through her cross-examination---No father would involve his real minor daughter in such a case---Convictions and sentences of accused were maintained in circumstances and his appeal was dismissed accordingly.

Shahid Shaukat for Appellant.

M.M. Alam Chaudhry, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 7th April, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1159 #

2010 M L D 1159

[Lahore]

Before Muhammad Yawar Ali, J

BASHIR AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 797, 798 and 799 of 2008, decided on 9th April, 2010.

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), Ss.164 & 412---Cheating, forgery and corruption---Appreciation of evidence---Accused who appeared before the Senior Special Judge Anti-Corruption, made a confessional statement so that the Trial Court would take a lenient view in the matter---Impugned judgment showed that the Trial Court apprised the accused that statement confessing his guilt would be used against him for purpose of recording of conviction---Record showed that accused had deposited amount in the government treasury, almost a month after the conviction having been recorded against him which had shown that accused had accepted his conviction and his appeal was nothing, but an afterthought---Accused, in circumstances, was not entitled to challenge the legality of his conviction by virtue of bar contained in S.412, Cr.P.C.---Once a conviction was recorded by a court of competent jurisdiction on basis of plea of guilty, an appeal would only be maintainable in respect of sentence that was imposed, while in the present case, no objection with regard to severity of the sentence had been taken--Appeal was dismissed.

Executive District Officer Education Rawalpindi v. Muhammad Younas 2007 SCMR 1835; Muhammad Anwar and others v. The State 1986 PCr.LJ 2164; Nawab Ali alias Nawab v. The State PLD 1972 Lah. 532 and Shafi Muhammad Magsi v. The State 2001 YLR 1917 rel.

Aftab Mustafa for Appellant.

Aamir Asif Ranjha, Deputy Prosecutor-General Punjab for the State.

Date of hearing: 31st March, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1162 #

2010 M L D 1162

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

Syed AZHAR HUSSAIN---Petitioner

Versus

MUHAMMAD ASLAM and 8 others---Respondents

Civil Revision No.2920 of 2000, heard on 22nd March, 2010.

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

----S. 12---Suit for specific performance of agreement with prayer for permanent injunction---Plaintiff alleged that the defendant entered into an agreement with him to sell, delivered the possession but refused to execute the sale-deed; instead, defendant tried to alienate the suit-land to another person---Defendant contended that the 'Iqrarnama' (agreement) was a forged document---Trial Court and Appellate Court decreed the suit---Validity---Defendant's stance on the execution of agreement to sell was self-contradictory; his agreement regarding description of suit-land was belied by his admission in the written statement---Facts admitted need not be proved-Mala fide intention of defendant was evident from the fact that he changed his signature from Urdu to English in the suit at hand whereas in a previous suit he had signed the documents in Urdu---Defendant also failed to produce marginal witnesses who could deny their signatures on the document alleged to be forged---Both courts below did not commit any illegality or irregularity---Revision was dismissed.

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

----Art. 59---Expert opinion---Value---Handwriting expert after examining specimen signature could not give his definite opinion---Trial Court itself compared the signature of the defendant on disputed document and on the documents available in the court file and came to the conclusion that the signatures were that of the respondent---Validity---Court was equipped with legal authority to compare the signatures of the parties itself---Such powers were available to the court even where report of the handwriting expert was available on record.

----Art. 79---Marginal witnesses, non production of---Effect---Non-production of the marginal witnesses of the document, was fatal where party could easily produce the marginal witnesses.

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

----O. XIII, R. 4---Powers of court---Scope---Court was fully competent to consider all documents whether these were exhibited or not for reaching the true conclusion of the controversy.

Haj Muhammad Khan and 2 others v. Islamic Republic of Pakistan and 2 others 1992 SCMR 2439; Mst. Noor Jehan and others v. Muhammad Rafique and others 1995 CLC 43; Ansar Ahmed v. Bank of America, Karachi PLD 1975 Kar. 252; Mst. Nusrat Khanum v. Liaqat Ali PLD 1994 Kar. 252 and Sultan Ali v. Mst. Khatija Bai 1995 CLC 1441 ref.

Taqi Ahmad Khan for Petitioner.

Muhammad Iqbal Mohal for Respondent.

Date of hearing: 22nd March, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1167 #

2010 M L D 1167

[Lahore]

Before Pervaiz Inayat Malik, J

WAZEER AHMAD---Petitioner

Versus

ABDUL GHANI and 7 others ---Respondents

Civil Revisions Nos. 508-D and 509-D of 1995, heard on 8th May, 2009.

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

----S. 12---General power of attorney---Revocation---Effect---Plaintiff filed suit for specific performance of the contract or in the alternative recovery of Rs.2,4000---Trial Court decreed the suit---Appellate Court allowed appeal and set aside the decree of the Trial Court---Plaintiff asserted that an agreement to sell was executed in his favour by general attorney of the defendants and contention of the defendants, that the said general attorney was not authorized to execute the same and the act of the general attorney to enter into agreement to sell on their behalf was without lawful authority, was not justified---Defendants in the written statement had categorically admitted the execution of the document in favour of the general attorney and stated that the same was got cancelled subsequently---One of the defendant's witnesses admitted the period of, general attorney from 1-1-1978 to 15-5-1998 and admitted that general power of attorney had empowered the attorney to sell the land---Plaintiff having proved execution of document and the Trial Court having rightly decreed the suit, High Court set aside the judgment and decree passed by the Appellate Court.

Muhammad Anwar v. Haji Muhammad Ismail 1992 MLD 860 and Syed Muhammad Sultan v. Kabir and others 1997 CLC 1580 rel.

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

----S. 12---Civil Procedure Code (V of 1908), S.115---Suit for specific performance of agreement to sell property---Stamp papers purchased from different place on the day of holiday---Effect---Plaintiff filed suit for specific performance of the agreement or in the alternative recovery of Rs.24,000 claiming thereunder that an agreement to sell was executed in his favour by general attorney of the defendants in respect of sale of the disputed land---Trial Court decreed the suit---Appellate Court, on appeal reversed judgment and decree passed by the Trial Court---Contention of one of the defendants was that agreement to sell was obtained by practising fraud upon defendants when he was signing the mortgage deed without even informing him---Defendants further contended that the stamp papers regarding agreement to sell were purchased on a day which was then holiday and had been purchased from one city but was executed in another place---Execution of agreement to sell was admitted---Mere fact that the relevant stamp papers were purchased from some other city or it was written on a day which was a holiday, by itself would not be sufficient to doubt the authenticity of the document---Party once having admitted signature upon a document, the onus shifts to the party who alleged it to be afraudulent document---Mere allegation per se would not be sufficient to hold a genuine document as forged one.

Malik Javaid Akhtar Wains for Petitioner.

Syed Mohtshamul Haq Pirzada for Respondents Nos.1 to 6.

Nemo for Respondent No.7.

Date of hearing: 8th May, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 1172 #

2010 M L D 1172

[Lahore]

Before Khawaja Muhammad Sharif, C. J.

MUHAMMAD RIAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.101-J of 2004, heard on 20th August, 2009.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---According to F.I.R. and ocular testimony hatchet was used' in the occurrence but deceased, according to his post-mortem report, had not suffered even' a single injury with sharp-edged weapon---Complainant had never stated in the F.I.R. that hatchet was used from its wrong side---No injury was noticed on the person of the deceased even with a firearm---Big conflict, thus, existed between ocular account and medical evidences-F.I.R. had been lodged after a delay of sixteen hours---Eye-witnesses were not present on the spot at the time of occurrence, who were false witnesses and they had falsely involved the accused in the case---Accused was acquitted in circumstances.

Walayat Umar Chaudhry for Appellant.

Rana Bakhtiar Ali, D.P.-G. for the State.

Malik Mukhtar Ahmad Khokhar, for the Complainant.

Date of hearing: 20th August, 2009.

2010 M L D 1250

[Lahore]

Before Mansoor Akbar Kokab and Hafiz Abdul Rehman Ansari, JJ

Messrs KHURSHID OIL MILLS, LAYYAH through Proprietor and 2 others---Petitioners

Versus

BANK OF PUNJAB through Branch Manager---Respondent

R.F.A. No.92 of 2004 and C.M.As. Nos. 1327-C, 1225-C of 2009, decided on 12th April, 2010.

Court Fees Act (VII of 1870)---

----S.13---Civil Procedure Code (V of 1908), S.96---Withdrawal of appeal---Refund of court-fee-Appeal had been withdrawn after full satisfaction of the decree by the appellant himself on first appearance of the respondent within the time provided by the court---Court in fact endeavoured nothing on the appeal, but to provide the time to appellant to settle the matter of the decree-holder, which he did---Total amount of the court fee was allowed to be refunded, in circumstances.

Malik Muhammad Tariq Rajwana for Petitioner.

MLD 2010 LAHORE HIGH COURT LAHORE 1255 #

2010 M L D 1255

[Lahore]

Before Sh. Najam ul Hasan and Sayyed Mazahar Ali Akbar Naqvi, JJ

UHAMMAD SHABBIR alias CHAIRMAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1700 and Murder Reference No.256 of 2004, heard on 14th April, 2010.

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Time of occurrence, manner of occurrence and the number of injuries had been duly substantiated by the prosecution---Prosecution version had been supported by the recovery of the "Chhuri", weapon of offence---Accused was found guilty in investigation---Accused under the garb of being an influential character had attempted to molest a child of tender age just to fulfil his illicit lust and ultimately killed him---Age of accused being 20 years could not be made a basis for bringing his case within the ambit of mitigation of sentence in view of his callous and ruthless conduct and sentence of death awarded to accused was most appropriate in circumstances---Appeal was dismissed accordingly.

Muhammad Javed and 2 others v. The State 1985 MLD 673 and Muhammad Mushtaq v. The State 1973 SCMR 219 ref.

Ch. Ijaz Akbar for Appellant.

Qazi Zafar Iqbal Addl. Prosecution-General for the State.

Date of hearing: 14th April, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1264 #

2010 M L D 1264

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD IBRAHIM---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 5244-B of 2010, decided on 28th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.365-B---Kidnapping and compelling a woman for marriage---Bail, grant of---Further inquiry---Alleged abductee stated in her statement under section 161, Cr.P.C. that she had left the house of her parents after they decided against her marriage to the accused; she denied the story told in the F.I.R. in her statement before Additional Sessions Judge insisting that she had married the accused out of her free-will---Mother of the alleged abductee testified to her puberty---Accused was found innocent in investigation and his name was put in the 2nd column of the challan--All attending circumstances had made the case of the accused one of further inquiry---Accused was admitted to bail in circumstances.

Muhammad Arshad Rana for Petitioner.

Sahibzada M.A. Amin Mian, Addl. Prosecutor-General with Asghar, S.-I. for the State.

Tahir Mahmood Mughal for the Complainant.

MLD 2010 LAHORE HIGH COURT LAHORE 1282 #

2010 M L D 1282

[Lahore]

Before Ijaz Ahmad Chaudhry and Sardar Tariq Masood, JJ

MUHAMMAD ILYAS---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 620 and Murder Reference No. 748 of 2005, heard on 28th April, 2010.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Promptly lodged F.I.R. had eliminated the chances of fabrication and consultation and further confirmed the presence of the complainant and other prosecution witnesses at the scene of crime---Fatal injury on the person of the deceased specifically attributed to accused was fully supported by medical evidence---Crime empties secured from the spot were found to have been fired from the pistol recovered at the instance of the accused---Chance of mistaken identity of accused had been eliminated by the broad daylight occurrence---Case of accused was not at par with that of the two acquitted co-accused, as the role of accused was independently supported by ocular testimony which stood corroborated by medical evidence as well as by the recovered three crime empties found to have matched with the pistol of accused---Accused after his grievance having already been redressed, had taken the law in his hands and committed the murder of the deceased---Taking private revenge could not be considered as a mitigating circumstance in the matter of sentence---Conviction and sentence of death of accused were affirmed in circumstances.

Ali Khan v. The State PLD 1980 SC 109 and Muhammad Aslam alias Chhachhi v. The State 1982 SCMR 1029 ref.

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

----S. 302(b)---Qatl-e-amd---Sentence---Mitigating circumstance---Private revenge---Taking a private revenge as a mitigating circumstance in the matter of sentence was not permissible.

Ali Khan v. The State PLD 1980 SC 109 ref.

Sahibazad Farooq Ali and Altaf Ibrahim Qureshi for Appellant.

Syed Mukhtar Masood Bukhari, DDPP for the State.

Nemo for the Complainant.

MLD 2010 LAHORE HIGH COURT LAHORE 1292 #

2010 M L D 1292

[Lahore]

Before Muhammad Yawar Ali, J

PARVEEN AKHTAR---Petitioner

Versus

EX-OFFICIO JUSTICE OF PEACE and others---Respondents

Writ Petition No. 4823 of 2010, decided on 3rd June, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 154---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for registration of criminal case---Dismissal of application---Ex-Officio Justice of Peace relying on report of S.H.O. dismissed application of petitioner for registration of criminal case against respondents---Petitioner had impugned order of Ex-Officio Justice of Peace in constitutional petition---Record had revealed that there was a factual controversy which could not be resolved by High Court under constitutional jurisdiction---Petitioner had alternate remedy for filing of private complaint before a court of competent jurisdiction, which was an efficacious remedy and since the petitioner had not availed it, petition under Art.199 of the Constitution was not competent---Petition was dismissed.

Allah Ditta v. Additional Sessions Judge, Khushab and 12 others 2008 PCr.LJ 908; Mst. Malka Jan v. Inspector-General of Police, N.-W.F.P. Peshawar and 2 others 2000 PCr.LJ 320; Maulvi Shahzado Dreho v. Khalid Mahmood Soomro and others 2003 PCr.LJ 319; Saeed Ahmad and others v. Naseer Ahmad and others PLD 2000 Lah. 208; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 and Khizar Hayat and others v. Inspector-General of Police (Punjab) Lahore and others PLD 2005 Lah. 470 ref.

M.M. Iqbal for Petitioner.

Muhammad Arif Gondal for Respondent No.3.

Syed Nayyar Abbas Rizvi, Asst.A.-G. with Bashir Ahmad, S.-I.

MLD 2010 LAHORE HIGH COURT LAHORE 1297 #

2010 M L D 1297

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD SHARIF---Petitioner

Versus

MUHAMMAD YAQOOB---Respondent

Civil Revision No. 1068 of 2000, decided on 31st March, 2010.

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

----Ss. 6 & 13---Suit for pre-emption---Trial Court dismissed the suit while Appellate Court decreed the same in favour of plaintiff---Defendant contended that plaintiff failed to perform Talb-i-Muwathibat by not mentioning in the plaint the time and place of his knowledge of sale of suit-land---Both witnesses also could not specifically mention the time and place as to when and where they had come to know about the sale---Validity---Mentioning of time and place of Talb-i-Muwathibat was essential requirement of law to judge the soundness/genuineness of said Talb---Appellate Court, in circumstances, erred in deciding that requirements of Talb-i-Muwathibat had been fulfilled and impugned judgment was passed in violation of law---Judgment and decree passed by Appellate Court were set aside and judgment and decree passed by Trial Court were restored.

Azmatullah v. Mst. Hameed Bibi and others 2005 SCMR 1201 ref.

Haq Nawaz v. Muhammad Kabir 2009 SCMR 630 fol.

Syed Fayyaz Ahmed Sherazi for Petitioner.

Tahir Naeem and Mian Shah Abbas for Respondent.

MLD 2010 LAHORE HIGH COURT LAHORE 1305 #

2010 M L D 1305

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ASIF JAVED---Appellant

Versus

THE STATE---Respondent, Criminal Appeal No.1305 of 2000, heard on 6th May, 2010.

Penal Code (XLV of 1860)---

----S.409---Prevention of Corruption Act (II of 1947), S.5(1)(c)---Criminal breach of trust by public servant and criminal misconduct---Appreciation of evidence---Benefit of doubt---Record did not suggest that accused had removed the valuable papers from the file---Accused was a government employee---All that happened in the case had been done in performance of government duty---No personal interest of accused had come on record to prove his dishonestly or bad intention---Prosecution had failed to prove any mens rea on the part of accused to commit the offences alleged against him---Accused had not secured any monetary benefit in the case---Record did not show that accused had misplaced the valuable papers either to make favour to any party or to cause loss to any party---All the witnesses and the accused had joined the investigation together in departmental inquiry conducted by the Magistrate/Officer Incharge, Judicial Record Room, in which it was held that responsibility for the loss of the file could not be fixed on the shoulders of any individual official---Conviction could not be based only on the admission of accused that he had received the file on a specified date from Copying Branch without counting the papers---File was not proved to be in exclusive possession of accused during the relevant period---Prosecution had also failed to prove that the missing papers had been retained by the accused or the same had been recovered from him---Accused was acquitted on benefit of doubt in circumstances.

Zafar Iqbal Chohan for Appellant.

Ch. Amjad Hussain, Deputy Prosecutor-General for the State.

Date of hearing: 6th May, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1313 #

2010 M L D 1313

[Lahore]

Before Ijaz ul Ahsan, J

HUMAYUN GOHAR KHAN---Petitioner

Versus

GUARDIAN JUDGE, OKARA and 2 others---Respondents

Writ Petition No. 24201 of 2009, decided on 4th May, 2010.

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

----S. 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minors---Welfare---Plaintiff (father) married thrice---Mother an educated lady---Effect---Plaintiff (father) had remarried and was living with his third wife---Plaintiff was engaged in the business of poultry, which kept him out of house during most part of the day which would require the children to spend a lot of time with their step-mother---Real mother was an educated lady, had not re-married and could devote her full time and attention towards the children---Welfare of the minors, lay if their custody was allowed to remain with their real mother---Displacement of minors from the environment where they were happy, settled and well adjusted, might cause physical, and psychological problems, leaving lifelong scars on their personalities---High Court declined interference under constitutional jurisdiction.

PLD 2003 SC 877 ref.

Akhtar H. Awan for Petitioner.

Zahoor ul Haq Kiani for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 1320 #

2010 M L D 1320

[Lahore]

Before Ijaz Ahmad Chaudhry and Shahid Hameed Dar, JJ

ROHTAS KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 446 and Murder Reference No. 30-T of 2003, heard on 29th March, 2010.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Abscondance---Corroborative value---Relevance and corroborative value of abscondence cannot be denied on any interpretation of law applicable to it---Strength or weakness, sufficiency or otherwise of abscondence, can be a matter of debate in a given case---Facts of each case will finally determine the place and the weight to be given to abscondence for proving a case beyond reasonable doubt---Antecedents of the absconder, his occupational habits and limitations, period of abscondence and specific explanation for the same, have all to be considered in juxtaposition with the other evidence on the record.

Ali Khan v. The State 1980 SCMR 474 ref.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Abscondence---Corroborative evidence---Abscondence of accused, by itself, is not sufficient to convict him, but it is a strong piece of corroborative evidence of other direct and circumstantial evidence in the case.

Mst. Toheeda v. Khan Bahadur and another 1992 SCMR 1036 ref.

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Daylight occurrence---Matter had been reported promptly to the police excluding hypothesis of deliberation on the part of the prosecution---Three credible eye-witnesses had truthfully deposed about the event---Medical evidence had corroborated the ocular testimony---Long unexplained abscondence of accused had further shared in proving the guilt of accused---Trial Court had rightly believed and accepted the prosecution case at the expense of the unsubstantiated defence plea taken by accused---No mitigating circumstance was available on record in favour of accused---Conviction and sentence of death of accused were upheld in circumstances.

Ali Khan v. The State 1980 SCMR 474; Muhammad Din alias Manna v. The State 1976 SCMR 185 and Mst. Roheeda v. Khan Bahadur and another and 1992 SCMR 1036 ref.

Sultan Ahmad for Appellant.

Aftab Farrukh, Sardar Khurram Latif Khan Khosa and Ahsan Rasul Chattha, D.P.G. for the State.

Date of hearing: 29th March, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1337 #

2010 M L D 1337

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD NASIR---Petitioner

Versus

NASEEM AKHTAR---Respondent

Writ Petition No. 7018 of 2009, decided on 27th January, 2010.

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, dower amount and expenditure allowance etc.---Plaintiff lady filed suit for recovery of maintenance allowance at the rate of Rs.10,000 p.m., claimed dower amount at the rate of Rs.10,00,000, expenditure allowance as Rs.50,000 and 10 tolas gold ornaments or the value thereof Rs.1,30,000---Family Court decreed the suit to the extent of maintenance allowance at the rate of Rs.10,000 p.m., dower amount Rs.10,0,000 and dismissed the suit of the plaintiff to the extent of expenditure of Rs.50,000 and demand for gold ornaments of 10 tolas---Appellate Court on appeal, remanded the case to the Family Court---Family Court, on remand decreed the suit for dower to Rs.10,00,000 and to the extent of other claims the suit was dismissed-On filing appeal by the defendant against judgment of the Family Court, Appellate Court accepted the appeal to the extent of maintenance allowance of the plaintiff and fixed the maintenance allowance at the rate of Rs.1000 p.m. instead of Rs.10,000 p.m. which was decreed by the Family Court, however Appellate Court dismissed appeal of the defendant to the extent of dower---De novo appraisal of evidence was not permissible in constitutional jurisdiction of High Court---Concurrent judgments passed by two courts below based on convincing, rational and cogent reasons could not be interfered with in absence of any misreading and non-reading of evidence or jurisdictional error on record---Constitutional petition was dismissed.

Muhammad Sadaq v. Mst. Ghulam Fatima and 6 others 2005 YLR 2634; Muhammad Nawaz v. Faiz Ahmad and another 2005 YLR 2903; Liaqat Ali and 8 others v. Abdul Aziz and 3 others 2005 YLR 12; Muhammad Habib v. Mst. Safia Bibi 2008 SCMR 1584; Ishaq Ahmad v. Judge Family Court, Okara 2007 YLR 1550; Muhammad Anwar v. Shamim Akhtar 2007 CLC 195 and Rehman Gull v. Mst. Nizakat Bibi 2007 MLD 551 DB ref.

Syed Liaqat Ali Shah for Petitioner.

Israr Ali Joyia for Respondent.

MLD 2010 LAHORE HIGH COURT LAHORE 1346 #

2010 M L D 1346

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

Ch. ABDUR REHMAN---Petitioner

Versus

DEPUTY DIRECTOR, F.I.A., FAISALABAD and 19 others---Respondent

Writ Petition No.20066 of 2009, heard on 8th April, 2010.

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

----Art. 199-Constitutional petition---Maintainability---Petitioner had sought registration of case and holding an inquiry by F.I.A. against the respondents, who had allegedly prepared fictitious Revenue Record and had obtained dummy loans on bogus passbook for their private business---Many alternate, adequate and efficacious remedies were available to petitioner, firstly, by filing a compliant before Banking Ombudsman under S.82 of the Banking Companies Ordinance, 1962; secondly by filing a complaint before the Special Court under the Offences in Respect of Banks (Special Courts) Ordinance, 1984; thirdly by seeking a direction against Deputy Director, F.I.A., respondent under Ss.22-A and 22-B, Cr. P. C. by filing an application before the Justice of Peace and fourthly by filing a suit under the Financial Institutions (Recovery of Finances) Ordinance, 2001---No direction could be passed by High Court for registration of the case or inquiry under its constitutional jurisdiction under Article 199 of the. Constitution, where alternate remedies were available---Admittedly the same matter was sub judice before the Banking Court on the initiation of the petitioner---Constitutional petition, therefore, was neither competent or maintainable, nor the same had merits---Petitioner in order to avoid repayment of his loans appeared to be trying to create to lever to pressurize the respondents---No direction for registration of case could be issued in circumstances by High Court in its extra-ordinary constitutional jurisdiction---Petition was dismissed accordingly.

Messrs Royal IPR Security Service (Pvt.) Ltd. v. Muhammad Nayeem and others 2004 YLR 2577; Javed Tariq Khan and another v. Ahmed Raza Khan and 4 others 1999 MLD 3230; Muhammad Akram v. Muhammad Anwar 2002 YLR 3701 and Saeed Ahmed Barry v. The State and 2 others 2007 YLR 2834 ref.

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

----Art. 199---Constitutional jurisdiction---Scope---Availability of alternate remedy---Effect---No direction can be passed by High Court for registration of a case or inquiry in its constitutional jurisdiction under Article 199 of the Constitution, where alternate remedies are available to petitioner.

Saeed Ahmed Barry v. The State and 2 others 2007 YLR 2834 and Messrs Royal IPR Security Service (Pvt.) Ltd. v. Muhammad Nayeem and others 2004 YLR 2577 ref.

M. Abdus Sattar Chughtai for Petitioner.

Majid Ali Wajid for Respondents Nos. 2, 5 to 20.

Date of hearing: 8th April, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1366 #

2010 M L D 1366

[Lahore]

Before Muhammad Khalid Mahmood Khan, J

MUHAMMAD NAWAZ---Petitioner

Versus

FEDERAL LAND COMMISSIONER, ISLAMABAD and 11 others---Respondents

Civil Revision No.3017 of 1994, decided on 22nd April, 2010.

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

----S. 42---Suit for declaration---Land surrendered under Land Reforms purchased by plaintiff in public auction in year 1967 through registered sale-deed---Description of such land as "LOT-1" having Khasra Number 2985 mentioned in Sale-deed---Such Khasra number during consolidation proceedings found to be graveyard---Cancellation of such land from plaintiff's name by Deputy Land Commissioner for same could not be resumed or auctioned or owned by anyone according to law---Validity---Authority had not disputed auction of surrendered land, payment of auction price by its purchaser and non-description of property in "FARD NILAM"---Plaintiff for last 53 years was in possession of land, which was handed over to him by Authority on day of confirmation of sale---Authority, if claimed that they sold graveyard to auction purchaser, then they would be admitting their guilt and would be bound to prove that they resumed graveyard from its earlier owner in terms of Land Reforms; that while auctioning land, they had made clear to public at large that they were selling graveyard and purchaser would purchase graveyard and not agricultural land---Schedule of auction of land did not show any graveyard, meaning thereby graveyard was neither surrendered by earlier owner nor offered for auction; and that Khasra No. 2958 had been wrongly mentioned in column of Khasra---Plaintiff after taking possession of auctioned land had not ever complained that there was a graveyard---Plaintiff was in possession of auctioned land and no one except Land Commission was claiming its ownership-If authority was confident that land sold was a graveyard, then how possession of suit-land was handed over to plaintiff; why authority did not allege that plaintiff was an illegal occupant or had trespassed land; why authority had not recalled auction proceedings and returned price of land to plaintiff or offered him alternate land---Authority had admitted description of suit-land given in plaint and delivery of its possession to plaintiff---Authority had confirmed to prospective buyers that land offered for sale was surrendered land---Plaintiff had proved that he purchased land which was in his possession for last 53 years; and that officials of Land Commission after sale of suit-land had wrongly and fraudulently mentioned Khasra No. 2985 against Lot No. 1---Suit was decreed in circumstances.

(b) Administration of justice---

----No one can be a judge of his own cause.?

Khan Muhammad Vehniwal for Petitioner.

Ahmad Waheed Khan for Respondents.

Date of hearing: 25th March, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1376 #

2010 M L D 1376

[Lahore]

Before Khawaja Muhammad Sharif, C.J. and Kh. Imtiaz Ahmed, J

RUSTAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 96 and Murder Reference No. 305 of 2004, decided on 7th April, 2010.

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Natural and independent eye-witnesses were present at the scene of occurrence and they had corroborated each other---Medical evidence had fully supported the ocular testimony---Pistol used in the offence had been recovered from the accused---When eye-witnesses were found present at the spot and the accused was found to have committed the murder of the deceased, then there was no need of any further corroboration---Accused had fired three successive shots on the person of the deceased, which had caused his death---No mitigating circumstances was available in favour of accused on record to justify lesser punishment--Conviction and death sentence of accused were upheld in circumstances.

1990 SCMR 406; 2010 SCMR 97; 2002 SCMR 99; 2006 SCMR 1840 and PLD 1996 SC 53 ref.

Sh. Ahsan ud Din for Appellant.

Sardar Muhammad Ishaq for the Complainant.

Sh. Muhammad Munir, DPG. for the State.

Date of hearing: 7th July, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1382 #

2010 M L D 1382

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD RAZZAQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 303 and 325 of 2008, decided on 20th April, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b)/34 & 342---Qatl-e-amd and wrongful confinement---Appreciation of evidence---Eye-witnesses had plausibly explained their presence at the place of occurrence---Minor differences in statements of eye-witnesses were natural due to passage of time---Eye-witnesses had no enmity to depose falsely against the accused---Time, seat of injury and nature of injury had provided necessary corroboration to prosecution version and medical evidence had fully supported the ocular testimony, which could not be disbelieved---Incident had occurred in broad daylight---Matter had been promptly reported to the police---Motive had been established against the accused---Accused had facilitated his accomplices, led them and actively participated in the occurrence---Trial Court had evaluated each and every aspect of the case in its true perspective and arrived at correct conclusion---Conviction recorded and sentences awarded were unexceptionable---Appeal was dismissed accordingly.

Abdul Hameed v. The State 2008 PCr.LJ 768; Muhammad Latif v. Muhammad Hanif and 2 others 1989 SCMR 1105; Khalid Mahmood and others v. State 1998 PCr.LJ 901; Ghulam Murtaza v. The State 2008 MLD 958; Khizar Hayat and others v. The State and others 2009 MLD 325; Saeed Akhtar and others v. The State 2000 SCMR 383; Khadim Hussain and others v. The State and others 2007 PCr.LJ 886; Fayyaz Hussain Shah v. The State 2002 SCMR 1848; Shoukat Ali v. State PLD 2007 SC 93; Afzal and another v. The State 2007 SCMR 315; Sahib Khan v. The State 2008 SCMR 1049; Dilbar Masih v. The State 2006 SCMR 1801; Khizar Hayat v. Imtiaz Ali Khan and 2 others 2004 SCMR 845 and Munir Ahmed v. The State 2001 SCMR 241 ref.

Sardar Muhammad Ishaq Khan for Appellant.

Sadaqat Ali Khan for the Complainant.

Sh. Muhammad Munir, DPG for the State.

Date of hearing: 18th April, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1388 #

2010 M L D 1388

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD JAMEEL---Petitioner

Versus

AZMAT NAVEED---Respondent

Writ Petition No. 6471 of 2009, decided on 7th April, 2010.

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

----S. 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minors---Petition for custody of two female minors filed by the petitioner/father, having been dismissed by the Guardian Judge, petitioner assailed dismissal order in appeal, which was dismissed---Validity---Petitioner had contracted second marriage and it would not be in the welfare of the minors that their custody be taken from the real mother and handed over to the step-mother---Suit for recovery of maintenance filed against the petitioner was decreed against him and in favour of the minors, but the petitioner had not paid any amount to the minors and respondents had filed an execution petition for the recovery of arrears as well future maintenance---Concurrent findings of fact against the petitioner, could not be interfered by High Court while exercising its constitutional jurisdiction---Constitutional ' petition was dismissed.

Amjad Farouck Bismil Rajpout for Petitioner.

Rao Abdul Jabbar Khan for Respondent

MLD 2010 LAHORE HIGH COURT LAHORE 1395 #

2010 M L D 1395

[Lahore]

Before Nasir Saeed Sheikh, J

TASSAWAR RASHEED---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, CHAKWAL and others---Respondents

Writ Petitions Nos.2698 and 2699 of 2009, decided on 1st October, 2009.

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

----S. 540-A---Penal Code (XLV of 1860), Ss.337-A(i)(ii), 337-F(i)(i) (v)(vi), 337-L(ii), 458, 147 & 149---Constitution of Pakistan (1973), Art.199---Constitutional petition---Shajjah and house-trespass--Exemption from personal appearance---Application for---During trial petitioner filed application to the effect that he should be exempted from his personal appearance under S.540, Cr. P. C. as his work visa to join his employment abroad had been received, Trial Court dismissed said application and his revision petition filed against order of the Trial Court had also been dismissed by the Appellate Court---Validity---Provisions of S.540-A, Cr.P. C. were to be applied by the court of law in view of facts of each case---Duty of an accused would not come to end by just moving an application before the court for seeking exemption from appearance, but would continue thereafter as well---Accused must wait till his application was duly allowed, because the court had not to pass a mechanical order---Trial Court had to see the possibility of its ability to enforce the direction of personal attendance of accused at a subsequent stage---Accused involved in a criminal case who was allowed concession of bail during pendency of the trial, could not be allowed to act at will, making it impossible by the Trial Court to exercise reasonable control over his movement---Accused/petitioner was not entitled to exemption from appearance during the trial---Manner in which the petitioner conducted himself in making the prayer and then leaving abroad without grant of said permission by the Trial Court, had resulted into dismissal of his application---Accused was present before the Trial Court when he moved application for exemption, but he left the country without any order having been passed by the Trial Court on his application, he did not take the court into confidence about his commitment of job abroad in proper manner---Trial Court, in circumstances, was left with no option, but to dismiss his application under S.540-A, Cr. P.C.---Order passed by the two courts below did not call for any interference by High Court in exercise of its constitutional jurisdiction, particularly when the petitioner had misused the concession of bail granted to him by going abroad without seeking permission from the court, when he was facing trial as an accused---Accused was not entitled to any relief---Constitutional petition was dismissed.?

PLD 2004 SC 160; PLD 1993 Pesh. 155; 2002 PCr.LJ 947; 1989 PCr.LJ 1652; 1980 PCr.LJ 1; The Crown v. Khushi Muhammad PLD 1953 Federal Court 170 and Said Mian and another v. Mian Said Baghdad and another PLD 1980 SC 318 ref.

(b) Interpretation of statutes---

----Provisions of law were to be interpreted and implemented effectively, so that the courts of law should remain the authority to enforce it.?

Ch. Afrasiab Khan for Petitioner.

MLD 2010 LAHORE HIGH COURT LAHORE 1404 #

2010 M L D 1404

[Lahore]

Before Khawaja Muhammad Sharif, C.J. and Kh. Imtiaz Ahmed, J

ALI AKSAR and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.204, 212, Criminal Revision No. 108 and Murder Reference No. 708 of 2005, heard on 7th April, 2010.

Penal Code (XLV of 1860)---

---Ss. 302(b), 324, 337-A(ii) & 337-F(ii)---Qatl-i-amd, attempt to commit qatl-i-amd, causing of hurts "Shajjah" and "ghayr jaifah"---Appreciation of evidence---Sentence, reduction in---No previous background of enmity existed between the parties---Accused had committed the murder of the deceased without premeditation and preconsultation---Occurrence had taken place at the spur of the moment---Accused had not taken any undue advantage of the situation and he had not repeated the "Chhuri" blow on the persons of the deceased---Conviction of accused under S.302(b), P.P.C. was consequently maintained, but his death sentence awarded thereunder was converted into imprisonment for life in circumstances---Other conviction and sentences of accused were, however, upheld with the direction for all the sentences to run concurrently.

2007 SCMR 994 and 109; 2006 SCMR 1127; 2003 SCMR 1164; NLR 2009; Cr.C. 305; 2010 YLR 121; PLJ 2010; Cr.C., 1; 2010 YLR 121 and PLD 2008 SC 40 ref.

Malik Rab Nawaz Noor for Appellants.

Muhammad Bashir Peracha for the Complainant.

Sh. Munir Ahmed, DPG for the State.

Date of hearing: 7th April, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1420 #

2010 M L D 1420

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

RAZIA BIBI---Petitioner

Versus

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

Writ Petition No.10907 of 2009, decided on 21st April, 2010.

(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 dowry articles---Family Court and Appellate Court had concurrently dismissed suit for recovery of dowry articles---Main witness in the case was the father of the plaintiff who admitted in cross-examination that he had not given any dowry articles to the plaintiff at her first marriage, inference in circumstances, was that at the time of her second marriage with the defendant no dowry articles were given to the plaintiff---Father of the plaintiff had also admitted that he had not affixed any thumb impression on the list of dowry articles and that the price of said dowry articles were written by his counsel; and that he was not aware as to when the list of dowry articles was prepared---No witness was produced in whose presence dowry articles were handed over to the defendant or his family---Both courts below had properly and minutely scanned the evidence produced by the parties and were unanimous on the point that no dowry articles were given to the plaintiff:--Concurrent finding of fact of two courts of competent jurisdiction, could not be interfered with by High Court in its constitutional jurisdiction when plaintiff had failed to point out any jurisdictional defect in the judgments of the two courts below---Constitutional petition was dismissed.

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

----Art. 199---Constitutional jurisdiction---Scope---No factual controversy could be ascertained nor the High Court, in constitutional jurisdiction, could interfere in the concurrent findings of facts unless there was some jurisdictional defect in the judgments of two courts below.

Andaz Jillani Khan for Petitioner.

Ch. Abdul Sattar Ghuman for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 1422 #

2010 M L D 1422

[Lahore]

Before Khawaja Muhammad Sharif, C.J.

QAMAR-UZ-ZAMAN QURESHI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 276-B of 2010, decided on 19th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Pre-arrest bail, refusal of---No ulterior motive or mala fide was found on the part of the complainant to falsely implicate accused in the case---Cheque in question had been returned to the complainant by the Bank due to insufficient funds in the account of accused---Bank had not stated that signatures of accused were forged one---Considerations for grant of bail before arrest and after arrest, were totally different---No case for bail before arrest having been made out, bail petition stood dismissed.

Alamdar Hussain Qureshi for Petitioner.

Rana Bakhtiar Ali, D.P.G. along with Muhammad Khalid S.-I.

Shoib Ahmad Sheikh for the Complainant.

MLD 2010 LAHORE HIGH COURT LAHORE 1430 #

2010 M L D 1430

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD AJMAL---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 5197-B of 2010, decided on 9th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.392, 395 & 411---Robbery, dacoity and dishonestly receiving stolen property---Bail, grant of---Further inquiry---Accused was not nominated in the F.I.R., instead, he was implicated two and half months after the registration of the case on the basis of statement under S. 161, Cr.P.C. which could not be equated with the F.I.R.----Any statement or further statement of the first informant recorded during investigation by police would neither be equalled with the First Information Report nor would such statement be read as part of the same---Accused was not nominated in the F.I.R., yet prosecution did not hold identification parade after his arrest---Where accused was not nominated in the F.I.R., failure to hold identification parade after his arrest could bring his case within purview of section 497(2), Cr.P.C.--Until and unless guilt was proved, accused would be deemed to be innocent and mere registration of number of cases against the accused, without conviction, was no ground for withholding grant of bail---Accused was an AIDS patient, therefore, without touching on the merits of the case regarding recovery effected from him, accused was admitted to bail. ?

Noor Muhammad v. The State 2008 SCMR 1556; Hidayat Ullah alias Hidoo v. The State 2008 YLR 1747; Muhammad Suleman v. Riasat Ali 2002 SCMR 1304; Allah Wasaya v. The State 2004 PCr.LJ. (Lah.) 1659 and Rahim alias Rahmat and another v. The State 1998 PCr.LJ 821 rel.

M.M. Iqbal for Petitioner.

Ishaque Masih Naz, Deputy Prosecutor-General Punjab.

Muhammad Ashraf A.S.-I. with the Police Record.

MLD 2010 LAHORE HIGH COURT LAHORE 1445 #

2010 M L D 1445

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ARIF HUSSAIN BUKHARI---Petitioner

Versus

RANA MUNIR AHMAD---Respondent

Civil Revision No.1983 of 2010, decided on 2nd July, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1, 2 & 4---Petitioner had sought setting aside of impugned order passed by Appellate Court by virtue of which the confirmation of stay order passed by the Trial Court, was set aside---Factual position in the case had not been appreciated by the Appellate Court---Logic given in the impugned order that the respondent could raise construction over the disputed parcel of land, would also not appeal to a prudent mind as ultimately, if the respondent would fail, would have to demolish the construction which would cause financial damage to him---High Court to resolve initial controversy, appointed local commission and set aside the impugned order---High Court directed that local commission would examine the spot and would submit report before the Trial Court, which would decide the issue in the light of report to be submitted by the local commission.

Maqsood Ahmad Kamboh for Petitioner.

Ch. Abdul Majeed Gujjar for Respondent.

MLD 2010 LAHORE HIGH COURT LAHORE 1446 #

2010 M L D 1446

[Lahore]

Before Fazal-e-Miran Chauhan and S. Ali Hassan Rizvi, JJ

MUHAMMAD MANSHA---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 2-J of 2003, 1624 of 2002 and 1197 of 2006 and Murder Reference No. 683 of 2002, decided on 11th February. 2009.

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

----Ss. 302(6), 324, 109 & 34---Qatl-e-amd, attempt to qatl-e-amd---Appreciation of evidence---No worthwhile delay was shown in lodging the F.I.R. or for making undue deliberations---Presence of both the eye-witnesses at the spot was quite natural and inspired confidence--Mere relationship of witnesses inter se or with the deceased, would not make them untrustworthy by any stretch of imagination---Occurrence took place in the village during day time---No chance of mis-identity of the assailants existed---Contentions that no person from, the village had come forward to become a prosecution witness, was not acceptable for the reason that reluctantance of people for becoming a witness particularly in murder cases where parties were inimical, was a judicially recognized fact---Presence of prosecution witnesses at the place of occurrence was quite natural---Medical evidence provided full corroboration to the eye-witness account---Acquittal of co-accused on benefit of doubt, appeared to be as a matter of abundant caution and their acquittal would in no manner create any reasonable doubt on the prosecution version---Recovery of .44 bore rifle along with 13 bullets on the leading and pointing of accused stood proved on the record to the satisfaction of the court---Medical evidence and recovery of firearms and bullets had provided sufficient corroboration to the prosecution case as disclosed in the F.I.R. and proved through the statements of prosecution witnesses---Expert report returned by Forensic Science Laboratory relating to .44 bore rifle, was positive---Version of accused. that the eye-witnesses were inimical to him, was bald and not acceptable---Conversely, in a way accused had admitted his enmity with the complainant party---Prosecution, in circumstances, had proved its case against accused beyond reasonable doubt--Sentence of death awarded to accused by the Trial Court, was confirmed, in circumstances.

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

----S.302(6)---Criminal Procedure Code (V of 1898), S.417(2A)---Qatl-e-amd---Appeal against acquittal---Evidence on record against acquitted co-accused was too tenuous to nail them down on a capital charge-Allegation against said co-accused was only of abetment---Ratiocination adopted by the Trial Court while recording their acquittal was sound and there was no reason to disagree with that---Conclusion arrived at by the Trial Court being correct, appeal against acquittal was dismissed, in circumstances.

Masood Sadiq Mirza for Appellant.

Pir S.A. Rasheed for the Complainant.

Ijaz Ahmad Bajwa, D.P.G.

Date of hearing: 11th February, 2009.

MLD 2010 LAHORE HIGH COURT LAHORE 1458 #

2010 M L D 1458

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

NAJAM-UD-DIN DAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 5349-B of 2010, decided on 10th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420, 468 & 471---Prevention of Corruption Act (II of 1947), S.5(2)---Cheating and dishonestly inducing delivery of property, forgery for cheating and using as genuine a forged document---Bail, confirmation of---Principle of consistency---Applicability---Accused allegedly prepared bogus Khata during his posting as Consolidation Officer---Prosecution. failed to satisfy the court as to whether signatures on alleged bogus Khata were compared with the handwriting of the accused---No comparison report from competent forum was produced and there was nothing on record to connect the accused with the alleged offence---Case of the accused. was not, prima facie, distinguishable from that of the principal accused who had already been released on bail---Rule of consistency, therefore, entitled the accused to the concession of bail---Case of the accused was, in fact, even on better footing because he was ascribed a role of lesser magnitude as compared to his co-accused already admitted to bail---Ad interim bail already granted to accused was confirmed in circumstances.

Muhammad Fazal Ilyas Bodi v. The State 1979 SCMR 9 and Muhammad Ramian v. Zafar Ullah and another 1986 SCMR 1381 fol.

Arif Saeed for Petitioner.

Ishaque Masih Naz, Deputy Prosecutor-General Punjab.

Ahmar Sohail, Assistant Director (Investigation), Anti-Corruption Establishment/Investigating Officer.

MLD 2010 LAHORE HIGH COURT LAHORE 1474 #

2010 M L D 1474

[Lahore]

Before Ijaz Ahmed, J

SIRAJ DIN ORFI and others---Petitioners

Versus

CIRCLE REGISTRAR OF CO-OPERATIVE SOCIETIES and others---Respondents

Writ Petition No. 2519 of 2010, decided on 1st July, 2010.

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

----S. 4---Co-operative Societies Rules (1927), R. 48---Islamabad Capital Territory Co-operative Societies Elections (Amendment) Rules, 2004, R. 5(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Pakistan Atomic Energy Commission Employees Co-operative Housing Society---Order of Deputy Registrar, Co-operative Societies dissolving Managing Committee of such society for improper functioning and appointing Caretaker Committee and Election Commission---Validity---Under R. 48 of Islamabad Capital Territory Co-operative Societies Elections (Amendment) Rules, 2004, only Registrar could supersede Managing Committee---Under R. 5(2) of Rules, 2004, Election Commission could be constituted only by Registrar---Nothing on record to show conferment of such powers of Registrar on any person including Deputy Registrar as required under S. 4 of Co-operative Societies Act, 1925---Thing required to be done in prescribed manner must be done in such manner alone---High Court set aside impugned orders while observing that Registrar might himself take steps for smooth running of affairs of such society.

Writ Petition No. 1617 of 2008 Ch. Abdul Azeem and 1 another v. ADC(G) Deputy Registrar, Cooperative Housing Society ICT Islamabad and others, distinguished.

(b) Administration of justice---

----Thing required to be done in prescribed manner must be done in such manner alone.

Ch. Khalil-ur-Rehman v. The Registrar Co-operative and 2 others and 1994 MLD 1637 and Islamia University Bahawalpur v. Dr. Muhammad Khan Malik PLD 1993 Lah. 141 rel.

Zaheer-ud-Din Usmani for Petitioners.

Raja Rizwan Abbasi for Respondents Nos. 1, 2 and 3.

Asif Azeem Khan for Respondents Nos. 5, 6, 7 and 8.

Rashid Hafeez, A.A.-G. along with Amer Ali, DC/Registrar Islamabad and Farasat Ali Khan, Deputy Registrar, Islamabad.

MLD 2010 LAHORE HIGH COURT LAHORE 1483 #

2010 M L D 1483

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

SHAMOAN alias SHAMMAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.286 and Murder Reference No. 173 of 2004, heard on 18th March, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Case had two versions---None of the parties had disclosed the truth---Accused had fired twice but on the legs of the deceased, which showed that he had no intention to kill the deceased---Ocular testimony was consistent with medical evidence and corroborated by the recovery of gun from the accused, which was found wedded by the Forensic Science Laboratory with the crime empties recovered from the spot---Accused had also suffered sixteen injuries during the incident, which was a sudden fight---Three co-accused had already been acquitted by Trial Court on the basis of same ocular evidence---Section 302(b), P.P.C. was not attracted in the case---Conviction and sentence of accused under S.302(b), P.P.C. were set aside and instead he was convicted under S.302(c), P.P.C. and sentenced to undergo ten years' R.I. in circumstances.

Syed Ali Bepari v. Nibaran Mullah and others PLD 1962 SC 502; Malik Waris Khan and another v. Ishtiaq alias Naga and others PLD 1986 SC 335 and Muhammad Rafique v. The State 2008 YLR 1725 ref.

Majid Karim Khokhar for Appellant.

M.M. Alain Additional Prosecutor-General Punjab for the State.

Date of hearing: 18th March, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1492 #

2010 M L D 1492

[Lahore]

Before Ch. Iftikhar Hussain, J

SABIR HUSSAIN---Petitioner

Versus

THE STATE and another-Respondent

Criminal Miscellaneous No. 2959-B of 2010, decided on 12th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/148/149---Qalt-e-amd---Bail, grant of---Further inquiry---As per own showing of the complainant in the F.I.R., accused was empty-handed at the spot at the relevant time---Role alleged to accused . in the incident was that of Lalkara, but attribution of Lalkara was not to accused alone, but was also to his co-accused---Was yet to be seen, in circumstances, that in fact what was the nature of his Lalkara, if at all, it could be taken to be so-Investigation Officer had opined that accused along with other co-accused was not present at the spot at the time of occurrence---Ipse dixit of Police though not binding upon the court, but it was a relevant circumstance to be taken into consideration while determining the question of grant or otherwise of bail---Such circumstances, definitely would leave room to entertain doubt qua involvement or participation of accused in the matter and benefit of every doubt, even at. bail stage was to be given to accused---Question of liability or vicarious liability of accused in the matter was to be determined at trial---Case of accused, in circumstances, was covered under subsection (2) of S.497, Cr.P.C. calling for further inquiry into his guilt---Accused was behind the bars for the last four months and as his case had been found to be one of further inquiry into his guilt, he had become entitled to bail as of right and could not be detained unnecessary---Accused having succeeded to make out a case for grant of bail, he was admitted to bail, in circumstances.

Munawar v. The State 1981 SCMR 1092; Karamat Ali v. Haji Muhammad Hussain and 4 others 1993 PCr.LJ 2112; Abid alias Abi v. The State 1995 PCr.LJ 1558; The State v. Ghulam Rasool and another 2001 PCr.LJ. 295; Muhammad Arshad v. The State 2006 SCMR 966; Majeed Ahmad alias Abdul Hameed v. The State 2008 YLR 2247; Muhammad Rafique and 4 others v. The State through Advocate-General 2008 PCr.LJ 351 Shariat Court (AJ&K) and Abdulllah Shah v. The State and two others 2009 PCr.LJ 561 ref.

Saqib Akram Gondal for Petitioner.

Muhammad Aslam Sindhu, Addl. Prosecutor-General for Respondent No.1/the State.

Akhtar A.S.-I. with police record.

Moazzam Iqbal Gill for Respondent No.2/the Complainant.

MLD 2010 LAHORE HIGH COURT LAHORE 1498 #

2010 M L D 1498

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

TARIQ HUSSAIN and another---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Writ Petition No. 8886 of 2009, decided on 17th March, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles---Plaintiff appearing as a witness stated in her cross-examination that list of dowry articles was prepared by her brother and the same was delivered to the defendants along with dowry articles--One of the defendants while appearing as witness had affirmed in cross-examination that a copy of list of dowry articles was given to them at the time of marriage but stated that the list exhibited with the suit was not that list which was prepared and given to them along with dowry articles---Validity----No such list had been produced by defendants which had given an adverse presumption against the claim of the defendants and it could safely be gathered that dowry articles given to the defendants were as per the list exhibited---Dowry articles of exhibited list were of such a nature that such articles were ordinarily given to a bride by her parents at the time of marriage---When it was proved that list exhibited was correct, non production of receipts of purchase of dowry articles was not fatal---Constitutional petition was dismissed by High Court in limine.

Muhammad Habib v. Mst. Safia Bibi 2008 SCMR 1584 and Muhammad Habib v. Mst. Sfaia Bibi 2008 SCMR 1584 ref.

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

----Art.199---Constitutional jurisdiction---Scope---Constitutional jurisdiction under Art.199 of the Constitution could not be exercised as an appeal---Findings of two courts below about the facts and law could not be disturbed in constitutional jurisdiction unless petitioner succeeded in establishing any error or jurisdictional defect in the judgments of two courts below.

Saghir Ahmad Bhatti for Petitioner's.

Malik Sajjad Haider Maitla for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 1502 #

2010 M L D 1502

[Lahore]

Before Ch. Iftikhar Hussain, J

FARMAISH ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9047-B of 2009, decided on 31st August, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/148/149/109---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-a-amd--Terrorism---Bail, grant of---Further inquiry---Mere allegation against accused of criminal conspiracy to do away with the deceased---Manner of the alleged conspiracy as stated by two witnesses, prima facie, was dubious because the same did not appeal to reason that a man of ordinary prudence would conspire with others for the murder of someone in that way while leaving the door open to be heard even by the passersby---Accused had been found innocent during the investigation---Case of accused was open to further inquiry into his guilt attracting mischief of S.497(2), Cr.P.C.---Case for enlargement on bail having been made out, accused was admitted to bail, in circumstances.

Aftab Ahmad Bajwa for Petitioner.

Ch. Fayyaz Ahmad, Deputy Prosecutor-General for the State.

Zubair Afzal Rana for the Complainant.

Muhammad Javed, Inspector/S. H.O. with the Police Record.

MLD 2010 LAHORE HIGH COURT LAHORE 1508 #

2010 M L D 1508

[Lahore]

Before Khawaja Muhammad Sharif, C.J. and Manzoor Ahmad Malik, J

SARFARAZ and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 20-J of 2003 and C.S.R. No.76-T of 2007, decided on 24th February, 2010.

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

----S.302(b)/34, 392/34 & 460---Criminal Procedure Code (V of 1898), S.164---Qatl-e-amd, robbery and house trespass---Appreciation of evidence-Extra-judicial confession---Assessment of---Rule of caution---Evidence of extrajudicial confession being a weak type of evidence and easily procurable in the absence of direct evidence, requires utmost care and caution to be relied upon---Prosecution in order to base conviction on extra judicial confession must prove that the same was actually made voluntarily and truly---Social status, character and influence over the family of the deceased, of the person before whom extra judicial confession is made, are essential considerations for relying upon such evidence.

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

----Ss.302(b)/34, 392/34 & 460---Qatl-e-amd, robbery, house trespass---Appreciation of evidence---Incriminating recoveries of stolen property, sharp-edged weapons and blood-stained clothes had been made from the accused---Injuries received by the accused during the incident had connected them with the occurrence---Samples of thumb-impressions of accused had tallied with the finger-prints taken from the various articles lying in the house---Hair of accused had matched with the hair lock of the deceased woman---Circumstantial evidence available on record has led to the irresistible conclusion that the accused had committed the gruesome, sensational, horrible and brutal murders of six persons including children ranging from five to twelve years of age---Overwhelming circumstantial evidence brought on record had left no room for withholding the death sentence awarded to accused---Convictions and sentences of accused were upheld in circumstances.

Muhammad Latif v. The State PLD 2008 SC 503; Khuda Bakhsh v. The State 2004 SCMR 331; Faisal v. The State 2007 SCMR 58; Sheraz Tufail v. The State 2007 SCMR 518; Israr Ali v. The State 2007 SCMR 525; Binyamin alias Khari and others v. The State 2007 SCMR 78; Ghulam Nabi v. The State 2007 SCMR 808 and Akhtar v. The State 2007 SCMR 876 ref.

Syed Zaman Haider for Yousaf Appellant.

Malik Riaz Khalid Awan, Defence Counsel at State Expense for the remaining Appellants.

Syed Faisal Raza Bokhari, D.P.-G. for the State.

Shaukat Rafique Bajwa for the Complainant.

Date of hearing: 11th, 15th, 16th and 17th February, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1521 #

2010 M L D 1521

[Lahore]

Before Rauf Ahmed Sheikh and Hassan Raza Pasha, JJ

SHAH ZAMAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 229, Criminal Revision No. 123 and Murder Reference No.842 of 2005, decided on 20th April, 2010.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Promptly lodged F.I.R. had eliminated the possibility of deliberation or false implication of accused---Eye-witnesses had no previous enmity or grudge against the accused---Deceased had been fatally fired at in the street in front of his house, where presence of eye-witnesses was natural, who had categorically made the accused responsible for the murder of the deceased---Non-examination of complainant at the trial was not fatal to prosecution case, as he had lost his memory due to the death of his young son---Crime empties collected from the spot had matched with the recovered licenced gun belonging to accused---Recovery of the said gun at the instance of accused had strongly corroborated the ocular evidence---Motive as alleged by the prosecution for the incident had been proved---Even otherwise, weakness or absence of motive would neither make the prosecution version defective, nor the same would be considered as a mitigating ground in the matter of sentence---Seats and injuries on the 16 years old deceased had indicated the merciless assault made by the accused and he had been rightly awarded the sentence of death, which he deserved---Appeal was dismissed in circumstances.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Sentence---Absence or weakness of motive---Effect---Weakeness or even absence of motive in a case neither causes any dent on the prosecution version, nor is considered as a mitigating ground in the matter of sentence.

Malik Muhammad Saeed for Appellant.

Sheikh Muhammad Munir, D.P.-G. for the State.

Muhammad Younis Matti for the Complainant.

Date of hearing: 20th April, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1527 #

2010 M L D 1527

[Lahore]

Before Ch. Iftikhar Hussain, J

JAVAID IQBAL and 3 others---Petitioners

Versus

THE STATE---Respondent

Criminal Revisions Nos. 10, 56 and 127 of 2010, decided on 21st May, 2010.

Criminal Procedure Code (V of 1898)---

----S.540---Penal Code (XLV of 1860), S.302/324/148/149---Qatl-e-amd, attempt to commit qatl-e-amd and rioting---Power to summon material witness or examine person present---Trial Court had closed the right of cross-examination of accused on three prosecution witnesses---Validity---Court was duty bound to deliver even-handed justice to the parties over a cause before it and its supreme object was always to achieve the ends of justice, which was not only to be done but seemed to have been done---Accused no doubt had demonstrated a lethargic or careless attitude towards the case which could not be endorsed to, but the case being of murder and the witnesses sought to be cross-examined being material witnesses, at least one more opportunity might be afforded to them to cross-examine the said witnesses to achieve the ends of justice---Trial Court was directed accordingly.

Muhammad Nazir v. The State 2005 PCr.LJ 1783 ref.

Rai Bashir Ahmad Bhatti for Petitioner (in Criminal Revision No. 10 of 2010).

Safdar Javaid Ch. for Petitioner (in Criminal Revision No. 56 of 2010).

Ata Ullah Atif Khanzada for Petitioner (in Criminal Revision No. 127 of 2010).

Ch. Abdul Razzaq, D.P.-G. for the State.

MLD 2010 LAHORE HIGH COURT LAHORE 1530 #

2010 M L D 1530

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD ILYAS---Petitioner

Versus

ABDUL LATIF and another---Respondents

Criminal Miscellaneous No. 4986-CB of 2010, decided on 14th May, 2010.

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

----S.497(5)---Penal Code (XLV of 1860), Ss.406, 420 & 506---Criminal breach of trust and cheating---Application for cancellation of pre-arrest bail---Complainant had not mentioned the necessary particulars, viz., date, time, place and witnesses etc. of the alleged agreement of partnership---No proceedings, whatsoever, had been initiated by the complainant against the accused during his absence from the country for one year---Complainant had also failed to mention the said allegations in his suit for specific performance filed against the accused, which had been withdrawn by him---Bald allegation regarding extending of threats of dire consequences by the accused after getting pre-arrest bail, had not been established by the complainant by any evidence, nor the offence of any alleged criminal intimidation committed by accused had been reported to the police or any court of law by him---Circumstances had hinted at the mala fide intention of the complainant---Impugned order granting pre-arrest bail to accused did not call for any interference---Petition was dismissed in limine in circumstances.

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

----S.497(5)---Cancellation of bail---Principle---Considerations for cancellation of bail are altogether different from those required for grant or refusal of bail to an accused---Once the accused had been admitted to bail by a court of competent jurisdiction, then extraordinary circumstances are required to interfere with the said order.

Syed Zahid Hussain Shah for Petitioner.

MLD 2010 LAHORE HIGH COURT LAHORE 1535 #

2010 M L D 1535

[Lahore]

Before Sh. Najam-ul-Hassan and Muhammad Anwar-ul-Haq, JJ

GHULAM HAIDER---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 477 of 2006 and Murder Reference No.291 of 2005, decided on 21st June, 2010.

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

----Ss. 302(b) & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---Principle---Reliable ocular evidence has to be given preference over any other kind of corroborative evidence.

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

----Ss.302(b), 324 & 306(c)---Qalt-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---Accused had been indicted for the murder of his wife and causing injuries to his daughter---Ocular evidence had been corroborated by medical evidence as well as recovery of "Chhuri" at the behest of accused found to have been stained with human blood---Ocular evidence worth reliance had to be given preference over other evidence corroboratory in nature---Accused had not refuted the claim of his injured daughter that she had been injured by her father during the occurrence---Motive for the occurrence had been proved against accused---Place of incident being road side, defence plea of the wife of the accused having been murdered by some unknown person at midnight, did not appeal to reason---Accused had neither reported the matter to the police, nor did he take such plea in his statement---Guilt of accused, thus, had been proved beyond any doubt---Accused having been convicted and sentenced as Tazir", S. 306(c), P.P.C. was not attracted in the case, as the same was applicable only in case of "Qisas"---Accused had committed gruesome murder of his wife in a callous manner and also inflicted five "churri" blows on his innocent daughter and he did not deserve any leniency in his sentence---Convictions and sentences of accused were upheld in circumstances.

Muhammad Akram v. The State 2003 SCMR 855 and Sami Ullah and another v. Jamil Ahmad and another 2008 SCMR 1623 ref.

----S.306(c)---Qatl-e-amd not liable to qisas---Scope---Section 306(c), P.P.C. is attracted only in cases where conviction and sentence are awarded as Qisas.

Muhammad Akram v. The State 2003 SCMR 855 and Sami Ullah and another v. Jamil Ahmad and another 2008 SCMR 1623 ref.

Raisa Sarwat, Defence Counsel at State Expense for Appellant.

Qazi Zafar Iqbal, Addl. Prosecutor-General for the State.

Date of hearing: 21st June, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1550 #

2010 M L D 1550

[Lahore]

Before Kh. Imtiaz Ahmad and Ch. Muhammad Tariq, JJ

MUHAMMAD MUNIR ABDULLAH---Petitioner

Versus

T.M.A. and another---Respondents

I.C.A. No. 109 of 2010, decided on 24th June, 2010.

(a) Cantonments Act (II of 1924)---

----S. 198(4)---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court appeal---Appellant had challenged the decision of Single Bench of High Court on the ground that appellant was declared highest bidder of the leased land auctioned by Station Commander but Municipal Authorities had declared him to be disentitled to hold cattle market on the said land---Record revealed that the land in question was property of Federal Government which was in possession of Army and had been reserved for Camping Ground---Act of Station Commander to auction the said property was not correct---Impugned order passed by Single Judge of High Court did not suffer from any illegality or infirmity---Intra Court appeal was dismissed.

(b) Cantonments Act (II of 1924)---

----S. 198(4)---Cantonment property---Station Commander---Lease of land by---Scope---Only authorized person was the Executive Officer of the Cantonment Board who, after due sanction of the Board, could lease out any property---Station Commander did not figure under the law to indulge in such like matters---Station Commander by auctioning such property had exceeded his jurisdiction.

----S. 198(4)---Punjab Local Government Ordinance (XIII of 2001), S.54(m)(n)---Notification No. SCVI (LG) 2-252/97 dated 24-6-2003---Cattle market---Establishment of---Authority to hold---Scope---Establishment of cattle market or such like purpose did not fall within the jurisdiction/purview of Army Authorities---Tehsil Municipal Administration was empowered under the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003, to hold cattle market---Notification No. SCVI (LG) 2-252/97 dated 24-6-2003 issued under the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003, further clarified that new cattle market would not be established without prior approval of the Government and the distance between the existing cattle market and proposed cattle market should not be less than 15 Kilometers.

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

---S. 54(m)(n)---Holding of cattle fairs and cattle markets---Competence---Section 54(m)(n) of Punjab Local Government Ordinance, 2001 empowered Tehsil Municipal Administration to organize cattle fairs and cattle markets.

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

----S. 2(e)(i)---Where the agreement executed between the parties revealed that one of the parties to the agreement did not figure in the agreement, such agreement was not concluded agreement which was void ab initio and could not be enforced.

Sardar Asmatullah Khan for Appellant.

Muhammad Siddique Awan for Respondent.

MLD 2010 LAHORE HIGH COURT LAHORE 1553 #

2010 M L D 1553

[Lahore]

Before Manzoor Ahmed Malik, J

SAID BADSHAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 2581-B of 2010, decided on 26th March, 2010.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code. (XLV of 1860), Ss.302/324/34---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, grant of---Accused was nominated in the F.I.R. with a specific role, but according to his plea of alibi he was performing his duty on the day of occurrence in an Army operation---Said plea stood verified by the Investigating Officer and even a discharge report was submitted, which was not agreed to by the Magistrate---Earlier bail petition of accused had been dismissed as having not been pressed with a direction to trial Court to conclude the trial within two months---Trial could not be concluded within the specified period as complainant had filed a private complaint and no proceedings were taken in the State case---Said facts had made the case of accused that of further inquiry within the ambit of S.497(2), Cr. P.C.---Trial in State case had not so far commenced---Bail was allowed to accused in circumstances.

Ch. Muhammad Shafi v. Ch. Muhammad Anwar Samma and another 1975 SCMR 219; Arshad Mehmood v. The State PLD 2006 Lah. 689; Khalid Javaid v. The State PLD 1978 SC 256; Malik Noor Muhammad and others v. The State PLD 1993 Lah. 500; Iqbal Ahmad and 2 others v. The State 1989 PCr.LJ 2122 and Ajmal Khan v. Liaqat Hayat PLD 1998 SC 97 ref.

Ch. Anees-ur-Rehman and Malik Zafar Iqbal for Petitioner.

A.R. Farooqi for the Complainant.

Ch. Muhammad Zafar Khan, Deputy Prosecutor General, Punjab with Muhammad Ashraf, S.-I.

MLD 2010 LAHORE HIGH COURT LAHORE 1560 #

2010 M L D 1560

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

GHULAM AKBAR---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE---Respondent

Writ Petition No. 15800 of 2008, decided on 29th June, 2010.

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

----Ss. 13 & 24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for pre-emption---Zar-e-Soem---Determination of value of land--Procedure---Plaintiff filed suit for possession through pre-emption on the ground that defendant had purchased the disputed property in consideration of Rs.95,000 but to defeat the right of the plaintiff to pre-empt the sale he got recorded the price of land as Rs.800, 000---Plaintiff had also filed an application for determination of probable value of the disputed property for the purposes of Zar-e-Soem---Trial Court directed the plaintiff to deposit Rs.266, 667 being Zar-e-Soem of the value of land---Plaintiff filed revision petition against the said order which was allowed by revisional court---Contention of the defendant was that fixation of probable value of the disputed property was only required when the sale price was not mentioned in the sale deed or in the mutation or when the court had come to the conclusion that the amount of consideration was shown excessive---Validity---Trial Court after assessing the data available with it had fixed the value of pre-empted land as Rs.800, 000 which was mentioned in the mutation of sale and directed the pre-emptor to deposit 1/3rd of the said amount--Probable value of pre-empted land could be assessed on holding a preliminary inquiry but the said assessment was subject to final decision of the suit---Plaintiff, if was interested to purchase the pre-empted land should accept the order of Trial Court for simple reason that said amount would remain available with the Trial Court and would be subject to decree which would be ultimately passed in the suit if proved---Amount deposited would be adjusted towards the decretal amount and without paying decretal amount, the plaintiff would not be entitled to get benefit of decree---High Court allowed constitutional petition and set aside the order passed by revisional court and restored the order passed by Trial Court.

Muhammad Akbar v. Muhammad Malik and another PLD 2005 Lah. 1; Muhammad Din and others v. Jamal Din and others 2007 SCMR 1091; Abdul Wahid and 8 others v. Sardar Ali and 2 others PLD 2000 Lah. 190; Sahib Dad Khan v. Lai Khan Niazi 2006 YLR 73; Ghulam Yasin and others v. District Judge and others 2002 YLR 1580 and Awal Noor District Judge Karak and 8 others 1992 SCMR 746 ref.

Zafar Abbas for Petitioner.

Zafar Iqbal Chohan for Respondent.

Date of hearing: 22nd June, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1565 #

2010 M L D 1565

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

MUHAMMAD IMRAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1252 and M.R. No. 862 of 2004, decided on 14th April, 2010.

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

----S.302(b)---Qanun-e-Shahadat (10 of 1984), Art. 121---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Time, date and place of occurrence were admitted by both the sides---Accused had also admitted that deceased had died because of firearm injury, but in a different manner---Presence of eye-witnesses at the scene of crime was natural---Complainant and other eye-witnesses, though closely related to the deceased, had no enmity with the accused to falsely depose against him---Conviction could be maintained on the basis of the confidence inspiring testimony of interested witnesses---Medical evidence was almost in line with ocular account of occurrence--Reporting of the matter to police after an hour of the incident had ruled out consultations and deliberations on the part of complainant---Defence plea taken by accused in his statement recorded under S. 342 , Cr.P.C. had remained unsubstantiated and the same had been negated by medical evidence---Accused had failed to discharge the onus of proving his specific plea as required under Article 121 of the Qanun-e-Shahadat 1984, which was neither plausible nor convincing and appeared to be an afterthought---Conviction of accused, therefore, was maintained---However, accused had fired only one shot on the deceased, he was 18/19 years old at the time of occurrence, what had happened immediately before the incident was a mystery and prosecution had failed to prove its motive---Sentence of death of accused was converted into imprisonment for life in view of the said mitigating circumstances.

Mushtaq and 3 others v. The State 2008 SCMR 1; Hakim Ali and others v. The State 1971 SCMR 432; Waqar Nazir and others v. The State 2007 SCMR 661; Ashiq Hussain v. The State 1993 SCMR 417; Ali Sher v. The State 1990 SCMR 317; Haq Nawaz alias Haku v. The State 2008 MLD 686; The State v. Muhammad Hanif 1992 SCMR 2047; Faiz and others v. The State 1983 SCMR 76 and Sultan Khan v. Sher Khan and others PLD 1991 SC 520 ref.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Interested witness, utility and credibility of---Statement of an interested witness can be considered for corroboration---Mere relationship of interested witness with the deceased is not enough to discredit him, particularly if he has no motive for false involvement of accused.

Farooq Khan v. The State 2008 SCMR 917 ref.

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Witness, credibility of---Principles---Relationship or enmity alone is not sufficient to discard the evidence of a natural witness or hold him untruthful or untrustworthy---Treating contradictions and discrepancies in the ocular and niedical evidence as injurious to the credibility of a witness in all circumstances, is not an inflexible rule---Ultimate test of veracity of a witness is the inherent merit of his own statement.

Muhammad Riaz v. Muhammad Zaman and another PLD 2005 SC 484 ref.

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

----S. 302(b)---Appreciation of evidence---Case of two versions---Principles---Initial burden to prove the guilt against accused lies upon prosecution, but when a specific plea has been raised by the accused in his defence, then both the versions are to be considered in juxtaposition and the one which is nearer to the truth is to be given weight.

Mst. Dur Naz and another v. Yousaf and another 2005 SCMR 1906 ref.

Talib H. Rizvi for Appellant.

Malik Abdul Salam, D.P.-G for the State.

Muhammad Ahsan Bhoon for the Complainant.

Date of hearing: 7th April, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1586 #

2010 M L D 1586

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

MUHAIYIMAD JAMAIL and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1747 and Murder Reference No.723 of 2003, decided on 8th March, 2010.

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

----Ss. 302(b) & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---Benefit of doubt---F.I.R. having been registered later than the time claimed by the prosecution, chances of deliberation and concoction could not be ruled out---Two separate incidents, one causing the murder of the deceased and the other of causing the injuries to the injured witness, had been combined by the prosecution in one F.I.R.---Injured prosecution witness could not necessarily be a truthful witness and his testimony was not acceptable without scrutiny---Medical evidence had made the presence of eye-witnesses at the scene of occurrence doubtful---Occurrence. admittedly had taken place in a dark night and claim of eye-witnesses to have seen the incident in a torch light was not believable, as the complainant was neither carrying any torch with him, nor the same was produced during investigation---Ocular evidence having been disbelieved, recovery of pistol and "Khanjor" from accused had no value being only corroboration in nature---Prosecution story was neither probable nor free from doubts, benefit of which had to be given to accused not as a matter of grace but as a matter of right---Accused were acquitted in circumstances.

Muhammad Pervez and others v. The State and others 2007SCMR 670; Noor Muhammad v. The State and another 2010 SCMR 97; Ijaz Ahmed v. State 1997 SCMR 1279; Asadullah Muhammad Ali case PLD 1971 SC 541; Saifullah v. The State 1985 SCMR 410; Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

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

----Ss.302(b) & 324---Qatl-e-amd and attempt thereof---Appreciation of evidence---Injured witness---Credibility---Injuries on a prosecution witness only indicate his presence at the spot, but do not prove his credibility and truth.

Muhammad Pervez and others v. The State and others 2007 SCMR 670 ref.

----Ss. 302(6) & 324---Qatl-e-amd and attempt of qatl-e-amd---Appreciation of evidence---Recoveries---Evidentiary value---Recovery of incriminating articles is a corroborative piece of evidence meant to test the veracity of ocular evidence---Both corroborative and ocular testimony are to be read together and not in isolation---Evidence of recovery being a corroborative evidence, by itself is not sufficient to convict the accused in the absence of substantive evidence.

Noor Muhammad v. The State and another 2010 SCMR 97; Ijaz Ahmed v. State 1997 SCMR 1279; Asadullah Muhammad Ali case PLD 1971 SC 541 and Saifullah v. The State 1985 SCMR 410 ref.

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

----Ss. 302(b) & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---Benefit of doubt, extension of---Principles---Benefit of even a single doubt in the prosecution story must be given to the accused not as a matter of grace but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

Akhtar Husssain Bhatti for Appellants.

Raja Bakhtiyar Ali, Deputy Prosecutor-General for the State.

Nemo for the Complainant.

Dates of hearing: 4th and 8th March, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1601 #

2010 M L D 1601

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUNAWAR HUSSAIN and another---Petitioners

Versus

AFAQ AHMAD---Respondent

Civil Revision No. 2142 of 2002, heard on 26th April, 2010.

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

----S. 13---Talb-i-Muwathibat---Performance of---Date, time and venue---Effect---Pre-emptor had to mention the date, time and the venue of making Talbs in the plaint---Law of pre-emption was a special law and the Talbs in terms of S.13 should be proved without any slightest doubt.

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

----S. 13---Talb-i-Muwathibat---Performance of---Effect---Plaintiff had stated that when she came to know, it was 12 noon and she went to the advocate's office on 13th---If such statement was read with contents of paragraph of the plaint, she had fulfilled the requirements of Talb-i-Muwathibat.

Muhammad Ramzan v. Lal Khan 1995 SCMR 1510; Aamir Shah v. Ziarat Gul 1998 SCMR 593; Malik Muhammad Akram v. Khuda Bakhsh 2000 CLC 79; Muhammad Jamil v. Muhammad Sharif 1985 CLC 2353 and Faqir Muhammad and others v. Abdul Moman and others PLD 2003 SC 594 ref.

Naveed Shaheryar Sh. for Petitioners.

Khadim Hussain Qaiser for Respondent.

Date of hearing: 26th April, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1612 #

2010 M L D 1612

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

MUHAMMAD SALEEM---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.1427, 1428 of 2003 and Murder Reference No.351 of 2004, decided on 15th March, 2010.

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

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Unexplained delay of more than five hours in lodging the F.I.R. had given rise to the possibility of recording the same after deliberations and concoctions---Complainant had made dishonest improvements in his statement at the trial to strengthen the prosecution case---Material contradictions in the statements of eye-witnesses had made their testimony highly doubtful, which did not inspire confidence---Claim of eye-witnesses to have seen the accused giving electric shocks to the deceased in a room of his house from a distance of 28 feet at about 4 a.m., in the absence of any light or any electricity connection in the said room, was neither supported by the site plan nor by the circumstances of the case including the medical evidence---Prosecution story from its beginning to its end was neither believable nor acceptable---Accused were acquitted in circumstances.

Muhammad Saleem v. The State 2010 SCMR 374; Haroon v. State 1995 SCMR 1267; Muhammad Rafique v. State 1977 SMR 457; Muhammad Fazil v. Bashir Ahmad and another 2009 SCMR 1382; Farman Ahmad v. Muhammad Inayat 2007 SCMR 1825; Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

(b) Evidence---

----Appreciation of---General rule---Statement of a witness must be in consonance with the probabilities fitting in the circumstances of the case, inspiring confidence in the mind of a reasonable and prudent person---If said elements are present, then the statement of a worst enemy of the accused can be accepted and relied upon without corroboration, but if these elements are missing then the statement of a pious man can be rejected without a second thought.

Muhammad Saleem v. The State 2010 SCMR 374 ref.

----`Prudent man'---Connotation---Prudent man in law is neither a genius nor a goof, but has the same meanings as consumer in economics and common man in politics.

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

----S.302(b)/34---Qatl-e-amd---Appreciation of evidence---Benefit of doubt, extension of---Benefit even of a slightest doubt arising in the case has to be given to the accused, not as a matter of grace but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 ref.

Q.M. Saleem and Raja Akhtar Nawaz for Appellants.

M.M. Alam Chandury, Additional Prosecutor-General Punjab for the State.

Waheed Akhtar Mian for the Complainant.

Dates of hearing: 11th and 15th March, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1626 #

2010 M L D 1626

[Lahore]

Before Umar Ata Bandial and Muhammad Khalid Mehmood Khan, JJ

FAIQA ALI---Petitioner

Versus

VICE-CHANCELLOR and another---Respondents

I.C.A. No. 818 of 2009, decided on 8th March, 2010.

(a) Government College University, Lahore Ordinance (XLVIII of 2002)---

----S. 13(3)---Law Reforms Ordinance (XII of 1972), S.3---Appellant had challenged the decision of single Bench of High Court on the ground that Examination Regulations, 2007 laying down the threshold of minimum "Cumulative Grade Point Average" were enforced by the Syndicate of the University on 16-2-2008 whereas the examination of the first semester was completed on 2-2-2008, the said regulations were enforced retrospectively on the appellant's first semester to adversely affect his vested right under the erstwhile regulations to enter the subsequent semesters as regular rather than probation students---Contention raised by University was that Examination Regulations, 2007 were competently framed and those were accepted by the appellant and no vested right of students could exist in relation to examination standards---Plea of the University that appellant had waived his objections to the new examination regulations was insignificant because appellant had no choice in the matter as the next semester was the last semester being offered for his course---University should make arrangements to sit for his examinations in the subjects in which he had been adjudged deficient according to University Standards and the same would entail the provision of staggered examinations of each probation semester and not collective examinations of all probation subjects in the 3 semesters however, if the appellant passed examinations for any semester that would equip him with a qualification of the passed semester in order to claim advance standing in a similar or the same course at another University---If however, the appellant failed in one or more semesters then he had no ground to complain as he lacked the learning and knowledge for passing that semester---University should administer examinations to the appellant under the higher standards of the Examination Rules, 2007---Intra-court appeal was disposed of accordingly.

Secretary Ministry of Commerce and others v. Salahuddin and others PLD 1991 SC 546 ref.

(b) Government College University, Lahore Ordinance (XLVIII of 2002)---

----S. 13(3)---Academic standards---Failure of University to provide reasonable facilitation and support---Gravity of University's failure to discharge its responsibility for offering its students reasonable facilitation and support in demonstrating their capabilities was far greater and consequential than its claimed waiver of rights by the students---Students had no case for relaxation of academic standards by the University because enforcement of the new Examination Regulations, 2007 were lawful and competent under the Government College, Lahore University Ordinance, 2002 and also because the appellants were barred by laches and acquiescence as they did not claim the relief when first put under probation under the new Examination Regulations, 2007 in the semester-II of their master degree courses.

----University was bound by promissory estoppel to provide a fair and reasonable course format and education facilities that were required by a part time student of ordinary ability for passing the examination.

Salman Mansoor for Appellant.

Ali Masood Hayat for Respondent along with Deputy Controller Examination G.C. University, Lahore.

MLD 2010 LAHORE HIGH COURT LAHORE 1633 #

2010 M L D 1633

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD SAEED---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 47 of 2010, decided on 24th June, 2010.

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

----S.337-F(vi)/34---Criminal Procedure Code (V of 1898), S.417(2A)-Appeal against acquittal---Prosecution had failed to prove its case beyond any shadow of doubt against accused persons---Double presumption of innocence was attached to the persons who had been acquitted after facing the trial---Appeal against acquittal being without substance, was liable to be dismissed.

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

----S. 337-F(vi)/34--Criminal Procedure Code (V of 1898), Ss.435/439---Munaqqilah---Appreciation of evidence---Sentence, reduction in---Accused was nominated in the F.I.R. with specific role and he inflicted a hatchet injury on the person of the complainant---Ocular account was corroborated with the medical evidence and despite lengthy cross-examination, defence had failed to put dent to prosecution case, however, since accused was a young man and previously non-convict, had undergone imprisonment for one year and nine months---Taking a lenient view, conviction and sentence awarded to him by the Trial Court, was modified to the extent of period already undergone-Injured remained in hospital for treatment for more than 17 days, conviction and sentence to the extent of Daman, was maintained.

Tanveer Iqbal Khan, for Petitioner.

Samim Asghar for the Complainant.

Tanvir Mehmood, D.P.G.

MLD 2010 LAHORE HIGH COURT LAHORE 1638 #

2010 M L D 1638

[Lahore]

Before Sardar Tariq Masood, J

Mst. ALLAH WASAI---Petitioner

Versus

MANZOOR HUSSAIN and 3 others---Respondents

Criminal P.S.L.A. No. 22 of 2007, decided on 30th September, 2009.

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

----S. 302/34---Criminal Procedure Code (V of 1898), S.417(2)---Qatl-e-amd---Special leave to appeal, refusal of---Accused had been acquitted by trial Court while dismissing the private complaint filed by the complainant vide the impugned judgment---Prosecution case rested only upon last seen evidence and the extra: judicial confession of accused---Despite the F.I. R. having been lodged fifteen days after the occurrence, it was not mentioned therein that the prosecution witness had ever seen the deceased in the company of the accused or that the said prosecution witness had apprised the complainant about the same---Last seen evidence had been concocted much after the registration of the case-Extra-judicial confession allegedly made by accused before the close relatives of the deceased while standing on the way did not appeal to reason, particularly when the said witnesses did not try to apprehend the accused who had killed their near relative---Such types of evidence could easily be fabricated in the absence of ocular evidence before filing private complaint---Last seen evidence and the evidence of extra judicial confession had been introduced as the private complaint was lodged after due consultation and premeditation---One tainted piece of evidence could not corroborate other tainted evidence---Accused had been declared innocent during investigation and nothing was recovered from them---Acquittal of accused was based on reasons which were neither perverse nor whimsical---Special leave to appeal was refused to complainant in circumstances and the petition was dismissed accordingly.

1996 SCMR 188; 2006 SCMR 231; PLD 1997 SC 408; 1995 SCMR 535; 1991 SCMR 2220; Munawar Shah v. Liaquat Hussain and others 2002 SCMR 713 and Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 ref.

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

----S.302/34---Appreciation of evidence-Extra-judicial confession---Note of caution---Extra judicial confession is a weak type of evidence which can easily be procured whenever direct evidence of the crime is not available---Courts, therefore, while placing reliance on such evidence have emphasized the use of utmost care and caution.

1996 SCMR 188 ref.

----S.302/34---Appreciation of evidence---Police opinion---Relevancy---Opinion of Investigating Officer has no binding force upon the court, but the same cannot be thrown in the air altogether and while deciding the case said opinion can be taken into consideration if it is based upon solid data or evidence.

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

----S.417---Appeal against acquittal---Appreciation of evidence---Principles---Ordinary scope of petition or appeal against acquittal of accused is considerably narrow and limited---On the examination of the order of acquittal as a whole credence should be accorded to the findings of the subordinate court whereby the accused had been exonerated from the charge of commission of the crime---Approach for dealing with the appeal against the conviction would be different as distinguished from the appeal against acquittal, because presumption of double innocence of the accused is attached to the order of acquittal.

Munawar Shah v. Liaquat Hussain and others 2002 SCMR 713 ref.

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

----S. 417---Appeal against acquittal---Appreciation of evidence---Scope---Law relating to reappraisal of evidence in appeals against acquittal is stringent as the presumption of innocence is double and multiplied after a finding of not guilty recorded by a competent Court of law---Such finding cannot be reversed, upset and disturbed, except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading or non-reading of evidence---Judgment of acquittal shall not be disturbed even though a second opinion may reasonably be possible.

Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 ref.

Sardar Mahboob for Petitioner.

Tanveer Haider Buzdar, A. D. P. P. for the State.

MLD 2010 LAHORE HIGH COURT LAHORE 1644 #

2010 M L D 1644

[Lahore]

Before Shahid Hameed Dar, J

FARHAT ABBAS SHAH and another---Petitioners

Versus

KHUDA BAKHSH and another---Respondents

Criminal Revision No. 372 of 2009, decided on 4th June, 2010.

Illegal Dispossession Act (XI of 2005)---

----S.3---Criminal Procedure Code (V of 1898), S.265-K---Illegal dispossession---Acquittal of accused/petitioners during trial, refusal of---Petitioners allegedly had purchased a plot of land in the year 1989 possession of which was delivered to them and they had been using the same as cattle-shed for the last twenty years---Respondent filed a private complaint against petitioners for illegally dispossessing him from the said plot---Additional District Judge, on receiving report from police and Tehsildar, summoned the petitioners to face trial---Petitioners filed application under S.265-K, Cr.P.C. and contended that they had purchased the disputed plot and were owner of the same on the basis of the judgment and decree whereby an arbitration award had been made rule of the court--Validity---Reports submitted by police and revenue officials in Trial Court were vague and sketchy and, therefore, of no help to ascertain whether the plot claimed with specific description by the complainant/respondent existed in the said locality---Resolution of the controversy by demarcation of plot in view of description of said plot involved practical difficulties as neither the accused nor the complainant got recorded documents pertaining to their claimed plots in revenue record---Plea of the accused for acquittal before recording of evidence could not be entertained until the controversy regarding ownership of the disputed plot had been resolved by Trial Court after ascertaining the truth of allegations levelled by the complainant---Impugned order, therefore, did not call for any interference---Petition was dismissed.

PLD 2007 Lah. 231; PLD 2007 SC 423; PLD 2008 Lah. 392; PLD 2008 Lah. 358 and 2010 PCr.LJ 268 ref.

Muhammad Farooq Qureshi for Petitioners.

Malik Muhammad Bashir Awan for Respondents.

Sahibzada M.A. Amin Mian, Addl. Prosecution-General.

MLD 2010 LAHORE HIGH COURT LAHORE 1650 #

2010 M L D 1650

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ALI AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 13643-B of 2009, decided on 30th October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 440, 337-F(v), 337-A(i), 337-A(iii), 337-F(i), 109, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd and mischief---Bail, grant of---Further inquiry---Out of the 12 accused nominated by the complainant in the F.LR., 8 had been found innocent and their presence at the spot could not be established---As per prosecution story four persons received injuries with fire arm, but as per medical evidence none of the prosecution witnesses received any firearm injuries, which had created doubt about their presence at the spot---Suppression of injuries on the persons of two accused persons and recording of cross-version, had damaged the veracity and integrity of prosecution, which had shaken the confidence of the court---Investigation revealed that accused was not present at the spot and was present at another place while irrigating the land of another person---Case was that of two versions, and as to which version was correct, would be seen by the Trial Court after recording evidence---Case, in circumstances, had become that of further inquiry--Mere commencement of the trial, was not a ground for refusal of bail--Accused was admitted to bail, in circumstances.

Abdul Khaliq Safrani for Petitioner.

Asif Ali Chaudhry for the Complainant.

Ahsan Rasool Chattha, D.P.G. with Jalil Ahmad, S.-I. along with record.

MLD 2010 LAHORE HIGH COURT LAHORE 1653 #

2010 M L D 1653

[Lahore]

Before Shahid Hameed Dar, J

SADI AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 6114-B of 2010, decided on 22nd June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-L(ii), 354 & 440---Hurt, assault and mischief---Pre-arrest bail, grant of---Medical evidence did not lend any corroboration to the allegation contained in the F.I.R.---Investigating Officer was unable to furnish any explanation, except that case had been registered on the orders of Ex-officio Justice of Peace---Investigating Officer had collected no evidence as to how much crop had been damaged and what was the value of it and that how many cattle had allegedly grazed in the fields of the complainant---Offence under Ss.354 and 337-L(ii), P.P.C. were bailable---Accused by his index, appeared to be of 15/16 years, he was held to be a juvenile/child within the scope of Juvenile Justice System Ordinance, 2000---False implication of accused in the attending circumstances of the case, could not be ruled out---Ad interim bail allowed to accused was confirmed, in circumstances.

Rana Muhammad Arif for Petitioner.

Mehboob Aalam for the Complainant.

Khurram Khan, D.P.G.

MLD 2010 LAHORE HIGH COURT LAHORE 1656 #

2010 M L D 1656

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUSARAT BANO and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents

Writ Petition No. 10704 of 2006, decided on 30th June, 2010.

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

----S. 1---Civil Procedure Code (V of 1908), O.XVI, Rr.1, 2 & O. VII, R.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Fatal accident---Suit for compensation---Application for summoning of witness---Defendants filed application under O.XVI, Rr.1, 2, C.P.C. for summoning the Police Official from the concerned Police Station as witness, contending that file of accident's record could only be produced through the Police Official---Said application having been accepted by the Trial Court the plaintiff had filed constitutional petition thereagainst---Defendants while filing written statement had failed to mention the names of witnesses in the list which were in their knowledge---Defendants had not relied upon the Police file in the list under O. VII, R.14, C.P.C.-Defendants, at that stage, had to explain and prove on record that a sufficient cause was available to them for not relying upon the Police file and not including the names of Police Officials in list of witnesses---Courts below, however, without giving any findings, whether any sufficient cause had been shown by the defendants, had allowed the application---Technicalities should not be allowed to defeat the ends of justice and in the interest of justice, the parties should have been permitted to place on record all available evidence for proving or defending their case---Order on application under O.XVI, Rr.1, 2, C.P.C. passed by the courts below was upheld, in circumstances.

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

----S. 1---Qanun-e-Shahadat (10 of 1984), Art.74---Constitution of Pakistan (1973), Art.199---Constitutional petition---Fatal accident---Suit for compensation---Production of secondary evidence---Application for production of secondary evidence filed by the defendants having been accepted by the courts below, the plaintiffs had filed constitutional petition thereagainst---Courts below had not found that the loss of documents sought to be produced had been proved---Without proving the loss of original documents, the permission of secondary evidence was wrongly allowed by the courts below---Order allowing application for secondary evidence, without ascertaining loss of documents, being without any justification, was not sustainable in the eyes of law and was set aside, in circumstances.

----S. 1---Civil Procedure Code (V of 1908), O.XI, R.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Fatal accident---Suit for compensation---Production of documents, application for---Application for production of documents filed by the defendants under O.XI, R.14, C.P.C., having been accepted by the courts below, the plaintiffs had filed constitutional petition thereagainst---Notice under O.XI, R.14, C.P.C. for production of document could be given to the party to the suit and not to third party who had not been arrayed as party.

Syed Shahab Qutab for Petitioners.

MLD 2010 LAHORE HIGH COURT LAHORE 1665 #

2010 M L D 1665

[Lahore]

Before Ch. Muhammad Tariq, J

MUMTAZ ALI and others---Petitioners

Versus

F. G. E. H. F and another---Respondents

Writ Petition No. 674 of 2005, decided on 5th July, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Petitioners, government employees, applied for allotment in housing scheme launched by the Federal Government which allotted to government employees junior to petitioners against criterion of seniority in age as set in terms and conditions of the brochure---Federal Government/respondents contended that junior government employees were given preference by relaxing rules for their services rendered in the acquisition of the scheme land---Validity---Respondents/Government committed a glaring violation of the criterion of seniority in age laid down in the brochure---Respondents' contention that junior government employees were included in the scheme for their services in the acquisition of scheme land was misconceived---Government servants were paid by the State for their services---Plea of rewarding government employees for their services in the acquisition of land was unacceptable---Respondents/Government set an ugly and unhealthy precedent by their action---Respondents were directed to re-consider the allotments made against the merit---Constitutional petition was allowed.

Sh. Zameer Hussain for Petitioners.

Ms. Shahnia Akbar for Respondent No.1.

Syed Asghar Hussain Sabzwari for Respondents Nos. 2 and 3.

MLD 2010 LAHORE HIGH COURT LAHORE 1673 #

2010 M L D 1673

[Lahore]

Before Nasir Saeed Sheikh and Mian Shahid Iqbal, JJ

LAND ACQUISITION COLLECTOR and others---Appellants

Versus

Mst. MASHALLAH BEGUM and others---Respondents

Regular First Appeal No. 271 of 1999, decided on 21st June, 2010.

Land Acquisition Act (I of 1894)---

----S. 23---Compensation of acquired land, determination of---Reliance of authority on General Price List made by Board of Revenue about suit-land---Reliance of landowner on sale-deed showing price of land situated in vicinity of suit-land and Aks Shajra showing its location---Non-production of proof in rebuttal of such sale-deed by the Authority---Determination of compensation of suit land by Referee Court on basis of Aks Shajra and price of land stated in such sale-deed---Validity---Such General Price List was not binding on Referee Court as against the sale-deed and Aks Shajra---High Court upheld impugned judgment in appeal filed thereagainst by Authority.

Jahanzeb Khan Bharwana for Appellants.

M. Javed Iqbal for Respondents.

Date of hearing: 21st June, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1684 #

2010 M L D 1684

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

NAZIR AHMAD-Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 381-J Murder Reference No.456 of 2003, heard on 1st March, 2010.

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

---Ss. 302(a), 201 & 302(c)---Qatl-i-amd, causing disappearance of evidence of offence---Appreciation of evidence---Sentence, reduction in---Complainant had reported the matter to the police after 14/15 days of the incident having taken place in the dark hours of the night after an extra judicial confession made before him by the accused---Said extra judicial confession having been made under duress and coercion, had been disbelieved by High Court---Accused had also confessed his guilt twice during the trial stating that on a scuffle between him and his deceased brother over irrigation of their respective lands in the dark hours of the night, he had unintentionally given a "kassi" blow on the head of the deceased which proved fatal and due to fear he had buried the dead body in the courtyard of his house---Confessional statement of accused was accepted in the given circumstances---Accused had suddenly given a "kassi" blow on the head of the deceased and the murder was not pre-planned---Conviction and sentence of accused under S. 302(a), P.P.C. were consequently set aside and instead he was convicted under S.302(c), P.P.C. and sentenced to ten years' R.I. thereunder---Sentences under Ss. 302(c), P.P.C. and 201, P.P.C. were directed to run concurrently---Appeal was disposed of accordingly.

Shabbir Ahmad v. The State PLD 1995 SC 343 ref.

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

----S.342---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Statement of accused, assessment of---Statement of accused has to be read in its entirety and is to be accepted or rejected as a whole---Acceptance of the inculpatrory part of the statement to corroborate the prosecution evidence and rejection of its exculpatory passage, is not permissible---Where accused confesses his guilt raising a plea in his defence, court will not rely on the inculpartory portion of his statement rejecting the exculpatory portion---In the presence of clear, cogent and reliable prosecution evidence, a exculpatory part of the statement may be rejected recording conviction on such evidence.

Shabbir Ahmad v. The State PLD 1995 SC 343 ref.

Maqbool Ahmad Qureshi for Appellant.

M.M. Alam Chaudhry, Additional Prosecutor-General Punjab for the State.

Date of hearing: 1st March, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1694 #

2010 M L D 1694

[Lahore]

Before Ch. Muhammad Tariq, J

AHMED KHAN---Petitioner

Versus

SHOUKAT MEHMOOD and others---Respondents

Civil Revision No.647 of 2005, decided on 1st July, 2010.

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

----S. 6---Suit for pre-emption---Partial pre-emption Maintainability---Defendant contended that the vendor sold land measuring 112 kanals, 15 marlas while the pre-emptor filed the suit to pre-empt only 7 kanals and 18 marlas, therefore suit for partial pre-emption was not Maintainable---Trial Court decreed the suit while Appellate Court dismissed the same---Validity---Plaintiff's contention that he was entitled to file a suit for pre-emption in respect of the land of his own choice was misconceived as pre-emptor was not allowed by law to select the superior portion of the land and leave out the inferior one---Suit for partial pre-emption was not maintainable.

Ch. Afrasyab Khan for Petitioner.

Haroon Irshad Janjua for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 1704 #

2010 M L D 1704

[Lahore]

Before Ch. Muhammad Tariq, J

RAZZAQ AHMED NADEEM---Petitioner

Versus

FEDERATION OF PAKISTAN---Respondents

Writ Petition No. 2963 of 2003, decided on 2nd July, 2010.

Constitution of Pakistan (1973)---

----Art. 199(1)(3)---Pakistan Army Act (XXXIX of 1952), S.40---Constitutional petition against sentence awarded by Summary Military Court and dismissal of petitioner from service under Pakistan Army Act, 1952---Petitioner contended that he was forced to make judicial confession---Validity---High Court was expressly barred by Art.199(3) of the Constitution to make an order in respect of a member of the Armed Forces of Pakistan unless the impugned judgment was against the principles of natural justice or passed with mala fide or without jurisdiction---Petitioner had availed all the remedies under the law; he preferred appeal before court of appeals which was dismissed---Petitioner failed to point out any illegality or jurisdictional error in the impugned judgments---Constitutional petition was dismissed.

Agha Muhammad Ali Khan for Petitioner.

Atiq-ur-Rehman Kiani, Standing Counsel.

MLD 2010 LAHORE HIGH COURT LAHORE 1708 #

2010 M L D 1708

[Lahore]

Before Hafiz Abdul Rahman Ansari, J

MUHAMMAD ISMAIL and 5 others---Petitioners

Versus

PROVINCE OF PUNJAB through D.O.R. Layyah and 22 others---Respondents

Civil Revision No. 721 of 2009, decided on 26th February, 2010.

Canal and Drainage Act (VIII of 1873)---

----S.20---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Application for grant of temporary injunction---Trial Court and Appellate Court had concurrently dismissed application for grant of temporary injunction---Validity---Both orders were well-reasoned and within the parameters of Canal and Drainage Act, 1968 and the petitioners could not point out any illegality in the said orders---Both courts below had rightly dismissed application for temporary injunction---No jurisdictional defect had been pointed out by the counsel in the orders passed by the two courts below---Concurrent findings recorded by the two courts below could not be interfered with in revisional jurisdiction of High Court---Petition was dismissed.

Javed Sultan Chaudhry for Petitioners.

Shoaib Khan Buzdar for Respondents.

Muhammad Aslam Deputy Collector Layyah Canal Division.

MLD 2010 LAHORE HIGH COURT LAHORE 1711 #

2010 M L D 1711

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD TAJ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2646-B of 2010, decided on 15th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonouring of cheque---Bail, grant of---Accused was behind the bars since 19-11-2009 and he was not previous convict---Offence did not attract the prohibition contained in S.497(1), Cr.P.C.---Grant of bail in such-like cases was a rule and refusal an exception---Four other cases of the same type though were pending against accused, but he was on bail in such cases and no conviction was in any of said cases---Mere pendency of earlier cases against accused was not sufficient to refuse discretionary relief of bail to him---Each criminal case was to be adjudicated in the background of its own facts and circumstances and the facts of two criminal cases seldom coincide---No doubt grant of bail with the court was always discretionary, but was subject to the condition that such exercise must always be judicious and within the frame of well-settled principles---Bail could not be withheld as punishment---Accused having succeeded in making out a case for bail, he was admitted to bail, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Jehan Khan v. The State PLD 2006 Lah. 302; Shameel Ahmed v. The State 2009 SCMR 174; Asmat v. The State 2006 PCr.LJ 1866 Kar. and Aftab Hussain v. The State 2004 SCMR 1467 ref.

Akhtar Hussain Bhatti for Petitioner.

Ch. Abdur Razzaq, DPG and Muhammad Aslam A.S.-I. With Police Record.

Abdul Nasir Jasra for the Respondent No.2/Complainant.

MLD 2010 LAHORE HIGH COURT LAHORE 1714 #

2010 M L D 1714

[Lahore]

Before Ch. Muhammad Tariq, J

QADEEMI IMAM BARGAH---Petitioner

Versus

Syed MUSHTAQ HUSSAIN SHAH and others---Respondents

Civil Revision No. 467 of 2010, decided on 29th June, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S.92---Suit for declaration---Plaintiff contended that suit property was a waqf property so defendant had no right to change the nature of the same---Defendant raised legal objection that the plaintiff did not obtain the permission of the Adyocate General required under S.92, C. P. C. ---Trial Court dismissed the suit while Appellate Court dismissed appeal---Validity---Record revealed that the suit property was a public waqf---Proceedings before a competent court of law were not maintainable unless permission under S.92, C.P.C. had been obtained from Advocate General---Revision was dismissed in circumstance.

Faqir Shah and others v. Mehtab Shah Pir Bokhari, Masjid Committee and others PLD 1989 SC 283 fol.

Syed Aqeel Abbas Kazmi for Petitioner.

Syed Misbah-ul-Hassan Abidi for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 1722 #

2010 M L D 1722

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD MANSHA---Petitioner

Versus

D.P.O., KASUR and 8 others---Respondents

Writ Petition No. 7157 and C.Ms. Nos. 1, 2 and 3 of 2010, decided on 19th April, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Penal Code (XLV of 1860), Ss.420, 468 & 471---Cheating, forgery and using as genuine a forged document---Petition for quashing of F.I.R.---Contention for quashing of F.I.R. raised in the constitutional petition was a matter requiring inquiry or probe and providing the parties opportunity of adducing evidence in support of their respective assertions---Such an exercise could not be undertaken in the constitutional jurisdiction of High Court and it would be too much to do so here at such a stage in cursory way---Regarding the question of disagreeing of the Magistrate to the Police report of his discharge from the case, Magistrate had advanced reasons for the same---Magistrate had observed that accused was nominated in the F.I.R. and the allegation of committing fraud of huge amount had been levelled against him, thus he did not find any ground to discharge him---Nothing perverse to the same had been urged or shown---No ground was shown to interfere with such order of the Magistrate---Interference declined by High Court.

Mian Subah Sadiq Klasson for Petitioner.

MLD 2010 LAHORE HIGH COURT LAHORE 1726 #

2010 M L D 1726

[Lahore]

Before Ch. Muhammad Tariq, J

ABDUL REHMAN and others---Petitioners

Versus

MUHAMMAD IDREES and others---Respondents

Civil Revision No. 40 of 2002, heard on 18th June, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Punjab Conferment of Proprietary Rights on Non-. Proprietors in Abadi Deh Act (1 of 1995), S. 3---Suit for declaration---Predecessor-in-interest of plaintiff when purchased the disputed Haveli in 1940, predecessor-in-interest of defendants was in possession of said Haveli as tenant-at-will---Predecessor of defendants alienated the Haveli to one of the defendants in 1986---Plaintiffs contended that the predecessor of defendants was not owner but a tenant-at-will, therefore, was not competent to alienate the suit property through sale---Trial Court decreed the suit---Appellate Court accepted the appeal filed by the defendant---Validity---Record revealed and evidence led by witnesses showed that predecessor of defendants was in possession of suit Haveli even before 1940-No evidence on record showed that defendants ever paid any rent to plaintiffs who could nod produce any evidence to prove that defendants were tenant-at-will---Defendants had been in possession of the Haveli since 1940, so suit for declaration and possession as consequential relief filed in 1992 was time-barred---Suit Haveli was situated in Abadi Deh, defendants being landless persons had become absolute owners of the Haveli under S.3 of the Punjab Conferment of Proprietary Rights on Non-Proprietors in Abadi Deh Act, 1995---Revision being meritless, was dismissed.

Muhammad Saliheen Mughal for Petitioners.

Nemo for Respondent.

Date of hearing: 18th June, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1737 #

2010 M L D 1737

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

AMAN ULLAH---Petitioner

Versus

Mst. PERVEEN AKHTAR, and 2 others---Respondents

Writ Petition No. 299 of 2009, decided on 25th May, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for jactitation of marriage-- Plaintiff filed suit for jactitation of marriage on the ground that she was abducted by the defendant and her alleged Nikah was fake and forged---Defendant also filed suit for restitution of conjugal rights---Trial Court dissolved marriage on the basis of khula in lieu of dower and the suit filed by defendant for restitution of conjugal rights was dismissed, in the consolidated judgment and decree---Plaintiff filed appeal, which was allowed by Appellate Court and the suit filed for jactitation of marriage was decreed---Contention of the defendant was that plaintiff herself appeared before High Court in the year 2006 and recorded her statement that she had contracted marriage with the defendant with her own free volition and had further stated that her father and brothers were not happy with this marriage and they were illegally interfering in her matrimonial life---Validity---Appellate Court had failed to appreciate the documentary evidence available on record confirming that plaintiff had validly entered into a contract of marriage with her free will with the defendant---Plaintiff had appeared as her own witness before the Family Court but had not deposed before the Family Court that her statement in the year 2006 before High Court was under pressure, duress and coercion---Appellate Court had wrongly set aside the judgment of the Trial Court---Constitutional petition was allowed by High Court.

Malik Muhammad Akram Khan Awan for Petitioner.

Manzoor Ahmed Janjua for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 1743 #

2010 M L D 1743

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD BASHIR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 3268-B of 2010, decided on 19th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/337-A(i), 337-F(i), 337-F(v), 337-L(ii) & 148/149---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---No specific injury, either to the complainant or. his sister and father had been ascribed to accused---All the twelve accused persons were nominated in the case and out of them eight including the accused were nominated in the F.I.R. and four of them were unknown persons---Six out of the nominated accused had been declared innocent by the Police and only accused and his brother had been left in the case---Question of vicarious liability of accused was to be gone into at trial---Case of accused was open to further inquiry into his guilt covering under S.497(2), Cr.P.C.---Accused had been arrested about five months ago---When case of an accused could found one of further inquiry into his guilt, he would become entitled to relief of bail as of right and not mere grace; in such a situation accused could not be detained unnecessarily---Accused was admitted to bail, in circumstances.

Amir v. The State PLD 1972 SC 277 ref.

Hassan Ahmad Khan Kanwar for Petitioner.

Ch. Abdur Razzaq, DPG for the State with Irshad Ali. S.-I. with Police Record.

Mian Muzaffar Hussain, Advocate for the Complainant.

MLD 2010 LAHORE HIGH COURT LAHORE 1745 #

2010 M L D 1745

[Lahore]

Before Nasir Saeed Sheikh and Mian Shahid Iqbal, JJ

MUHAMMAD ANWAR---Appellant

Versus

MUHAMMAD YOUSAF and others---Respondents

R.F.A. No. 481 of 2005, heard on 25th March, 2010.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art.84---Suit for specific performance of agreement---Disputed signatures and thumb-impressions on the agreement---Application for verification of---Dismissal of said application---Plaintiff filed suit for specific performance of agreement to sell on the ground that he had paid a sum of Rs. 38,50,000 out of Rs. 4,400,000 in respect of the disputed property and the remaining amount was to be paid at the time of execution of the sale-deed---Defendant contested suit and denied execution of agreement to sell as well as receipt of the amount---Trial Court dismissed suit of the plaintiff---Plaintiff asserted that during pendency of suit he had filed an application, before Trial Court for comparison of signatures and thumb impressions of the executant of the said agreement, which was wrongly dismissed by the Trial Court---Validity---Executant of agreement to sell did not appear in person during trial---Interest of justice could only safely be dispensed after the signatures and particularly the thumb-impressions of the executant were got verified from handwriting and finger print expert---Rejection of plaintiff's application had materially affected proceedings of the case and lack of exercise of powers by Trial Court needed to be corrected--High Court set aside the impugned judgment and decree of Trial Court and order of rejection of application for comparison of signatures and thumb impressions and remanded the case for decision afresh---Appeal was disposed of by High Court.

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

----Art. 84---Specific Relief Act (I of 1877), S.12---Agreement to sell---Execution of---Comparison of signatures and thumb-impressions---Plea of person being permanently settled abroad and an old and sick person---Effect---High Court directed the son of executant to procure the specimen signatures and thumb-impressions of the executant from abroad after getting the same verified from Consulate of Pakistan in the said country and send the same in original to Pakistan which should be placed on the record by the son of the executant before the Trial Court---Such exercise should be undertaken by son of the executant within a period of one month---Trial Court should then send the specimen signatures and thumb-impressions of the executant for comparison and verification with the agreement to sell and receipt and after obtaining the opinion of the handwriting and finger print expert on the said documents, the case should be decided afresh in accordance with law by the Trial Court.

Hafiz Khalil Ahmed for Appellant.

Abdul Khaliq Safrani for Respondent.

Date of hearing: 25th March, 2010.

2010 M L D 1807

[Lahore]

Before Manzoor Ahmad Malik, J

Syed RAZA HUSSAIN SHAH and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 15428-B of 2009, decided on 15th December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420, 468 & 471---Cheating, forgery, using as genuine forged document---Bail before arrest, refusal of---Accused were nominated in the F.I.R.---Prima facie accused had committed an offence relating to the revenue record and tried to usurp the land of a woman---Accused had been found guilty during the investigation---Bail before arrest was extraordinary judicial relief, which required extraordinary circumstances---No such circumstances being available in the case, bail application was dismissed.

Najeeb Faisal Chaudhry for Petitioner.

Ch. Khalid Hussain for the Complainant.

Ishaque Masih Naz, Deputy Prosecutor-General for the State.

Ch. Imtiaz, A.S.-I. with record.

MLD 2010 LAHORE HIGH COURT LAHORE 1809 #

2010 M L D 1809

[Lahore]

Before Hassan Raza Pasha, J

AMIR MEHMOOD---Petitioner

Versus

THE STATE and another---Respondent

Criminal Miscellaneous No. 585-B of 2010, decided on 18th May, 2010.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149---(qatl-eamd, attempt to commit qatl-e-amd, rioting armed with deadly weapons---Bail, refusal of---Evidence at bail stage could not be deeply assessed---Accused was nominated in the F.I.R. with a specific role of having made indiscriminate firing with his pistol along with his co-accused culminating into death of the deceased and injuring two passersby ---Medical report of accused did not disclose the disease being detrimental to his life at present---Finding of innocence of accused by police was not binding on the Court---Plea of alibi taken by accused was an afterthought, which could not be considered at bail stage---Challan had been submitted in the Court and the case had been fixed for recording evidence---Bail was declined to accused in circumstances.

Shabbir Ahmad v. The State 1980 SCMR 920; Asmat Ullah and another v. The State and another 2004 PCr.LJ 2023; Aminullah v. The State PLD 1982 SC 429; Khalid Javed Gilani v. The State PLD 1978 SC 256; Malik Muhammad Saleem and others v. Arshad Siddiq and 2 others 1997 SCMR 1829; Muhammad Afzal v. Nazir Ahmad and others 1984 SCMR 429; Muhammad Maroof v. The State 2009 YLR 1952; Muhammad Zaheer v. The State 2009 YLR 816; Muhammad Siddique v. Muhammad Abbas and another 1998 SCMR 284; Gulzar Ahmad v. The State 1994 SCMR 1728; Dr. Muhammad Aslam v. The State 1993 SCMR 2288; Abdul Rehman alias Achar Noonari v. The State 2009 PCr.LJ 239; Shahid v. The State 2004 SCMR 1018; lnayat v. The State 2002 SCMR 129; Mst. Noor Habib v. Saleem Raza and others 2009 SCMR 786; Muhammad Ashraf v. The State and another 2008 SCMR 1372; Ehsan Akbar v. The State and 2 others 2007 SCMR 482 and Muhammad Arshad v. The State and another 1997 SCMR 1275 ref.

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

----S.497---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd, attempt to commit qatl-e-amd and rioting---Bail---Principle---Elaborate sifting of evidence---Principle---At bail stage evidence of the parties cannot be assessed in depth in order to avoid expression of opinion one way or the other on merits of the case.

Raja Ikram Amin Minhas for Petitioner.

Kh. Sohail Iqbal, D.P.-G.

Ansar Nawaz Mirza for the Complainant.

Muhammad Aslam, A.S.-I.

MLD 2010 LAHORE HIGH COURT LAHORE 1815 #

2010 M L D 1815

[Lahore]

Before Khawaja Muhammad Sharif, C.J. and Kh. Imtiaz Ahmed, JJ

ASIF MASIH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 191 and Murder Reference No.601 of 2005, heard on 5th April, 2010.

Penal Code (XLV of 1860)---

---Ss. 302(b) & 459---Qatl-e-amd and grievous hurt caused whilst committing lurking house-trespass or house breaking---Appreciation of evidence---Matter was reported to the Police after about 9-1/2 hours of the occurrence while the distance between the Police Station and place of occurrence was 2-1/2 K.M.---Neither the name of accused nor any description had been given in the F. I. R. ---No identification parade had been held in the case---Complainant had stated that she had given three injuries with wicket on the person of accused, one on his head and other on his back, but Police did ° not get the accused medically examined to corroborate the version of the complainant given in F.I.R.---Evidence of extra judicial confession was furnished by two prosecution witnesses, but said witnesses did not apprehend accused at that moment or informed the Police or the complainant on the same day, but informed after two days and no plausible explanation was available in that regard, original recovery memo of "sumba" allegedly recovered from accused was never produced by the prosecution---No corroboration could be lent by the prosecution from said recovery---Prosecution had failed to prove its case against accused beyond any doubt---Conviction and sentence recorded by the Trial Court against accused, was set aside, in circumstances.

Mrs. Sarkar Abbas for Appellant.

Nemo for the Complainant.

Sh. Muhammad Munir, D.P.-G. for the State.

Date of hearing: 5th April, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1820 #

2010 M L D 1820

[Lahore]

Before Khawaja Muhammad Sharif C.J. and Kh. Imtiaz Ahmed, J

MUHAMMAD SHAFI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 62 of 2004 and Murder Reference No.11 of 2009, heard on 5th April, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Deceased used to fight with accused/her husband and even on the day of occurrence, when accused came back after offering the prayer of Eid-ul-Fitr, again the quarrel between the deceased and accused took place---Accused was proved to have committed murder of the deceased, however there being mitigating circumstances, case for capital punishment was not made out---Conviction of accused was maintained under S.302(b), P.P.C., but his death sentence was converted into life imprisonment with the benefit of S.382-B, Cr.P.C.

Haroon Rashid for Appellant.

Syed Sibtain Raza Bukhari for the Complainant.

M. Nazir Abbasi for the State.

Date of hearing: 5th April, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1824 #

2010 M L D 1824

[Lahore]

Before Tariq Javaid, J

POLICE STATION CITY, DISTRICT LAYYAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 58-Q of 2004, decided on 23rd February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 561-A--Quashing of F.I.R.---Petition for---Whether a false case had been registered against the petitioners or there was some substance in the allegations made by the complainant was not apparent from the record---Challan had already been submitted---Evidence relied upon by the prosecution had not been assailed in the petition---Question, as to whether the petitioners had been found innocent or guilty by the investigation had also not been raised before the High Court and it was not shown that the prosecution had failed to bring on record any evidence against the petitioners---First Information Report did not show that the offence had been committed in 1961 or 1959, however, it was clear from the F.I.R. that alleged offence had been committed some time thereafter; it must have been before the year, 1998 when mutation was passed---Numerous questions of fact had been raised in the F.I.R., which could not be gone into by High Court in quashment proceedings---Petitioners could agitate the same before the Trial Court, which would look into the evidence available on record and if needed, evidence of the prosecution be recorded and then determine the case strictly in accordance with law.

Mirai Khan v. Gul Ahmed and 3 others 2000 SCMR 122 and Maqbool Rehman v. The State and others 2002 SCMR 1076 ref.

Abdul Rasheed Sheikh for Petitioner.

Malik Muhammad Latif Khokhar and Muhammad Akmal for Respondents.

Tanveer Haider Bazdar, A. D. P. P.

Date of hearing: 23rd February, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1830 #

2010 M L D 1830

[Lahore]

Before Muhammad Khalid Alvi, J

GHULAM MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 104 of 1994/BWP decided on 15th May, 2007.

Penal Code (XLV of 1860)---

----S. 302---Qatl-e-amd---Appreciation of evidence---Contradiction was found with regard to distance of firing as given by the Doctor and eyewitnesses---Place of occurrence was a deserted place having no source of light---Delay in the registration of the case remained unexplained---Serious deficiencies and doubts were available in the ocular evidence provided by prosecution witnesses---Report of the Forensic Science Laboratory established that the empties recovered from the place of occurrence were cross-matched with gun recovered from the accused--If said piece of evidence was believed, then accused had no case, but serious flaws had been pointed out by the counsel for accused with regard to that evidence---Empties recovered were deposited in the Malkhana after two days of recovery without any explanation--Investigating Officer who recovered the empties, also did not record the statement under S.161, Cr. P. C. of Moharrar and constables with regard to the keeping of said empties in safe custody--Said statements with regard to keeping of gun, was also not recorded by Investigating Officer---Said statements under S.161, Cr. P. C. were recorded after more than a year---Inquest report did not contain that anything was recovered from near around the dead-body, while according to the prosecution case the empties were recovered from near the dead-body, which cast doubt on the prosecution story with regard to that piece of evidence---Conviction and sentence awarded to accused by the Trial Court, was set aside, accused was acquitted of the charge.

Malik Sadiq Mehmood Khuram for Appellant.

Ijaz Ahmad Chaudhary for the Complainant.

Ch. Muhammad Afzal, Addl. Prosecutor-General for the State.

Date of hearing: 15th May, 2007.

MLD 2010 LAHORE HIGH COURT LAHORE 1838 #

2010 M L D 1838

[Lahore]

Before Waqar Hassan Mir, J

MUHAMMAD MUNIR AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Writ Petition No. 3148 of 2009, decided on 19th April, 2010.

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

----Art. 199---Quashing of criminal case by High Court---Scope---For quashing of F. I. R. grounds which could be highlighted, upon which a case could be quashed by the High Court exercising its constitutional jurisdiction, were where the case was of no evidence; where the very registration of the case was proved to be mala fide on the face of record; where the case was of purely civil nature and criminal proceedings were not warranted in law, especially to harass accused; where there was serious jurisdictional defect; and where there was unexceptional delay in the disposal of the case causing deplorable mental, physical and financial torture to the person proceeded against.

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

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Constitutional petition---Quashing of F.I.R.---Accused, according to record had not issued the cheques with dishonest intention and at the time of presenting the same in the Bank for encashment, he was not liable to fulfil any of his obligations under the agreement of rent by the complainant; as the agreement was for a period of one year and the cheques were issued in terms of security, not to be presented in the Bank; and refundable to accused after the termination of the contract---Civil liability existed between the parties and accused in lieu of the issuance of the' same did not receive anything---Situation, in circumstances, had not changed even due to the disonour of the cheque and circumstances continued to exist as far as the payment of money to the complainant was concerned---Diversion of civil liability to criminal offence in the present case seemed to be with mala fide intention and for ulterior motive---When prima facie no case was made out and when there was want of jurisdiction and when there was a sheer abuse of the process of law, in peculiar circumstance High Court under its inherent powers as well as constitutional jurisdiction could quash the proceedings---Registration of both F. I. Rs. vide which no offence was made out, if allowed to be continued would amount to the sheer abuse of process of law and court---Impugned F. I. Rs. were ordered to be quashed.

Muhammad Bashir Chaudhry for Petitioner.

Arshad Qayyum, A.A.-G. with Sakhawat Ali, S.-I. for Respondents.

Tariq Aziz Butt for Respondent No.2.

MLD 2010 LAHORE HIGH COURT LAHORE 1844 #

2010 M L D 1844

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MARIYAM MAI---Petitioner

Versus

MUHAMMAD YOUSAF and another---Respondents

Writ Petition No. 21001 of 2009, decided on 14th May, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dowry articles and maintenance allowance---Plaintiff filed suit for recovery of dowry articles or its value to the sum of Rs.310,000 and maintenance allowance at the rate of Rs.3000 per month---Defendant contested suit on the ground that plaintiff was not entitled for any maintenance---Trial Court decreed suit for dowry articles or its alternate value of Rs.50,000 and maintenance allowance at rate of Rs.2000 per month from the date of institution of suit---Appellate Court, on appeal, partially allowed the same but declined maintenance allowance to plaintiff and maintained decree for return of dowry articles passed by Trial Court---Contention of the plaintiff was that it was a "Watta Satta" marriage and parents of both parties had given equal dowry articles and further that the Appellate Court had passed decree of Rs.243,500 being the price of dowry articles in favour of her sister-in-law, the wife of her brother and as such the courts below had not appreciated the evidence available on record---No evidence was available on record which could show that financial condition of parents of the plaintiff was weak---High Court allowed constitutional petition and set aside the impugned judgment and decree passed by Appellate Court and remanded the case to the same court for decision afresh assessing evidence available on record.

Rana Muhammad Naeem Khan for Petitioner.

Raja Aamir Aziz for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 1854 #

2010 M L D 1854

[Lahore]

Before Ch. Iftikhar Hussain and Muhammad Anwaarul Haq, JJ

Syed MOHSIN RAZA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 2407-B of 2010, decided on 30th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15---Possession of narcotics---Bail, grant of---Two co-accused had already been admitted to bail and case of accused was not distinguishable from them---Rule of consistency would come into play in case of accused, in circumstances---Accused was released on bail, in circumstances.

Muhammad Ahsan Nizami for Petitioner.

A.D. Naseem, Special Prosecutor on behalf of Respondent No.1/State.

MLD 2010 LAHORE HIGH COURT LAHORE 1855 #

2010 M L D 1855

[Lahore]

Before Ijaz Ahmed Chaudhry and Shahid Hameed Dar, JJ

MUZZAMAL HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 57 of 2006, heard on 1st April, 2010.

Penal Code (XLV of 1860)---

----S. 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.1O/12---Anti-Terrorism Act (XXVII of 1997), S.7(b)---Unnatural offence, causing danger to life by act of terrorism---Sentence, reduction in---Accused did not challenge the conviction but prayed for mercy and reduction in sentence on the ground that he repented the offence committed by him and was trying hard to reform himself---High Court, in view of remorse shown by the accused, reduced the sentence from 12-1/2 years rigorous imprisonment to 10 years rigorous imprisonment under S.18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 while keeping the other sentences intact---All the sentences were ordered to run concurrently with benefit of S.382-B, Cr.P.C.

Taki Ahmad Khan for Appellant.

Ahsan Rasool Chatta, D.P.G. for the State.

Date of hearing: 1st April, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1861 #

2010 M L D 1861

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD BASHIR and 3 others---Petitioners

Versus

AHL-E-ISLAM through Tahir Mehmood and another---Respondents

Civil Revision No. 215 of 2003, heard on 20th May, 2010.

Civil Procedure Code (V of 1908)---

----O. I, R.8---Plaintiffs filed suit in a representative capacity on the ground that mosque constructed on disputed property was gifted by owner of the said property and the defendants had intended to demolish the mosque---Defendants contested suit but subsequently were proceeded ex parte---Trial Court decreed suit of the plaintiffs---Appellate Court, on appeal, also dismissed the same---Defendants asserted that no permission of court was obtained under O.I, R.8, C.P.C. in the representative suit---Validity---No permission was obtained by plaintiffs for institution of suit in representative capacity nor any report was available on filed about the beating of drums and other mode of service on public at large---High Court set aside the judgments of both courts below and remanded the case to Trial Court for decision afresh after allowing proper application in terms of O.I, R.8, C.P.C., the Trial Court would issue proclamation in a local newspaper by inviting objections and then would decide the suit---High Court also directed that if the mosque was constructed on disputed site it should not be demolished or taken into possession by the defendants, with further direction to Trial Court to decide the case within four months from the receipt of present order.

Datari Construction Co. (Pvt.) Ltd. v. A. Razak Adamjee and others 1995 CLC 846 Munir Ahmed Khan v. Samiullah Khan and 7 others 1986 CLC 2652 and M. Saadullah and 28 others v. Tahir Ali and 2 others 1986 CLC 2643 ref.

Takki Ahmad Khan for Petitioners.

Firdous Butt, A.A.-G. for Respondent.

Date of hearing: 20th May, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1866 #

2010 M L D 1866

[Lahore]

Before Ch. Muhammad Tariq, J

FAQIR MUHAMMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 7616-B of 2010, decided on 23rd July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420, 468 & 471---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating and using as genuine a forged document---Bail, refusal of---Accused allegedly transferred the land of the complainant, his real sister, in his own favour through a forged Power-of-Attorney---Handwriting Expert reported that the thumb-impression affixed on the disputed paper differed from that of the complainant corroborating complainant's version that fraud had been committed by the accused who deceived her real sister---Accused could not make out a case for grant of bail---Bail was declined.

Abdul Rauf Bhatti for Petitioner.

Aalia Sadeed for the Complainant.

Ch. Abdul Razzaq, D.P.G. for the State Muhammad Bashir, A.S.-I.

MLD 2010 LAHORE HIGH COURT LAHORE 1870 #

2010 M L D 1870

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

UMAR DIN and another---Petitioners

Versus

NAYYAR SHUJA KHAN and 7 others---Respondents

Civil Revisions No. 1274 of 2002, decided on 10th May, 2010.

Specific Relief Act (I of 1877)---

----S. 42 & 55---Civil Procedure Code (V of 1908), O.XIV, R.I---Suit for declaration---Plaintiffs filed suit for declaration and permanent injunction on the ground that the Settlement Commissioner had passed cancellation of allotment order which was in the name of the person similar to that of their predecessor-in-interest but with different parentage---Defendants contested suit on the ground that original order passed by Additional Settlement Commissioner was not challenged---Trial Court dismissed suit of the plaintiffs---Appellate Court, on appeal, allowed the same and remanded the case to Trial Court for decision afresh after providing opportunity to the plaintiffs to implead the necessary party and to challenge the orders of Additional Settlement Commissioner---Validity---Unless the identity of the person was resolved, no effective decree could be passed---Trial Court had failed to frame the most relevant issue of real controversy between the parties and opted to dismiss the suit purely on the ground of non-joinder of necessary parties---Appellate Court had rightly come to the conclusion that defendants should have been allowed to implead the necessary parties to the suit and to amend the plaint---High Court allowed one of the revision petitions partially to the extent to modify the impugned order with direction to Trial Court to frame issue regarding the identity of predecessor-in-interest of the plaintiffs while dismissing the other revision petition on the same judgment.

Mobin Ahmad Siddiqui for Petitioners.

Nadeem Ahmad Sheikh for Respondents.

Date of hearing: 2nd April, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1879 #

2010 M L D 1879

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

INTIZAR AHMAD alias TAHIRI and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 391-J of 2003, Criminal Revision No.852 and M.R. No.616 of 2003 heard on 29th March, 2010.

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

----Ss. 302(6)/149 & 324/149---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---F.I.R. had been lodged without any delay on the date and time given therein---Complainant eye-witness having been partially disbelived by the Trial Court, strong corroboration was required to believe his testimony---Presence of the injured eye-witness at the scene of occurrence was not disputed, which was proved by the injuries sustained by him---Medical evidence had supported the testimony of the said injured eye-witnesses---Quality and not the quantity of evidence weighed with the court and conviction could be maintained on the testimony of a single witness, if the same inspired confidence---If the evidence of the complainant was excluded from the prosecution evidence, even then the statement of the injured eye-witness was sufficient to prove guilt of the accused---Convictions of accused were consequently maintained---General allegation of indiscriminate firing had been made against all the accused---No weapon of offence had been recovered from any of the accused---No crime empty was taken into possession from the spot---Two co-accused with the similar role had been acquitted by Trial Court---Death sentence awarded to accused under S.302(b)/149, P.P.C. was reduced to imprisonment for life in circumstances---Sentence of accused under S.324/149, P.P.C. was upheld---Sentences were directed to rum concurrently.

Iftikhar Hussain and others v. The State 2004 SCMR 1185; Ilahi Bux v. The State 1982 SCMR 57; Nawab Khan alias Nabi and 12 others v. The State 1988 SCMR 579; Haroon alias Harooni v. The State and another 1995 SCMR 1627; Muhammad Akram v. The State 2009 SCMR 230; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Faheem Ahmad Farooqui v. The State 2008 SCMR 1572; Muhammad Zarnan v. Muhammad Afzaal and others 2005 SCMR 1679; Lal Khan v. The State 2006 SCMR 1846; Iftikhar Ahmad Khan v. Asghar Khan and another 2009 SCMR 502; Allah Dad and another v. The State 1995 SCMR 142; Muhammad Riaz and another v. The State and another 2007 SCMR 1413; Shehruddin v. Allah Rakhio and 5 others 1989 SCMR 1461; Mukhtar Ahmad v. The State 2004 SCMR 220; Muhammad Afzal and 2 others v. The State 2003 SCMR 1678; Riaz Hussain v. The State 2001 SCMR 177; Ellahi Bakhsh v. Rab Nawz and another 2002 SCMR 1482; Farooq Khan v. The State 2008 SCMR 917; Mali v. The State 1969 SCMR 76; Muhammad Ashraf v. The State 1971 SCMR 350; Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 659; Muhammad Mansha v. The State 2001 SCMR 199; Allah Bakhsh v. Shammi PLD 1980 SC 225 and Nazir v. The State PLD 1962 SC 269 ref.

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

----Ss. 302(6)/149 & 324/149---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Conviction on solitary statement of a witness---Principle---Conviction in a murder case can be based on the testimony of a single witness, if the Court is satisfied that he is reliable---Emphasis is on the quality of evidence and not on its quantity.

Allah Bakhsh v. Shammi and others PLD 1980 SC 225; Farooq Khan v. The State 2008 SCMR 917; Mali v. The State 1969 SCMR 76; Muhammad Ashraf v. The State 1971 SCMR 350; Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 659; Muhammad Mansha v. The State 2001 SCMR 199 ref.

Barrister Salman Safdar for Appellants.

M.M. Alam Chaudhry, Additional Prosecutor-General Punjab for the State.

Syed Naeem Shahid and Shakeel Anwar Khan for the Complainant.

Date of hearing: 29th March, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1891 #

2010 M L D 1891

[Lahore]

Before Ch. Iftikhar Hussain and Sayyed Mazhar Ali Akbar Naqvi, JJ

Mst. ZOHRA BIBI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 8760-B of 2010, decided on 24th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15-Possession of narcotics---Bail, grant of---Quantity of narcotics recovered from accused was on the upper limit prescribed in S.9(b) of Control of Narcotic Substances Act, 1997---Accused was stated to be previous non-convict and behind the bars since 14-7-2010, (date of arrest)---Accused was admitted to bail, in circumstances.

Hammad Akbar Wallana for Petitioner.

Tariq Mahmood Sipra, Special Prosecutor ANF on behalf of the State.

MLD 2010 LAHORE HIGH COURT LAHORE 1894 #

2010 M L D 1894

[Lahore]

Before Muhammad Anwar Bhaur, J

MUHAMMAD AMEER GOONGA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 7186-B of 2010, decided on 19th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(1)(2)---Penal Code (XLV of 1860), Ss. 364/302/34---Kidnapping and qatl-e-amd---Bail, grant of---Further inquiry---F.I.R. in the case had been lodged after an unexplained delay of six days, which had created doubt about the veracity of the prosecution story---Last seen evidence against accused was that deceased was seen in the company of accused and his co-accused, who had been granted bail---Dead body was recovered 19 days after the occurrence---Allegation against accused was that dead body of deceased was recovered on his pointation---Mere ,recovery of dead body on the pointation of accused would not make out a case that he was involved in the commission of offence, though he had been found guilty during the investigation---Accused statedly being deaf and dumb, he was not in a position to defend himself without help of translator---Even otherwise, accused was entitled to bail being infirm as provided under S.497(1), Cr.P.C.---Case of further inquiry having been made out in favour of accused, he was admitted to bail.

Ijaz Ahmed Chadhar for Petitioner.

Muhammad Ishaque, Deputy Prosecutor-General Punjab with Sikandar, A.S.-I. for the State.

Sh. Muhammad Amir for the Complainant.

MLD 2010 LAHORE HIGH COURT LAHORE 1899 #

2010 M L D 1899

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUZAHAR HUSSAIN and 2 others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No. 951 and Criminal Revision No.567 of 2005, heard on 16th June, 2010.

Penal Code (XLV of 1860)---

----S. 302/34---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Deceased was a chronic patient of Tuberculosis and Hepatitis-C and was under treatment for so many years prior to the occurrence---Prosecution witnesses were residents of another village which was 5 Km away from the place of occurrence and they did not establish their presence at the relevant time---Statements of prosecution witnesses were not trustworthy and they could only be termed as 'chance witnesses'---Both the Investigating Officers had come to conclusion that it was suicide committed by the deceased and that accused had no concern with the occurrence---Prosecution failed to rebut that stance through substantiating cogent and confidence-inspiring evidence---Both defence witnesses were next door neighbours of accused persons as well as of deceased who remained consistent that deceased herself got purchased kerosene oil front the bazar through defence witness and after few minutes they heard hue and cry of daughter of deceased that her mother had put herself on fire while sprinkling over kerosene oil upon her body as well as on the daughter, however she luckily succeeded to climb over the roof---Both the defence witnesses were subjected to lengthy cross-examination, but prosecution could not shatter their testimony and failed to create any dent qua their depositions favouring the prosecution case---Stance taken by accused persons seemed to be plausible, whereas story adduced by the prosecution was full of flaws and doubts---Benefit of every doubt would go in favour of accused---Prosecution having failed to substantiate its case against accused, sentence inflicted upon accused persons by the Trial Court, was set aside and they were ordered to be released.

Syed Tahir Abbas Rizvi for Appellants.

Danyal Eijaz Chadhar for the Complainant.

Ishaque Masih Naz, Deputy P.G. for the State.

Date of hearing: 16th June, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1939 #

2010 M L D 1939

[Lahore]

Before Syed Akhlaq Ahmad, J

SHAH NAWAZ---Petitioner

Versus

ABDUL RAZZAQ---Respondent

Civil Revision No. 574-D of 2002, decided on 9th August, 2010.

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

----Ss. 6, 13 & 31---Suit for pre-emption---Trial Court dismissed suit and Appellate Court upheld the judgment of Trial Court---Validity---Right of pre-emption, being very weak right in property, would be extinguished in case of failure to perform Talb-e-Ishhad within two weeks of the performance of Talb-e-Muwathibat under S.13 of the Punjab Pre-emption Act, 1991---Plaintiff failed to overcome presumption of regularity attached to the notice under S.31(1) of the Punjab Pre-emption Act, 1991, so he would be presumed to have knowledge of the attestation of mutation of sale---Having failed to make Talbs within prescribed time of two weeks from notice, plaintiff was not entitled to the right of pre-emption---Plaintiff did not mention any time, date and place of Talb-e-Muwathibat and source of knowledge of sale in the plaint---Annexing copy of notice of Talb-e-Ishhad could not cure the omission/lacuna of the time, date and place in the plaint---Talb-e-Ishhad itself remained invalid unless the witnesses had been confronted with their attestation of such Talb---Talb-e-Ishhad could only be proved if produced in original, except with the permission of the court to produce secondary evidence--Discrepancies in the statements of the witnesses made the same unreliable---Mentioning of time, date and place in the plaint in a suit for pre-emption was sine qua non, because in the absence of proper date, place and time, the period provided in S.13(3) of the Punjab Pre-emption Act, 1991 for making Talb-e-Ishhad could not be calculated correctly---Courts below did not commit any illegality or material irregularity warranting interference---Revision was dismissed in circumstances.

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

----S. 13---Talb-e-Ishhad---Validity and proof---Talb-e-Ishhad remained invalid till the witnesses had been confronted with their attestation of such Talb---Talb-e-Ishhad could not be proved without producing the notice of such Talb in original unless permission had been obtained from the court to produce secondary evidence.

1995 SCMR 1510; PLD 2001 SC 499; 2004 SCMR 535;2006 CLC 200; Muhammad Siddique v. Muhammad Sharif and others 2005 SCMR 1231; Khairullah v. Sultan Muhammad and another 1997 SCMR 906; Akbar Ali Khan and others v. Mukamil Shah and others 2005 SCMR 431; Fazal Subhan and 11 others v. Mst. Sahib Jamala and others PLD 2005 SC 977; Atiq-ur-Rehman through (Real Father) and another v. Muhammad Amin PLD 2006 SC 309; Muhammad Suleman v. Shaukat Ali 2009 SCMR 678; Haq Nawaz v. Muhammad Kabir 2009 SCMR 630; Mian Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302; Mst. Bashiran Begum v. Nazar Hussain and another PLD 2008 SC 559; Mst. Saleem Akhtar v. Ch. Shauk Ahmed 2009 SCMR 673 and Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 fol.

Akhtar Nawaz and others v. Muhammad Nazir and others 2005 YLR 77 rel.

Muhammad Munir Paracha for Petitioner.

Malik Shahzad Ahmad Khan for Respondent.

MLD 2010 LAHORE HIGH COURT LAHORE 1955 #

2010 M L D 1955

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD NASRULLAH and 2 others---Petitioners

Versus

MUHAMMAD NAWAZ SHAH---Respondent

Civil Revision No. 155 of 2010, decided on 13th May, 2010.

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

----Ss. 13 & 24(1)(2)---Suit for pre-emption---Deposit of Zar-e-Soem within statutory period---Procedure---Plaintiff filed suit for possession through pre-emption---Defendants contested suit and raised objection that 1/3rd of the sale price was not deposited by the plaintiff, the suit should be dismissed in accordance with the provisions of S.24(2) of the Punjab Pre-emption Act, 1991---Trial Court dismissed suit of the plaintiff--=Appellate Court, on appeal, allowed the same and set aside the judgment of the Trial Court---Contention raised by the defendants was that plaintiff had deposited the 1/3rd sale price on 11-9-2005 which was delayed by 17 days---Validity---Zar-e-Soem could be deposited after 30 days from 3-9-2005 the date when the suit was registered as period of 30 days was to be calculated from the said date and not from . 12-8-2005 when file of the suit was submitted before the Duty Judge as it was not numbered on that date rather it was numbered on 3-9-2005---Deposit of Zar-e-Soem on 28-9-2005 by plaintiff was well within time---High Court upheld the judgment and decree of the Appellate Court and directed parties to appear before Trial Court on the date as ordered by Appellate Court in its judgment.

Ghulam Muhammad v. United States Agency for International Development (U.S. AID) Mission, Islamabad and another 1986 SCMR 907; Abdul Majeed and 6 others v. Mst. Haleema and 18 others 1987 CLC 2331; Imam Gul v. Mst. Begum Ji 1980 CLC 530; Faquir Muhammad and 48 others v. Province of Punjab through Collector/Deputy Commissioner and 4 others PLD 1993 Lah. 439; Malik Hadayat Ullah and 2 others v. Murad Ali Khan 1972 SC 69; Ghulam Hassan v. Jamshaid Ali and others 2001 SCMR 1001 and Manzoor Ahmad v. Syed Mushtaq Ahmad and another PLD 1990 Lah. 390 ref.

Ch. Ghulam Muhammad for Petitioners.

Anwar Ali Chaudhry for Respondent.

MLD 2010 LAHORE HIGH COURT LAHORE 1965 #

2010 M L D 1965

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

Mst. MAQBOOL BIBI through Special Attorney and 7 others---Appellants

Versus

IBAD ALI and 9 others---Respondents

Regular Second Appeal No. 18 of 2001, heard on 16th July, 2010.

Specific Relief Act (I of 1877)---

----Ss. 12 & 27(b)---Suit for specific performance of agreement to sell property on the ground that defendants in violation of agreement to sell had sold out disputed land to other persons---Defendants did not contest the suit and were proceeded against ex parte; however new purchasers of the property contested suit on the ground that suit was not maintainable as plaintiffs themselves admitted that their predecessor-in-interest had obtained a decree for perpetual injunction against defendants and in presence of such decree, the suit for specific performance was not maintainable---Trial Court decreed the suit of the plaintiffs and found that new purchasers were entitled to recover their consideration from the defendants---Appeal filed by defendants was allowed fry Appellate Court on the ground that new purchasers were bona fide purchasers without notice---Validity---New purchasers were in knowledge of sale in favour of predecessor-in-interest of the plaintiffs---Defendants were directed in suit for perpetual injunction not to interfere into possession of the plaintiffs and defendants in that suit conceded that they had sold disputed land to the predecessor-in-interest of the plaintiffs and the sale-deed would be executed after completion of consolidation proceedings; such decree was not a hurdle in institution of a suit for specific performance especially when defendants themselves violated their own statement and admission before the court in the earlier suit when they sold major portion of land to new purchasers against the alleged consideration---No option was available to plaintiffs except to file suit for specific performance in circumstances---Appeal was allowed by High Court.

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

----S. 102-Second appeal---Right of appeal was governed by law prevailing at the time of institution of suit or proceedings and not by the law that prevailed on the date of decision or on the date of filing of appeal.

----S. 27(b)---Subsequent purchaser---He who seeks to take advantage of an exception has to prove affirmatively that his case falls within the scope of that exception---Onus was upon the subsequent purchaser to prove that he was a transferee in good faith and without notice of the earlier contract so as to bring himself within the exception provided by S.27(b) of the Specific Relief Act, 1877.

Ijaz Feroze for Appellants.

Ch. M. Masud Akhtar Khan for Respondents.

Date of hearing: 16th July, 2010.

MLD 2010 LAHORE HIGH COURT LAHORE 1976 #

2010 M L D 1976

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

WAQAR AHMED---Petitioner

Versus

Haji GHULAM FAREED---Respondent

Civil Revision No.23 of 2010, decided on 1st July, 2010.

Civil Procedure Code (V of 1908)---

----Ss.12(2), O. XXXII, R.1 & 3----Judgment and decree, setting aside of---Non-appointment of guardian ad litem---Defendant sought setting aside of judgment and decree on the ground that at the time of filing of suit he was minor and plaintiff should have got appointed guardian ad litem first---Validity---Mere fact that minor was not sued through guardian ad litem would not make decree invalid and same would be binding on minor---Omission of formal order of appointment of guardian ad litem of minor, though represented by his natural guardian, would not affect proceedings in suit and decree, unless due to such omission prejudice caused to minor was shown, otherwise such objection was only of technical nature---Judgment and decree was passed validly and legally and no element of fraud or misrepresentation existed---Proceedings initiated in court could not be said to be conducted by fraud or through misrepresentation as the same had sanctity attached to them---Trial Court had acted according to law and there was no irregularity or illegality in the order, therefore, High Court declined to interfere in the same---Revision was dismissed in circumstances.

Tanveer Mahboob and another v. Haroon and others 2003 SCMR 480 fol.

Malik Javed Akhtar Wains for Petitioner.

Mian Mumtaz Ahmed Zahid for Respondent.

MLD 2010 LAHORE HIGH COURT LAHORE 1985 #

2010 M L D 1985

[Lahore]

Before Shaukat Umar Pirzada, J

MUHAMMAD IQBAL KHAN & COMPANY through Attorney/Managing Partner---Petitioner

Versus

PUNJAB PROVINCE, through Secretary, Communications and Works Department and 2 others---Respondents

Civil Revision No. 1385 of 2004, decided on 27th August, 2010.

Arbitration Act (X of 1940)---

----Ss. 34 & 41---Civil Procedure Code (V of 1908), S.151, O. VII, Rr.2 & 10---Suit for recovery of Rs.1, 70,000-Defendants contested suit and filed application under Ss.34 and 41 of the Arbitration Act, 1940 read with O. VII, R.10 and 5.151, C.P.C. with the prayer that only the civil court at "K" had jurisdiction to entertain the suit and that the plaint be rejected---Trial Court dismissed the application---Appeal filed against the dismissal order was allowed by the Appellate Court---Contention raised by plaintiff was that he had no objection to have the matter resolved through the arbitration in terms of agreement between the parties but stated that the tender was accepted by defendants at "L" therefore the courts at "L" had territorial jurisdiction---Plaintiff further contended that the Appellate Court had wrongly interpreted the letter issued by defendants---Validity---Record revealed that the interpretation offered by plaintiff before Trial Court as well as before High Court was not correct---Appellate Court had rightly concluded in the impugned order that tender was accepted by defendants at "K" on the rates which were notified in the letter---Appellate Court was justified in holding that courts at "L" had no jurisdiction on the subject-matter---Plaintiff had failed to point out any jurisdictional error in the impugned order---Petition was dismissed by High Court.

Faqir Muhammad v. Pakistan through Secretary, Ministry of Interior and Kashmir Affairs Division, Islamabad 2000 SCMR 1312 ref.

Riaz Karim Qureshi for Petitioner.

Rana Shamshad Khan, A.A.-G. and Muhammad Iqbal Javed, DDO, Roads, Pattoki for Respondents.

MLD 2010 LAHORE HIGH COURT LAHORE 1988 #

2010 M L D 1988

[Lahore]

Before Ch. Muhammad Tariq, J

RAHAT IQBAL---Petitioner

Versus

ALLAUDDIN and another---Respondents

Writ Petition No. 4353 of 2010, decided on 27th July, 2010.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 5 & 15---Ejectment petition---Default in payment opera, ground of---Denial of relationship of landlord and tenant between parties---Tenant claimed to be owner of shop on basis of unregistered sale agreement executed in his favour by its previous owner---Validity---Landlord had purchased shop through registered sale-deed---Tenant being in possession since long was an attesting witness to sale agreement executed between landlord and previous owner of shop---In absence of lease deed between tenant and landlord, tenant would be presumed as statutory tenant---In absence of prior notice to tenant, ejectment petition would be presumed as notice to tenant about transfer of ownership in favour of landlord---Unregistered sale agreement in favour of tenant would not create title in his favour---When tenant made statement before witnesses that he could not arrange sale price of shop and his sale agreement be rescinded, then landlord had purchased shop through registered deed---Landlord was owner of shop---Tenant had defaulted in payment of rent---Ejectment petition was accepted in circumstances.

(b) Punjab Rented Premises Act (VII of 2009)---

----Ss. 5 & 15---Ejectment petition---Non-issuance of prior notice to tenant regarding transfer of ownership of demised premises to landlord---Validity---Ejectment petition would be presumed as notice to tenant about such transfer.

----S.54---Un-registered sale agreement---Validity---Such agreement would not create title in favour of purchaser.

Salim Khan Chechi for Petitioner.

Talib Hussain Baloch for Respondent No.1.

MLD 2010 LAHORE HIGH COURT LAHORE 1997 #

2010 M L D 1997

[Lahore]

Before Mian Shahid Iqbal, J

MUHAMMAD ASIF---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE 2 and others---Respondents

Writ Petition No.8969 of 2009, heard on 21st July, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles or in lieu of its value of Rs.1,050,500---Defendant contested suit and filed written statement---Trial Court decreed suit as per list of dowry articles or in alternative its value to the sum of Rs.700,000---Appellate Court, on appeals, filed by both the parties, dismissed the appeal filed by defendant while partly allowed the one filed by the plaintiff---Plaintiff contended that dowry articles which were transferred to the defendant's house were in three intervals; out of which two transfers of dowry articles were admitted by defendant---Validity---Number of articles given by plaintiff had been admitted by defendant on basis of which Trial Court passed judgment and decree and subsequently on appeals filed by both parties, defendant's appeal was dismissed whereas appeal filed by plaintiff was partially accepted and amount of dowry articles were enhanced after appreciating evidence of parties on record---Constitutional petition by defendant was dismissed by High Court in circumstances.

PLD 2009 SC 757; 2006 MLD 752; Malik Din and another v. Muhammad Aslam PLD 1969 SC 136; Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140; Mst. Shamim Akhtar Samina v. Jaffar Hussain and 2 others 2006 CLC Lah. 852 and Mazhar Iqbal v. Falak Naz and 2 others PLD 2001 Lah. 495 ref.

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

----Art. I99---West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.---Constitutional petition---Scope---When a factual controversy had been settled by the two courts below unless and until there were compelling reasons shown for misreading and non-reading of evidence in the said order passed by courts below, was without jurisdiction or there was a visible irregularity while deciding the same, High Court might interfere.

----S.S, Sched. & S.18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Contention that neither written statement nor the statement of defendant's witnesses could have been looked into for appointment of special attorney to defend family suit, for the reason that under S.18 of the West Pakistan Family Courts Act, 1964, except a female no other person (husband) could appoint attorney or represent the same---Validity---Held, husband could file written statement through his attorney and could be represented through the same---Written statement as well as statement given by special attorney of the defendant (husband) could have been looked into and on the basis of the same matter could have been settled.

Naeem Iqbal and 2 others v. Noreen Saleem and others PLD 2008 SC 757 ref.

Abdul Majeed v. Judge Family Court Kehroor Pacca District Lohdran and 2 others 2003 YLR 884 rel.

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

----S. 5, Sched. & S.17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Section 17 of the West Pakistan Family Courts Act, 1964 provided that Civil Procedure Code, 1908 as well as Qanun-e-Shahadat, 1984, were not applicable to the proceedings in the Family Court and it had been left with the Judge Family Court to determine its procedure while allowing parties to suits to produce evidence.

Mst. Faizia Firdous v. Ghulam Sabir 2002 CLC Lahore 1801 rel.

Muhammad Ejaz Anwar for Petitioner.

Mehdi Khan Chohan for Respondent.

Date of hearing: 21st July, 2010.

Peshawar High Court

MLD 2010 PESHAWAR HIGH COURT 24 #

2010 M L D 24

[Peshawar]

Before Liaqat Ali Shah, J

HAROON RASHID---Petitioner

Versus

EHSAN-UL-HAQ alias IHSANULLAH and 5 others-Respondents

B.C.As. Nos.523 and 953 of 2009, decided on 14th September, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), Ss.367-A, 365-B & 376---Kidnapping and rape---Bail, cancellation of---Application for---Respondents/accused were directly charged by the victim in her statement recorded at the first instance by the Police, as well as in her statement under S.164, Cr.P.C. for the commission of the offence---Medical evidence as well as the Forensic Science Laboratory's report had supported her version--Report in such-like cases was made at the cost and risk of family honour and future of the victim---Case of accused persons was one which fell under the barring provisions of S.497, Cr.P.C.---No doubt, normally the bail granted by the court of competent jurisdiction was not interfered with, but if it was found that the same had been granted in violation of the established principles for the grant of bail and the law on the subject, then superior courts would not hesitate to interfere--Bail granted to accused persons, was recalled, in circumstances.

2008 SCMR 1602 rel.

Saklin Janan and Naeelam Khan for Petitioners.

Lal Jan Khattak for Respondent No.4 and 5.

Ijaz Khan for Respondent No.2.

Abdul Jan Khattak for Respondent No.3

F.M. Sabir for the State.

Date of hearing: 14th September, 2009.

2010 M L D 180

[Peshawar]

Before Muhammad Safdar Khan Sikandari, J

ABDUR RASHEED---Appellant

Versus

THE STATE and 4 others---Respondents

Criminal Appeal No. 13 of 2009, decided on 26th October, 2009.

Penal Code (XLV of 1860)---

----Ss.279, 320, 337-A(1), 337-F(i), (ii), 337-G & 33 7-L(iii)---Rash or negligent driving---Criminal Procedure Code (V of 1898), Ss.227, 237, 342 & 537---Appreciation of evidence---Alteration or addition of charge---Accused was only charged under 5.320, P.P.C. for the murder of three male deceased and was not charged for the fourth murder of female, but accused was convicted on four counts for four murders including the murder of female deceased---Such alteration of charge at the belated stage was not brought into the notice of accused, which had seriously prejudiced the accused---Section 227, Cr.P.C. provided that Trial Court was supposed to have altered or added the charge against accused at the relevant time before pronouncement of the judgment subject to the condition that such alteration or addition would be read and explained to accused well in time---In the present case Trial Court had not done so and the charge was amended after the pronouncement of the judgment which had directly prejudiced accused while giving hint no chance to defend himself, which was his right---Trial Court, after recording the evidence, had passed the order of conviction and sentence against accused for the demise of three deceased leaving the charge against accused for female without notice to accused and in concluding para. of the judgment the Trial Court passed the sentences against accused which were not communicated to him before recording his statement under S.342, Cr.P.C., which defect was not curable under S.537, Cr.P.C.---Sections 227 & 237, Cr.P.C. though allowed the Trial Court to alter the charge and pass conviction against a person so charged for one offence, but he could be convicted for other offence, which he was shown to have committed, but in case of material errors in absence of charge, the court would direct a new trial to be held upon the charge framed thereafter---Trial Court had committed illegality while altering the charge without giving notice to accused about the same well in time---Conviction and sentence awarded to accused being erroneous, conviction of accused was set aside and case was remanded to the Trial Court with direction to alter the charge properly excluding the name of female from injured persons and including her with other three deceased.?

S. Hafiz Hussain v. State 1987 PCr.LJ 403 and Shah Jehan v. State 2005 PCr.LJ 489 ref.

Gohar Zaman Khan Kundi for Appellant.

Farooq Akhtar for the State.

Muhammad Ismail Khan Alizai for the Complainant.

Date of hearing: 12th October, 2009.

MLD 2010 PESHAWAR HIGH COURT 237 #

2010 M L D 237

[Peshawar]

Before Muhammad Safdar Khan Sikandari, J

MUMTAZ ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.344 of 2009, decided on 2nd November, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatle-i-amd---Bail, grant of---Occurrence had taken place at midnight i.e. 2400 hours and the complainant as well as prosecution witnesses claimed witnessing of accused in the light of the bulb installed in the house, but Investigating Officer had also shown two trees in the site plan wherefrom accused had been shown firing at the deceased, which would make the identification of accused doubtful---Investigating Officer had recovered eight empty shells of 7.62 bore from inside the house, however, the complainant had not disclosed the name of any one including accused for firing at the complainant party while descending from the wall towards the house nor any Forensic Science Laboratory's report was on the file regarding the empty shells to show as to how many perpetrators had taken part in the commission of offence, whereas the complainant had also categorically given the role of firing at accused while sitting on the wall which was a discrepant version making the prosecution case favourable for extending the bail to accused under the contemplation of sub-section (2) of S.497, Cr.P.C.---Accused had been declared by the concerned doctor to be disabled person aged about 62 years---Was not possible for accused to ascend or descend the wall when the femur bone of his left leg was suffering from compound old fracture---Such question would require probe at the time of recording evidence of the prosecution witnesses in the Trial Court---Reasonable grounds existed for believing that prima facie accused was not connected with guilt falling under the barring clause of S.497, Cr. P. C. ---Accused was admitted to bail, in circumstances.

2009 SCMR 181; 2003 PCr.LJ Pesh. 519 and 2009 PCr.LJ Lah. 110 ref.

Samiullah Khan Ranazai for Petitioner.

Fazlur Rehman Baloch for the State.

Muhammad Ilyas Marwat for the Complainant.

Date of hearing: 2nd November, 2009.

MLD 2010 PESHAWAR HIGH COURT 288 #

2010 MLD 288

[Peshawar]

Before Hamid Farooq Durrani, J

AURANGZEB KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.270 of 2009, decided on 2nd September, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 324/34---Attempt to commit Qatl-i-amd---Bail, refusal of---Plea of accused was that there was a cross-version of occurrence recorded in subsequent F.I.R. of even date, thus, he was entitled to concession of bail---Validity---Subsequent F.I.R. had been recorded after a delay of many hours when its complainant got details of injured and injuries received by other side---Delay in lodging subsequent F.I.R. was sufficiently depictive of deliberation in order to counterblast first F.I.R.---Accused had not taken ground qua cross-case in his pre-arrest and post-arrest applications---Accused was directly charged in a promptly lodged first F.I.R. for causing fire arm injury to person of complainant---Punishment prescribed for alleged offence fell within purview of prohibitory clause of S. 497, Cr.P.C.---Accused in his subsequent F.I.R. had alleged to have escaped unhurt---Bail was declined to accused in circumstances.

Farhana Marwat for Petitioner.

Qaiser Rashid, A.A.-G. and Muhammad Yaqoob Khan for Respondent

Date of hearing: 2nd September, 2009.

MLD 2010 PESHAWAR HIGH COURT 296 #

2010 M L D 296

[Peshawar]

Before Miftah-ud-Din Khan and Mian Fasih-ul-Mulk, JJ

MUHAMMAD PARWAR KHAN---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION, SHERWAN and 7 others---Respondents

Writ Petitions Nos.197 and 198 of 2009, decided on 18th November, 2009.

Penal Code (XLV of 1860)---

----Ss.302/109/34---Constitution of Pakistan (1973), Art.199---Qatl-i-amd---Constitutional petition--- Addition of offence of terrorism, application for---Case against accused persons was registered under Ss.302/109/34, P.P.C.-Later on the petitioner/complainant through an application requested Ilaqa Magistrate that Ss.6, 7 & 21-L, Anti-Terrorism Act, 1997 with 5.120-B, P.P.C. be also added in the case---Ilaqa Magistrate rejected application and revision against order of Magistrate having also been dismissed by Additional Sessions Judge, complainant had filed constitutional petition---Record showed that complainant on information went to the spot and saw his brother lying dead on the stairs of Mosque---Contents of relevant F.I.R., showed that case against accused party was allegedly shrouded in mystery as to how, under what circumstances and in what manner and at what time the deceased was done to death---Allegedly the deceased was aimed at due to enmity from behind at the path leading to the Mosque and thereafter in the Mosque from outside---Almost similar were the facts and circumstances of the case of another F.I.R.---Both the occurrences were the result of personal annoyance/enmity which had nothing to do with creation of terror or immense fear in the village or neighbouring surroundings specially so when they were unseen and un-witnessed occurrence---Anti-Terrorism Act, 1997 was enacted with a view to provide for the prevention of terrorism, sectarian violation and for speedy trial of heinous offences---Cases in hand were neither covered under S.6(2)(i) nor the provisions of S.6(2)(h) of Anti-Terrorism Act, 1997, would be attracted---Keeping in view the facts and circumstances of the case, addition of Ss.6/7/21-L of Anti-Terrorism Act, 1997 and S.120-B, P.P.C. to the cases in hand, were not required and had been rightly denied by the courts below.

Naseer Ahmed Khan for Petitioner.

Dy. A.-G. for Respondents Nos.1 and 2.

Muhammad Ilyas Khan S.H.O. in person.

Date of Hearing: 18th November, 2009.

MLD 2010 PESHAWAR HIGH COURT 349 #

2010 M L D 349

[Peshawar]

Before Muhammad Safdar Khan Sikandri, J

AZAL SHAH---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous Bail No.342 of 2009, decided on 30th October, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860); Ss. 302/324/34---Qatl-i-amd and attempt to qatl-i-amd---Bail, grant of---Deceased was murdered with one bullet shot, for which three accused including petitioner were charged without attributing specific role to the petitioner---Occurrence had taken place at midnight inside enclosure of Bhaitak owned by complainant, wherein deceased and prosecution witnesses were asleep--During investigation, neither any bullet mark was found on walls of Bhaitak in range of assailants nor had Investigating Officer recovered alleged empties at the time of preparing site plan nor did site plan show any point ascribed to alleged empties---According to medical evidence, stamp of bullet injury was at the back of deceased, which fact did not correspond with prosecution story to the effect that they became alert and saw accused while approaching place of occurrence---Case against petitioner was of further inquiry as factum of his having inflicted injury to deceased or shared common intention with other accused would be scrutinized during trial---Petitioner was granted bail in circumstances.

1997 SCMR 1829; 1980 SCMR 784; 2004 PCr.LJ 2023; 2005 P.L.R. 1469 Pesh. 2006 PCr.LJ 184 and 1992 PCr.LJ 394 ref.

Muhammad Yaqoob Khan for Petitioner.

Fazalur Rehman Khan Baloch for the State.

Muhammad Ashraf Khan for the Complainant.

Date of hearing: 30th October, 2009.

MLD 2010 PESHAWAR HIGH COURT 393 #

2010 M L D 393

[Peshawar]

Before Abdul Aziz Kundi, J

Mst. SHAHEEN BIBI and others---Petitioners

Versus

Mst. KHAISTA JANA and others---Respondents

Civil Revision No. 1343 of 2006, decided on 5th October, 2009.

Specific Relief Act (I of 1877)---

----Ss.8 & 42---Civil Procedure Code (V of 1908), O.XXI, R.58, O.XXII, R.4 & S.47---Suit for possession and declaration---Death of defendant---Execution of decree---Objection petition---Suit filed by the plaintiffs having finally been decreed in their favour, they filed execution petition---Initially the judgment-debtors, who were legal heirs of defendant who died during pendency of suit and who had contested the suit up to the Appellate Court, filed objection petition raising objections regarding execution of decree and said objection petition was finally dismissed by the Executing Court---Subsequently the petitioners, who were not impleaded as party to the suit, claimed to be the legal heirs of deceased defendant and owners of the suit house, also filed objection petition, which petition having finally been dismissed, petitioners had filed revision petition under O.XXII, R.4(1), C.P.C. in the case of death of defendant, court on application made in that behalf, would cause the legal representative of the deceased defendant to be made a party and would proceed with the suit---Under sub-rule (3) of R.4 of O.XXII, C.P.C., when no application was made or intimation given under sub-rule (1) of R.4 of O.XXII, C.P.C. the court could proceed with the suit and any order made or judgment pronounced in such suit, despite the death of such defendant, would have the same force and effect as if it had been pronounced before the death of defendant took place---Petitioners, who having not been impleaded as a party to the suit, their case could not be taken out of the ambit of 'sub-rule (3) of R.4 of O.XXII, C.P.C.---When law had given full force to a decree passed in the absence of the legal heirs of deceased defendant, then it could be safely said that in the case of present nature where a' set of legal heirs contested the matter, but another alleged set, left out of the contest; and that by their own co-heirs and none else decree passed in such a situation, would also be fully protected and would have the same force and effect as provided in sub-rule (3) of R.4 of O.XXII, C.P.C.---Having found no illegality or irregularity in the impugned judgments, same were maintained and revision petition was dismissed by High Court.

1985 CLC 471; 1980 CLC 1794 and 1982 SCMR 90 ref.

Abdul Sattar Khan for Petitioners.

Jan Muhammad Khan for Respondent.

Date of hearing: 5th October, 2009.

MLD 2010 PESHAWAR HIGH COURT 404 #

2010 M L D 404

[Peshawar]

Before Liaqat Ali Shah, J

SHARAFAT and 2 others---Petitioners

Versus

NIGET SABA---Respondent

Civil Revision No.486 of 2008, decided on 11th December, 2009.

Specific Relief Act (I of 1877)---

----S. 9---Suit for possession---Claim of the plaintiffs was that they were owners of suit property which was given to a person as tenant; that after the death of said person/tenant, same was being cultivated by another person as tenant---Said other person in the year 2001 handed over the possession of suit property to the plaintiffs and thereafter it was cultivated by them---Relinquishment of such tenancy later on was brought into black and white vide an agreement---Plaintiffs alleged that the defendants who were desperate persons had forcibly took possession of suit property---Defendants claimed that they were tenant in possession of the suit property and that the plaintiffs never cultivated the land---Defendants had alleged that relinquished deed was bogus and fabricated one---Plaintiffs' evidence, on record had proved that suit property was their sole ownership---Plaintiffs had specifically pleaded that their tenant had relinquished the possession of suit property in their favour in 2001 vide relinquishment deed which had duly been proved by the witnesses---Even otherwise, if it was presumed that tenant of the plaintiffs had inducted the defendants as tenants, in the suit-land, tenant was not competent to do so---Court below, in circumstances had rightly held the defendants to be trespassers---Once defendants were held and declared to be trespassers, the civil court had the jurisdiction to adjudicate upon the lis---Judgment and decree of the courts below being well reasoned and suffering from no irregularity or illegality, much less jurisdictional in nature could not be interfered with in revision by the High Court.

Gul Sadbar Khan for Petitioners.

Attaullah Khan for Respondent.

MLD 2010 PESHAWAR HIGH COURT 481 #

2010 M L D 481

[Peshawar]

Before Dost Muhammad Khan, J

MEHBOOB-UR-REHMAN---Appellant

Versus

THE STATE---Respondents

Criminal Appeal No.403 of 2005, decided on 21st September, 2006.

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

----Ss. 9 & 29---Possessing narcotics---Appreciation of evidence---Both the accused persons were travelling in the car from which 18,500 grams of charas concealed beneath the front and rear seats were recovered in their presence---Prosecution had established the charge against both the accused by producing reliable and trustworthy evidence at the trial, where all the witnesses had given almost consistent statements on salient features of the case with regard to interception of the car, the recovery of charas and its weight, with minor contradiction, which could be attributed to memory lapses due to the passage of time---Chemical Examiner had returned the report holding that the contraband was Charas---Confessional statement of co-accused, who was driver of the vehicle in question, was inculpatory as he had admitted that he was transporting the charas for acquitted accused for which he was paid---Co-accused had admitted quantity to the extent of one K.G. which was under his possession and control---Confession of said accused was though exculpatory in nature, however, careful scrutiny would show that he too had given sharp twist to the story in the clever manner shifting the burden to other accused---Principle that statement/confession of an accused was to be taken in toto and no pick and choose process was to be adopted, was applicable only in those cases where the other evidence of the prosecution was disbelieved/discarded by the court which was not the case; because not only huge quantity of charas weighing 18,500 grams was recovered from the motor car which was at the relevant time in active and exclusive control of both accused persons, but also that three important. witnesses to whom no mala fide, ill-will or personal grudge had been attributed, had given evidence against accused persons; and their testimony got support from the inculpatory part of the confessional statement of both accused persons---Under the provisions of S.29 of the Control of Narcotic Substances Act, 1997, once the recovery of contraband was made from a private car which was by then in control of the two accused, the burden to explain the possession whether actual or constructive was on accused to discharge, but neither they had led any evidence in defence nor had appeared in disproof of the prosecution evidence, under S.340(2), Cr.P.C.---Charge laid upon accused had remained unrebutted---Prosecution having been able in proving the guilt of accused persons beyond reasonable doubt, Trial Court was fully justified in convicting and sentencing them to life imprisonment.

Noor Alam Khan for Appellants.

Pir Liaqat Ali Shah, A.-G. N.-W.F.P. for the State.

Date of hearing: 21st September, 2006.

MLD 2010 PESHAWAR HIGH COURT 746 #

2010 M L D 746

[Peshawar]

Before Mian Fasih-ul-Mulk, J

MUHAMMAD REHMAN---Petitioner

Versus

Mst. FATIMA BIBI and another---Respondents

Writ Petition No. 5 of 1999, decided on 28th January, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage on ground of khula'---Record would show that defendant (husband) -had maltreated the plaintiff (wife) and his behaviour towards her was so harsh and cruel which compelled her to leave her husband's house---Plaintiff had developed extreme aversion against the defendant and requested for grant of dissolution of marriage on the basis of khula'---Evidence led by the plaintiff had gone irrebutted---Trial Court, in circumstances was justified to dissolve the marriage on the basis of khula.

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

----S. 5, Sched. & S. 14(2)--Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Recovery of maintenance allowance---Grant of maintenance of Rs.1000 or less per month was barred under S.14(2) of West Pakistan Family Courts Act, 1964---Intention of Legislature was to give an end to litigation in such family matters---Constitutional jurisdiction would not substitute for the remedy of appeal and would not be exercised provided the order/judgment was patently illegal without jurisdiction and without lawful authority.

----Art. 199---Constitutional jurisdiction---Scope---Constitutional jurisdiction of High Court was always discretionary and equitable in nature and no party was entitled to it as of right---Object of High Court while exercising its discretionary jurisdiction had always been to foster justice, preserve the rights of the parties and to right a wrong---No perversity or illegality having been noticed, judgment impugned in the constitutional petition was unexceptional and needed no interference.

Sajjad Ahmed Askari for Petitioner.

Nemo for Respondents.

Date of hearing: 28th January, 2010.

MLD 2010 PESHAWAR HIGH COURT 804 #

2010 M L D 804

[Peshawar]

Before Mahzar Alam Khan Miankhel, J

AYAN SHAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1804 of 2009, decided on 11th December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/34/337-F(iii)---Attempt to commit qatl-i-amd---Bail, refusal of---Accused was directly charged for effectively firing on the complainant---Medico-legal Report had further supported the version of the complainant and the recoveries of empties were also made from the spot---Trial of the case was also in progress---Involvement of accused in the commission of offence was, prima facie, established, punishment provided for which fell under the Prohibitory Clause of S.497, Cr.P.C.---Accused being not entitled to the concession of the bail, his bail petition was dismissed.

Javed A Khan for Petitioner.

Muhammad Raziq Khan for Respondents.

Iltaf Hussain for the State.

Date of hearing: 11th December, 2009.

MLD 2010 PESHAWAR HIGH COURT 817 #

2010 M L D 817

[Peshawar]

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

MUHAMMAD KHAN---Appellant

Versus

MIR ABBAS and 4 others---Respondents

Criminal Appeal No.5 of 2004, decided on 17th March, 2010.

Penal Code (XLV of 1860)---

----Ss. 302/452/429/34---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd, house-trespass and mischief---Appeal against acquittal---F.I.R. was lodged at the spot with delay of one hour and 45 minutes and explanation given by complainant for such delay was not satisfactory---Before lodging of F.I.R., some preliminary investigation was conducted which included preparation of site-plan-Timing of lodging report as well as timing of occurrence, were doubtful and delay occurred in reporting the matter to the Police had not been properly explained which had created possibility of consultation and deliberation, particularly keeping in view the possible preliminary investigation---Lodging of the F.I.R. at the spot was also fatal to the prosecution case---Motive in the case was set up by the prosecution, but the prosecution having failed to establish the same, prosecution must suffer and not the defence---No enmity existed between the parties---Absence of motive, coupled with other circumstances like absence of previous enmity between the parties, had assumed significance and had affected the prosecution case badly---Ocular evidence consisted of two witnesses, who were father and son and they were very much close to the deceased---Evidence of said witnesses was to be considered with caution and care, especially when their presence at the spot was doubtful---Ocular evidence which remained un-corroborated was not believable and could not be based for capital punishment---Principles with regard to appeal against acquittal were different from appeal against conviction---Different parameters were to be applied for interference in an appeal against acquittal and appeal against conviction---Presumption of innocence of accused was double in case of acquittal---Appellate Court would not interfere, unless conclusions reached by courts below were not supported by evidence on record---Counsel for the complainant/appellant could not establish any reasonable ground for interference in the acquittal---Interference declined.?

PLD 2008 SC 349; PLD 1976 SC 629; 1971 SCMR 432; 1979 SCMR 214 and 2009 SCMR 946 ref.

Abdul Latif Khan Baloch for Appellant.

Gohar Zaman Kundi for Respondents.

Saleemullah Khan Ranazai for the State.

Date of hearing: 17th March, 2010.

MLD 2010 PESHAWAR HIGH COURT 835 #

2010 M L D 835

[Peshawar]

Before Mian Fasih-ul-Mulk, J

MASOOD alias GUDOO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 25 of 2006, decided on 23rd February, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Accused was directly charged in the promptly lodged F.I.R. within 50 minutes of the occurrence, hardly leaving any scope for consultation and deliberations---Single accused was charged and substitution at the spur of moment was not believable in such like cases as there was no reason for prosecution witnesses to substitute accused and let go the real culprit especially when accused and complainant party had no enmity with each other---Source of light stood established by recovery of two bulbs of 100 watts from the spot---Except the motive as alleged in the F.I.R. no enmity existed amongst the parties---Ocular account was confidence inspiring and was fully corroborated by medical evidence---No major contradiction and discrepancy was found in the evidence of Prosecution, rather same was consistent upon material points---Cogent reasons had been furnished by the prosecution for not producing two Persons as prosecution witnesses---Even otherwise, it was the quality and not the quantity of evidence which was to be considered and adjudged at trial---Since the burden of proof lay on prosecution, it was its prerogative to produce some witnesses and abandon others for Proving the guilt of accused---Trial Court, in the facts and circumstances of the case had rightly analyzed the evidence in its true perspective---Prosecution, had proved its case against accused beyond any shadow of doubt---Motive. having been proved, no mitigating circumstance existed to withhold normal sentence of death--No case for lesser punishment having been made out, appeal against conviction and sentence awarded to accused by the Trial Court, was dismissed.

Fazale Haq Abbasi for Appellant.

D.A.-G for the State.

Saeed Akhtar Khan for the Complainant.

Date of hearing: 23rd February, 2010.

MLD 2010 PESHAWAR HIGH COURT 847 #

2010 M L D 847

[Peshawar]

Before Mian Fasih-ul-Mulk, J

SULTAN MUHAMMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.10 of 2009, decided on 2nd March, 2010.

Penal Code (XLV of 1860)---

----S. 302---Juvenile Justice System Ordinance (XXII of 2000), Ss.4 & 7---Criminal Procedure Code (V of 1898), S.439---Qatl-e-amd---Appreciation of evidence---Jurisdiction of Juvenile Court---Scope---Trial Court pressing into service provisions of Juvenile Justice System Ordinance, 2000, determined age of accused/respondent at the time of commission of offence below 18 years holding that case of accused was to be tried as provided under Juvenile Justice System Ordinance, 2000---Validity---Identity Card and birth certificate issued by Union Council having been procured after arrest of accused, same could not be considered as valid proof of age---In absence of medical opinion, the only evidence available on record to determine the age of accused was school leaving certificate, but the margin of error could not be ruled out even in said certificate--Where two views were possible regarding the age of accused, the one in favour of accused was normally accepted--Margin of about six months error above the age of 18 years at the time of commission of offence as per school leaving certificate was given to accused---Impugned order was upheld to the extent that accused would be tried under Juvenile Justice System Ordinance, 2000.

Fazal-e-Haq Abbasi for Petitioner.

Malik Sajawal Khan for the State.

Saeed Akhtar for Respondent.

Date of hearing: 2nd March, 2010.

MLD 2010 PESHAWAR HIGH COURT 860 #

2010 M L D 860

[Peshawar]

Before Mian Fasih-ul-Mulk, J

GHULAM HAIDER and' another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No. 32 of 2008, decided on 18th March, 2010.

Penal Code (XLV of 1860)---

----Ss. 302/324/34---Qatl-i-amd and attempt to qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Accused was directly charged in the promptly lodged F.I.R., hardly leaving scope for consultation and deliberation---Substitution at the spur of moment was not believable in such like cases as there was no reason for prosecution witnesses to substitute accused and let go the real culprits, especially when accused and complainant party had no enmity with each other, except dispute over the path---Statements of both witnesses were consistent on material points like day, time, place, mode and manner of occurrence including the role of accused and the absconding accused---No material contradiction was brought on record by the defence counsel despite lengthy cross-examination---Both the eye-witnesses had given the natural and straightforward account with specific role of accused---Testimony of said witnesses was found inspiring and trustworthy---Medical report as well as circumstantial evidence was also in line with case of prosecution, in view of time of injury and death coupled with time of postmortem---Except the motive, as alleged in the F.I.R., there was no enmity between the parties---Ocular account was confidence-inspiring and was fully corroborated by medical evidence---No major contradiction and discrepancy was found in the evidence of prosecution, rather same was consistent upon material points---Prosecution, in circumstances, had been able to prove its case against accused beyond any reasonable doubt---Accused therefore, was rightly convicted by the Trial Court---Co-accused, who had already died had fired fatal shot at deceased, whereas accused had inflicted Lathi blows to both the deceased and injured prosecution witness---Occurrence had taken place after a sudden altercation for which sentence of death would be too harsh and exaggerated---In view of all the attending facts and circumstances of the case, coupled with the role attributed to accused by the prosecution as well as the evidence led on record, imprisonment for life would meet the ends of justice---Appeal was partly allowed and while maintaining conviction of accused under S.302/34, P.P.C., his death sentence was modified to that of life imprisonment.

Qazi Muhammad Arshad for Appellant.

Sardar Mumtaz Alam and Muhammad Zeb Tanoli for Respondents.

Date of hearing: 18th March, 2010.

MLD 2010 PESHAWAR HIGH COURT 873 #

2010 M L D 873

[Peshawar]

Before Sher Muhammad Khan and Attaullah Khan, JJ

AFSAR ALI alias AFSAR KHAN and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No. 39 and Murder Reference No.3 of 2009, decided on 5th April, 2010.

Penal Code (XLV of 1860)---

----S. 302(a)---Anti-Terrorism Act (XXVII of 1997), Ss.13, 39(2) [as amended by Anti-Terrorism (Amendment) Ordinance (XXXIX of 2001)]---Qatl-i-amd---Jurisdiction of special court---Scope---Courts had to take cognizance of the offence, committed at the relevant time and not on the date of arrest of the accused---In the present case relevant time (with reference to jurisdiction of Special Court) would be date of occurrence and not that of arrest---Accused, in the present case, were arrested in 2008, but the case was registered in 1991, which was exclusively triable by Special Court under Suppression of Terrorist Activities (Special Courts) Act, 1975, which subsequently was repealed---Said Court was not in existence at the time of arrest of accused, but its successor forum, the Anti-Terrorism Court established under S.13 of Anti-Terrorism Act, 1997, amended through Anti-Terrorism (Amendment) Ordinance, 2001 was functioning---Suppression of Terrorist Activities (Special Courts) Act, 1975, though was repealed, but the previous operation of law was given protection by subsection (2) of S.39 of Anti-Terrorism Act, 1997 (as amended)---Additional Sessions Judge concerned in view of said provision of law had no jurisdiction to try accused persons in the case which exclusively fell within the jurisdiction of Anti-Terrorism Court established in 1997---Appeal was accepted, judgment/order of the Additional Sessions Judge was set aside and case was remanded to Anti-Terrorism Court for de novo trial.

PLD 1991 Central Statute 106; Syed Azmat Ali Shah and others v. The State and others PLD 1999 Pesh. 39; Muhammad Akram v. The State PLD 2003 Pesh. 142 and Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530 ref.

Sanaullah Khan Gandapur for Appellants.

Muhammad Fareed Khan Maidad Khel for Respondents.

Date of hearing: 5th April, 2010.

MLD 2010 PESHAWAR HIGH COURT 883 #

2010 M L D 883

[Peshawar]

Before Mian Fasih-ul-Mulk and Miftah-ud-Din Khan, JJ

MOHABAT KHAN---Petitioner

Versus

THE STATE and 3 others---Respondents

Writ Petition No. 158 of 2010, decided on 24th March, 2010.

Penal Code (XLV of 1860)---

----Ss. 302/201/34---Anti-Terrorism Act (XXVII of 1997), Ss.12, 19 & 23---Criminal Procedure Code (V of 1898), S.190(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Qatl-i-amd---Application for transfer of trial to Anti-Terrorism Court---Dismissal of application---Validity---No provision of law existed \hereunder Additional Sessions Judge was authorized to declare an ordinary offence a scheduled offence---Neither such provision of law existed in the Criminal Procedure Code, 1898 nor the ordinary court was authorized to adjudicate or transfer the case/trial to Anti-Terrorism Court---Section 190(2), Cr.P.C. provided procedure and mechanism for taking cognizance of ordinary offences, while cases under scheduled offences were regulated by provisions of Ss.12, 19 & 23 of the Anti-Terrorism Act, 1997, being a special law having overriding effect---Legislature in its wisdom had conferred the power upon Anti-Terrorism Court to determine as to whether an offence was a scheduled offence or not---In case of ordinary offences, Anti-Terrorism Court had been authorized to transfer the same to the regular court under S.23 of Anti-Terrorism Act, 1997---Neither the Additional Sessions Judge was authorized to entertain such like application nor legally authorized to adjudicate upon such matter---Trial Court, in circumstances, had rightly turned down the application of the petitioner.

Saeed Akhtar Khan for Petitioner.

Nemo for Respondents.

Date of hearing: 24th March, 2010.

2010 M L D 1073

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

MUHAMMAD SHAKIL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 421 of 2010, decided on 16th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Possession of narcotics---Bail, refusal of---Eight capsules each containing 50 grants of heroin were allegedly recovered from private body parts of the accused---Four out of said eight capsules had to be retrieved from his body through application of medical process--Ingenuity shown by the accused in hiding the capsules reflected that he was a trained drug trafficker---No doubt, the punishment for alleged offence was seven years' imprisonment and High Court had considered bail petitions in similar cases, but accused's skill in concealing the narcotic substance had raised apprehension that the accused would repeat the offence---Petitioner was not admitted to bail, in circumstances.

Aurangzeb Khan for Petitioner.

Arshad Ali Nowshervi for Respondent.

Date of hearing: 16th April, 2010.

MLD 2010 PESHAWAR HIGH COURT 1118 #

2010 M L D 1118

[Peshawar]

Before Mazhar Alam Khan Miankhel and Imtiaz Ali, JJ

MEHDI KHAN---Petitioner

Versus

Mst. ARMOOS BEGUM and 2 others---Respondents

Writ Petition No. 936 of 2010, decided on 20th April, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dower---Petitioner/husband contended that courts below had wrongly decreed dower of five tolas of gold ornaments which were given by petitioner to respondent/wife but the same were snatched from her by sister of the petitioner (husband)---Validity---Respondent/wife's admission that gold ornaments were snatched from her by sister of petitioner did ,tot absolve him from responsibility/liability as the same were snatched by his sister who was living in his house----Dower was an indefeasible right of wife, if ornaments were snatched by husband or his family members, wife was entitled to recover the same through Family Court---Factum of snatching ornaments was within the knowledge of husband, his silence in that regard amounted to permission and consent for performance of the act---Gold ornaments given in dower if snatched or taken forcibly by husband, the act of snatching would not be transformed into civil liability---Respondent/wife's claim of dower was genuine and was rightly dealt with by courts below---Petitioner failed to point out any jurisdictional defect or misreading of evidence which could necessitate interference in constitutional jurisdiction---Constitutional petition, being meritless, was dismissed.

Muhammad Tariq v. Mst. Shaheen and 2 others PLD 2006 Pesh. 189 rel.

Qaisar Abbas Bangash for Petitioner.

MLD 2010 PESHAWAR HIGH COURT 1152 #

2010 M L D 1152

[Peshawar]

Before Mazhar Alam Khan Miankhel and Imtiaz Ali, JJ

SHERIN ZADA and 2 others---Petitioners

Versus

IMDAD HUSSAIN and 10 others---Respondents

Writ Petition No. 1250 of 2009, decided on 20th April, 2010.

North-West Frontier Province Tenancy Act (XXV of 1950)---

----Ss.52 & 5---Constitution of Pakistan (1973), Art.199-Constitutional petition---Landlord and tenant---Suit for ejectment and recovery of produce in the court of DDOR (Judicial) against petitioners who denied relation of landlord and tenant between the parties and claimed ownership of suit property but the Trial Court decreed the suit to the extent of ejectment of petitioners---District Collector, in appeal, adjourned the case sine die with direction to respondents to approach civil court for declaration of title of suit property---Revenue Appellate Court accepted appeal of respondents for share of produce also---Validity---When petitioners had categorically denied the existence of relationship of landlord and tenant between the parties, respondents could prove their title to such property only through a decree of competent civil court, as revenue courts had no jurisdiction in that regard---District Collector had rightly directed respondents to seek declaration of title from a competent civil court---Petitioners' notion that second appeal to Commissioner Revenue (Appellate Court) was not competent, was misconceived---Under N.-W.F.P Tenancy Act, 1950 second appeal was competent if decree or order of the original court was not confirmed in appeal before District Collector---Question of title could only be determined by a competent civil court, therefore order of ejectment was set aside and that of District Collector was restored by High Court---Constitutional petition was allowed.

Mian Saadullah Jandoli for Petitioners.

Ghulam Nabi for Respondents.

Date of hearing: 20th April, 2010.

MLD 2010 PESHAWAR HIGH COURT 1177 #

2010 M L D 1177

[Peshawar]

Before Mian Fasih-ul-Mulk, J

ABDUL SATTAR KHAN and another---Petitioners

Versus

Seth AFTAB HUSSAIN---Respondent

Civil Revisions Nos. 589 and 590 of 2009, decided on 14th May, 2010.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6, 13 & 31---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for pre-emption---Making of Talbs---Limitation---Scope---Rejection of plaint---During pendency of suit, defendant filed application under O. VII, R.11, C.P.C. for rejection of plaint on the ground of limitation---Trial Court dismissed suit, however, the Appellate Court allowed appeal against the judgment of the Trial Court and after setting aside judgment of the Trial Court remanded case to court below for proceeding in accordance with law---Validity---Plaintiff performed Talb-e-Muwathibat on the date when the sale was complete and amount of consideration had already been paid---Limitation in pre-emption suit would run from information of oral sale, in view of definition of sale in S.2(d) of North-West Frontier Province Pre-emption Act, 1987 and not from attestation of mutation which was not in existence at the crucial point of time---Pre-emption right being a feeble right, pre-emptor would not be allowed to blow hot and cold in the same breath---On the one hand pre-emptor had considered sale complete and made Talb-e-Muwathibat on gaining knowledge of sale and sent notice of Talb-e-Ishhad within the statutory period of getting such information of sale, but when he came to the third Talb i.e. Talb-e-Khasoomat, he failed to file the suit within 120 days of Talb-e-Muwathibat after attestation of mutation---Plaintiff having filed both the suits beyond the prescribed period of 120 days, Trial Court on acceptance of application of the defendant filed under O. VII, R.11, C.P.C., had rightly dismissed the suit---Impugned judgment and order of Appellate Court below were set aside and suit filed by the plaintiff was dismissed.

2008 SCMR 404; 2008 SCMR 415; PLD 2003 SC 315; PLD 2006 Pesh. 151; 2007 SCMR 1830; 2001 MLD 1716; 2005 CLC 1087; Muhammad Subhan and others v. Mir Qadam Khan and others 2001 MLD 1716 and Fazlur Rehman and others v. Abdul Qayyum and others 1996 SCMR 1201 ref.

Malik Waseem Fazal for Petitioner No.1.

Abdul Sattar Khan in person.

Qazi Ghulam Rauf for Respondent.

Date of hearing: 7th May, 2010.

MLD 2010 PESHAWAR HIGH COURT 1230 #

2010 M L D 1230

[Peshawar]

Before Zia-ur-Rahman Khan, J

ABDUR RAHIM---Petitioner

Versus

MUHAMMAD TAHIR KHAN and others---Respondents

Civil Revision No. 458 of 2010, decided on 6th April, 2010.

Specific Relief Act (I of 1877)---

----Ss. 8, 42 & 54---Qanun-e-Shahadat (10 of 1984), Art. 57---Suit for possession, declaration and injunction---Consolidation of suits---In the. present case, there were two separate suits and evidence of the parties was recorded in one suit and was considered as valid in the other suit---Validity---Such practice was certainly unwarranted rather was prohibited in accordance with the provisions of Qanun-e-Shahadat, 1984---Whenever there were two suits pertained to the same subject-matter between the same parties, it was incumbent upon the Trial Court to make a specific order for consolidation of both the suits" and to frame consolidated issues; and thereafter record the evidence of the parties in support of their respective allegation---In the absence of consolidation, the evidence of the parties had to be separately recorded in both the suits and evidence in one case, could not be placed and considered in the other suit for passing a judgment---Due to non-recording of evidence in the subsequent suit, the averments of the pleadings of the parties had gone unsubstantiated and in the absence of any material, Trial Court was not legally in a position to record an independent judgment by referring to the evidence of the parties recorded in another suit---Evidence of the parties in circumstances was deficient in nature and they could not substantiate their claims properly---Such lacuna floating on the surface on record was of palpable nature and could not be remedied by the parties or their counsel through their mutual agreement entered into before the Trial Court---Impugned judgment of Appellate Court for remanding both the suits to the Trial Court for observing the legal formalities, was maintained, in circumstances.?

Nazir Ahmad v. Mst. Ghazala Bashir 2001 CLC 468 and Muhammad Arif v. Malik Muhammad Farooq 2002 CLC 1361 ref.

Hayatullah for, Petitioner.

Nemo for Respondents

Date of hearing: 6th April, 2010.

MLD 2010 PESHAWAR HIGH COURT 1261 #

2010 M L D 1261

[Peshawar]

Before Sher Muhammad Khan, J

HASHAM KHAN and 39 others---Petitioners

Versus

HAROONUR RASHID KHAN and 9 others---Respondents

Civil Revision No.164 of 2008, decided on 25th March, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XVII, R.3, O.XLI, R.1 & S.115---Declaratory suit---Dismissal of suit for failure to produce evidence---Plaintiffs had failed to produce evidence despite many opportunities were given to them to produce evidence---Lastly notices were given to the plaintiffs under O.XVII, R.3, C.P.C. asking then to produce their evidence, but the plaintiffs failed to comply with the order of the Trial Court and did not produce evidence---Trial Court dismissed suit exercising the powers vested in it under O.XVII, R.3, C.P.C.---Appeal filed by the plaintiffs against orders of the Trial Court having also been dismissed, plaintiffs had impugned both the judgments and decrees of the courts below through revision petition---Plaintiffs had contended that even if Trial Court wished to proceed under O.XVII, R.3, C.P.C., it was its duty to decide the lis on merits by considering the material available on record and after hearing arguments of the parties---Validity---No doubt under O.XVII, R.3, C.P.C., while exercising the powers, the Trial Court must consider the material available on record, but in the present case the plaintiffs had challenged the revenue record in respect of the disputed Khasra numbers, wherein they were recorded owners and the defendants as possessors---No other evidence was available on the record which could be considered by the Trial Court for passing order for correcting the revenue record---Trial Court, in circumstances, had no other choice except to dismiss the suit, especially when the plaintiffs were given several opportunities to produce evidence---Maintainability of the revision filed by the plaintiffs was questioned on the ground that the plaintiffs had not annexed the decree-sheets with the judgments of the courts below, without which appeal and revision could not be entertained---Validity---No doubt it was mandatory under O. XLI, R.1, C.P. C. to annex decree, but when appeal or revision was filed without the decree-sheet and the office at the time of filing of appeal or revision did not notice that mistake, then the plaintiffs should not be penalized---Judgments and decrees of the Trial Court as well as of the Appellate Court, were perfectly in accordance with law and facts---Both the courts having not acted in exercise of its jurisdiction illegally or with material irregularity, no interference was needed by the High Court in exercising the extraordinary revisional jurisdiction: ?

Habib Bank Ltd. v. Hazrat Hussain 2005 CLD 1541; Muhammad Asghar and another v. Muhammad Islam 2005 YLR 2600; Baseer Ahmad Siddiqui v. Shama Afroz 1988 SCMR 892; PLD 1982 SC 46 and Mubarak Ali v. Feroze Din and 2 others 1999 MLD 2297 ref.

Abdul Kabir Khan for Petitioners.

Gul Sadbar Khan for Respondents.

Date of hearing: 17th March, 2010.

MLD 2010 PESHAWAR HIGH COURT 1294 #

2010 M L D 1294

[Peshawar]

Before Liaqat Ali Shah and Zia-ur-Rehman Khan, JJ

SAEED-UR-REHMAN and 2 others---Petitioners

Versus

AMANULLAH and 4 others---Respondents

Writ Petition No. 447 of 2007, decided on 14th April, 2010.

Frontier Crimes Regulation (III of 1901)---

---Ss. 8 & 9---Constitution of Pakistan (1973), Arts.199 & 247(7)---Constitutional petition---Proceedings before Political Authorities in Tribal area---Petitioners in their constitutional petition had called in question proceedings before the Political Authorities under S.8 of Frontier Crimes Regulation 1901, contending that they being not residents of the Tribal area concerned, could not be proceeded against by the Political Authority---Contention of the petitioners was that High Court had jurisdiction and could issue a writ to the Authorities exercising the powers under the Frontier Crimes Regulation, 1901---Counsel for the respondents, on the other hand had submitted that the proceedings before the Political Authorities were competently instituted; and that in view of the specific bar contained under Art.247(7) of Constitution, High Court lacked jurisdiction---High Court was the creation of Constitution and could not travel beyond the limits which were imposed by the Constitution---Right of appeal against the order of Political Authorities, was available under Frontier Crimes Regulation, 1901 before the Commissioner and against the order of Commissioner, remedy of revision was available before the Tribunal---When Political Authorities had acted strictly according to law and in the same hierarchy proper forums were provided, jurisdiction of High Court could not be invoked---Constitutional petition was dismissed.

1982 SCMR 1022 and PLD 2002 SC 526 ref.

Abdul Latif Afridi for Petitioners.

Tariq Afridi for Respondents.

2010 M L D 1453

[Peshawar]

Before Mian Fasih-ul-Mulk, J

FAHIM SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 113 of 2009, decided on 16th June, 2010.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Motive and rivalry, proof of---Accused in his statement under S.342, Cr.P.C. had taken the plea that he had got timber dispute with somebody and on account of said rivalry he had been involved in the case with connivance of local Police---Accused, however, had failed to establish such plea by leading any independent/cogent/reliable evidence---No allegation or proof was available to the effect that Police had any motive or ill-will to falsely involve accused in such a heinous offence--Appeal was dismissed.

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

----Ss. 9(c) & 29---Possession of narcotics---Appreciation of evidence---Accused could not prove any motive or ill-will to falsely involve him in such a heinous offence---Accused had made no endeavour to rebut the prosecution case by discharging his burden under S.29 of Control of Narcotic Substances Act, 1997---Mere denial of charge and pleading innocence by accused without substantiating, his plea through cogent evidence was not sufficient to secure acquittal---No major material contradictions were found in statements of prosecution witnesses, who had fully corroborated each other on material aspect, such as recovery and arrest of accused on the spot---Delay of about three days in sending the samples to Forensic Science Laboratory, was insignificant, in the facts and circumstances of the case---Prosecution witnesses were subjected to very lengthy cross-examination, but no questions were asked as to whether the case property produced in the court was tampered with or not, or that the samples thereof were not sent to Chemical Examiner for testing purposes---Counsel for accused had contended that prosecution had failed to specify as to whether recovered charas was in crude or purified form---Contention of counsel of accused was repelled as neither such question was put to any prosecution witness, nor the form of charas whether crude or purified would take out the same out of the ambit of definition of `Charas'---In view of quantity of recovered charas, which was more than 10 Kg. sentence awarded to accused could not be reduced---Court had no jurisdiction to award lesser sentence than the one mentioned in the statute---Judgment of the Trial Court which was based on correct appreciation of law and proper evaluation of evidence, was maintained.

Muhammad Ali v. The State 2002 PCr.LJ 1976 and Gharibullah v. the State 2002 YLR 3822 ref.

Sohail Akhtar for Appellant. D.A. for the State.

Date of hearing: 16th June, 2010.

MLD 2010 PESHAWAR HIGH COURT 1504 #

2010 M L D 1504

[Peshawar]

Before Attaullah Khan, J.

INAYAT ULLAH KHAN and 5 others---Petitioners

Versus

ABDUL KARIM and 4 others---Respondents

Civil Revision No.301 of 2009, decided on 7th June, 2010.

Civil Procedure Code (V of 1908)---

----O. XXVI, R.1 & S.115---Appointment of Commission---Scope---Appellate Court appointed Commission to prepare the site plan and investigate the true facts of the case---Petitioners objected appointment of Commission--Normally the Commission was appointed to bring on surface some facts which the parties had failed to declare in the court---Report of Commission was not exclusive and was always subject to objection of the parties and the court was not bound to straightaway accept or reject the same---In the present case petitioners were not adversely affected from such appointment; they had ample opportunities to bring their view points on record before the court regarding their objections, if any---Even if the report was accepted, it would not amount to evidence, but would only help the court in reaching to a correct conclusion---No illegality or miscarriage of justice had been pointed out-Maintainability of revision petition was also doubtful for the reason that the impugned order was not an order in stricto senso nor it had decided some issues between the parties finally, whereas revision would be against a case decided and when the case was not decided, revision would not lie---Appointment of local Commission was for the purpose to collect some facts which could not be in favour of any party---Impugned order being not final or deciding a case, the revision was not maintainable and also being without merits.

2005 CLC 1347 SC (AJ&K) and Pakistan Fisheries Ltd. v. United Bank Ltd. PLD 1993 SC 109 ref.

Mastan Ali Zaidi for Petitioners.

Muhammad Ayaz Khan Qasuria for Respondents.

Date of hearing: 7th June, 2010.

MLD 2010 PESHAWAR HIGH COURT 1533 #

2010 M L D 1533

[Peshawar]

Before Ejaz Afzal Khan, J

FAZALULLAH and another---Petitioners

Versus

KHAN SHER and others---Respondents

Civil Revision No. 1349 of 2005, decided on 26th June, 2006.

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

---Ss. 39, 42, 45 & 53---Specific Relief Act (I of 1877), Ss.8 & 42---Entries in the revenue record---Value---Suit for possession and declaration---Appellate Court had upheld judgment and decree passed by the Trial Court---No doubt, mere entries in the Revenue papers in favour of a party would not create a right unless those had been made in accordance with law, but where a witness appearing on behalf of the plaintiff had admitted that person in possession of the property in dispute was tenant on behalf of the defendants and he refused to pay the produce; it was imperative to examine said person to prove as to on whose behalf he was cultivating the land---If examination of such person in the court was not desirable, then the direction of the Appellate Court given in first round of litigation for ascertaining the factum of possession through commission should have been complied with---Where neither was done, impugned findings could not be maintained---Impugned judgment and decree were set aside and case was sent to the Appellate Court for decision afresh in accordance with law after examining the tenant or making inquiry about the factum of possession through Commissioner.

Khalid Khan for Petitioners.

Saifullah Khalid for Respondents.

Date of hearing: 26th June, 2006.

MLD 2010 PESHAWAR HIGH COURT 1605 #

2010 M L D 1605

[Peshawar]

Before Attaullah Khan, J

NAJEEB ULLAH KHAN---Petitioner

Versus

BADSHAH KHAN and 28 others---Respondents

Civil Revision No. 58 of 2008, decided on 30th October, 2009.

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

----S. 60---Limitation Act (IX of 1908), S.28 & Art.148---Specific Relief Act (I of 1877), S.42--- Redemption of mortgaged property---Limitation---Extinction of right of redemption of mortgagor---Plaintiff by suit for declaration sought declaration to the effect that he had become owner of suit property through prescription against the defendants/mortgagors for redeeming the mortgaged land for more than sixty years---Trial Court decreed suit filed by the plaintiff, but on filing appeal by the defendants, Appellate Court set aside judgment and decree passed by the Trial Court---Validity---Section 28 of Limitation Act, 1908 had been declared by Supreme Court as repugnant to the injunctions of Islam so far it provided for extinguishment of right of redemption and determining the period prescribed for institution of suit for possession of the suit property---Decision of the Supreme Court was to take effect from 31-8-1991 and on that date S.28 of Limitation Act, 1908 was also ceased to have effect---After target date (31-8-1991), the provisions of S.28 of Limitation Act, 1908 being not in existence, in case the decree was not obtained on or before that date, the right would stand extinguished---No decree could be passed on the ground of adverse possession after the target date (31-8-1991) because of declaration of S.28 of Limitation Act, 1908 as un-Islamic and no plea of adverse possession could be raised in defence---Institution of suit for a declaration in case a mortgagee had become the owner through prescription, was a pre-condition because a mortgagee could not become an owner automatically, but he had to prove his right in the court---Suit filed by the plaintiff after the target date was rightly dismissed by the Appellate Court, in circumstances.

1991 SCMR 2063; 1991 SCMR 2062; Durrani and others v. Hameedullah 2007 SCMR 480 and Muhammad Hussain case 2004 SCMR 1137 ref.

Muhammad Yousaf Khan for Petitioner.

Noor Gul Khan Marwat for Respondents.

Date of hearing: 30th October, 2009.

MLD 2010 PESHAWAR HIGH COURT 1648 #

2010 M L D 1648

[Peshawar]

Before Said Maroof Khan, J

MUHAMMAD AFZAL and others---Petitioners

Versus

MUHAMMAD EHSANULLAH and others---Respondents

C.R. No. 1185 and C.M. No. 173 of 2006, decided on 27th April, 2009.

North-West Frontier Province Pre-emption Act (X of 1987)---

---Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Trial Court dismissed suit on the ground that plaintiffs had not fulfilled the requirements of Talbs in accordance with law---Appeal filed against judgment of the Trial Court had been dismissed by the Appellate Court---Validity---To prove the performance of Talbs plaintiff had examined two witnesses, but material contradictions were found in their statements with regard to the date of knowledge of sale transaction and performance of Talbs and statements of both said witnesses were inconsistent with the plaint---Plaint showed that Talb-i-Ishhad was performed after six days of performance of Talb-i-Muwathibat, whereas one of the witnesses in his cross-examination had stated that said Talb was made on the following day of getting knowledge of sale transaction---Evidence on record did not indicate that immediately on getting the knowledge of sale transactions the plaintiff had expressed intention to pre-empt the sale and then performed Talb-i-Ishhad in accordance with provisions of S.13(3) of North-West Frontier Province Pre-emption Act, 1987---Courts below, in circumstances, had rightly non-suited the plaintiff---Well reasoned impugned judgments of courts below based on proper appreciation of evidence, could not be interfered with by high Court in revision.

Saifullah Khalid for Petitioners.

Mian Muhammad Iqbal for Respondents.

Date of hearing: 27th April, 2009.

MLD 2010 PESHAWAR HIGH COURT 1669 #

2010 M L D 1669

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

SULTAN ROOM and 6 others---Petitioners

Versus

BAKHT KARAM and another---Respondents

Q.P. No. 132 of 2010, decided on 12th July, 2010.

Criminal Procedure Code (V of 1898)---

---Ss. 145 & 561-A---Dispute concerning land likely to cause breach of peace---Complaint---Application for dismissal of complaint---Dismissal of application---Petition for quashing order of dismissal of application---Parties to the proceedings were real brothers inter se and a dispute over the property cropped up between the parties after death of their predecessor---Inheritance mutation of landed properties had also been attested in favour of the parties---Civil litigation between the parties with regard to their ancestral properties was also pending adjudication in the competent court of law---Petitioner had impugned two different sets of orders, one with regard to dismissal of their application for dismissal of complaint/proceedings under S.145, Cr.P.C.; and the other was against the attachment order of the properties passed by the Judicial Magistrate---Petitioner had applied for dismissal of complaint on the plea that dispute between the parties was of civil nature and there was no imminent danger of breach of peace, but their request was turned down by two courts below---Nothing was on record to suggest that parties were at the risk of breach of peace---Proceedings under S.145, Cr.P.C. would not be appropriate, rather it would amount to abuse of process of court---When one of the parties was in possession of joint property, then the recourse for the other party would not be under S.145, Cr.P.C. as it appeared from the main complaint under S.145, Cr.P.C. that one party in the complaint had admitted the possession of other party---Exercise of jurisdiction by the Judicial Magistrate, in the circumstances would amount to an unlawful exercise of jurisdiction and continuation of such proceedings would certainly amount to abuse of the process of court---Concurrent judgments of two courts below, were set aside and complaint under S.145, Cr.P.C. was dismissed.

Mian Hikmatullah Jan for Petitioner.

Walayat Ali Khan for Respondents.

Date of hearing: 12th July, 2010.

MLD 2010 PESHAWAR HIGH COURT 1706 #

2010 M L D 1706

[Peshawar]

Before Said Maroof Khan, J

MULTAN KHAN---Applicant

Versus

RIAZ DIN, INSPECTOR/SHO DUAABA POLICE STATION, HANGU and another---Respondents

Bail Application No.1277 of 2009, decided on 18th September, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/353/34---West Pakistan Arms Ordinance (XX of 1965), S.13---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-e-amd, assault, possessing arms and act of terrorism---Bail, grant of---Further inquiry---Nothing was on record to suggest that as a result of alleged firing of accused any one of the police officials had sustained any injury---Question as to whether accused had opened fire at the police party was a matter requiring further inquiry, because none of the police officials was alleged to have sustained any injury as a result of his firing---In fact accused had received fire-arm injury as a result of firing of the police party---Role assigned to accused was that of ineffective firing---Recovery of kalashnikov from possession of accused made the offence punishable under S.13 of West Pakistan Arms Ordinance, 1965, which was bailable---Bail was granted.

Syed Sardar Hussain for Applicant.

Waqar Ali D.A.G. for the State.

Date of hearing: 12th September, 2009.

MLD 2010 PESHAWAR HIGH COURT 1764 #

2010 M L D 1764

[Peshawar]

Before Attaullah Khan, J

KHADIM and 6 others---Petitioners

Versus

SHERAN and 33 others---Respondents

Civil Revision No. 11 of 2006, decided on 14th May, 2010.

Specific Relief Act (I of 1877)---

---Ss. 42 & 54-Suit for declaration and permanent injunction-Plaintiffs had claimed that they were owners in possession of suit property and that defendants had no concern with the same---Trial Court dismissed suit, but judgment and decree passed by Trial Court were set aside by the Appellate Court---Pedigree-table given in the plaint had supported the claim of the plaintiffs which was not contradicted by defendants---Misl-e-Haqiat and other documents produced on record also supported the plaintiffs---Defendants had failed to produce any documentary or oral evidence to show that suit property, as per promise, was delivered to the plaintiffs in lieu of property mutated in their names---Only plea taken by defendants was that they being owners of the suit property since long, the plaintiffs had lost their ownership through prescription--Such plea was not substantiated by any evidence---Plaintiffs, in circumstances, were owners of the suit property and transfer of its portion in favour of defendants and onwards was also illegal---No misreading or non-reading of evidence or material illegality having been established, revision petition was dismissed.

Muhammad Iqbal Kundi for Petitioners.

Salamullah Khan Ranazai for Respondents.

Date of hearing: 14th May, 2010.

MLD 2010 PESHAWAR HIGH COURT 1787 #

2010 M L D 1787

[Peshawar]

Before Yahya Afridi, J

MANAGER MUSLIM COMMERCIAL BANK, MARDAN and others---Petitioners

Versus

Qazi JAN MUHAMMAD---Respondent

Criminal Revision No. 335 of 2010 decided on 28th May, 2010.

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

----O. XXXIX, R.2(3)---Breach of interim injunction---Consequences---Provisions of O.XXXIX, R.2(3), C.P.C., envisaged penal consequences for violating orders passed by a court of law---Penal consequences were always against a named individual and could not be enforced against official designations.

Khawaja Muhammad Sharif v. Abdul Baqu (PLD 1954 Pesh. 72, Ghulam Sarwar v. Ghulam Rabbani PLD 1992 Pesh. 130; Ayaz Durrani v. Chairman WAPDA (PLD 2000 Lah. 414; Haji Sheikh Afzal Hussain v. Bhabani Prosad Saha PLD 1963 Dhaka 25 and Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 ref.

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

----O. I, R.9---Misjoinder or non joinder of parties---Effect---Misjoinder or non joinder of parties, seldom would result in dismissal of the suits.

Sardar Muhammad Kazim Ziauddin Durrani v. Sardar Muhammad Asim Fakhruddin Durrani and others 2001 SCMR 148 ref.

----S. 115---Revisional jurisdiction .of High Court---Scope---Findings of the courts below which were neither perverse nor arbitrary, could not be disturbed in revisional jurisdiction of High Court.

Muhammad Idrees v. Muhammad Parvez 2010 SCMR 5 ref.

Minhaj Ahmad Khan for Petitioners.

Nadeem Rasheed for Respondent.

Date of hearing: 24th May, 2010.

MLD 2010 PESHAWAR HIGH COURT 1803 #

2010 M L D 1803

[Peshawar]

Before Muhammad Safdar Khan Sikandri, J

EHSAN ULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 50 of 2009, decided on 8th April, 2010.

Penal Code (XLV of 1860)---

----S. 377--Unnatural offence---Appreciation of evidence---Sentence, reduction in---Victim/complainant in his F.I.R. had directly charged accused for committing sodomy on his person---Said averments were also put forth before the Trial Court being a victim of unnatural offence of tender age of 8/9 years and his veracity had not been shattered by the defence in cross-examination, and his statement was found consistent throughout---Deposition of the victim could not be thrown out just because he was a solitary witness and had lodged the report at some belated stage---Whatever the victim had stated in the F.I.R. had been endorsed by him in the court without any exaggeration or discrepancy in the same---Trial Court, in circumstances, had rightly believed the statement of victim for sustaining the conviction of accused-Semen on the swabs were found to be that of accused and had honestly been taken by the doctor from the inner side of the anal canal of the victim, which fully proved that penetration had taken place which established the offence of carnal intercourse---Case against the accused was established on the basis of medical report supported by Chemical Examiner's report---Offence committed by accused was of moral turpitude and an offence against 'the society most particularly shameful to the victim's family---Conviction and sentence awarded against accused was somewhat harsh while keeping in view the poor financial position and lifestyle not only of accused, but of the complainant also---Sentence of seven years' R.I. awarded to accused was reduced to four years' R.I. and amount of compensation was also reduced from Rs.30,000 to Rs.20, 000.

1996 SCMR 53; 1997 PCr.LJ 1107; 2009 SCMR 230 and 2005 PCr.LJ 617 ref.

Saif-ur-Rehman Khan Gandapur for Appellant.

Sanaullah Khan Shamim D.A.-G. for the State.

Ehsan-ul-Haq Malik for the Complainant.

Date of hearing: 8th April, 2010.

MLD 2010 PESHAWAR HIGH COURT 1835 #

2010 M L D 1835

[Peshawar]

Before Dost Muhammad Khan and Imtiaz Ali, JJ

ANWAR SHAH---Petitioner

Versus

PROVINCE OF KHYBER PAKHTUNKHWA through chief Secretary and 8 others---Respondents

Writ Petition No. 2050, decided on 8th July, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 401 & 402-C---Remission of sentence---Superintendent Jail had stated that on acquiring higher educational qualifications, petitioner/ convict had been granted remission upto six years---Said opinion had been solicited from the Law Department as to whether the "Sanad" of "Wafaq-ul-Madaaris", which the petitioner had acquired, was equal to a degree of graduation and in that case his case for further remission would be considered---Superintendent Jail was directed that if the opinion had been received and under the law and rules the petitioner was found entitled to further remission, same should be granted to him without any further delay---Remission granted during period of detention was to be granted to the prisoner.

Muhammad Qasim Khattak for Petitioner.

MLD 2010 PESHAWAR HIGH COURT 1848 #

2010 M L D 1848

[Peshawar]

Before Sher Muhammad Khan, J

SHAH DARAZ KHAN---Petitioner

Versus

MUHAMMAD JABBAR and another---Respondents

Criminal Revision No. 26 of 2010, decided on 28th May, 2010.

Criminal Procedure Code (V of 1898)---

---Ss. 157, 160, 161, 169 & 561-A---Penal Code (XLV of 1860), S.302/34---Qanun-e-Shahadat (10 of 1984), Arts.150 & 151---Qatl-e-amd---Declaring a witness as hostile---Quashing of order, petition for--S.H.O. concerned who was prosecution witness, during investigation, declared the accused innocent on his plea of alibi and released him -under S.169, Cr.P.C. on his personal bond---Grievance of the petitioner/complainant was that Trial Court had declined to accept the prayer of his counsel for declaring S.H.O. as hostile and also declined to provide him opportunity to cross-examine him---Word `hostile' did not figure anywhere in any Article of Qanun-e-Shahadat, 1984, but it had been introduced in the judicial precedents, while interpreting Art.150 Qanun-e-Shahadat---Article, 150 of the Qanun-e-Shahadat, 1984, could be invoked to establish that the witness was guilty of prevarication, or that he was inconsistent in his statement, or tried to suppress the truth or that he bore animosity towards the party who called him---In the absence of any such acts on the part of the witness, party was not entitled to cross-examine his witness to impeach his credit---Normally, a witness who became hostile or adverse to the party who produced him for recording evidence in his support, was allowed to be. cross-examined to impeach the credit of the witness by evidence of the kind mentioned in Art.151 of Qanun-e-Shahadat, 1984---Witness who was unfavourable, was not necessarily speaking, for hostile witness was one who from the manner in which he gave his evidence, showed that he was not desirous of speaking the truth to the court---In the present case, S.H.O. sought to be declared hostile had collected some evidence in support of the plea of alibi taken by accused in his defence---No improvement, deviation, addition or concealment of material facts was noticed in the statement of S.H.O. which could be adverse to the interest of complainant and inconsistent with his previous investigation so as to declare him hostile---Petition had no force to warrant interference by High Court as no illegality, irregularity or jurisdictional error was found in the order passed by the Trial Court.

Muhammad Boota and another v. The State and another 1984 SCMR 560 ref.

Gauhar Zaman Khan Kundi for Petitioner.

Sanaullah Khan Gandapur and Fazalur Rehman Baloch for the State.

Date of hearing: 24th May, 2010.

MLD 2010 PESHAWAR HIGH COURT 1864 #

2010 M L D 1864

[Peshawar]

Before Attaullah Khan, J

MASUD KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No. 296 of 2010, decided on 5th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, grant of---Further inquiry---Case seemed to be as unseen occurrence and was a two version case---First version was that of the complainant which was regarding the commission of suicide by the deceased, while the version of father of the deceased was that she was murdered by the accused---Version of accused regarding suicide by the deceased was nearer to truth---Said two versions had made the case of accused that of further inquiry---Investigation in the case was complete and accused was no more required for interrogation---Accused was admitted to bail.

Saleem Ullah Khan Ranazai for Petitioner.

Sanaullah Samim, D.A.G. and Sultan Shaharyar Khan Marwat for Respondent No. 2.

Date of hearing: 5th August, 2010.

MLD 2010 PESHAWAR HIGH COURT 1877 #

2010 M L D 1877

[Peshawar]

Before Attaullah Khan, J

ALAM KHAN---Appellant

Versus

THE STATE and 2 others---Respondents

Criminal Appeal No. 74 of 2010, decided on 5th August, 2010.

Penal Code (XLV of 1860)---

----Ss.324/337-F(v)/337-A(i)/34---Criminal Procedure Code (V of 1898), S. 417(2-A)---Attempt to commit qatl-e-amd, hashimah and Shajjah-i-Khafifa---Appeal against acquittal---Presence of eye-witnesses was not proved on the spot beyond any reasonable doubt---Material contradictions were found in the evidence of prosecution witness which had uprooted the prosecution case---Prosecution witnesses had stated that the place of occurrence was a thoroughfare, while the site plan had shown the same as no thoroughfare---Said discrepancy also suggested the absence of both said prosecution witnesses---Medical evidence contradicted the ocular version---Such discrepancies did not support the prosecution case---Once an accused was acquitted by a competent court of law facing the agonies of protracted trial, then he would earn the presumption of double innocence, which could not be disturbed slightly, unless it was proved that the impugned order of acquittal was patently illegal, perverse, fanciful and had resulted in grave miscarriage of justice---Counsel for the complainant had failed to point out any such thing in the impugned judgment of acquittal which was based on correct appraisal of evidence brought on record--Impugned judgment of acquittal was upheld.

Allah Nawaz Khan for Appellant.

MLD 2010 PESHAWAR HIGH COURT 1991 #

2010 M L D 1991

[Peshawar]

Before Miftah-ud-Din Khan, J

MOATAMIR AL-ALAM AL-ISLAMI (FOUNDATION) through Secretary Foundation---Petitioner

Versus

SULTAN KHAN and 9 others---Respondents

Civil Revision No.166 of 2003, decided on 25th June, 2010.

Land Acquisition Act (I of 1894)---

---Ss. 4, 5, 5-A, 6, 39, 42 & 54---Specific Relief Act (I of 1877), S.42---Acquisition of land---Suit for declaration---Suit property was acquired on the basis of award---Said award as well as acquisition proceedings were challenged by the plaintiff/landowners, alleging that suit property was not acquired for any public purpose as no notice under Ss.5 & 5-A of Land Acquisition Act, 1894 was issued; and that no previous sanction in respect of acquisition was obtained as required under S.39 of the said Act---Trial Court decreed the suit of plaintiffs and appeal filed by the organization from whom land was acquired had also been dismissed by Appellate Court---Validity---Plaintiffs having pleaded that organisation was not a company and the acquisition was not for a public purpose', onus was shifted to organisation to establish that it was a company or registered society; and that acquisition was for apublic purpose ; and that necessary sanction was obtained under the law---Defendant/organisation had not uttered a single word in the written statement that it was a company or registered society and also no evidence was produced by the defendant that it was a company or registered society---Witnesses who appeared before the Trial Court on behalf of Acquisition Department, had admitted that no agreement was executed on behalf of the company/organisation with the Commissioner---Defendant had failed to establish any previous consent of the Government to prove that any inquiry was held to show that acquisition was necessary for the public purpose'---No convincing and worth reliance evidence was available on record regarding the status of the defendant as a company or registered society---Provisions of Land Acquisition Act, 1894, in circumstances were wrongly and illegally invoked by the Collector in favour of defendant/organisation against the plaintiff---Acquisition was neither inpublic interest' nor the legal requirement of Ss.39 to 42 of Land Acquisition Act, 1894, was complied with---Courts below, in circumstances had rightly decreed the suit filed by the plaintiffs against the defendant after making legal and proper appraisal of law and evidence.

2007 YLR 568; PLD 2008 SC 335; 1993 SCMR 1673; 2001 CLC 1853; 2007 SCMR 741; PLD 1973 Lah. 665; PLD 2004 Lah. 47; 2004 MLD 1182; AIR 1962 Madras 1099; PLD 1957 Pesh. 149; 1989 .CLC 1801; PLD 2000 SC 825 and PLD 1983 Lah. 178 ref.

Younas Khan Tanoli for Appellant.

Sultan Khan Jadoon and Haji Ghulam Basit for Respondents.

Date of hearing: 16th June, 2010.

Quetta High Court Balochistan

MLD 2010 QUETTA HIGH COURT BALOCHISTAN 676 #

2010 M L D 676

[Quetta]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

THE STATE through Deputy Prosecutor General---Appellant

Versus

MUHAMMAD KALEEM BHATTI---Respondent

Criminal Ehtesab Appeal No.7 of 2009, decided on 2nd March, 2010.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 10, 11, 12, 32 & 33-E---Release of properties subject matter of main reference---Appreciation of evidence---Appeal to High Court---Trial Court while passing order of conviction and sentence against respondent/accused had mentioned that assets/properties of accused were forfeited as set off against the amount of fine, however, in case of non-recovery/non-payment of the amount/fine, accused would undergo for further terms of two years---Accused in his application filed before the Trial Court had requested that since he had already completed his conviction period and also served additional sentence in default of payment of fine, his properties which were subject matter of the main reference be released---Trial Court accepted application of accused and directed Executive District Officer to release the properties of accused as mentioned in the judgment and in the order---Feeling aggrieved from said order of the Trial Court, NAB Authorities had filed instant appeal---Since the properties of accused were forfeited as set off against the amount of fine, intention of the Trial Court was that properties/assets, subject-matter of reference were forfeited only to recover the amount of fine---It was held in the judgment that in case of non-recovery of amount of fine, the convict/accused would further undergo for two years---Accused having also served a sentence for non-payment of fine, legally speaking the judgment of the Trial Court had fully been acted upon and accused could not be punished twice, because the period he served against the payment of fine could not be returned to him---Law did not provide double punishment to accused---Accused had since completed his entire sentence, including the additional sentence of two years in lieu of amount of fine---Properties of accused, in circumstances were no more subject-matter of the judgment and the Trial Court had rightly released the same---Further the Trial Court being the original court, was the best forum to interpret its own judgment---Appeal against judgment and order of the Trial Court, was dismissed, in circumstances.?

Raja Aamir Abbas, Deputy Prosecutor General and Amir Zaman Jogezai, Special Prosecutor NAB for Appellants.

Respondent in person.

Date of hearing: 24th November, 2009.

MLD 2010 QUETTA HIGH COURT BALOCHISTAN 730 #

2010 M L D 730

[Quetta]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

JAMAL SHAH KHILJI---Petitioner

Versus

THE STATE---Respondent

Criminal Quashment Application No.2 of 2009, decided on 24th December, 2009.

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

----S.161---Appreciation of evidence---Statement of a witness on oath before the Court has much more value than the statement of the witness recorded under S.161, Cr.P.C. by the police.

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

----S.561-A---Inherent powers of High Court---Scope---Section 561-A, Cr.P.C. is meant for providing substantial justice in a case, where no provision is available in Criminal Procedure Code, 1898, for redressal of grievance.

----S.561-A---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic---Quashing of orders---Application of accused for direction to Investigating Officer to record the statements of two witnesses was rejected by Judicial Magistrate---Criminal Revision filed by the accused against the said order was also dismissed by the Special Court---Validity---Trial Court had the power to summon material witnesses who had not been examined during investigation by the Investigating Officer, if they were necessary for just decision of the Case---High Court was competent to quash the administrative order, under S. 561-A, Cr. P. C, if found arbitrary, but since trial in the case had commenced, High Court in exercise of its inherent power could not divert the normal course of trial initiated before a Court of law, nor hamper the process of investigation---Sessions Court in exercise of its revisional powers might call for and examine the record of the proceedings of the inferior Court---Revision petition before the Sessions Court against the administrative orders of the Judicial Magistrate was not competent---Petition was dismissed in circumstances.

2007 YLR 2161; PLD 2007 SC 31; 2006 PCr.LJ 518 and 1999 PCr.LJ 258 ref.

Kamran Mullakhail for Petitioner.

Malik Zahoor Ahmed Shahwani P.G. for the State.

Date of hearing: 17th November, 2009.

MLD 2010 QUETTA HIGH COURT BALOCHISTAN 1217 #

2010 M L D 1217

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

MANZOOR AHMED and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeals Nos. 8 and 9 of 2009, decided on 19th January, 2010.

Penal Code (XLV of 1860)---

----S. 392/34---Robbery---Appreciation of evidence---Benefit of doubt---No allegation that accused persons attempted to cause death, hurt or wrongful restraint of any person or even caused fear for the same---Offence, in circumstances, could not at least be covered under offence of theft, maximum punishment for which was three years with fine--Counsel for accused did not press the appeals on merits, but had prayed for moderate reduction in quantum of sentence---Contradictions in the statements of the complainant with regard to incident and recovery of allegedly robbed articles, had made evidence produced by the prosecution highly doubtful---Complainant had improved his statements with variation of time due to which credibility of the report lessened---Eye-witness of the occasion was wife of the complainant and other family members, but their statements were not recorded by the Investigating Officer nor they were mentioned as witnesses in challan---Identification of accused persons were not made from them, but on basis of some search made with the help of dogs by the complainant, several persons were nominated---Nowhere it was mentioned that said dogs led towards the residence of accused persons, being the real culprits---Complainant had not disclosed that on basis of what material he nominated accused persons being the real culprits---Trial Court, while discussing the evidence, did not consider contradiction present in the statements of witnesses and also in memos prepared during course of investigation---Trial Court had failed to appreciate the material present on record in its true context---Presence of material contradictions, reasonable doubt appeared the benefit of which surely would go to accused persons---Prayer of reduction in circumstances, was not acceded, rather benefit of doubt was exercised in favour of accused persons---Impugned judgment of the Trial Court was set aside and accused were acquitted.

Abdullah Kurd for Appellant (in Criminal Jail Appeals Nos. 8 and 9 of 2009).

Zahoor Ahmed Shahwani, P.-G. for Respondent (in Criminal Jail Appeals Nos. 8 and 9 of 2009).

Date of hearing: 20th October, 2009.

MLD 2010 QUETTA HIGH COURT BALOCHISTAN 1237 #

2010 M L D 1237

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

ABDUL GHAFOOR and 3 others---Petitioners

Versus

THE STATE---Respondent

Criminal Revision No. 95 of 2008, decided on 9th April, 2010.

Penal Code (XLV of 1860)---

----S. 448---House-trespass---Delay of nearly eleven hours in filing of F.I.R. and the complainant had not disclosed any reason for such a delay---Trial Court as well as the Appellate Court failed to appreciate the evidence and material on record and came to the' conclusion, which was contrary not only to the facts, but was in violation of law, which were liable to be set aside---Contradictions and variations pointed out, were not considered, while the doubt which would arise, its benefit was also not extended in favour of accused persons which was in contravention of principle of law---Impugned judgments of the courts below were set aside and accused were acquitted of the charge.

Haji Khalid Ahmed Kabdani for Petitioners.

Abdullah Kurd for P.-G. for the State.

Date of hearing: 4th December, 2009.

MLD 2010 QUETTA HIGH COURT BALOCHISTAN 1316 #

2010 M L D 1316

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

MUHAMMAD YAQOOB---Petitioner

Versus

ABDUL AZIZ---Respondent

Civil Revision No. 134 of 2006, decided on 10th June, 2010.

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

----O. XLVII, R.1---Review---Scope---Scope of review was narrow---Nothing new could be agitated while applying for review of the order/decree---No major alteration could be made in the order.

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

----O.XL VII, R.1---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement of sale---Review application---Defendant was present in person at the time of passing decree in favour of plaintiff which was a consent decree---Defendant, in circumstances, could not take advantage of alleged over-writing or cutting present in contents of sale-deed and based his claim for effecting change in boundary of property in question given in the agreement, on basis of which the boundaries were mentioned in the decree---No public immunity could be transferred in favour of any private party for his personal use---Plaintiff in the present case had not claimed any right on any public lane, rather he had based his claim on the sale-deed which was specifically to the extent of a house situated within the boundaries mentioned therein---Trial Court could not treat the application for review as a suit and thereby collect evidence in respect of the same and change the contents of decree---Trial Court had made serious error while conducting the case in such a manner---Appellate Court also failed to observe the legal position and the relevant provision of law---Order passed by Qazi Court and Majlis-e-Shoora were set aside and application for review filed by the defendant stood rejected.

Mujeeb Ahmed Hashmi for Petitioner.

Manzar Siddique for Respondent.

Date of hearing: 16th April, 2010.

MLD 2010 QUETTA HIGH COURT BALOCHISTAN 1333 #

2010 MLD 1333

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

SIRAJUDDIN---Petitioner

Versus

Haji MUHAMMAD ZARIF and 3 others---Respondents

Civil Revision No.518 of 2007, decided on 26th April, 2010.

Civil Procedure Code (V of 1908)---

----O. VII, R.2---Limitation Act (IX of 1908), Art.52---Suit for recovery of amount---Limitation---Suit filed by the plaintiff had concurrently been dismissed by the Trial Court and Appellate Court---Plaintiff had asserted that he supplied goods in question to the defendants in year 1993, while he filed suit for recovery of amount of said goods in year 2004---Suit which under Art.52 of Limitation Act, 1908 was to be filed within three years, was barred by eight years---Plaintiff though had asserted that he made efforts, approached the defendants and other notables for recovery of amount due, but he failed to prove the same---Despite his general assertion he failed to specify the efforts made by him and other circumstances on account of which he was unable to approach the court in time--Suit was surely filed beyond provided period and the plaintiff had failed to establish grounds on basis of which such delay could be condoned---Courts below in circumstances, had rightly concluded that suit was not maintainable---Plaintiff who otherwise had himself destroyed his own case by taking contradictory pleas, had failed to make out any case in his favour---Plaintiff having failed to establish any ground on basis of which interference could be made in impugned orders, revision petition filed by the plaintiff was dismissed, in circumstances.

Petitioner in person.

Respondents called absent.

Date of hearing: 3rd November, 2009.

MLD 2010 QUETTA HIGH COURT BALOCHISTAN 1363 #

2010 M L D 1363

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

ABDUL HALEEM---Petitioner

Versus

Syed AHMED ALI GILANI and 7 others---Respondents

Civil Revision No.311 of 2008, decided on 7th June, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.I, R.10 & O.XXXIX, R.2---Suit for declaration and permanent injunction---Trial Court dismissed plaintiff's application to implead six persons to whom suit property was sold by defendants on the ground that nature of the suit would be changed by impleading the said persons---Plaintiff contended that proposed defendants being owners of disputed property were necessary party, therefore, no effective decree could be passed without impleading them---Validity---Title of suit property was still a matter in issue between plaintiff and defendants/previous owners---Disputed property had, admittedly, been transferred in favour of six persons requested to be impleaded---Buyers of suit property having stepped into the shoes of previous owners had become necessary party resultantly, no effective decree could be passed without impleading them---Trial Court had failed to appreciate provisions of relevant law---Petition was accepted by allowing plaintiff's application to implead said six persons by filing amended plaint.

Khushnood Ahmed for Petitioner.

Muhammad Riaz Ahmed for Respondents.

Date of hearing: 5th March, 2010.

MLD 2010 QUETTA HIGH COURT BALOCHISTAN 1424 #

2010 M L D 1424

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

IMTIAZ SHAH -Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.28 of 2009, decided on 28th June, 2010.

Penal Code (XLV of 1860)---

----Ss. 409 & 420---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust, cheating and corruption---Appreciation of evidence---Earlier, accused reported an incident of dacoity allegedly took place in the Utility Store and F.I.R. in respect of said offence was registered, but said incident remained uninvestigated---Truth was not found out by the Investigating Authority---Alleged shortages in the stock in the Utility Store were detected, it was required to be established by the prosecution that the shortage occurred due to act of accused---No investigation was made in that respect---No recovery of money or the stock was effected from the possession of accused, nor efforts were made for the same, neither any material was collected in that connection---Accused was in custody of Police, when audit and scrutiny of stock were made in his absence---Alleged forged bank slips were also recovered when accused was not present at the site---Trial Court had failed to assess the material properly, ignorance showed by prosecution witness in respect of accused being in custody of Police on relevant dates had disclosed the mala fide on part of the prosecution, benefit of which was required to be extended to the of accused---Though charge of criminal breach of trust by public servant and criminal misconduct was asserted, but the prosecution had failed to establish both charges against accused free from reasonable doubt---In view of material placed on record no offence under S.420, P.P.C. was made out---While extending benefit of doubt in favour of accused, impugned judgment of Special Court, Anti-Corruption, was set aside---Accused was acquitted of the charge and was ordered to be released, in circumstances.

Rauf Hashmi for Appellant.

Abdullah Kurd for Respondent.

Date of hearing: 19th March, 2010.

MLD 2010 QUETTA HIGH COURT BALOCHISTAN 1477 #

2010 M L D 1477

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

TUFAIL MUHAMAMD---Petitioner

Versus

JOINT ESTATE OFFICER---Respondent

Civil Revision No. 275 of 2007, decided on 8th October, 2009.

Central Government Land and Buildings (Recovery of Possession) Ordinance (IV of 1965)---

----Ss. 5, 6 & 9---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Eviction of unauthorized occupants of government property---Suit had been concurrently dismissed by the Trial Court and Appellate Court---Main contention of the plaintiff was that he was lawful allottee of the flat in question, rent of which was regularly deducted from his salary; and that the defendant/Federal Government had no concern with the flat as same was never surrendered in pool of the Federal Government---Defendant/ Joint Estate Officer who was trying to obtain possession of flat in question under provisions of Central Government Land and Buildings (Recovery of Possession) Ordinance, 1965 had alleged that no allotment order in respect of allotment of flat existed in favour of the plaintiff and he being unauthorized occupant was not entitled for allotment of the same---Plaintiff had failed to place any allotment order in his favour, while it was proved that the flat in question had been placed in pool of Federal Government who was competent authority---Claim of the plaintiff in respect of allotment of flat in his name had been rejected up to the Supreme Court in previous round of litigation which had shown mala fide on the part of the plaintiff as he concealed said material fact from the courts---Plaintiff had only succeeded to get favourable orders and gained a lot of time to retain the flat in question with the help of litigation, which was not only objectionable, rather unfortunate---Due to such conduct of the. plaintiff he deserved no leniency as he made abuse of process of law and remained in possession of flat in question for more than ten years unauthorizedly---Suit filed by the plaintiff had rightly been dismissed concurrently by the courts below---No illegality or material irregularity had been pointed out by the plaintiff on basis of which concurrent judgments of the courts below could be interfered with by the High Court---Concerned authorities must adopt the mode of recovery of possession of flat in question as provided in S.6 of Central Government Land and Buildings (Recovery of Possession) Ordinance, 1965---Petition was dismissed. ?

Sheikh Ghulam Ahmed for Petitioner.

Muhammad Afzal Jami, D.A.G. for Respondent.

MLD 2010 QUETTA HIGH COURT BALOCHISTAN 1557 #

2010 M L D 1557

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

EID MUHAMMAD and another---Petitioners

Versus

ABDUL WAHAB---Respondent

Civil Revision No. 442 of 2009, decided on 15th January, 2010.

Specific Relief Act (I of 1877)---

---Ss. 8, 42 & 54---Suit for possession, declaration and injunction---Suit had concurrently been decreed by the two courts below in favour of the plaintiff---Plaintiff claimed himself to be lawful allottee of house in question, while the defendants had asserted that the quarter in question was initially allotted in the name of one of the defendants and at present, it had been allotted in favour of their brother---Trial Court considered allotment order whereby the authority had allotted the house in question in favour of the plaintiff; and also ordered whereby the allotment made in favour of the brother of the defendant which had been cancelled---Order cancelling allotment made in favour of the brother of the defendants had not been challenged or questioned by the brother of the defendants or even the defendants---Defendants had only produced said allotment order in favour of their brother which had already been cancelled and no other title deed was produced by them despite having opportunity---Defendants had failed to point out any piece of evidence which was not considered by the Trial Court as well as Appellate Court nor had pointed out the material which was mis-appreciated---Defendants had not asserted existence of any right in their favour for retaining possession of the house in question with them---House in dispute could have been allotted in favour of their brother, but due to that fact, no right of possession would be created in favour of the defendants, especially when allotment order in favour of their brother had already been withdrawn by the authority---As per own showing of the defendants they were occupying the quarter in question without any lawful right---Defendants had failed to point out any illegality in the impugned orders---Both the Trial Court and Appellate Court had properly appreciated the evidence produced before them and came to the right conclusion, wherein no interference was required.

Zahoor Ahmed Baloch for Petitioners. Abdul Sattar for Respondent.

Date of hearing: 21st October, 2009.

MLD 2010 QUETTA HIGH COURT BALOCHISTAN 1596 #

2010 M L D 1596

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

ABDUL QADIR and 8 others---Petitioners

Versus

SHER MUHAMMAD and 10 others---Respondents

Civil Revision No. 171 of 2005, decided on 7th June, 2010.

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

----O. VII, R.7 & O. VI, R.17---Prayer clause in plaint---Amendment in---Relief was required to be granted as prayed for in the plaint, but court was empowered to grant all those reliefs which the justice demanded in the circumstances of the case, either specifically prayed or otherwise---Even in case any relief was omitted, the prayer clause could be amended as per provisions of O. VI, R.17, C. P. C.

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

----O. VII, R.3---Description of suit property in the plaint---Sufficient description for identification of the property was required to be given in the plaint---In case of failure of describing the same properly, further and better particulars, could be asked from the concerned party; or suit be allowed to be amended---Such was no ground for dismissal of suit on very initial stage; that too without recording of any evidence.

----Ss. 42 & 54---West Pakistan Land Revenue Act (XVII of 1967), Ss.42 & 53---Civil Procedure Code (V of 1908), O. VII, R.11, S.54 & O.XX, R.18---Suit for declaration, permanent injunction and correction of revenue entries---Rejection of suit---Partition of property---Both the parties claimed to be in possession of suit property---Such being a factual controversy, same could only be resolved after calling of evidence from both the sides---Trial Court, without considering that aspect, had simply rejected the suit relying on facts which were yet to be established---View taken by Qazi/Trial Court was not in accordance with relevant provisions of law---Fact that as to which party was in possession, could only be determined by recording of evidence and decision taken thereon---Without calling record from concerned Authorities and evidence, no decision could be arrived at---Trial Court even had failed to observe the provisions regulating the suits filed with prayer for partition---Section 54 and O.XX, R.18, C.P.C., were to be observed while deciding the issues of partition, which the Trial Court had failed to keep in sight.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. VII, Rr. 1(i) & 11---Suit for declaration and permanent injunction---Valuation of suit---Rejection of suit for being under-valued---Though in the plaint, the suit had not been valued for the purpose of fixation of court fee and assessment of jurisdiction, which was required to be made under O. VII, R.1(i), C.P.C., but no suit could be rejected in case suit was under-valued or insufficiently stamped, until and unless opportunity was given to make good the deficiency to the plaintiff---In case the plaintiff would fail to make good the deficiency in time fixed by the court, the plaint would be rejected.

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

----O. I, Rr.9, 10 & 13---Misjoinder or non joinder of the parties---Effect---Order I, R. 9, C.P.C. specifically provided that no suit would be defeated by reason of misjoinder or non joinder of the parties---Court was required to deal with the matter in controversy so far as regarded the right and interest of the parties actually before it---As Court could strike out or add parties under O.I, R.10(2), C.P.C.

(f) Administration of justice---

----Courts must not stress on deciding the cases on mere technicalities, but should try to decide the same on merits.

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

----S. 115---Revision petition---Appellate Court had arrived to a valid decision, which needed no interference from High Court---Revision petition being without merits, was dismissed, while order of the Trial Court was upheld.

Basharatullah for Petitioners.

Muhammad Aamir Rana for Respondents Nos.1 to 48.

Tahir Ali Baloch for Respondents Nos. 49 to 72.

Date of hearing: 18th December, 2009.

MLD 2010 QUETTA HIGH COURT BALOCHISTAN 1659 #

2010 M L D 1659

[Quetta]

Before Mrs. Syeda Tahira Safdar and Muhammad Noor Meskanzai, JJ

Haji SALEH MUHAMMAD and another---Appellants

Versus

ABDUL WADOOD and another---Respondents

R.F.A. No. 9 of 2002, decided on 8th June, 2010.

Specific Relief Act (I of 1877)---

----Ss. 42, 53, 54 & 55---Suit for declaration and damages and application for injunction to restrain defendant from interfering in plaintiff's possession of suit-land---Plaintiffs asserted that possession of suit-land was handed over to them after payment of sale price and mutation was duly effected but defendant demolished the boundary wall erected by them on said property causing them loss to the tune of Rs.500,000---Defendant contended that plaintiffs were not in possession of property and suit was not maintainable for non joinder of the person with whom the defendant had entered into agreement to sell the suit property for consideration of Rs.16,50,000 out of which said person had paid Rs.200, 000 to defendant while remaining amount was agreed to be paid after said person had succeeded in selling the property to a third person/party/some other person---Said person had mutated the property in favour of plaintiffs after obtaining money--Defendant further contended that he was defrauded by said person who entered into a fraudulent deal with plaintiffs, therefore, the suit was liable to be dismissed---Trial Court, however, decreed the suit with damages amounting to Rs.100,000---Validity---Defendant had not only denied the title of plaintiffs but also claimed that he was in possession of suit property, burden of proof, therefore, was on plaintiffs to prove their title to the disputed property---Safe presumption from assertions and admissions of defendant was that said person sold the property with consent of defendant---Said person was not produced in court by any of the parties---Title and possession of land in question remained disputed---Plaintiffs did not make any prayer for declaration in plaint and failed to seek declaration of title to and possession of disputed property by virtue of being bona fide purchaser, instead, he only prayed for injunction to restrain defendant from disturbing possession and claimed damages---Plaintiffs had to prove their legal title before they could seek injunction to restrain defendants from interfering with the possession and claim damages because injunction could serve no purpose in absence of declaration of title which was not prayed in the plaint, so plaintiff could not be granted a relief sought in appeal stage for the first time---Relief of damages being consequential relief, plaintiffs had to prove their title to disputed property in the first instance to claim damages on the basis of that title---Trial Court had completely failed to consider the relevant facts in deciding suit in favour of plaintiffs---Suit was not maintainable in its present form---Plaintiffs should have sought declaration of title first and relief of injunction could be prayed in addition while damages should have been claimed as consequential relief---Judgment and decree of Appellate Court were set aside while suit was dismissed for being not maintainable.

Ajmal Khan Kasi for Appellants.

Sundar Das for Respondent No.1.

Liaquat Ali for Respondents Nos. 2.

Date of hearing: 23rd December, 2009.

MLD 2010 QUETTA HIGH COURT BALOCHISTAN 1676 #

2010 M L D 1676

[Quetta]

Before Mrs. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ

KHAIR MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.21 of 2009, decided on 14th July, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Specific motive was asserted for commission of offence---Accused had asserted existence of previous enmity between him and brothers of the deceased, who being complainant had falsely involved him in the case, but while one of said two brothers appearing as prosecution witness, got recorded his statement, no such suggestion was made to him---In the present case though disclosure was alleged to have been made by accused, while pointation of the site was also allegedly made by him, but the crime weapon was not recovered by the Investigation authorities---Disclosure made by accused before the Police though was of less value, but the eye-witnesses of the occurrence, had fully implicated accused in the commission of offence---No contradiction existed in the statements of both the witnesses recorded before the court during trial---Sufficient evidence was available against accused to implicate him in the commission of offence---Nothing was on record from which it could be ascertained, that the Trial Court restrained accused from producing evidence in his defence---Trial Court had properly assessed the material placed on record and also arrived at correct conclusion---Accused had failed to establish any ground on basis of which interference could be made in the impugned judgment---Lenient view had already been taken by the Trial Court, no further reduction was required in the matter--Accused having failed to make out case in his favour, impugned judgment of the Trial Court was upheld.

Muhammad Ewaz Zehri for Appellant.

Haji Liaqat Ali for the State.

Date of hearing: 5th May, 2010.

MLD 2010 QUETTA HIGH COURT BALOCHISTAN 1696 #

2010 M L D 1696

[Quetta]

Before Mrs. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ

Haji MUHAMMAD AZAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.31 of 2010, decided on 14th July, 2010.

Explosive Substances Act (XI of 1908)---

----S. 4(b)---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Possession of explosive substances and arms---Appreciation of evidence---Accused had not pressed appeal on merits, but had prayed for moderate reduction in the sentences awarded to him by the Trial Court---Accused had been convicted for offence under S.4(b) of Explosive Substances Act, 1908 awarded sentence for seven years' R.I.---Punishment provided for said offence was imprisonment for life or any shortest term which would not be less than seven years---Trial Court having already awarded sentence to accused only seven years, no further reduction could be made in the sentence---Regarding other offence under S.13(e) of the West Pakistan Arms Ordinance, 1965, term of sentence provided therein would be of imprisonment for a term which could extend to seven years with fine, while in the present case sentence in respect of said offence was awarded for three years with fine---In view of nature of offence alleged against accused, no further reduction could be made in the quantum of sentence awarded to accused and no leniency was required in the matter---Reduction of sentence was refused.

Amanullah Baloch for Appellant.

Sardar Ahmed Haleemi, Special Prosecutor ATA.

MLD 2010 QUETTA HIGH COURT BALOCHISTAN 1731 #

2010 M L D 1731

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

NOOR MUHAMMAD and 2 others-Petitioners

Versus

NOORUDDIN and 3 others---Respondents

Civil Revision No. 268 of 2006, decided on 25th February, 2010.

Specific Relief Act (I of 1877)---

---Ss. 42 & 54---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for declaration, permanent injunction and easement---Plaintiffs claimed their right of easement in respect of use of water for irrigating their lands through same water-course and right of way through a passage allegedly situated on lands owned by the defendants for a period of more than 100 years---Plaintiffs though had asserted existence of their right, but admitted non-entering of both these amenities in record of rights, despite the fact that as per their own showing settlement was carried out in the area in year, 1958---Burden was upon the plaintiffs to firstly prove existence of disputed watercourse and passage and thereafter their right to use the same, without any obstruction from side of defendants, but they had failed to discharge the same---Trial Court had failed to assess the material present on record, in its true perspective and came to the conclusion which was not in accordance with facts brought on record---Plaintiffs though titled their suit for declaration, permanent injunction and easement, but in the contents of the plaint they did not seek declaration in respect of their right, rather only prayed for injunction---Trial Court had failed to frame any issue in respect of legal objections raised by the defendants in their written statement to the extent of non joinder of parties, non-payment of proper court fee, improper description of property in question, thereby suit was liable to be dismissed under O. VII, R.11, C. P. C. ---Appellate Court despite pointing out the defects of pleadings of the plaintiffs and misappreciation of real matter in dispute by the Trial Court, relied on findings and decision taken by the Trial Court---Appellate Court, neither considered the grounds raised by the defendants in memo of appeal, nor discussed the evidence recorded by the Trial Court and decision arrived thereby and came to the conclusion without assigning reasons---Both Appellate Court and the Trial Court had failed to decide the issues on material present on record, thereby had come to the conclusion not based on facts and evidence---Impugned judgments were set aside---Suit filed by the plaintiffs was dismissed being without merits.

Khushnood for Petitioners.

Syed Ayaz Zahoor for Respondents.

Date of hearing: 21st October, 2009.

MLD 2010 QUETTA HIGH COURT BALOCHISTAN 1959 #

2010 M L D 1959

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

FAIZULLAH and 2 others---Applicants

Versus

ATTA MUHAMMAD and 2 others---Respondents

Civil Miscellaneous Application No. 404 of 2005, decided on 5th August, 2010.

Civil Procedure Code (V of 1908)---

----Ss. 12(2) & 151---Petitioner's application under S.12(2), C.P.C. for setting aside the decree in favour of respondents was dismissed by the Trial Court---Appellate Court dismissed the appeal---Petitioners/ applicants contended that they were shareholders and owners of the property in question but were not impleaded as necessary party by the respondents who obtained the decree through. fraud and misrepresentation in collusive suit---Validity---Petitioners and one set of respondents were closely related to each other and were sharing common houses---Petitioners' contention that they came to know about the mutation when their bazgars refused to pay their share, in circumstances, could not be believed---Petitioners' request for remand of the case for establishing fraud and misrepresentation after recording of evidence could only be accepted after they had established prima facie case by showing evidence or source of their title to the property and justifying their ignorance of the pending proceedings---Petitioners/applicants having failed to produce any. specific documents to prove their title---Petitioners could not disclose even names of their bazgars or the extent of their share in the produce etc.---Nothing was brought on record to show applicant's share in the land---Petitioners/applicants failed to establish the plea of fraud and misrepresentation---Application was dismissed in circumstances.

Miss Sarwat Hina 1'br Applicants.

Rauf Hashmi for Respondents Nos. 12 to 19.

Atta Muhammad in person and for Respondents Nos.2 to 11.

Supreme Appelate Court Gilgit

MLD 2010 SUPREME APPELATE COURT GILGIT 134 #

2010 M L D 134

[Supreme Appellant Court Gilgit]

Before Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

SUO MOTU CASE RCC CHINA BRIDGE: In re

S.M.Case No. 1 of 2009, heard on 7th July, 2009.

(a) Northern Areas Governance Order, 1994---

----Arts.19-A, 27 & 45(2)---Fatal Accidents Act (XIII of 1855), S.1---Fatal accident---Suo motu notice---Payment of compensation---Four innocent young persons were travelling in a car on road during the night and while crossing the bridge when reached in the centre of bridge, their car due to the breakage in the bridge fell in the river, three of them lost their lives; whereas fourth one sustained serious injuries---Said accident was not due to fault of the victims, but they lost their lives due to negligence of public functionaries who were responsible to maintain the road and bridge---Degree of carelessness about the life of people was cruel and criminal---Matter relating to the right of life of the people in terms of Art.9 of Constitution of Pakistan read with Art.19-A of the Northern Areas Governance Order, 1994, was of public importance and Supreme Appellate Court exercising the power under Art.45(2) of Northern Areas Governance Order, 1994 was concerned to take cognizance of the matter---Careful examination of the statements of the witnesses had shown that on the day of incident, neither the road leading through bridge was closed for traffic nor any sign board that bridge was out of order, was put on the road---General Manager of National High Way Authority had not been able to bring on record any evidence in support of version that necessary precautions were taken to close the road for traffic to avoid any incident---Clipping of newspaper and statements of the witnesses, had clearly shown that the damage caused to the bridge concerned due to the breakage of its pillars, was well within the knowledge of National High Way Authority, but said Authority knowingly had omitted to block the road and close it for traffic, so much so that no sign board indicating "danger" was installed on the road on either side of the bridge to warn the public---Failure of Authority to take the precautionary measures for the safe journey on the road was a gross negligence for the purpose of civil as well as criminal liability and aggrieved persons at their choice could surely avail the appropriate remedy provided under the law--Suo motu notice was disposed of with direction that National Highway Authority would pay compensation in the sum of Rs. five lac for each deceased to his legal heirs and same amount to the injured and Authority would bear the expenses to the treatment of injured.

(b) Words and phrases---

----`Negligence' defined and explained.

Advocate-General Northern Areas.

Muhammad Issa, Advocate.

Abdullah Jan, General Manager, NHA.

Date of hearing: 7th July, 2009.

Supreme Court Azad Kashmir

MLD 2010 SUPREME COURT AZAD KASHMIR 1980 #

2010 M L D 1980

[Supreme Court (AJ&K)]

Present: Syed Manzoor Hussain Gilani, Actg. C.J. and Chaudhry Muhammad Ibrahim Zia, J

SAFDAR ALI KHAN---Appellant

Versus

AZAD GOVERNMENT OF THE JAMMU AND KASHMIR through Chief Secretary and 2 others---Respondents

Civil Appeal No.11 of 2009, decided on 23rd April, 2010.

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

----O. VII, R.2 & S.100---Arbitration Act (X of 1940), Ss.17 & 30---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(11)(d)---Suit for recovery of amount---Arbitration proceedings---Defendants filed their written statement---Parties having agreed for appointment of an arbitrator, Trial Court appointed arbitrator who submitted his report in presence of counsel for the parties and none of them filed objections to report/award of the arbitrator---Trial Court passed judgment and decree in terms of award and dismissed the suit; however, it was found by Trial Court that an amount overpaid to the plaintiff; was recoverable from the plaintiff---High Court modified the judgment and decree in appeal to the extent of finding regarding overpayment to the plaintiff, while, rest of the judgment and decree was upheld---After filing award by arbitrator, plaintiff had not filed objections to said award within stipulated period of thirty days under Art.158 of Limitation Act, 1908, but filed beyond that period and none of the statutory grounds had been mentioned in said objections---Trial Court, in circumstances, had rightly made the award of arbitrator as decision of the court---Scope of second appeal was confined only to the grounds stated in S.100, C.P.C.-Plaintiff had failed to make out any valid ground according to statutory provisions---Factual points agitated on behalf of plaintiff had been concurrently resolved by two courts---Supreme Court declined to interfere with the concurrent finding recorded by subordinate courts.

Province of Punjab and others v. Messrs Usman & Sons and others 2002 MLD 414; Pakistan Agriculture Storage. and Service Corporation v. Sh. M. Latif and another 1999 MLD 2773; Muhammad Yusuf v. Gul Zaman 2004 MLD 735; Airports Development Agency Ltd. v. Messrs M.Y. Corporation and others PLD 2001 Kar. 158; Messrs Shafi Corporation Ltd. v. Govt. of Pakistan through D.G. Defence PLD 1994 Kar. 127; Dr. Abdul Waris v. Javed Hanif and others 1983 SCMR 716; Fazal Karim v. Abdul Manaf and another 1997 MLD 2867; Adalat Khan v. Fazal Hussain and another 1995 SCR 151; Muneer Hussain Shah and others v. Kazim Hussain Shah and others 1999 CLC 828; Azad Govt. of the State of Jammu and Kashmir v. Brig. Muhammad Aslam Khan PLD 1981 AJ&K 71 and Mst. Umar Bibi and others v. Bashir Ahmed and others PLD 1968 Lah. 629 ref.

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

----S.100---Second appeal---Scope---Scope of second appeal is confined only to the grounds stated in S.100, C.P.C.

Kh. Attaullah Chak for Appellant.

M. Tabassum Aftab Alvi for Respondents.

Date of hearing: 21st April, 2010.