MLD 2011 Judgments

2011 M L D 1239

[Election Tribunal Balochistan]

Before Muhammad Noor Meskanzai, J

Agha PARI GUL SYEDA---Petitioner

Versus

KALSOOM PARVEEN and 11 others---Respondents

Senate Election Petition No.1 of 2009, decided on 31st December, 2010.

(a) Senate (Election) Act (LI of 1975)---

----S.32---Election petition---Recounting of votes, prayer for---Petitioner's request for recounting of votes already turned down by Returning Officer---Validity---Turning down of such request by itself could not create a bar for maintaining election petition.

(b) Pleadings---

----Every fact alleged by a party would be legally required to be proved by production of solid evidence.

Muhammad Riaz Ahmed for Petitioner.

Kamran Murtaza for Respondent No.1.

Date of hearing: 14th December, 2010.

2011 M L D 1322

[Election Tribunal Balochistan]

Before Muhammad Noor Meskanzai, J

Mir ATTAULLAH KHAN DULEDI---Petitioner

Versus

RUSTAM KHAN JAMALI and 7 others---Respondents

Election Petition No.7 of 2008, decided on 11th January, 2010.

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

----Ss.52 & 75---Election petition---Death of respondent/returned candidate---Effect--Election petition would not abate, rather same would require disposal by Tribunal by initiating ex parte proceedings---Illustration.

1990 MLD 224; 1999 CLC 1026 and 1999 CLC 2030 ref.

1991 MLD 589 rel.

(b) Interpretation of statutes---

----Provision of a statute, though not happily worded, but being an existing law would require to be implemented and acted upon.

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

----Ss.103-B & 108---Death of any contesting candidate before day of polling---Effect---Election of such constituency would stand postponed.

Date of hearing: 9th December, 2009.

2011 M L D 1360

[Election Tribunal Balochistan]

Before Muhammad Noor Meskanzai, J

UMESH KUMAR---Petitioner

Versus

Engineer BASANT LAL GULSHAN and 9 others---Respondents

Election Petition No.37 of 2008, decided on 26th January, 2011.

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

----Ss. 47-A & 52---Conduct of General Election Order (Chief Executive's Order No. 7 of 2002), Art. 8-F---Senate (Election Act (LI of 1975), Ss. 13, 14 & 15(4)---Senate (Election) Rules, 1975 R.7(2)---Election petition---Provincial Assembly, election of---Seats reserved for non-Muslims in a Province--Priority List of candidates for such seat provided to Election Commissioner finding mention petitioner's name at Serial No. 4 while respondent's name at Serial No.1---List of validly nominated candidates drawn up in Form-V by Returning Officer finding mention petitioner's name at Serial No. 1---Declaration of respondent as returned candidate even though his name finding mention at Serial No. 2 of Form-IV---Validity---Commissioner was legally required to prepare Form-V by entering names of contesting candidates in Urdu in alphabetical order---Names of all three candidates finding mention in Priority List started with Urdu alphabet"(Alif)"---Name of respondent in Priority List was at Serial No. 1 for starting with Urdu alphabet "(Alif)"---Name of petitioner for starting with Urdu alphabet "( Alif)" . had been placed at Serial No. 1 of Form-V despite fact that his name already found mention in Priority List at Serial No. 4---Petitioner could not claim to be at Serial No. 1 of Priority List merely because of having his name at Serial No.1 of Form-V---Election petition was dismissed in circumstances.

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

----Ss.47-A(4)-- --National Assembly, election of---Seats reserved for non-Muslims of a Province---Nomination papers, filing of---Priority List of candidates issued by party President neither provided to candidate nor annexed with nomination paper----Effect---Candidate for such seat was legally required to annex Priority List with nomination paper.?

Munir Agha for Petitioner.

Kamran Murtaza for Respondents.

Date of hearing: 31st December, 2010.

2011 M L D 1386

[Election Tribunal Balochistan]

Before Muhammad Noor Meskhanzai, J

Dr. NOOR JEHAN PANEZAI---Petitioner

Versus

ZUBAIDA JALAL and 8 others-Respondents

Election Petition No.12 of 2008, decided on 31st December, 2010.

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

----Ss. 47-A & 52---Conduct of General Election Order (Chief Executive's Order No. 7 of 2002), S. 8-F---Election petition---National Assembly, election of-Seats reserved for women of a Province---Priority List of candidates for such seats provided by Party President to Chief Election Commissioner (CEC) placing respondent at Serial No.1, while petitioner at Serial No. 2---Failure of respondent in election contested on general seat as independent candidate---Subsequent letter of Party President written to CEC after last date fixed for filing of Priority List placing petitioner at Serial No. 1 of Priority List of, his party---Declaration of respondent as returned candidate by GEC---Validity---Respondent had neither resigned nor changed loyalty nor violated party policy nor withdrawn from ,her candidature nor was restrained/prohibited by Party President from contesting election nor was disqualified by a competent court of law---No legal power vested in Party President to change, alter, substitute,, amend or file a fresh Priority List after last date fixed by CEC for filing of Priority List---Neither any constitutional bar existed nor provisions of Representation of the People Act, 1976 restrained any citizen from contesting election simultaneously for reserved set and general seat---Respondent was at Serial No. 1 of Priority List of her party on last date fixed for filing of Priority List---Election Tribunal dismissed election petition in circumstances.

Khalil Tahir Sindhu v Election Commission Punjab, Lahore/Returning Officer for minority reserved seats and 3 others PLD 2008 Lah. 196 ref.

Kamran Murtaza for Petitioner.

Muhammad Riaz Ahmed for Respondent No.1.

Date of hearing: 18th December, 2010.

2011 M L D 1712

[High Court (AJK)]

Before Ghulam Mustafa Mughal, C.J., Munir Ahmed Chaudhry and Tabassum Aftab Alvi, JJ

Ch. M. AZIZ and others---Petitioners

Versus

CHIEF ELECTION COMMISSIONER AJ&K and 9 others---Respondents

Writ Petitioners Nos.1065 and 1074 of 2011, decided on 12th July, 2011.

(a) Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970---

----Ss. 24-A & 92---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Contention that election dispute had been raised through writ petition, aggrieved party should wait till the establishment of the Election Tribunal and then file appropriate proceedings, was devoid of any force---If such contention was accepted, candidate who had not been dealt with in accordance with law will have to wait the completion of the election and thereafter to challenge an order passed on intermediate stage by an Election Authority---Sections 24-A and 92 of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970, which empowered Election Commissioner to exercise the powers for conducting the election justly, fairly and honestly would become redundant.

Mustafa Jatoi's case PLD 1994 Kar. 1 rel.

(b) Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970---

----Ss. 20, 21 & 35---Receipts issued to the Polling Agents by Presiding Officer---Purpose---Contention that final result of election could be' consolidated on the basis of said receipts, had no force---No doubt the Ordinance recognized appointment of Polling Agents under Ss.20 & 21 of the Ordinance, the purpose was to watch the interest of the candidate; and to see that polling at the Polling Station was being conducted justly, fairly and honestly in accordance with the scheme of the Ordinance and rules and instructions of the Chief Election Commissioner---Procedure .to be followed by the Presiding Officer at the close of the poll, was provided under S.35 of Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970.

(c) Azad Jammu and, Kashmir Legislative Assembly (Elections) Ordinance, 1970---

----Ss. 24-A, 92 & 92-A---Re-polling---Jurisdiction of Chief Election Commissioner---Scope---Record .had proved that excessive votes had been .polled at five Polling Stations---Such was an irregularity and error within the purview of S.24-A of Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970---Chief Election Commissioner under Ss.24-A, 92 & 92-A of the Ordinance, had jurisdiction to order re polling on the said Polling Stations---Such powers were not dependant upon the report of the Returning Officer, but. Chief Election Commissioner was vested with suo motu jurisdiction---Polling as well as result at said five Polling Stations where excessive votes had been polled were declared as violative of the Ordinance and rules made thereunder---Election Commissioner was directed to order for re polling on said five Polling Stations, in accordance with rules, in circumstances.

Raja Abdul Qayyum's case 1995 SCR 1 rel.

Kh. M. Naseem and Abdul Waheed Durani for Petitioners (in Writ Petition No.1065 of 2011).

Mushtaq Ahmed Janjua for Petitioners (in Writ Petition No.1074 of 2011).

Mir Abdul Latif for Respondents Nos.1 to 5.

Kh. M. Naseem for Respondent No.6.

Nemo for Respondents Nos.7 to 10.

Date of hearing: 12th July, 2011.

2011 M L D 445

[Islamabad]

Before Riaz Ahmad Khan, J

JUNAID KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 7-B of 2011, decided on 18th January, 2011.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 302 & 411/34---Qatl-e-amd and dishonestly receiving stolen property---Bail, grant of---Accused had been charged on the basis of suspicion and that too after about three days of the occurrence---Mere submission of challan or even commencement of trial, was no ground for refusing bail, if otherwise accused was found entitled for concession of bail---Prima facie, no case had been made out against accused, he was released on bail, in circumstances.

2006 YLR 99 and PLD 2004 SC 477 ref.

Raja Rizwan Abbasi for Petitioner.

Ch. Abdul Aziz for the Complainant.

Shafi Muhammad Chandio, D.A.-G. Abdul Sattar S.-I. with record.

2011 MLD 533

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

KABIR AZAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.30-B of 2011, decided on 17th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.393/34---Attempt to commit robbery---Bail, grant of---Accused had been admitted to bail on merits and thereafter due to his non-appearance, he was declared absconder and was arrested---Bail could not be withheld as punishment and mere abscondance was no ground for refusal of bail, if a sufficient cause was shown for non-appearance---Accused had already suffered on account of his non-appearance and was behind the bars since 3-12-2010---Accused being entitled to grant of bail, he was ordered to be released on bail, in circumstances.

Raja Muhammad Shakil Abasi for Petitioner.

Shabbir Abbasi, Learned Standing Counsel.

Muhammad Riaz, S.-I.

2011 M L D 847

[Islamabad]

Before Riaz Ahmed Khan, J

NAEEM SARWAR---Petitioner

Versus

S.H.O. POLICE STATION AABPARA, ISLAMABAD---Respondent

Criminal Miscellaneous No. 16-M of 2011, decided on 1st February, 2011.

Penal Code (XLV of 1860)---

----S. 182-Criminal Procedure Code (V of 1898), Ss.561-A, 154, 155 & 156---False information with intent to cause public servant to use his lawful power to the injury of another person---Quashing of proceedings, petition for---Petitioner, in his application requested for initiating proceedings against persons complained against---S.H.O. concerned investigated the matter on his own and concluded that complaint filed by the petitioner was false and frivolous---S. H. O. filed Qalandra under S.182, P.P.C. against the petitioner/complainant in the court of Assistant Commissioner, in which notice was issued to the petitioner-Petitioner filed petition under S.561-A, Cr.P.C. for quashing of proceedings initiated against him under S.182, P.P.C.---When a complaint was filed at the Police Station and S.H.O. found that a cognizable offence had taken place, then he was bound to register a case under S.154, Cr.P.C., and to initiate the investigation thereafter---If the SH.O. would come to the conclusion that no cognizable offence had taken place, then in that case neither the case could be registered nor investigation could be initiated--In non-cognizable case, the S.H.O., was bound to approach the concerned Magistrate---Under S.155(2), Cr.P.C., no Police Officer could investigate a non-cognizable case without the order of a Magistrate---In the present case S.H.O. on receiving the complaint of the petitioner, was to determine as to whether any cognizable offence had taken place or not; if in his opinion, no cognizable offence had taken place, then he could not initiate the investigation, without the leave of the Magistrate---Investigation, if any, conducted by S.H.O. was illegal and of no effect---S.H.O. Concerned had not acted in accordance with law and the proceedings initiated under S.182, P. P. C. against the petitioner being violative of Ss.154 & 155, Cr.P.C. were illegal, void and of no legal effect---Proceedings initiated against the petitioner under S.182, P.P. C. were quashed, in circumstances.

Petitioner in person.

Rao Abdul Ghaffar and M. Ghias ul Haq Sheikh for the State.

Khalid, Inspector with record.

2011 M L D 1079

[Islamabad]

Before Riaz Ahmed Khan, J

Raja SHAHID AHMAD---Petitioner

Versus

NISAR AFZAL and another---Respondents

Criminal Miscellaneous No.2082/BC of 2010, decided on 24th February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.324/i37-F(i)/337-F(ii)/34---Attempt to commit qatl-e-amd, causing Damiyah and Budi'ah to any person---Cancellation of bail, petition for---Principles for cancellation of bail were totally different front the principles for grant of bail-In the present case, record had shown that two inquiries were conducted and in both said inquiries accused was found innocent--Police had also found that the plea of alibi put forward by accused, was genuine---Only tentative assessment could be made at bail stage, and deeper appreciation of evidence was not possible, however, it could not be said that discretion; regarding grant of bail was not properly exercised---Impugned order was neither perverse nor arbitrary---No evidence was available to the effect that accused had misused the concession of bail---No chance of abscondance of accused existed and he was also not in a position to tamper with the evidence of the prosecution---Petition for cancellation of bail was dismissed, in circumstances.

Muhammad Ilyas Siddiqui, for Petitioner.

Sardar Shabbir Hussain, for Respondent No.1.

Respondent No.1 in person.

Raja Muhammad Yasin Standing Counsel and Sajid Rafique A.S.-I. with record for the State.

2011 M L D 1439

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

Moulana ABDUL AZIZ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2-Q of 2011, decided on 3rd May, 2011.

Penal Code (XLV of 1860)---

----S. 188---Criminal Procedure Code (V of 1898), Ss.561-A & 195(1)(a)---Disobedience to order duly promulgated by public servant---Petition for quashing of proceedings---Petitioner was not nominated in the F.I.R. and no direct evidence was available against him as F.I.R. very specifically stated that the students of the Mosque concerned were distributing pamphlets after Jumma prayer---None was arrested at the site and Police Officer lodged F.I.R. directly, while he was not complainant of the case---Public servant had not made any complaint in writing, which was mandatory requirement of S.195(1)(a), Cr.P.C.--Direct F.I.R. against unknown persons for offence under S.188, P.P.C. could not be lodged---Case on the basis of evidence was also difficult to be established for the reason that even in the challan the name or description of the students, who were stated to have been disturbing the pamphlets, were not stated---No reason in the challan had been shown for connecting the petitioner with the offence, sentence of which was one month---Further trial of the case would not serve any purpose, but would be an abuse of the process of law as there did not seem to be any probability of petitioner being convicted on the basis of evidence on record---Proceedings against petitioner, were quashed, in circumstances.

1993 PCr.LJ 2306; 2000 SCMR 122; 1998 PCr.LJ 87 and 1997 PCr.LJ 589 ref.

Muhammad Wajeeh Ullah Khan for Petitioner.

Muhammad Shabbir Ahmad Abbasi, learned Standing Counsel with Habib Ullah A.S.-I.

2011 M L D 1451

[Islamabad]

Before Riaz Ahmad Khan and Muhammad Anwar Khan Kasi, JJ

Syed ZAHIR SHAH---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior and 2 others---Respondent

Writ Petition No.164 of 2011, decided on 26th May, 2011.

Exit from Pakistan (Control) Ordinance (XLVI of 1981)---

----S.3---Constitution of Pakistan Art. 2-A, 4, 9, 15, 25 & 199---Constitutional petition---Placing name of citizen on Exist Control List--Scope---Right of a citizen to travel abroad being a fundamental right guaranteed by the Constitution could not be taken away---Abridgment of such right by State through legislative or executive measure would be tested on yardstick of constitutional provisions.

Government of Pakistan and another v. Dada Amir Haider Khan PLD 1987 SC 504 and Wajid Shamsul Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad PLD 1997 Lah. 617 rel.

Barrister Masroor Shah for Petitioner.

Shabbir Ahmad Abbasi, Standing Counsel for the State.

Khalid Mehmood, Sr. Prosecutor and Idrees Rafique Bhatti, Prosecutor for NAB.

Jawad Ahmad, Asst. Director (Policy), For DG Passport.

Mehmood Ahmad, Superintendent, ECL for M/o Interior.

Date of hearing: 26th May, 2011.

2011 M L D 13

[Karachi]

Before Imam Bux Baloch and Ghulam Sarwar Korai, JJ

SALLAHUDDIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. D-35 of 2007, decided on 30th September, 2010.

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

----S. 9(c)-Possession of narcotics---Appreciation of evidence---Prosecution evidence was consistent and trustworthy---No previous enmity of the Excise Officials with the accused was established---Huge quantity of charas weighing 215 Kgs. was recovered from the accused who was a drug-trafficker---Testimony of defence witness contradicted accused's stance as to means of transport used by them---No discrepancy was pointed out in the case of prosecution---Delay of five days in sending samples to Chemical Examiner was not fatal to prosecution case---Appeal was dismissed for being without merits.

Muhammad Akram Khan v. The State, 1996 PCr.LJ 813; Zahoor Ahmad Awan v. The State 1997 SCMR 543; Hamza v. The State 2000 PCr.LJ 360; Ghulam Saddique v. The State 2005 YLR 605 and Abdul Sattar v. The State 2009 YLR 2435 ref.

Abdul Baqi Jan Kakar for Appellant.

Ameer Ahmed Narejo, State Counsel.

Date of hearing: 22nd September, 2010.

2011 M L D 21

[Karachi]

Before Mushir Alam and Safdar Ali Bhutto, JJ

EBRAHIM A. MERCHANT---Petitioner

Versus

CITY DISTRICT GOVERNMENT KARACHI through District Coordination Officer and another----Respondents

Constitutional Petition No. D-141 o 2008, decided on 16th April, 2009.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Intended action of removal of construction---Counsel for the petitioner who claimed to be lease-holder of property in question, had stated that there was wide publication of the news/article regarding intended action of removal of construction of the properties of the petitioner---Counsel for the petitioner referred order passed by High Court in constitutional petition founded on the similar facts and grounds, wherein by consent the petition was disposed of on the assurance by the authorities not to take action without due course of law---Counsel for the petitioner had requested for similar observations in his case---Counsel for the authorities conceded that no action against the petitioner would be taken without due process of law; and if at all any action was proposed, same would he taken after due notice and providing reasonable opportunity of being heard to the petitioner strictly in accordance with law---Constitutional petition was disposed of in the light of said undertaking.

S.M. Awan for Petitioner.

Manzoor Ahmed, for the C.D.G.K.

2011 M L D 36

[Karachi]

Before Irfan Saadat Khan, J

MUHAMMAD MAROOF AHSAN---Plaintiff

Versus

Messrs BEACH DEVELOPERS through Partner---Defendant

Suit Nos.1042 of 2004, and 170 of 2005, decided on 2nd September, 2010.

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

----Ss. 9, 12, 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, R.1---Sindh Buildings Control Ordinance (V of 1979), S.13(3)---Suit for declaration, specific performance, possession, compensation and injunction---Power of attorney executed in a foreign country---Requirements---Plaintiff booked a residential apartment in the construction project undertaken by the defendant, paid instalments in time but defendant neither completed the project nor handed over the possession of the complete apartment to plaintiff within stipulated. time---Effect---Not a single apartment had been completed and handed over to any of the allottees---Nothing was brought on record by defendant to show that plaintiff was called upon to clear his dues and receive the possession of the apartment---Work on the project had been stopped and only a meagre amount was left to be paid; plaintiff was entitled to withhold the said amount---Defendant having failed to complete and hand over the apartment was bound to pay the compensation for each delayed month which he undertook as per addendum---Defendant, however, could claim penalty on unpaid amount only if plaintiff had failed to take possession of complete apartment---In the absence of default in the payment of instalments on the part of plaintiff, defendant was not entitled to cancel the agreement---Defendant's absence was meant to protract the proceedings---All partners of defendant firm having gone abroad, power-of-attorney executed in favour of attorney who appeared on their behalf should have been attested by the Pakistan Embassy---Power of attorney executed in a foreign territory had no evidentiary value unless the same had been attested by the Pakistan Embassy/Consulate in that country as per mandatory requirement of law---Suit filed by plaintiff was decreed while suit of defendant was dismissed for being frivolous.

(b) Power of attorney---

----Power of attorney executed in a foreign country---All partners of defendant firm having gone abroad, power-of-attorney executed in favour of attorney who appeared on their behalf should have been attested by the Pakistan Embassy---Power of attorney executed in a foreign territory had no evidentiary value unless the same had been attested by the Pakistan Embassy/Consulate in that country as per mandatory requirement of law---Suit filed by plaintiff was decreed while suit of defendant was dismissed for being frivolous.

Rashim Ahmed Zaidi v. Hina Housing Project 2010 SCMR 1228 fol.

Muhammad Yaseen Siddiqui v. Tehseen Javaid Siddiqui 2003 MLD 319 rel.

Tasawar Ali Hashmi for Plaintiff (in Suit No. 1042 of 2004).

Nemo for Defendant (in Suit No.1042 of 2004).

Nemo for Plaintiff (in Suit No.170 of 2005).

Tasawar Ali Hashmi for Defendant (in Suit No. 170 of 2005).

Date of hearing: 19th August, 2010.

2011 M L D 64

[Karachi]

Before Imam Bux Baloch, J

Syed WAHID BUX SHAH alias CHACHO SHAH and another---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No S.266 of 2009, decided on 27th September, 2010.

Penal Code (XLV of 1860)---

---Ss. 302, 337/H-2, 114 & 344---Criminal Procedure Code (V of 1898), S.561-A---Qatl-e-amd, rash and negligent act to endanger human life, abetment committed when abettor is present at the time of offence, wrongful confinement for ten or more days---Quashment of proceedings---Second F.I.R. in respect of the same offence---Judicial Magistrate refused to accept the Investigating Officer's recommendation for cancellation of the second F. I. R.-Validity--Second F.I.R. seemed to be fabricated as reported by the Investigating Officer in the wake of submission of challan in respect of the first F.I.R.---Magistrate passed impugned order in haste after discussing evidence which was not permissible under S.173, Cr.P.C.---Second F.I.R. after the first one could not be considered as true---Impugned order was set aside and proceedings qua second F.I.R. were quashed.

Asif Ali Abdul Razak Soomro for Applicants.

Naimatullah Bhurgri for the State Counsel.

2011 M L D 75

[Karachi]

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

ABBAS and 6 others---Petitioners

Versus

PROVINCE OF SINDH, through Senior Member, Board of Revenue and 8 others---Respondents

Constitutional Petition No. D-308 of 2008, decided on 4th February, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Right and title in respect of village---Proof---Petitioners claimed right and title on the basis. of Sanads in respect of village in question---Counter-affidavit had been filed on behalf of respondent stating that no such village existed---Respondent placed on record a list of legal or otherwise villages existing on the record, but said village did not exist and counsel for the petitioners had no plausible explanation for that and even the Sanad had not been verified---Constitutional petition was dismissed.

Nazar Muhammad Jamali for Petitioners.

Munir-ur-Rehman for Respondent No.5.

Manzoor Ahmed for the C.D.G.K.

Shafi Memon, A.A.-G. along with Meer Muhammad, Mukhtiarkar Gothabad, Karachi.

2011 M L D 89

[Karachi]

Before Salman Hamid, J

MUHAMMAD DIN---Petitioner

Versus

Mst. SHAMIM AKHTAR and 2 others---Respondents

C.P. No.S-420 of 2010, decided on 25th August, 2010.

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

----Ss. 14, 15 & 16---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Past and closed transaction---Concurrent findings of fact by the Courts below---Eviction order passed by Rent Controller against tenant was maintained by Lower Appellate Court---Validity---Person who was not owner of rented premises occupied same and then had set up title which was adverse to the owner thereof would not by virtue of setting up of such title became owner and that such person by fiction of law would remain a tenant unless proved otherwise---One of the ways would be filing of suit for specific performance and getting decree in such regard and till such time, under the law, he would be bound by terms of the law by which he was governed---Petitioner having failed to prefer any appeal against judgment passed in the case and that suit for specific performance filed by petitioner beyond period of limitation also stood dismissed for non-prosecution, restoration of which was still pending and that the objections those were raised in execution application were patently lame and had already been examined and discarded by Rent Controller and that appeal had been dismissed by lower appellate Court---Petitioner was not to have a thing indirectly which he was not entitled directly---High Court declined to interfere in the orders passed by two courts below---Petition was dismissed in circumstances.

Rizwan Ahmed Memon for Petitioner.

2011 MLD 104

[Karachi]

Before Mushir Alam, ACJ and Aqeel Ahmed Abbasi, J

SHABBAR MALIK---Petitioner

Versus

GOVERNMENT OF PAKISTAN, through Secretary Ministry of Communication and 4 others---Respondents

Constitutional Petition No.D-441 of 2005, decided on 20th October, 2009.

National Highway and Strategic Road (Control) Rules, 1998---

----R. 3---Constitution of Pakistan, Art.199---Constitutional petition---Removal of encroachment--Petitioners had impugned the notice for removal of encroachment issued by the National Highway Authority whereby it was mentioned that the petitioner had made encroachment within the right of way---Only controversy before the High Court was, whether the impugned construction was within the restricted limit or not---Construction in question apparently did not fall within the restricted limit---Impugned notice issued by the authorities was uncorroborated under the facts and circumstances as the subject property did not fall within the prescribed limits/boundaries in terms of R.3 of National Highway and Strategic Road (Control) Rules, 1998; however that would not in any manner create any right, title or otherwise in the petitioners in respect of subject property and could be subjected to action by the relevant authorities under the relevant law in that regard---Impugned notice, was cancelled by High Court.

Adnan Memon for Petitioner.

Manzoor Ahmed Memon and Mian Khan, D.A.G. for C.D.G.K. Shafi Muhammad Memon, Additional A.-G.

2011 MLD 110

[Karachi]

Before Aqeel Ahmed Abbasi, J

HAFEEZ-UR-REHMAN TAHIR---Applicant

Versus

THE STATE through Special Prosecutor, A.N.F.---Respondent

Criminal Bail Application No. 780 of 2010, decided on 4th October, 2010.

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

----Ss. 497, 103 & 94---Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c), 20, 21, 22 & 25---Possession of narcotics---Bail, refusal of---Second bail application was filed on the same grounds on which Trial Court had declined bail---Validity---No fresh ground was available to accused---Same points could not be raised in the garb of new developments---Mere filing of application for production of record relating to flight timings did not bring the case of accused within purview of further inquiry especially when Trial Court was examining evidence---Sufficient material was available on record to proceed against the accused whereas no previous enmity or mala fide against prosecution was alleged---Accused's plea that non-association of private witnesses during raid amounted to non-compliance of Ss.20, 21 and 25 of the Control of Narcotic Substances Act, 1997 and S.103, Cr.P.C. was misconceived in fact and law---Section 25 of Control of Narcotic Substances Act, 1997 excluded application of Ss.20, 21 and 22 of Control of Narcotic Substances Act, 1997 being directory in nature and non-compliance of the same would not hold trial/conviction bad in the eyes of law---Accused could not make out a case of second application on fresh grounds for grant of bail; his application was dismissed.

Nadeem v. The State 2007 MLD 1092; Royce Dean Wellman v. The State 1997 MLD 1708; The State through Deputy Director Anti Narcotic Force, Karachi v. Syed Abdul Qayum 2001 SCMR 14; Nazeer Ahmed v. The State PLD 2009 Kar. 191; Muhammad Ullah v. The State 2009 SCMR 954; 2008 SCMR 1254 and Waris Khan and 2 others v. The State 2006 SCMR 1051 ref.

Fida Jan v. The State 2001 SCMR 36; State through A.G. Sindh v. Hemjoo 2003 SCMR 881; Karl John Joseph v. The State PTD 2004 SC 394; Muhammad Younas v. Mst. Perveen alias Mano and others 2007 SCMR 393; Ismaeel v. The State 2010 SCMR 27 and Muhammad Noor and others v. The State 2010 SCMR 927 fol.

Recent two orders dated 5-7-2010 in Criminal Bail Application No.748 of 2009; Syed Rehman Shah v. The State and order dated 16-9-2010 in Criminal Bail Application No. 677 of 2010 and Criminal Bail Application No. 679 of 2010 rel.

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

----S. 25---Criminal Procedure Code (V of 1898), S.103---Exclusion of application of S.103, Cr.P.C.---Section 25 of Control of Narcotic Substances Act, 1997 excluded application of S.103, Cr.P.C. in narcotic cases.

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

----Ss. 20, 21 & 22---Scope and application of Ss.20, 21, 22, Control of Narcotic Substances Act, 1997---Provisions of Ss. 20, 21 and 22 of the Act being directory in nature, non-compliance of the same would not hold trial/conviction bad in the eyes of law.

Abdul Razzak for Applicant.

S. Ashfaq Hussain, Special Prosecutor, ANF.

2011 MLD 119

[Karachi]

Before Muhammad Ather Saeed and Munib Akhtar, JJ

Mst. NAWAB BEGUM---Appellant

Versus

ZAHOOR AHMED and 2 others---Respondents

H.C.A. No.129 of 2002, decided on 2nd September, 2010.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), S.148---Specific performance of agreement---Non-deposit of balance consideration amount---Extension in time---Suit filed by plaintiff was decreed by Trial Court with a direction to deposit balance consideration amount within a period of thirty days---Plaintiff failed to deposit the amount and sought extension in time, four months after expiry of period fixed by Trial Court---Single Judge of High Court declined to extend the time on the ground that there was no ground for condonatoin of delay and extension of time to deposit the amount---Validity---Decree in suit for specific performance was not in the nature of preliminary decree and the court did become functus officio for the purpose of passing any further order in respect of such decree---Court had got discretion to extend time prescribed in judgment and decree for payment of sale consideration but such discretion should be exercised judiciously and rarely on the basis of facts and circumstances of each case and could not be exercised merely for asking---Single Judge of High Court did not dismiss the application by holding that he had become functus officio for the purpose of passing any further order or that he did not have the discretion to pass any such order or by holding that decree was final and not preliminary decree but had held that in such view, the ground stated for extension of time was not valid ground for allowing the application---Order passed Single Judge of High Court had been passed on consideration and facts and circumstances of the case and was unexceptionable and therefore, no interference was called in High Court appeal which was dismissed in circumstances.

Shabbir Ahmed and another v. Zahoor Bibi and others PLD 2004 SC 790; Nasir Ahmad v. Muhammad Yousuf PLD 1994 Lah. 280; Asraf Ali alias Asrafuddin Mondal and another v. Bayla Hasda and others PLD 1967 Dacca 557; Smt. Periyakkal and others v. Smt. Dakshyani 1984 PSC 33 (Supreme Court India); Gokul Prasd v. Fattelal (Niyogi J.) AIR (33) 1946 Nagpur 29; Abdur Rahi v. Tamijaddin (Patterson, J.) AIR 1933 Calcutta 580; Farooq Imran v. Naeem Ahmed Siddiqui 2009 SCMR 157 and Shaujat Ali v. Muhammad Raisat and others PLD 2006 SC 140 ref.

Anwar Tariq and Raza Muhammad for Appellant.

Amel Kansi for Respondent No.1.

Mian Mushtaq Ahmed for Intervenor.

Date of hearing: 26th August, 2010.

2011 M L D 133

[Karachi]

Before Abdul Hadi Khoso, J

GHULAM SIDDIQUE SOOMRO---Applicant

Versus

THE STATE through Anti-Corruption/ Circle Officer Dadu---Respondent

Criminal Miscellaneous Application No.S-243 of 2010, decided on 5th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.161, 420, 467 & 468---Prevention of Corruption Act (II of 1947), S.5(2)---Illegal gratification, cheating, forgery---Quashing of proceedings, application for---No material had been collected against the accused---Only allegation was that accused had issued a certified true copy of a record which was already prepared in the year 1991 and existed---No allegation of making forgery in the record and making any false entry in the record, was levelled but only allegation was that he issued the certified true copy---Accused, on said allegation had suffered from the year 2005 till date and was regularly attending the Trial Court and it appeared that there was no allegation of committing any offence---No probability of conviction of accused existed and case was lingering and if same continued, it would amount to abuse of process of the court---Proceedings against accused, were quashed, in circumstances.

Syed Ali Ashraf Shah for Applicant.

Syed Meeral Shah, D.P.G.

2011 MLD 147

[Karachi]

Before Muhammad Tasnim, J

KHALID JAWAID & BROTHER ("KJB") and another---Plaintiffs

Versus

SONERI BANK LTD.---Defendant

Suit No.B-34 of 2008, decided on 2nd November, 2010.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), S.151---Auction purchaser---Short delivery---Recovery of amount---Applicant was auction purchaser whose grievance was that complete quantity of goods (sugar) purchased in auction was not delivered by Official Assignee---Plea raised by Official Assignee was that the short delivery of. goods was injurious to health and not fit for human consumption---Validity--Delivery order in respect of 11,070 bags was to be issued by Official Assignee against payment of Rs.1.32 Crore by auction purchaser but only 9708 bags of sugar were delivered to auction-purchaser---Auction purchaser made application for refund of cost of remaining 1362 bags--High Court, in circumstances, directed the Official Assignee to return the amount of short supply of goods to auction-purchaser-Application was allowed accordingly.

Abdul Sattar Lakhani for Plaintiffs.

Mansoor-ul-Arfin for Defendant along with Muhammad Ali Haider, Bank Representative.

Ms. Sofia Saeed Shah, for A/P.

2011 MLD 155

[Karachi]

Before Abdul Hadi Khoso, J

NIAZ ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 740 and M.A. No. 4471 of 2010, decided on 7th September, 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---No motive was suggested by the prosecution for committing murder by accused---F.I.R. was delayed and had been lodged after the post-mortem was conducted---No blood stained article or any 'hard substance was recovered by Investigating Officer---Role assigned to accused was not for inflicting any injury---Only allegation against accused was that he grappled with the deceased along with co-accused---Case of accused appeared to be of further inquiry--Accused was granted bail, in circumstances.

1994 SCMR 393 and 2003 YLR 1348 ref.

Insaf Ahmed Shaikh for Applicant.

Muntazir Mehdi, APG along with I.O. Choudhry Jawaris Ali for the State.

2011 M L D 159

[Karachi]

Before Bhajandas Tajwani and Irfan Saadat Khan, JJ

MATEEN KAMAL and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 21 and 22 of 2009, decided on 23rd August, 2010.

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

---Ss. 6, 9(c) & 29---Possession of narcotics---Appreciation of evidence---Huge quantity of Charas weighing 1948 Kgs was recovered from the specifically built secret store room in the upper portion of the bungalow wherein accused were allegedly living as tenants---Said store room could not have been constructed without express permission of accused owner of the bungalow who was in full knowledge of the construction of the store built for storing Charas and. was connected with the recovered Charas---Accused owner could not show that he had been away from his bungalow for considerably long period of time during which accused tenant might have constructed the store without his knowledge---Though accused denied that they were living in the bungalow as tenant but recovery of the car of one of the accused established their presence in the said bungalow---Judgment of the Trial Court was upheld---Appeals were dismissed.

2003 SCMR 881; PLD 2008 SC 376; PLD 2005 Kar. 128 and PLD 2001 Kar. 369 ref.

2010 SCMR 927 and 2008 SCMR 1254 fol.

Muhammad Ashraf Kazi for Appellant (Criminal Appeal No.21 of 2009).

Ilamdin Khattak for Appellants (Criminal Appeal No. 22 of 2009).

Zafar Ahmed Khan, Additional Prosecutor General, Sindh for the State.

Date of hearing: 3rd August, 2010.

2011 M L D 186

[Karachi]

Before Muhammad Tasnim, J

LALU alias BADARUDDIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 683 and M.As. Nos. 2826, 2827, decided on 3rd September, 2010.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/337-H(ii)/457/511--- Qatl-e-amd, hurt by rash or negligent driving, lurking house trespass or house breaking by night---Bail, grant of---Case of further inquiry---Delay in conclusion of trial---Ocular and medical evidence---Principle of inconsistency---No specific role had been assigned to accused and there was inconsistency in ocular and medical evidence---Contradiction existed in statement under S. 164, Cr. P. C. of prosecution witness---Two co-accused had already been admitted to bail by High Court---Even otherwise four years had been passed but trial did not proceed---Effect---Case required further inquiry and it was a case of hardship---Bail was allowed in circumstances.

Abdul Hameed v. State 2003 MLD 19; Aarab alias Katoo v. State 2005 PCr.LJ 555 and Gul Beg v. State 2005 PCr.LJ 147 fol.

Qurban Ali Malano for Applicant.

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

2011 M L D 210

[Karachi]

Before Muhammad Tasnim, J

GANHWAR BHUTTO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-470 of 2010, decided on 31st August, 2010.

Criminal Procedure Code (V of 1898)---

----S.497 (2)---Penal Code (XLV of 1860), S. 302---Qatl-e-amd---Bail, grant of---Lalkara---Case of further inquiry---No role except instigation was assigned to accused who was not armed with any weapon---Effect---Presence of accused at scene could be doubted as there was previous enmity between the parties and criminal proceedings were pending adjudication before appropriate Court---Case of prosecution appeared to be doubtful; there was only allegation of Lalkara and it was to be determined as to whether accused was present at the scene or not or he had made any instigation at the time of occurrence of crime---Bail was allowed in circumstances.

Gadal v. The State 2010 PCr.LJ 280 fol.

Abdul Ghaffar v. The State 2009 PCr.LJ 187; Jhando and another v. The State 2006 YLR 3206 and Moula Bux and another v. The State 2005 YLR 190 ref.

Mamaras v. The State PLD 2009 SC 385 and Muhammad Arshad v. The State 2006 SCMR 966 distinguished.

Ghulam Shabbir Dayo for Applicant.

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

2011 M L D 239

[Karachi]

Before Shahid Anwar Bajwa, J

ABDUL GHAFFAR---Appellant

Versus

THE STATE---Respondent

Special A.T.A. Criminal Appeal No. 35 and Confirmation Case No.4 of 2008, decided on 2008 of 12th October, 2010.

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

----S.342---Statement of accused---Failure to put any piece of evidence to accused---Prosecution .relied upon recovery of torches to prove case against accused but such recovery was not put to accused while his statement under S. 342 Cr.P.C. was recorded---Held, recovery of troches could not be used as evidence against accused in circumstances.

Sheral alias Sher Muhammad v. The State 1999 SCMR 697 and Muhammad Shah v. The State 2010 SCMR 1009 rel.

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

----Ss. 302, 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-e-Amd and kidnapping for ransom---Appreciation of evidence---Benefit of doubt---Evidence, material discrepancies in---Prosecution case---Probability---Accused was convicted for kidnapping minor son of complainant for ransom and causing his murder and was sentenced to death by Trial Court---Validity---Doubt was created in the story of prosecution by as to who and when dead body of deceased was carried and as to where and by what means was the dead body carried---If five years old minor son of complainant was being held by two accused persons who were strangulating him and in the process of being strangulated the strangulators demanded a ransom, then it was highly improbable that father would straightaway refuse---First reaction of father of minor must be something so that the act of strangulation was discontinued, he might have tried to negotiate; he might plead for mercy but it was highly improbable that he would straightaway refuse---Complainant should have thought that logically no one carried a couple of lac of rupees; he bluntly refused as if he was not bothered as to what could follow, such conduct of complainant was highly improbable---Such were sufficient contradictions which had created doubt---Benefit of doubt whatsoever must go to the person being accused of having committed the crime---Prosecution failed to prove commission of any offence by accused beyond a reasonable doubt---Conviction and sentence awarded to accused by Trial Court was set aside and he was acquitted of the charge---Appeal was allowed in circumstances.

Ata Muhammad and another v. The State 1995 SCMR 599; Yar Muhammad and 3 others v. The State 1992 SCMR 96 and Abdullah Khan and 5 others v. The State 2008 MLD 535 rel.

Suwali v. The State 1982 PCr.LJ 808 and The State v. Fazal Ahmad and another, 1970 PCr.LJ 633 distinguished.

Ghulam Mustafa v. The State 2009 SCMR 916; Haroon alias Harooni v. The State 1995 SCMR 1627; Khetri Bewa v. State AIR (39) 1952 Orissa 37; Pandurang and others v. State AIR 1955 SC 216 para. 37; In re, Repana Naganna alias Nagulu, AIR 1961 Andrhra Pradesh 70; Nemai Mondal and others v. State of West Bengal, AIR 1966 Calcutta 194; Hethubha and others v. The State of Gujrat AIR 1970 SC 1266; Sajjan Singh and others v. State of M.P., (1999) 1 SC Cases 315; Matter v. State of U.P. (2002) 6 SC Cases 460 and State v. Salehoon PLD 1971 Lah. 292; Muzammil Niazi and others v. State PLD 2003 Kar. 526 and Muhammad Sharif v. The State PLD 1971 Lah. 708 ref.

Mehmood A. Qureshi for Appellant.

Saleem Akhtar, Addl: Prosecutor-General for Respondent.

Dates of hearing: 23rd, 26th August and 1st September, 2010.

2011 MLD 261

[Karachi]

Before Salman Hamid, J

MUNIER AHMED---Plaintiff

Versus

TAHIRA KHANUM---Defendant

Suit No. 526 and C.M.A. No.7266 of 2006, decided on 8th November, 2010.

Specific Relief Act (I of 1877)---

----Ss. 12, 42 & 54---Civil Procedure Code (V of 1908), S.10---Suit for specific' performance of contract, declaration and permanent injunction--Application under S.10, C.P.C.---Scope---Defendant sought stay of suit by filing application under S.10, C.P.C. on the ground that earlier suits were filed between the parties with same prayer and in value of the same property which was subject matter of the suit filed by the plaintiff---Validity---Present suit was filed in respect of Plot No.79, whereas previously instituted suits were filed in respect of Plot No.81; it could not be accomplished that matter in issue in the present suit was openly and largely at issue in previously filed suits---Reliefs prayed for in the present suit were also largely separate and dissimilar from the reliefs claimed in previous suits, present suit therefore, was distinct and independent of previous suits---In order to attract the provisions of S.10, C.P.C. the entire matter in issue in both the suits must be equal---Test for putting the suits within the pale of S.10, C.P.C. was that whether the closing decision in the previously instituted suits would operate as res judicata in the subsequent suit---Such was not the present case as the pronouncement that would be given by the court in the present suit would be independent and would not thump by the principle of res judicata---Application for stay of suit was dismissed, in circumstances.

Asim Iqbal for Plaintiff.

Muhammad Salim Thepdawala for Defendant.

2011 M L D 266

[Karachi]

Before Muhammad Ali Mazhar, J

Al-WAQAR CORPORATION---Plaintiff

Versus

RICE EXPORT CORPORATION and another---Defendants

Suit No. 67 of 1984 and C.M.As. Nos. 850, 851 of 2010, decided on 15th October, 2010.

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

---O. IX, R.9---Limitation Act (IX of 1908), S.5---Plaintiff filed application under O. IX, R. 9, C.P.C. for restoration of suit which was dismissed for non-prosecution-Plaintiff, along with the said application, filed an application for condonation of delay and asserted that the evidence had been recorded and instead of dismissing suit for non prosecution, the matter should have been decided on its own merits---Validity---Plaintiff in his restoration application had taken ground that due to ailment his counsel could not appear to argue the matter and in the condonation application plaintiff also pleaded that he came to know the factum of dismissal on 25-1-2010 and moved restoration application immediately on 27-1-2010---Evidence had already been recorded in the matter and it would be in the interest of justice that the issues involved in the suit were decided on the principle of preponderance of evidence---Rules of procedure were not to be too technically applied but were re-constructed to foster the cause of justice---Instead of non-suiting the plaintiff on technical knock out, it would be in the interest of justice that the suit be restored with a last and final chance to the plaintiff to appear and argue the case on the next date without any excuse or default so that the matter might be decided on merits---High Court allowed applications of the plaintiff subject to payment of cost of Rs.20,000 to the defendant and restored suit to its original position with caution to the plaintiff to proceed with the matter on the next date without seeking any adjournment.

Muhammad Haleem and others v. H.H. Muhammad Naim and others PLD 1969 SC 270; Mst. Shamshad Begum alias Sharam Khatoon v. District and Sessions Judge, Dadu 1998 CLC 1128; Convell Laboratories v. M.V. Alexanders Faith A Vessel or Greek Flag 1998 CLC 1383; Mst.Walayat Khatun v. Khalil Khan and another PLD 1979 SC 821 and Muhammad, Rahim and 16 others v. Mst. Begum Kaniz Fatima Hayat and 3 others 1986 CLC 178 ref.

PLD 1969 SC 270; 1998 CLC 1128; 1998 CLC 1383; PLD 1979 SC 821 and 1986 CLC 178 distinguished.

Imitaz Ahmed v. Ghulam Ali PLD 1963 SC 382; KESC v. Lawari and others PLD 2000 SC 94 and Shafique Ahmed v. The State PLD 2006 Kar. 377 rel.

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

----O. XX, R.1---Pronouncement of judgment---Contention that hearing of arguments was not essential before disposing of case---Opportunity of addressing arguments was a legal requirement and vested right of the parties and it was obligatory and essential for the court to fix a date for hearing of arguments of parties on completion of evidence.

PLD 1969 SC 270;' 1998 CLC 1128 and 1998 CLC 1383 distinguished.

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

----S. 5---Condonation of delay---Application for---Defendant had taken plea that plaintiff had moved application for restoration with the delay of one month and eight days and had failed to explain delay of each and every day---Contents of application revealed that plaintiff had pleaded the knowledge of dismissal of suit on 25-1-2010 and within two days time, he filed application for restoration along with condonation application on 27-1-2010---Such important aspect relating to the knowledge of dismissal of suit had not been controverted by the defendant in counter affidavit, but the application was objected to on the ground that ailment of counsel was no ground and it was further submitted that plaintiff was responsible to get in touch with the counsel---Evidence had already been recorded in the matter and it would be in the interest of justice that the issues involved in the suit should have been decided on the principle of preponderance of evidence---Rules of procedure were not to be technically applied but were to be reconstructed to foster the course of justice.

Mst. Walayat Khatun v. Khalil Khan and another PLD 1979 SC 821 and Muhammad Rahim and 16 others v. Mst. Begum Kaniz Fatima Hayat and 3 others 1986 CLC 178 ref.

Imitaz Ahmed v. Ghulam Ali PLD 1963 SC 382 and KESC v. Lawari and others PLD 2000 SC 94 rel.

(d) National Judicial Policy---

---Unless the Bar and the Bench both perform their sacred duties with due care, diligence and devotion, the purpose of National Judicial Policy would not be achieved.

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

----O. IX, R.9---Restoration of suit---Sufficient cause---Restoration of suit dismissed in default could be ordered to be restored if sufficient cause for non-appearance was shown.

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

----O. IX, R.9---Restoration of suit---Sufficient cause---Scope---Term `sufficient cause' should be liberally interpreted so as to advance the cause of substantial justice and while considering the sufficient cause for restoration the previous default could not be taken into consideration---Issue of fact in civil cases, was to be decided on the principle of preponderance of evidence---Words "sufficient cause for restoration of suit dismissed in default" were not susceptible of any exact definition and no hard and fast rule could be laid down---If non-appearance was not intentional same would not be viewed very strictly---Rules of procedure were not to be too technically applied but were reconstructed to foster the cause of justice.

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

----O. IX, R.9---Party should not be visited with penalty being deprived of a fair trial on merits except when there was a positive evidence of negligence on the part of the counsel or the party.

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

----O. IX, R.9---Technicalities have to be avoided unless it was essential to apply them on ground of public policy---Any system which by giving effect to the form and not the substance defeated the substantive rights, was defective to that extent.

(i) Administration of justice---

---Whether or not litigant had acted diligently and with care, would differ from case to case---Person might be said to have acted diligently, when he had informed himself of all relevant factors taken all obvious steps and precautions, characterized by a degree of effort, in a given situation, a reasonable person would do; however the epithet of reasonable opens wide the measure of application of such yardstick, on the factual plane, for the word "reasonable", was not susceptible of any precise definition---Etymologically, it signified according to reason, which expression itself was open to difference of opinion---Whether or not a person had acted diligently in ultimate analysis, would depend on the circumstances of each case and could not be determined on the foundation of any judicial syllogism.

(j) Counsel and client---

----One of the professional duties of an advocate was also to assist the court, being basically the officer of the court, and his first duty and responsibility was towards the court and then towards his client.

(k) Counsel and client---

----Advocates remaining absent from the court without any intimation or sufficient cause expose themselves to be tackled by Bar Council on account of such misconduct, which might entaile cancellation of their practicing licence.

Salahuddin Ahmed for Plaintiff.

Ashfaque Hussain Rizvi for Defendants.

2011 M L D 288

[Karachi

Before Imam Bux Baloch, J

KHADIM HUSSAIN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.S-92 of 2009, decided on 11th October, 2010.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 114, 148 & 149---Qatl-e-amd, attempt to commit qatl­-e-amd, abettor present when offence committed, rioting armed with deadly weapon, offence committed by member of unlawful assembly in prosecution of common object---Appreciation of evidence---Medical evidence contradicted ocular account---Trial Court failed to appreciate that motive against the accused was attributed in the F.I.R. to absconding accused and not to the present accused as the deceased was facing trial in the murder of deceased brother of said absconding accused---Circumstantial evidence was missing in the case---No weapon was recovered from the accused persons to connect then with the commission of offence---Single empty cartridge recovered from the place of occurrence was not sent to ballistic expert---Contradictions in the statements of witnesses as to distance from which accused fired at the deceased created doubts about their presence at the place of occurrence at the time of commission of offence---No independent incriminating evidence was available against the accused persons to connect them with commission of the crime---Exculpatory judicial confession of co-accused who confessed to have murdered the deceased to avenge the murder of his brother at the hands of the deceased supported version of the present accused that they were falsely implicated in the case by complainant and the witnesses who were relatives inter se---Unimpeachable ocular evidence and independent corroboration was required for conviction in a case of capital punishment---Prosecution had to prove its case and could not take advantage of weakness of the defence---Prosecution had failed to prove its case---Accused were acquitted from the charge.

Ghulam Mustafa v. The State. 2009 SCMR 916; Abdid Aziz Memon and another v. The State, 2009 SCMR 925; Atta Muhammad v. The State 1995 SCMR 955; State v. Muhammad Sharif 1995 SCMR 635; Abdul Hussain v. The State 2003 PCr.LJ 1847; Sahibdino and another v.

The State 2000 PCr.LJ 191; State v. Bashir and others, PLD 1997 SC 408; Abdul Ghani and 3 others v. The State 1976 PCr.LJ 1462; Muhammad Sharif and another v. The State 1997 SCMR 866; Muhammad Irshad and another v. The State 1999 SCMR 1030; Muhammad Aslam v. Deputy Commissioner, 2003 SC 512; Asghar v. The State 1999 PCr.LJ 20; Akram Khan and another v. The Crown, 1969 SCMR 625 and Khan Zaman v. Kachkol and another 1972 SCMR 574 ref.

Ashiq Hussain v. The State 1993 SCMR 417 rel.

Abdul Ghafoor v. The State. 2000 SCMR 919; Muhammad Nawaz and 3 others v. The State, 2002 SCMR 334; Sheraz Tufail v. The State, 2007 SCMR 518; Ashfaq Ahmed v. The State, 2007 SCMR 641; Muhammad Akhtar v. The State, 2007 SCMR 876; Muhammad Ahmad and another v. The State and others, 1997 SCMR 89; Haroon Rasheed v. The State and another, 2005 SCMR 1568; Mr. Dur Nazz and another v. Yousuf and another 2005 SCMR 1906; Noor Muhammad v. The State and another 2005 SCMR 1958; Qasim Ali Shah v. The State 2007 SCMR 1285; Zahoor Ahmed v. The State 2007 SCMR 1519 and Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812 distinguished.

Asif Ali Abdul Razak Soomro for Appellant.

Altaf Hussain Surahio for the State.

Awan Rahmatullah Nadeem for the Complainant.

Date of hearing: 11th October, 2010.

2011 M L D 303

[Karachi]

Before Muhammad Ali Mazhar, J

MUHAMMAD ARIF---Plaintiff

Versus

GHULAM AKBAR GABOOL and 2 others---Defendants

Suit No. 1361 of 2004 and C.M.A. No. 1220 of 2009, decided on 15th October, 2010.

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

----O. VII, R.11---Registration Act (XVI of 1908), S.17---Transfer of Property Act (IV of 1882), S.54---Rejection of plaint---Contentions of the party were that sale agreement was mandatorily registerable under S.17 of the Registration Act, 1908; that the plaint suffered a defect which could not be cured and the same had to be rejected---Validity---Agreement for the sale of immovable property was not registerable document by reason only of the fact that such document contained a recital of Payment of any earnest money or the whole or any part of the purchase money---Section 54 of the Transfer of Property Act, 1882 was very clear which provided that sale was a transfer of ownership in exchange for a price paid or promised or part paid or part promised but it was further envisaged that a contract for the sale of immovable property was a contract that a sale of such property should take place on terms settled between the parties; however, it did not, of itself, create any interest in or charge on such property, therefore, a contract for sale would not require its compulsory registration because it was a document, which by itself did not create a, title, it only created an agreement arrived at between the parties that the vendor would transfer the property to the vendee by registration of documents---Ground urged was not sufficient or sustainable to reject plaint under O. VII, R.11 C.P.C.

Abdul Aziz and others v. Lal Khan 2005 MLD 1533; Mst. Salaman v. Bashir Ahmad 2007 YLR 2440; Muhammad Iqbal and another v. Ghulam Sakeena and 6 others 2006 YLR 1219; Fateh Khan and others v. Zulfiqar Khan 2007 YLR 1352; Major Pervez Iqbal v. Barrister Muhammad Amin Bagri through Legal heirs 2005 YLR 2224; Muhammad Masood Khan Bhati v. Mst. Ghulam Fatima 1987 SCMR 1206 and Mst. Rashida Abdul Rehman v. Zahoor Hussain and 5 others 2007 CLC 1372 distinguished.

Saleem Malik v. Pakistan Cricket Board (PCB) PLD 2008 SC 650 and Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089 ref.

2002 SCMR 1089 and 2008 PLD 615 rel.

(b) Registration Act (XVI of 1908)---

----S. 17---Registration of document---Agreement to sell only created a right to obtain another document conferring title in respect of immovable property mentioned therein, and for that reason it did not require registration.

Masroor Alvi for Plaintiff.

Kazi Abdul Hameed Siddiqui for Defendants Nos. 1 and 3.

2011 M L D 313

[Karachi]

Before Amir Hani Muslim and Syed Hassan Azhar Rizvi, JJ

SIKANDAR A. KAREEM---Petitioner

Versus

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

Constitutional Petitions Nos.D-413 and D-600 of 2005, decided on 6th October, 2010.

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

---Ss. 9(a)(i) to (xii) & 5(d)---Criminal Procedure Code (V of 1898), S.265-K---Constitution of Pakistan, Art.199---Constitutional petition---Corruption and corrupt practices--Accountability Court rejected applications of petitioners/accused under S.265-K, Cr.P.C.---Accused sought quashment of proceedings pending in National Accountability Bureau Reference---Accused persons were alleged to have acquired properties fraudulently as benamidars paying nominal prices while accused company was in the process of liquidation under Official Assignee after amassing billions of rupees, return for false promises of huge profits---Accused contended that S.5(d) and subsection (xii) of clause (a) of S.9 of National Accountability Ordinance, 1999 which defined the term associates' and provided for aiding and abetment etc. in the offence of corruption and corrupt practices respectively, having been promulgated on 21-11-2002, neither made anassociate' liable to punishment nor made aid or assistance to be corruption' andcorrupt practices' punishable (front 16-11-1999 to 23-11-2002) therefore, did not cover the case of the accused---Validity---Reference was filed against accused persons on 9-4-2003 when amendments in S.5(d) and S.9(a)(xii) of National Accountability Ordinance, 1999 had already been made---Specific role was assigned to the accused falling within definition of forgery',cheating' and `deceiving public at large' in respect of properties under liquidation by the order of High Court---Allegations against accused thus attracted provisions of S. 9 of National Accountability Ordinance, 1999---Continuation of criminal proceedings was not barred during pendency of civil litigation---Case against accused depended upon documentary evidence which would be produced by the National Accountability Bureau---Sufficient material was available on record to connect the accused with alleged offence---Court could not deprive the prosecution of opportunity to produce evidence under the garb of S. 265-K, Cr.P.C.---Powers under S. 265-K, Cr.P.C. were always conditional and could be invoked only where the court considered that there was no probability of convicting the accused---High Court dismissed' the petitions.

PLD 2004 SC 298; 1999 NLR Criminal 528(sic); PLD 2009 SC 404; 2003 PCr.LJ 1598; 1975 SCMR 165; 2007 NLR 980 and PLD 2001 SC 607 ref.

Col. Shah Sadiq v. Muhammad Ashiq and other 2006 SCMR 276; Ahmed Saeed v. The State and another 1996 SCMR 186; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192; Talib Hussain v. Anar Gul Khan and 4 others 1993 SCMR 2177 and The Deputy Inspector General of Police, Lahore and others v. Anis­ur-Rehman Khan PLD 1985 SC 134 fol.

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

----S. 265-K---Scope and application of S.265-K, Cr.P.C.---Court could not deprive prosecution of opportunity to produce evidence under the garb of S.265-K, Cr.P.C.---Powers under S.265-K, Cr.P.C. could only be invoked in cases wherein no probability of convicting the accused existed.

Muhammad Ashraf Kazi for Petitioner (in C.P. No.D-413 of 2005).

Muhammad Aslam Butt, D.P.G NAB for Respondent (in C.P. No.D-413 of 2005).

Muhammad Ashraf Kazi for Petitioner (in C.P. No.D-600 of 2005).

Muhammad Aslam Butt DPG, NAB for Respondent (in C.P. No.D-600 of 2005).

Date of hearing: 30th September, 2010.

2011 MLD 335

[Karachi]

Before Salman Hamid, J

MUHAMMAD ESSA RIND---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-401 of 2010, decided on 24th August, 2010.

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

----Ss. 497 & 498---Bail---Principles---Court, at bail stage, had to assess case or evidence tentatively and was not required to go deep into the matter which was the domain of the Trial Court.

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

----S. 497---Penal Code (XLV of 1860), S.302(6)---Qatl-e-amd---Bail, grant of---Tentatively, it had come on record that two eye-witnesses had exonerated accused from the commission of offence, he was charged with---On the basis of the evidence, which had already come on record, a case of bail had been made out; and accused could not be allowed to be languished in prison, merely on the apprehension of State Counsel that evidence that had been given by the two eye-witnesses was the result of their winning over by accused; and that the rifle was also recovered from his custody---Since the eye-witness had deposed in favour of accused the recovery of the rifle from his custody had become insignificant---Case of prosecution was not that Ballistic Report was against the accused---Accused was enlarged on bail, in circumstances.

Muhammad Nawaz alias Najja v. The State 1991 SCMR 111; Ashfaq Ahmed Butt v. Muhammad Azam 2007 SCMR 1254 and Gul Bahar v. The State 2009 MLD 865 rel.

Ghulam Sajjad Gopang for Applicant.

Shahid Ahmed Shaikh, A.P.G. Sindh.

2011 M L D 340

[Karachi]

Before Salman Hamid, J

RAMOON alias RAMZAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-564 of 2010, decided on 8th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.376, 365-B, 341, 342 & 34---Rape, kidnapping, wrongful restraint and confinement---Bail, refusal of---Evidence on record had clearly shown that victim girl was kidnapped and was subjected to rape---Statement of victim girl was consistent with the contents of the F.I.R. and she had very clearly and categorically mentioned the names of accused persons despite lapse of considerable period of time---Non-involvement of accused persons at bail stage could not be judged as tentatively---Evidence of the victim suggested active association of accused persons with the crime they were charged with---Delay in lodging F.I.R. was not of much consequence and if measured from the least attending circumstances, could be disregarded at least at interlocutory stage of bail---Medical report supported the ocular account which prima facie had implicated accused with the commission of offence of which they were charged with---No case for grant of bail having been made out, bail application was dismissed, in circumstances.

2007 MLD 1313; 2009 MLD 171; 2010 YLR 1035; 2010 PCr.LJ 954 and 2008 SCMR 980 ref.

Wali Muhammad Khoso for Applicants.

Shahid Ahmed Shaikh, A.P.G. Sindh.

2011 M L D 356

[Karachi]

Before Muhammad Tasnim, J

GHULAM MUSTAFA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-675 of 2010, decided on 9th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 364, 436, 147, 148 & 149---Qatl-a-amd, kidnapping or abducting in order to murder or mischief---Bail, grant of---Further inquiry---No role had been assigned to accused---No recovery had been effected from accused---Unexplained delay of S days had occurred in lodging of the F.I.R.---Previous enmity existed between the parties, which was apparent from the reading of the F.I.R.---Case of accused being of further inquiry in terms of subsection (2) of S.497, Cr.P.C., he was admitted to bail, in circumstances.

Ali Ahmed Khan for Applicant.

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

2011 M L D 371

[Karachi]

Before Zahid Hamid, J

ALLIED BANK LTD.---Petitioner

Versus

M. SHAFI through legal heirs and 4 others---Respondents

Constitution Petition No. S-34 of 2009, decided on 25th October, 2010.

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

----Ss. 3 & 15---Evacuee Trust Property (Management and Disposal) Act (XIII of 1975), Ss.6, 14 & 25---Ejectment proceedings---Application for dismissal of ejectment proceedings---Counsel for the applicant/tenant stated that premises in question belonged to the Evacuee Trust Property Board and vested in the Federal Government, Rent Controller had no jurisdiction to proceed with the matter on merits; and that being a condition precedent to the exercise of the jurisdiction, the same ought to have been decided, in any case in the first place---Counsel for appellant had referred to S.3 of Sindh Rented Premises Ordinance, 1979, according to which the Ordinance, did not apply to the premises, which was owned by the Federal Government and had ousted the jurisdiction of the Rent Controller---Impugned order was set aside and matter was remanded to the Rent Controller to decide the objection after notice and hearing the parties by a speaking order.

Siddiq Mirza for Petitioner.

Shahid Rana for Respondent No.3.

2011 M L D 376

[Karachi]

Before Muhammad Tasnim, J

HAKIM ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-773 and M.As. Nos. 3145 and 3147 of 2010, decided on 7th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.364/149---Kidnapping or abducting in order to murder---Bail, grant of---Co-accused had been admitted to bail by the Trial Court, but accused had been refused bail on the ground that he was absconder---Mere absconsion could not be made basis for rejection of bail---Bail could be granted, if an accused had good case for bail on merits; and mere absconsion would not come in way while granting bail---State counsel had conceded for grant of bail to accused, which was accordingly granted to him.

Manzoor Hussain Larik for Applicant.

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

2011 MLD 389

[Karachi]

Before Faisal Arab and Muhammad Tasnim, JJ

MUHAMMAD SHARIF and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Bail Application No. D-411 of 2010, decided on 8th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 353, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, terrorism and possessing arms---Bail, refusal of---Deeper appreciation of evidence could not be gone into' at bail stage, but it was to be seen as to whether accused persons were prima facie connected with the commission of offence or not---Accused persons were arrested from the scene of offence---Crime weapons were also recovered from accused---Empties from the weapons were also recovered from the scene of offence and upon examination by Ballistic Expert, were fired from recovered weapons from the accused---All the prosecution witnesses in their statements under S.161, Cr.P.C. and examination of statement under 5.164, Cr.P.C. of injured persons, had clearly implicated the three accused in the commission of offence---Prima facie accused being connected with the offence, were not entitled to any indulgence by High Court---Bail was refused in circumstances.

1995 SCMR 1765 and 2009 YLR 1382 ref.

Syed Jaffar Ali Shah for Applicant.

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

2011 MLD 395

[Karachi]

Before Amir Hani Muslim and Irfan Saadat Khan, JJ

MUMTAZ and another---Petitioners

Versus

Mst. JANAT and 5 other---Respondents

C.P. No. D-1094 and M.A. No. 4573 of 2010, decided on 24th November, 2010.

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

----S. 122---Constitution of Pakistan, Art.199---Constitutional petition---Gift---Proof of execution of gift---Petitioners claimed that respondent ladies had gifted their property in favour of father of the petitioners---Respondent ladies disputed factum of alleged gift in favour of father of the petitioners stating that they had never executed any instrument in favour of the father of the petitioners relinquishing their right in land in dispute---Petitioners' father according to them was managing the land in question being trustee and co-owner, as he was the only male member of the family---Possession of father of the petitioners over property in question was never exclusive being one of the co-owner and trustee---Revenue record did not show any material to substantiate that respondent ladies had gifted their share in the inherited property---Factum of the gift having been disputed, petitioners who asserted the gift made in their favour, would have to approach the civil court of competent jurisdiction to establish their claim as far as the alleged gift in favour of their father made by the respondent, was concerned---Limitation would not apply in case of inherited transactions---Co-owner could retain the property as trustee for the other co-owners; and non-claiming of the share, would not extinguish the rights of the other co-owners on the ground of longer duration---Claim of the petitioners that respondent ladies did not object over the gift for the last 36 years and the continuous possession of their father without any interruption, in circumstances, was insignificant---Petitioners having failed to prove factum of execution of gift by the respondent ladies in favour of their father, all orders impugned in those proceedings were set aside with direction to Mukhtiarkar Revenue to rectify the defect by curing it.

Haresh Chandar for Petitioners.

Salahuddin Panhwar for Respondents Nos. 1 and 2.

Allah Bachayo Soomro, Addl. A.-G. Muhammad Bachal Rahupoto EDO Rev. Mirpurkhas, Agha Sohail DDO Revenue Mirpurkhas, Abid Raza Mukhtiarkar Hussain Bux Mari District Mirpurkhas.

2011 M L D 406

[Karachi]

Before Zahid Hamid, J

ZIA ZAKARIA and 6 others---Applicants

Versus

1ST ADDITIONAL SESSIONS JUDGE, THATTA and 3 others---Respondents

Criminal Miscellaneous Applications Nos. 31 and 8031 of 2010, decided on 20th October, 2010.

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

----Ss.324/365/344/506/2, 147, 148, 149 & 337-H(ii)---Criminal Procedure Code (V of 1898), S. 561-A---Attempt to commit qatl-e-amd, wrongful confinement, hurt by rash or negligent act---Quashing of complaint and proceedings---Application for---Story narrated in the direct complaint, was totally unbelievable; firstly no F.I.R. was lodged by the complainant at all; and though recourse to proceedings under Ss.22-A & 22-B, Cr. P. C. was taken by the complainant, but same were not pursued to their logical end, resulting in seeking direction from Sessions Judge concerned or the High Court for registration of F.I.R.---Direct complaint was filed after more than one month of the alleged incident---Accused persons (three) had allegedly come with other accused persons who were armed, but no resistance was stated to have been offered by the complainant when his father was being forcibly abducted at gunpoint as alleged amid firing---Not a single bullet hit any one nor any damage was caused to any property---One accused was stated to be in Saudi Arabia on the alleged date of incident according to the dates of entry and exit made by Immigration Authority at the Air Port on his Passport---Alleged abductee was taken away from the far flung area of interior Sindh in Hi-Roof to Karachi after 14 days where he was alleged confined---During said long journey, the abductee did not make any noise or raised cries---Complainant was also silent, if abductee during his journey was forced to remain mum---No critical examination of the complaint and that of the ocular account of the witnesses was made-Doubts existed from the very beginning of the prosecution culminating in institution of the direct complaint, and the story to implicate accused persons could hardly be believed---Such malicious prosecution ought to have been terminated at the time when the cognizance was taken---If proceedings as serious as criminal proceedings which could jeopardize the parties' constitutional right of liberty, were allowed to sustain on the basis of such allegations, then it could make the criminal justice system a mockery---All the ingredients of commission of crime prima facie appeared to be lacking, proceedings in direct complaint, were quashed and accused were acquitted, in circumstances.

?

Khurshid Ahmed v. The State 3 others PLD 1994 Kar. 363; Meraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; The State v. Asif Ali Zardari 1994 SCMR 798; Mian Faiz Muhammad v. S.H.O. Police Station and 5 others 2005 YLR 1259; Muhammad Yaqub v. S.H.O. and others 1997 MLD 2097; Agha Nadeem and others v. Province of Punjab and others 2005 MLD 1366; Imtiaz Hussain v. The State and 2 others 1999 MLD 2987; Allah Rakhio and others v. The State 2001 PCr.LJ 551; Haji Abdul Aziz v. Muhammad Yunus 1991 PCr.LJ 1502 and Dr. Ghulam Mustafa Solangi and 5 others v. The State 2005 PCr.LJ 1638 ref.

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

----Ss. 249-A, 265-K & 561-A---Acquittal---Quashing of proceedings---Sections 249-A & 265-K, Cr.P.C. empowered the courts to acquit accused at any stage of the case---Section 561-A, Cr.P.C. was to be invoked after or without recourse to provisions of Ss.249-A & 265-K, Cr.P.C. as the case could permit---Authority to acquit accused at any stage of the case for permitting the abuse of the process of court; and to secure the ends of justice, fell within the ambit of inherent powers vested in High Court to quash the criminal proceedings for the promotion of justice.?

Muhammad Jamshed Malik for Applicant.

Wasif Ali for Respondents Nos. 2 and 3.

Ms. Riffat Ahsan, D.P.G. for the State.

2011 M L D 421

[Karachi]

Before Tufail H. Ebrahim; J

GHULAM MUSTAFA ABBASI---Applicant

Versus

THE STATE through ACE and another---Respondents

Criminal Miscellaneous Application No.133 of 2010, decided on 26th August, 2010.

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

----S.561-A---Inherent jurisdiction of High Court---Nature and scope elaborated.

Maqbool Rehman's case 2002 SCMR 1076 ref.

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

----S.561-A---Penal Code (XLV of 1860), Ss. 420/468/471/109---Prevention of Corruption Act (II of 1947), S.5(2)---Registration Act (XVI of 1908), Ss. 33 & 35---Cheating with dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, criminal misconduct---Quashing of F.I.R. ---Accused being a Sub-Registrar had registered Sub-Power of Attorney in favour of Bank executed by a person having registered Power of Attorney---Said transaction was alleged to have been made on the basis of false and forged documents---No departmental enquiry was pending against the accused during 30 years of his service for his financial misconduct---Reports of the Provincial Anti-Corruption Committees held under the Chairmanship of the District Co-ordination Officer and the Chief Secretary concerned had exonerated the accused in the matter recommending his name to be dropped therefrom---Sections 33 and 35 of the Registration Act, 1908, did not cast any duty upon a Sub-Registrar to verify the authentication of the first document, rather he had to satisfy himself as to the identity of the person who had executed the document---Person who had executed the Sub-Power of Attorney in favour of the Bank had been identified by an Advocate and the execution had been witnessed by two persons---Nothing was available on record to show that accused had acted dishonestly and contrary to law in discharging his duty---Prosecution had been launched against the accused without considering the appropriate law---No probability of conviction of accused in the case---Proceedings in appropriate cases could be quashed even after the framing of the charge, for dispensation of justice and prevention of mischief---For stopping misuse of the process of law inherent powers of High Court under S.561-A, Cr. P. C. could be invoked---Proceedings if allowed to be continued against the accused would tantamount to abuse of process of law and even to miscarriage of justice---Impugned F.I.R. and all the subsequent proceedings thereon against the accused were quashed in circumstances.

Abdul Baqi Mehar v. Inspector General of Registration and Commissioner, Karachi and others 1989 SCMR 570; Zumnoon Khan Advocate v. Mr. Nisar Ahmed Siddiqui and others C.P. No.714 of 1999 and Maqbool Rehman's case 2002 SCMR 1076 ref.

(c) Registration Act (XVI of 1908)---

----Ss. 33 & 35---Verification or authentication of document---Sec­tions 33 and 35 of the Registration Act, 1908, did not cast any duty upon a Sub-Registrar to verify the authentication of the first document, rather he had to satisfy himself as to the identity of the person who had executed the document.

Zubair Zia Siddiqui for Applicant.

Abdur Rehman Kolachi, A.P.-G. for Respondents.

2011 M L D 440

[Karachi]

Before Aqeel Ahmed Abbasi, J

MANJAWAR SHAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1130 and M.A. No. 5475 of 2010, decided on 13th December, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl-e-amd---Bail, grant of---Both the parties had got registered cross F.I.Rs. against each other of the same incident having taken place pursuant to a dispute between their children---All the accused nominated in both the F.I.Rs. were on bail except the present accused---Injury received by the prosecution witness had attracted the provision of S.337-A(ii), P.P.C., which was punishable with five years R.I.---Parties were willing to compromise in the matter, which could not be materialized due to the accused being behind the bars---Accused was also a man of advanced age---Accused was admitted to bail in circumstances.

Aurangzeb v. The State 1999 PCr.LJ 230; Umar Hayat v. State 2008 SCMR 1621; Jan Muhammad v. The State 1998 SCMR 500; Muhammad Rafique v. The State 1997 SCMR. 412; Khalid Taqi v. The State 1999 PCr.LJ 271; Ehsan Sarwar v. Muhammad Nasim and 5 others 2005 PCr.LJ 546; Amjad Jawed v. The State PLD 2007 Kai. 336 and Malang Said v. The State 2004 PCr.LJ 1087 ref.

Ejaz Khattak for Applicant.

Pir Rehman Mehsood and Syed Abdul Naseer for the Complainant.

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

2011 MLD450

[Karachi]

Before Gulzar Ahmed and Imam Bux Baloch, JJ

SHAKIR BROHI---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. 17 of 2009, decided on 12th January, 2011.

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

----S. 9(b)(c)---Possessing and trafficking narcotics---Appreciation of evidence---Sentence, reduction in-Counsel for accused without touching the merits of the case, had stated that as one K.G. charas was sent for chemical examination, same could be treated as recovery and his sentence from life imprisonment be reduced into sentence provided for one K.G. charas which was sent for chemical examination---No sample was taken from any other packet, except from one packet---Counsel for accused had contended that case of accused would fall under S.9(b) of Control of Narcotic Substances Act, 1997 appeared to be plausible---Sentence of accused was converted from S.9(c) to S.9(b) of Control of Narcotic Substances Act, 1997 and sentence of life imprisonment awarded to accused was reduced to seven years and amount of fine of Rs.200,000 was also reduced to Rs.100,000---Benefit of 5.382-B, Cr.P.C. was also given to accused.

Abdul Karim v. The State 2010 MLD 71; Muhammad Suleman Jatoi v. The State 2010 YLR 441; Muhammad Riaz and 2 others v. The State 2006 SCMR 1378; Waris Khan and 2 others v. The State 2008 SCMR 991; Jamil Khan and 2 others v. The State PLD 2008 Kar. 37; Muhammad Hashim v. The State PLD 2004 SC 856; Jan Alam v. The State 2009 YLR 1724; Gulshan Ara v. The State 2010 SCMR 1162; Amanat Ali and 2 others v. The State 2008 SCMR 991; Ali Muhammad and another v. The State 2003 SCMR 54; Nadir Khan and others v. The State 1988 SCMR 1899; Muhammad Mustafa and another v. The State 2008 SCMR 742; Muhammad Khan v. The State 2008 SCMR 1616; Tariq Mehmood v. The State PLD 2009 SC 39 and Saifurrehman v. The State PLD 2009 SC 383 ref.

Habib Ahmed for Appellant.

Zahoor Shah. A.P.-G. for the State.

Date of hearing: 11th November, 2010.

2011 M L D 454

[Karachi]

Before Ms. Rukhsana Ahmed, J

K.M.C. OFFICERS' CO-OPERATIVE HOUSING SOCIETY LTD. through Honorary Secretary and 18 and others---Plaintiffs

Versus

SHEHRI through Secretary General others---Defendants

Suit No. 768 of 2008 and C.M.A No. 7548 of 2010, decided on 25th October, 2010.

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

---Ss. 42 & 54---Civil Procedure Code (V of 1908), S.151 & O.XIV, R.5---Suit for declaration and injunction---Defendants filed application under O.XIV, R.5, C.P.C. on the ground that framing of additional issues to the list of issues already framed by High Court was necessary---Plaintiffs contested application on the ground that the issue proposed by one of the defendants was covered under the other issues framed by High Court---Validity---Two suits were consolidated by High Court whereafter the court framed consolidated issues---Record revealed that out of issues framed one of the issues was "whereafter the plaint in suit is liable to be rejected under O. VII, R.11, C. P. C. ", however, in the said application issue to be added was "whether the plaint in another suit is liable to be rejected under O. VII, R.11, C.P.C. "---High Court accepted the application in circumstances and allowed said issue to be added/framed along with other issues framed by it.

PLD 1996 Kar. 365; PLD 1996 Kar. 365 and PLD 1992 SC 537 ref.

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

----O. XIV, R.5---Amendment and striking off issues and framing of additional issue---Scope---Interpretation of O.XIV, R.5, C.P.C.---Held, it was discretion of the court who might at any time before passing a decree amend the issues or frame additional issues on such terms as thought and deemed fit, and all such amendments/additional issues might be made necessary for determining the matters in controversy between the parties---Second part of O.XIV, R.5, C.P.C. further granted the court the authority at any time before passing a decree to strike out any issue that might appear to it to be wrongly framed or introduced---Court had the authority, the discretion and the mandatory powers at any stage to act accordingly.

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

----O. XIV, R.5---Application for amending, striking off or framing additional issue---Personal affidavit of applicant---Necessity---Contention that application filed under O.XIV, R.5, C.P.C. was to be dismissed as it was not supported by personal affidavit of the party---Validity---Affidavit of the counsel in support of the said application was sufficient---High Court set aside the objection of the counsel on the point that such application be dismissed for it was not supported by personal affidavit of the party.

PLD 1996 Kar. 365 and PLD 1992 SC 537 ref.

Emadul Hasan, Advocate.

Naeemur Rehman, Advocate.

S. Irtiza Zaidi, Advcoate.

Manzoor Ahmed, Advcoate.

Ms. Fozia Khan, Advocate.

Khizar Askar Zaidai, A.A.-G.

Deputy Superintendent Zia Arif.

2011 M L D 462

[Karachi]

Before Aqeel Ahmed Abbasi, J

IMRAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.657 of 2010, decided on 9th December, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.489-F---Dishonest issuance of cheques---Bail, grant of---Two cheques issued by the accused to the complainant had been dishonoured by the Bank on presentation---According to the expert opinion of the Forensic Examiners, signatures of accused on the two cheques in question were not similar with his routine specimen signatures---Prosecution case at this stage, therefore, seemed to be doubtful and guilt of accused needed further inquiry---Accused was admitted to bail in circumstances subject to furnishing surety in the sum of the disputed amount in the case with P.R. Bond in the like amount to the satisfaction of Trial Court.

Safdar Hussain v. The State 2005 YLR 1607; Rana Ehsan v. State 2004 YLR 2675; Anjum Sheraz v. The State 1999 MLD 844; Shahid Aziz v. The State 2007 YLR 1810; Muhammad Aslam v. The State 2007 YLR 1879; Ghulam Qadir v. The State 2007 YLR 1495; Major Anwar-ul-Haq v. The State PLD 2005 Lah. 607; Amanullah v. The State 2007 YLR 1120; Sanaullah v. The State 2007 YLR 1280; Muhammad Shafiq Khan v. The State 2009 YLR 257; Muhammad Akram v. The State 2009 PCr.LJ 497; Amir Iqbal Chaudhary v. The State 2009 PCr.LJ 155; Mst. Razia Begum v. The State 2009 YLR 87; Shameel Ahmed v. The State 2009 SCMR 174; Imtiaz Hussain v. The State 2007 YLR 1542; Muhammad Ramzan v. The State 2007 YLR 1543; Ehsan Ullah v. The State 2008 YLR 1563; Unreported order of Bail Application No.728 of 2010; Muhammad Khan v. The State 2005 PCr.LJ 1797 and Javed Ahmed and 5 others v. The State 2005 PCr.LJ 1803 ref.

Syed Ahsan Raza for Applicant.

Muhammad Akber Khan for the Complainant.

Muhammad Iqbal Awan, A.P.-G.

2011 M L D 478

[Karachi]

Before Muhammad Ali Mazhar, J

Messrs HUMAIR ASSOCIATES (PVT.) LTD. through Attorney---Plaintiff

Versus

SUB-REGISTRAR T-DIVISION-III, SHAH FAISAL TOWN and 2 others---Defendants

Suit No. 1502 and C.M.A. No. 1039 of 2008, decided on 24th December, 2010.

Registration Act (XVI of 1908)---

----Ss. 21, 71, 72, 76 & 77---Registration of lease deed---Words "sufficient to identify the same "---Description of property---Plaintiff sought direction to authorities to immediately register indenture of leases of plaintiffs---Validity---Words "sufficient to identify the same" meant sufficient for carrying out the provisions of Registration Act, 1908, as the abject was only to secure easy identification of property---Registration officer was bound to accept, in a normal case description of property given by party---Question whether property had been sufficiently described or not' was to be only in terms of S.21 of Registration Act, 1908, which did not provide for any inquiry by Registrar to ascertain what property dealt with was---Lease document attached with plaint showed proper description of property in accordance with S.21 of Registration Act, 1908, and Registration authorities failed to consider the lease document properly and passed orders in slipshod manner which orders were not sustainable---High Court directed the authorities to register lease indenture in favour of plaintiff---Suit was decreed accordingly.

P.A.J. Seetha Rama Raju v. Lala Gopi Krishna Gokul Doss AIR 1963 Madras 1 and Raja Gopala Ayyar v. Avadai Velar AIR 1961 Madras 251 ref.

Nazar Akbar for Plaintiff.

Qazi Majid, A.A.-G.

2011 M L D 490

[Karachi]

Before Zahid Hamid, J

ABDUL MAJEED and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-1115 of 2009, decided on 15th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 337-A(1), 337-F(i), (iii), 147, 148 & 149-- Qatl-e-amd, attempt to commit qatl-e­-amd, Shajjah-i-khafifah, Ghayr-jaifah (damihah), Ghayr-jaifah (mutahimah), rioting, rioting armed with deadly weapon, offence committed by member of unlawful assembly in prosecution of common object---Bail, grant of---Delay in trial---Delay in trial was not attributable to the accused---Accused had been languishing in jail for more than three and half years while trial had made little progress---Scandalous delay in trial was tantamount to undermine the criminal justice system---Where trial was not likely to be excluded in near future, bail could not be withheld as measure of punishment---Accused were admitted to bail.

Nawaz Khan v. The State 2010 PCr.LJ 753; Muhammad Ayaz alias Cheens and others v. The State PLD 2004 Kar. 652; Muhammad Asif v. The State 2001 PCr.LJ 895); Aijaz Ali v. The State PLD 81 Kar. 484; Wikio v. Abdullah and another 1980 PCr.LJ 602; Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845; Haji Jalal Khan v. The State 2001 SCMR 1009; Behram v. The State 2003 PCr.LJ 73; Syed Abdul Bagi Shah v. The State 1997 SCMR 32; Wazir Ali v. The State PLD 2004 Kar. 201; Abdul Hameed and 2 others v. The State 2003 MLD 19; Wazir Ali v. The State PLD 2005 Kar. 201; Muhammad Urs v. The State PLD 2003 Kar. 62; State v. Zubair and 4 others PLD 1986 SC 173; Muhammad Nawaz alias Deeno and another v. the State 2003 MLD 71; Naseer Muhammad Wassan and another v. The State 1992 SCMR 501; Malik Saddique and others v. The State 1980 SCMR 203; Muhammad Asif v. The State 2004 PCr.LJ 713 and Dr. Abdul Jalil v. The State 2005 YLR 3213 ref.

The State v. Rafiq Ahmed Channa 2010 SCMR 580 fol.

Maqbool Ahmed Awan for Applicants.

Miss Rizwana Jabeen Siddiqui for the Complainant.

Zulfiqar Ali Jatoi, D.P.-G.

2011 MLD 502

[Karachi]

Before Syed Hasan Azhar Rizvi, J

Ch. FAZAL MUHAMMAD---Plaintiff

Versus

PAKISTAN through Secretary, Ministry of Defence, and 5 others---Defendants

Suit No.896 of 1996, decided on 14th October, 2010.

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

----S.2(a)---Arbitration agreement would mean only written agreement to submit dispute to arbitrator---Principles.

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

----S.30---Second award, setting aside of---Damages, claim of---Payment of compensation to plaintiff by defendant on .sympathetic ground after setting aside of first award made in favour of plaintiff by previous arbitrator---Second award in favour of plaintiff by second arbitrator' on basis of assessment made in such first award---Validity---Second arbitrator had referred to adjudication of matter by previous arbitrator and his recommendations knowing well that such first award and its findings were set aside by Court---Second arbitrator without any reason had merely multiplied figure of compensation awarded by previous arbitrator---Second arbitrator had committed wilful misconduct while passing second award---Plaintiff's claim had become infructuous after having received compensation from defendant on sympathetic ground---Second award for being void 'was set aside in circumstances.

Mst. Shamim Akhtar v. Najma Baqqi and others PLD 1977 SC 644; Neelakantan and Brothers v. Supd Eng. National Highway 1988 4 SCC 462; Sh. Saleem Ali v. Akhtar Ali PLD 2004 Lah. 404; Prasun Roy v. The Calcutta M.D. Authority AIR 1988 SC 205; N. Chellappan v. Sec. Kerala State Electricity Board and another (1975) 1 SCC 289; Rupiter General Insce. Co. Ltd. v. Corp. of Calcutta AIR 1956 Calcutta 470; Chowdhri Murtaza Hossein and Mussumat Bibi Bechunnissa Indian Appeals Vol. III, Page 209; 1991 SCMR 1313 and 1989 CLC 1666 ref.

Kamal Azfar for Plaintiff.

Yousaf Iqbal for Defendants Nos. 5 and 6.

Ms. Cookie Rawat, Standing Counsel for Defendants Nos. 1, 2 and4.

Mustafa Lakhani for Defendant No.3.

Date of hearing: 19th May, 2010.

2011 MLD 524

[Karachi]

Before Imam Bux Baloch and Nisar Muhammad Shaikh, JJ

CHAKAR JAFFARI and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. D-85 of 2009, decided on 13th May, 2010.

Penal Code (XLV of 1860)---

----S.302(b)--- Qatl-e-amd--- Appreciation of evidence---Witness produced by the prosecution was related and interested---Ocular evidence was full of doubt and no evidence through unimpeachable source was available to corroborate interested evidence---No recovery was effected from the accused persons---When there were Hans' to cultivate the lands of the complainant, then there was no need for the complainant to go to look after irrigation watercourse, especially when it was off-season at the time of incident---Assertion of the complainant and his witness that they went to look after the irrigation watercourse, did not appeal to a prudent mind---Such factors had created doubt about the ocular evidence---Witness of circumstantial evidence was also interested and related as prosecution witnesses were caste fellows andHaris' of the complainant---Weapons were recovered from the possession of accused, with the delay of ten months and no cogent and plausible explanation had been offered for such inordinate delay in sending the property for chemical examination---Said fact also created doubt about the alleged recoveries, interested witnesses had tried to implicate more and more persons in the commission of crime---No evidence was available to the effect that accused had shared any common intention to kill deceased and facilitated the co-accused---Common intention of accused persons for committing murder was a question of fact, which could be ascertained on the basis of facts and conduct of accused, the ferocity of attack, the weapon used, the number of blows with the element of pre-concert of mind---In the present case no active role was attributed to accused persons in the commission of crime---When the ocular evidence was not inspiring-confidence and trustworthy, only absconsion would not burden accused persons for commission of offence---Prosecution had failed to establish the accusation to accused by producing worthy and confidence evidence against accused---Impugned judgment of the Trial Court was set aside and accused were acquitted of the charge and were released.

Muhammad Shafi and 7 others v. The State 1974 SCMR 263; Noor Ahmed and others v. The State PLD 2005 Kar. 177; Faryad Ali v. The State 2008 SCMR 1086; Hassanuddin v. Muhammad Mushtaq and 2 others 1978 SCMR 49; Abdul Khalique v. The State 2006 SCMR 1896; Zahid Emran and others v. The State PLD 2006 SC 109; Nallamestty Yanadaich v. The State 1994 SCMR 588; State v. Moula Bakhsh alias Moulak 2005 PCr.LJ 794; Fazal Din and others v. Rahmat and others 1978 SCMR 18 and Muhammad Nawaz and others v. The State and others PLD 2005 SC 40 ref.

Asif Ali Abdul Razak Soomro for Appellants.

Faiq Ali Pathan for the Complainant.

Musab Baleegh Dhamraho for the State.

Date of hearing: 14th April, 2010.

2011 MLD 540

[Karachi]

Before Abdul Hadi Khoso, J

ABDUL SALAM---Petitioner

Versus

S.H.O. POLICE STATION RATODERO and 2 others---Respondents

Constitutional Petition No S-2060 of 2010, decided on 15th November, 2010.

Penal Code (XLV of 1860)---

----S. 489-F---Criminal Procedure Code (V of 1898), S.154---Constitution of Pakistan, Art.199---Constitutional petition---Dishonestly issuing cheque---Petitioner sought direction to S.H.O. for registration of criminal case---Validity---Long delay in presenting the cheque to bank made the transaction a civil liability---Imposition of criminal liability and direction for registration of criminal case would be unjustified in circumstances---Petition was dismissed.

Faiz Muhammad Larik for Petitioner.

Musab Baleegh Dhamrah, State Counsel.

Muhammad Hanif Maitlo and SIP Saifullah Bughio, S.H.O. Police Station Ratodero.

2011 M L D 555

[Karachi]

Before Salman Hamid, J

HYDER BAKHSH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applicants No. S-416 of 2010, decided on 5th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 337-A(i), 337-A(ii), 147, 148, 504 & 34---Qatl-e-amd, Shajjah-i-Khafifa, Shajjah-i-Mudihah, rioting, rioting armed with deadly weapons, intent to provoke breach of peace, acts done in furtherance of common intention---Bail, grant of---Further inquiry---Complainant tried to improve his case by exculpating the co-accused and implicating only the accused in his statement before the police---Complainant's retraction brought into question the veracity of the prosecution case---Role attributed to the accused was general in nature---Injuries suffered by the deceased resulted from blows of all the accused---Question as to who had caused fatal injury to the deceased was yet to be determined---Accused himself suffered firearm injury on the cheek---Counter case against the complainant party was also registered, so it still remained undecided as to who was the aggressor or victim---Circumstances showed that the case required further inquiry---Accused was granted concession of bail.

1972 SCMR 682; 1976 SCMR 391 and 1996 SCMR 1845 fol.

2005 PCr.LJ 1330 and 1997 PCr.LJ 1387 distinguished.

Ghulam Ali Samtio for Applicant.

Imitaz Ahmed Shahani for the State.

2011 MLD 571

[Karachi]

Before Aqeel Ahmed Abbasi, J

KASHIF AKRAM---Petitioner

Versus

Mst. NAILA and 3 others---Respondents

Constitutional Petition No. 455 of 2008, decided on 20th December, 2010.

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

----S. 5 & Sched.---Muslim Family Laws Ordinance (VIII of 1961), S.9---Constitution of Pakistan, Art.199---Constitutional petition---Trial Court decreed the suit---Appellate Court dismissed appeal of defendant---Defendant contended that the courts below did not take into account his salary certificate while determining amount of maintenance---Further contended that plaintiff, having left the house of defendant by her own choice, was not entitled to maintenance and that 20% yearly increase in maintenance was exorbitant---Validity---Plaintiff/wife could not establish through positive evidence the alleged income and financial resources of defendant/husband---Where wife chose to leave the house of husband voluntarily and without any lawful excuse, claim of maintenance was rendered ineffectual---Family Court was obliged to determine the financial status of husband to decide the amount of maintenance---Family Court failed to determine the relevant fact as to whether the wife had left the house of husband by her own choice or due to cruel treatment of husband and his failure to maintain her---Under S.9 of the Muslim Family Laws Ordinance, 1961, wife willing to perform conjugal rights but deserted by the husband without lawful excuse, could claim maintenance---In the absence of any allegations of cruelty or immoral behaviour of husband, right of claiming maintenance was undermined---Wife could not claim maintenance for the period during which she lived with her parents deserting her husband without any lawful excuse---Annual increase of 20% in maintenance was arbitrary and the same was reduced to 5% per annum while maintenance of wife was upheld only for the period of Iddat.

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

----S. 9---Right of wife to claim maintenance---Under S.9 of the Muslim Family Laws Ordinance, 1961, wife willing to perform conjugal rights but deserted by the husband without lawful excuse, could claim maintenance.

Muhammad Ali v. Mst. Ghulam Fatima AIR 1935 Lahore 902; Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others PLD 2009 SC 760; Mst. Sherinzadgi v. Gul Muhammad PLD 1961 (W.P) Pesh. 66; Mst. Resham Bibi v. Muhammad Shafi PLD 1967 (AJ&K) 32; Zafar Hussain v. Begum Farzana Nazli, and others PLD 2004 Lah. 349; Muhammad Aslam v. Muhammad Usman, and others 2004 CLC 473; Muhammad Abdul Rashid v. Mst. Shazia Parveen and orders 1987 SCMR 670; Sajjad Ahmad v. Mst. Naeema Shafiq and 3 others 2003 CLC 1420; Fazal Khitab v. Naheed Akhtar and another PLD 1979 SC 864 and Khalil Ahmed v. Allah Rakhi 1994 MLD 119 ref.

Muhammad Abdul Rashid v. Mst. Shazia Parveen and others 1987 SCMR 670 and Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others PLD 2009 SC 760 fol.

Muhammad Aslam v. Muhammad Usman, and others 2004 CLC 473; Zafar Hussain v. Begum Farzana Nazli, and others PLD 2004 Lah. 349; Muhammad Ali v. Mst. Ghulam Fatima AIR 1935 Lahore 902; Mst. Sherinzadgi v. Gul Muhammad PLD 1961 (W.P.) Pesh. 66 and Mst. Resham Bibi v. Muhammad Shafi PLD 1967 AJ&K 32 and rel.

Muhammad Ilyas Warriach for Petitioner.

Aman Khattak for Respondents.

2011 MLD 594

[Karachi]

Before Salman Hamid, J

BADSHAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 231 of 2010, decided on 12th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 148 & 149---Qatl-e­-amd---Bail, grant of---Further inquiry---Case for bail had been made out by accused as contemplated under S.497(2), Cr.P.C.---Record showed that presence of accused was doubtful at the place of incident, the benefit of bail as a matter of right, should go to accused---Bail could not be withheld as punishment on the ground that the offence with which accused was charged was non-bailable and in such cases, bail could not be claimed as a matter of right, but if it was shown to the court that a case of bail had been made out which in the present case, prima facie, had been demonstrated, accused had become entitled to be enlarged on bail---Bail was granted to accused, in circumstances.

PLD 1997 SC 347; Muhammad Nawaz alias Najja v. The State 1991 SCMR 111; Shah Murad v. The State 2002 MLD 1429 and Zafar Iqbal v. The State PLD 2004 Kar. 566 ref.

Muhammad Ashique Dhamrah for Applicant.

Naimtullah Bhurgari, State Counsel.

2011 M L D 602

[Karachi]

Before Shahid Anwar Bajwa and Tufail H, Ebrahim, JJ

MUHAMMAD ZAFAR MANIAR---Petitioner

Versus

SHAHZAD AHMED and another---Respondents

Constitutional Petition No. 3053 of 2010, decided on 12th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---National Accountability Ordinance (XVIII of 1999), Ss.9(a)(ix), 9(b), 24(d) & 25(b)---Cheating, corruption and corrupt practice---Bail, grant of---Further inquiry---Allegation against accused was that he being the Managing Director of a company, received millions of rupees from the allottees of his housing project, but failed to hand over physical possession of plots to the allottees and while so doing had committed offence of cheating public at large, which was violative of S.9(a)(ix) of National Accountability Ordinance, 1999---Housing project was launched in July, 1980 and it was not alleged by the authorities that land was not available at site or there were double allotments and there was no allegation that development work had not been completed---Prima facie ,cancellation of allotment for breach of terms and conditions of 59 allottees out of 2000 allottees over a period of 30 years could not be deemed and considered as cheating and fraud within the meaning of S.9(a)(ix) of National Accountability Ordinance, 1999---Accused had given reasonable explanation for the delay in completing the development work and it was specifically stated that company of accused was ready and willing to hand over the physical possession to the allottees, subject to payment of all due instalments and government dues---Delay in development work and handing over possession, could not be exclusively attributed to the company of accused without recording evidence---Accused was an old person and was a chronic patient of high blood pressure, uncontrolled hypertension and unstable angina for which he, was required to take periodical medical check up and had been advised coronary angiography---Authorities had prima facie failed to show that there was a scam or any criminal acts of financial nature, within the meaning of S.9(a)(ix) of National Accountability Act, 1999, planned or executed by or on behalf of accused or his company to cheat or defraud the public at large---More substantial evidence was needed to prove criminal liability of accused, which could only be done at the trial--Investigation was already over and accused was no more required for further investigation---Prima facie accused had made out a case of further inquiry within the meaning of S.497(2), Cr.P.C.---Accused was admitted to bail, in circumstances.

Begum Riffat Abad v. NAB Chairman and 4 others 2003 PCr.LJ 87; Saif Ali Zardari v. Federation of Pakistan through Secretary Interior Islamabad and others 2005 SCMR 422; Abdul Aziz Khan Niazi v. The State through Chairman NAB Islamabad PLD 2003 SC 668; Saeed Ahmed v. The State 1996 SCMR 1132; Ijaz Akhtar v. The State 1978 SCMR 64; Muhammad Shoaib Wasti v. National Accountability Bureau through Director General 2009 YLR 155; Muhammad Saeed Hadi v. The State and 2 others 2002 SCMR 282; Government of Sindh through the Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283; Ch. Abdul Malik v. The State PLD 1968 SC 349; Mian Manzoor Ahmed Watto v. The State 2000 SCMR 107; Mian Muhammad Shahbaz Sharif v. The State 1997 MLD 2484; Sanaullah Babar v. The State and 2 others PLD 2003 Pesh. 175; Zakhim Khan Masood v. Special Judge Central, Rawalpindi and 3 others 1998 SCMR 1065; Abdul Aziz v. Bashir Ahmed and the State PLD 1966 SC 658; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Baluchistan PLD 1971 SC 677 and Khan Asfandyar Wali and others v. Federation of Pakistan Cabinet Division, Islamabad and others PLD 2001 SC 607 ref.

Dr. Rana Muhammad Shamim for Petitioner.

Muhammad Aslam Butt D.P.-G. (NAB) for Respondents.

Dates of hearing: 23rd and 30th November, 2010.

2011 MLD 621

[Karachi]

Before Tufail H. Ebrahim, J

MUHAMMAD ATIF---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1014 of 2010, decided on 6th December, 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---Relationship of landlord and tenant between the parties was not denied---Five post dated cheques of Rs.200,000 each signed by the accused issued in terms of the agreement to the complainant had been dishonoured by the Bank due to stop payment by the accused, for which no notice was given to the complainant---Accused had filed a civil suit after the lodging of the F.I.R.-Stopping of payment for the reason that amount under cheques had been adjusted against other heads in absence of any fresh agreement, had prima facie, depicted dishonest intention of accused---Grant of bail being discretionary with the court, each case even not falling within the prohibitory clause of S.497(1), Cr.P.C. had to be decided according to its circumstances---Both criminal and civil proceedings could run side by side and criminal proceedings under S.489-F, P.P.C. against the accused could not be stayed because of pendency of civil proceedings---Deeper appreciation of material or record could not be made at bail stage---Prima facie, complainant had no mala fide intention for false implication of accused in the case---Possession of the demised premises with the accused without payment of rent also showed his mala fides---Challan had been submitted in the Trial Court---Pre-arrest bail was declined to accused in circumstances.

PLD 2006 Lah. 752; PLD 2005 Lah. 607; 2000 PCr.LJ 1230; 2005 PCr.LJ 1773; 2010 PCr.LJ 875; 2008 PCr.LJ 412; 2007 YLR 1495; 2008 MLD 159; PLD 2006 Lah. 481; 2009 YLR 87; PLD 1995 SC 34; 2006 SCMR 1292; 2002 YLR 36; 2000 PCr.LJ 1994; 2009 SCMR 174; 2010 PCr.LJ 1321; 2010 PCr.LJ 1099; 2010 PCr.LJ 310; 2010 PCr.LJ 504; 2008 YLR 760; 2010 MLD 1422; 2008 YLR 949; 2010 YLR 2179 and 2008 SCMR 966 ref.

Jam Asif Mehmood and Qutbuddin Saim for Applicant.

Ms. Rahat Ahsan, D.P.-G. for Respondent.

Muhammad Farooq for the Complainant.

2011 MLD 632

[Karachi]

Before Faisal Arab, J

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, KARACHI---Appellant

Versus

Ms. FARIDA BAIG and others---Respondents

Appeal No. 12 of 2009, decided on 1st June, 2010.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Cancellation of allotment of plot---Father of plaintiffs was serving with Ministry of Defence and plot in question was allotted to him in year, 1972---After death of their father, plaintiffs applied for mutation of plot in question in their names but instead Defence Housing Authority cancelled the plot on. the ground that their father was not entitled to allotment---Trial Court and Lower Appellate Court concurrently decided the matter in favour of plaintiffs---Validity---Letter of Defence Housing Authority cancelling allotment was in response to letter of plaintiffs seeking mutation of plot in their names---Prior to seeking mutation, no notice for cancellation to the heirs of deceased was issued by the Authority at any stage---For twenty three years, authorities did not question eligibility of deceased of becoming a member of the Society or for allotment in question---On the basis of service with Ministry of Defence in the capacity of Deputy Secretary, deceased was made member of the Society in year, 1963, and in year, 1972, he applied for allotment of a commercial plot which after balloting was duly allotted to him---At no stage prior to plaintiffs' seeking mutation in their names, membership of deceased was questioned by Defence Housing Authority or the erstwhile Defence Housing' Society---Authority's own witness stated before Trial Court that deceased was made member of the Society and was allotted a residential plot in "Category-A" and then in year, 1973, he sought allotment of a Commercial Plot which was allowed after fulfilling all formalities and without prior notice, the same was cancelled at the stage when his heirs sought mutation of the same in their names---High Court declined to interfere in concurrent findings of two courts below and judgments and decrees passed by both the Courts were maintained. ?

2005 PLD Kar. 188; Mustafa Lakhani v. Pakistan Defence Housing Society Karachi 2008 SCMR 611 and Muhammad Iqbal v. Federation of Pakistan 2009 MLD 810 distinguished.

2006 SCMR 178 ref.

Khalid Javed for Appellant.

Khalid Mehmood Dhoon and Anwar Hussain for Respondents.

2011 M L D 650

[Karachi]

Before Shahid Anwar Bajwa and Irfan Saadat Khan, JJ

MUHAMMAD IMRAN and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Anti-Terrorism Appeal No.2 of 2008, decided on 31st July, 2010.

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

----Arts. 37, 39 & 41---Confession---Character, relevancy, validity and evidentiary value of confession---Principles enunciated.

Following are the principles of law:

(i) That if a statement of fact made by an accused in a confession is of the nature that if it is assumed to be true, it would negate the offence alleged to be confessed, it is called an exculpatory confession.

(ii) That a statement of an accused that contains self-exculpatory matter cannot amount to confession.

(iii) That a retracted confession is sufficient to sustain a conviction for a capital offence if the Court is of the view that the same is voluntary and is true, but as a rule of prudence, it has been consistently held by the superior courts that the same should not be acted upon unless corroborated by some other reliable evidence in material particulars.

(iv) That though the confession of a co-accused cannot be made foundation of conviction but it may be used in support of other evidence.

(v) That the confession of a co-accused is an evidence of a weak character.

(vi) That under Islamic Jurisprudence, in order to make a confession reliable it should be voluntarily made and not on account of any coercion, duress or violence.

(vii) That any delay in recording of a confession may, or may not, be fatal as to the evidentiary value of a retracted confession as in the case of Syed Sharifuddin Pirzada v. Sobbat Khan and 3 others PLD 1972 SC 363, this Court has held that the factum that the accused were in the police custody for 11 to 15 days, was not fatal as to the credibility of the retracted confessions for the reason that the Court was satisfied that the retracted confessions were not tutored and were, in fact, made voluntarily.

(viii) That any lapse on the administrative side on the part of a Magistrate recording a confession, may not be fatal as to the evidentiary value of such confession provided the Court is satisfied that the lapses on his part have not, in any way, adversely affected the voluntariness or truthfulness of the confession.

(ix) That if an accomplice's evidence is not corroborated in material respects, it cannot be acted upon and that the evidence of an accomplice cannot be used to corroborate evidence of another accomplice.

(x) The legal position, which has emerged from the above reports, seems to be that in older to judge the evidentiary value of retracted confession, the Court is to advert to the question, whether the same appears to have been made voluntarily, without any inducement, duress or coercion with the subject to state the truth. If the Court is satisfied on the above aspect, the mere fact that there were some irregularities in recording of a confession, would not warrant disregarding of the same.

Choudhry Muhammad Yaqoob and others v. The State 1992 SCMR 1983 and Syed Sharifuddin Prizada v. Sobbat Khan and 3 others PLD 1972 SC 363 ref.

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

----S.164---Confession---Retracted confession---Evidentiary value and rule of corroboration discussed.

General rule is that it is not prudent to base the conviction in a criminal case only on the strength of retracted confession without independent corroboration in necessary particulars and the Court is under obligation to inquire into all the material points and surrounding circumstances to satisfy itself regarding the truthfulness and voluntariness of the confession but it is not an inflexible rule that retracted confession cannot be made basis of conviction without independent corroboration rather the rule of corroboration is a rule of abundant caution which is insisted only to exclude any possibility of doubt qua the guilt of a person. The law is that a retracted confession can be legally taken into consideration against the maker, if the confession is found true and voluntary and can also be used as sole evidence for conviction without any corroboration if the Court is satisfied about its voluntary character and truthfulness.

Manjeet Singh v. The State PLD 2006 SC 30 ref.

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

----Ss. 120-B, 302(b) & 324---Anti-Terrorism Act (XXVII of 1997), Ss.7(a), 7(b) & 7(i)---Criminal conspiracy, Qatl-e-amd, attempt to commit qatl-e-amd, acts of terrorism---Appreciation of evidence---Allegation against accused was that they, after having made a conspiracy had made an unsuccessful attempt to blast the motorcade of the President of Pakistan by making an explosion with a vehicle loaded with explosive substance weighing 400/500 kilograms with remote control system, which did not work at the crucial moment---Prosecution case rested upon the confessional statements made by accused, which according to Deputy Prosecutor General were corroborated by the evidence of a prosecution witness---No such corroboration was available on record of the said confessional statements---Judicial confessions of accused had been recorded in English language without any certificate of the Magistrate that they had knowledge of English language and were able to understand the questions put to then: in English for giving a proper reply or that the questions had been translated or explained to them in their language---Accused had been in custody for more than a month in another case in connection with a bomb' blast at American Consulate, in which they had been acquitted--Custody of accused in such a sensitive case was certainly an attending circumstance making the present prosecution story highly doubtful---After ten days of arrest of accused in the present case their confession were recorded and this delay had not been explained by the prosecution---Confession of accused were not in accord regarding the purchase of the vehicle which was loaded with explosives and nothing was known about the said vehicle---No investigation or evidence was available on record as to from where the explosive material was purchased---Similar was the position with regard to remote control---Vehicle loaded with explosive substance could not be possibly parked on a footpath by which the motorcade of the President was to pass---Correctness and voluntary nature of the confessions made by accused were doubtful and the same could not be made a basis for their conviction---Accused were acquitted in circumstances.

Imran Bashir Farooqi v. The State 190 PCr.LJ 677; Naqibullah and another v. The State PLD 1978 SC 21; Abdul Razzaq v. The State PLD 2008 Lah. 544, Mah Gul v. The State 2009 SCMR 4; State through Advcoate General Sindh v. Muhammad Hanif, Criminal Petition No.88-K of 2006; Daulat Ali amid others v. Muhammad Aslam and others 1998 MLD 944; Ashfaq Khalid v. The State PLD 2005 Quetta 1; Shaikh Muhammad Amjad v. The State PLD 2003 SC 704; Muhammad Azam and others v. The State 2006, PCr.LJ 62; Manjeet Singh v. The State PLD 2006 SC 30; Mst. Zubaida's case PLD 1986 FSC page 268 (273.E); Muhammad Hanif v. The State 1995 PCr.LJ 985; Nadir Hussain v. The Crown 1969 SCMR 44; Bahadur Khan v. The State PLD 1995 SC 336; Qalb-e-Abbas alias Nehola v. The State 1997 SCMR 290; Muhammad Noor v. Member-I Board of Revenue and others 1991 SCMR 643; Ali Muhammad v. The State 2005 YLR 3357; Abdul Sattar, v. The State 2008 MLD 619; Choudhry Muhammad Yaqoob and others v. The State 1992 SCMR 1983 and Syed Sharifuddin Prizada v. Sobbat Khan and 3 others PLD 1972 SC 363 ref.

Abdul Waheed Katpar for Appellants.

Khadim Hussain, D.P.-G. for time State.

Dates of hearing: 23rd and 26th July, 2010.

2011 M L D 677

[Karachi]

Before Tufail H. Ebrahim, J

MUHAMMAD ASIF SIDDIQUI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1069 of 2010, decided on 4th January, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 498---Penal Code (XLV of 1860), Ss. 457 & 380---Lurking house-trespass, theft in dwelling house---Interim bail, grant of---Confirmation---Further inquiry---Delay in lodging F.I.R. having not been explained, consultation and deliberation could not be ruled out---No recovery had been made from accused, though brother of accused was kept in unlawful custody by the Police---No independent witnesses from the locality had been associated in the investigation---No reason existed for accused to remove the digital cash box/locker from the cash room to the kitchen; or to break open the locks through force---Prima facie, there was no previous complaint against accused who had been climbing the ladder of management in short time, which could be as source of concern for the other employees; and a reason to falsely implicate. accused, could not be ruled out---Case against accused was a fit case for further inquiry within the meaning of S.497(2), Cr. P. C. which entitled him for the grant of bail---Interim bail earlier granted to accused, was confirmed on the same terms and conditions, in circumstances.

Maqbool-ur-Rehman for Applicant.

Abdul Rehman Kolachi, A.P.-G. for Respondent.

2011 M L D 685

[Karachi]

Before Muhammad Tasnim, J

BAGO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-600 of 2010, decided on 28th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Haraabah---Bail, grant of---Further inquiry---Deeper appreciation of the evidence could not be gone into at bail stage, but only it was to be seen as to whether accused was, prima facie, connected with the commission of the alleged offence or not---Name of accused, in the present case, did not appear in the F.I.R.---Description of any of accused was not available in the F.I.R.---No identification parade as required under the law was conducted by the Police and there was an unexplained delay in lodging of F.I.R.---Prosecution appeared to have tried to improve the case after the arrest of accused through further statement---Case of prosecution had become doubtful which required further inquiry into the matter---Accused was released on bail, in circumstances.

Barkqat Ali v. The State 2006 MLD 431; Sagheer Ahmed v. The State 1999 MLD 1258; Mithal v. The State 2005 PCr.LJ 630 and Meenhal and another v. The State 2007 MLD 214 ref.

Qurban Ali Malano for Applicant.

Zulfiqar Ali Sangi for the Complainant.

Shyme Lal A.P.-G. for the State.

2011 M L D 700

[Karachi]

Before Muhammad Tasnim, J

ALI HASSAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-475 of 2010, decided on 28th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302 & 34---Qatl-e-amd, acts done in furtherance of common intention---Bail, grant of---Further inquiry---Role of direct firing was attributed to the accused but, admittedly, no injury was caused to anyone by the fires shot by him---Case required further inquiry---Accused was admitted to bail.

Jaffar and others v. The State 1980 SCMR 784; Yaroo v. The State 2004 SCMR 864; Ali Shah v. The State and another 2007 YLR 935; and Munawar v. The State 1981 SCMR 109 ref.

Muhammad v. The State 1998 SCMR 454 fol.

Waryam v. The State 2006 PCr.LJ 1611 rel.

Farman Ali Kanasrio for Applicant.

Manzoor Ahmed Larik for the Complainant.

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

2011 M L D 745

[Karachi]

Before Mushir Alam and Nisar Muhammad Shaikh, JJ

ARDESHIR R. COWASJEE and others---Appellants

Versus

CITY DISTRICT GOVERNMENT, KARACHI and others---Respondents

H.C.A. No.144 of 2008, decided on 10th November, 2010.

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

----Ss.39, 42, 54 & 56(d)---Sindh Building Control Ordinance (V of 1979), Ss.16, 20 & 20-A---Karachi Water and Sewerage Board Act (I of 1996), Ss. 19 & 20 (2) (i)-Civil Procedure Code (V of 1908), O. VII, R.11---Rejection of plaint---Amenity plot---Plaintiffs claimed that suit land was classified as amenity use and was owned by Karachi Water and Sewerage Board but defendant authorities in an attempt to earn money tried to grab the land and converted same into a commercial building site---Plaint was rejected by High Court on the ground that it was barred under the law---Validity---Separate legal entity was given to the Board by S. 20 (2) (i) of Karachi Water and Sewerage Board Act, 1996, which provided that all movable and immovable properties including all water works and instalations held by the old Board would vest in Karachi Water and Sewerage Board---No title document was required to be produced to prove the ownership of the Board who by operation of law had become owner of the entire plot including its all water works and instalations, designated for the purpose of an Ejector having been held by it since long---Defendant authority had to prove its claim and title over the plot in dispute to justify its subsequent transfer/mutation in favour of defendants---Although controversy relating to construction of building at the plot in question depended upon determination of title, yet it also needed to be established as to whether the plot was an amenity plot and could not be converted for residential or commercial use; plot was illegally sub-divided into three parts; the approval of building plan was in violation of relevant rules and regulations; construction of building over the plot in question was in violation of such approved plan; and whether such construction was liable to be demolished---All such controversial factors could be resolved after affording full opportunity to parties including all auction purchasers of the plot to adduce such evidence in the suit---Till such time application for grant of temporary injunction against such construction deserved consideration within the parameters of principle of equity---High Court set aside the order of rejection of plaint and remanded the case---High Court directed the Trial Court to determine all mixed questions of facts involved in the suit with other factual controversy, after recording of evidence of parties---Appeal was allowed accordingly.

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

----O. VII, R.11---Rejection of plaint---Principle--;Finding/conclusion that suit is barred by law, is required to be based on the case as set out in the plaint assuming that all averments made therein are true.

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

----S.80 & O. VII, R.11---Rejection of plaint---Public interest litigation---Scope---Suit filed by plaintiff in representative capacity being a public interest litigation, cannot be rejected outright when mixed questions of law and facts have been raised therein.

Abdur Rahman for Appellants.

Manzoor Ahmed for Respondent No.1.

Kashif Nazeer for Respondent No.2.

Akhtar Hussain for Respondents Nos. 7 and 8.

Nemo for Respondents Nos. 3 to 6 and 9.

Date of hearing: 9th and 28th September, 2010.

2011 M L D 766

[Karachi]

Before Gulzar Ahmad and Imam Bux Baloch, JJ

FIDA HUSSAIN---Petitioner

Versus

GOVERNMENT OF SINDH through Home Secretary and 7 others---Respondents

C.P. No. 2345 of 2010, decided on 3rd December, 2010.

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

----Ss.173 & 561-A---Inherit powers of High Court---Investigation report---Proceedings under S.173, Cr.P.C. are of administrative nature and can be challenged before High Court by invoking inherent jurisdiction of High Court under S. 561-A, Cr.P. C.

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

----Ss.169 & 173---Police Order (22 of 2002), Art. 17---Constitution of Pakistan, Art. 199---Constitutional petition--- Maintainability--- Case, cancellation of--Change of investigation---Police after fully investigating the case reached at the conclusion that the case fell under "C" class---Magistrate after going through police papers agreed with recommendations of Investigating Officer and passed final order under S.173, Cr.P.C.---Complainant sought transfer of investigation to some other Investigating Officer---Validity---If complainant had any grievance he could either invoke inherent jurisdiction of High Court or file direct complaint but complainant did not do so and filed constitutional petition seeking relief for re-investigation of case, which under Police Order, 2002, only police officers were competent to order for reinvestigation of any case---Petition was dismissed in circumstances.

Soofi Abdul Qadir v. The State 2000 PCr.LJ 520 and Muhammad Sharif v. The State 1997 SCMR 304 rel.

Zafar Iqbal Warraich for Petitioner.

Abdul Rehman Kolachi, A.P.G. for Respondents Nos. 1 to 5.

M. Hanif Samma for Respondents Nos. 6 and 7.

2011 MLD 781

[Karachi]

Before Shahid Anwar Bajwa, J

MUMTAZ ALI---Appellant

Versus

ALI HYDER and 8 others---Respondents

IInd C.A. No. S-3 and C.M.A No.527 of 2009, decided on 13th November, 2011.

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

----Ss. 100, 102 & 115---General Clauses Act (X of 1897), S.6---Suit for pre-emption---Valid; Talbs, performance of---Trial Court dismissed the suit---Appellate Court accepted appeal---Defendant contended that second appeal was maintainable as the provincial government had not determined any amount or value of the subject matter of suit under S.102, C.P.C. as amended by the Civil Procedure Code (Amendment) Act (VIII of 2004)---Plaintiff contended that value of suit land not being more than Rs.2,50000. 00 second appeal was not maintainable as under S.6 of the General Clauses Act, 1897 the suit would be governed by S.102, C.P.C. prior to the amendment---Validity---Suit having been filed after the amendment in S.102, C.P.C., second appeal was maintainable as the same would be governed by S.102, C.P.C. as amended by the Civil Procedure Code (Amendment) Act (VIII of 2004)---Section 102, C.P.C. had to be read with S.100, C.P.C. which laid down three grounds for second appeal---Appeal was not maintainable on the ground that defendant neither pleaded nor established said grounds.

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

----Ss. 100 & 115---Conversion of appeal into revision---High Court was empowered to convert an appeal into revision on verbal prayer during arguments---Appeal of defendant was, therefore, converted into revision---Revision was maintainable under S.115, C.P.C. where material irregularity had been committed.

(c) Islamic Law---

----Pre-emption---Talbs---By making statement to the effect that he was ready to give sale consideration amount as he was shareholder in the same Survey Number, plaintiff had fulfilled the requirements of valid talbs---Pronouncement/uttering of the word `Talb' was not necessary as the law looked at the substance and not at the form.

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

----Ss. 100 & 102---Section 100, C.P.C. had to be read with S.102, C.P.C.

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

----S. 115---Revision---Maintainability---Revision was maintainable under S.115, C.P.C. where material irregularity had been committed.

Muhammad Saeed v. Mst. Hajiani Noor Bai and others 1983 CLC 1883 distinguished.

Muhammad Yousuf v. Mst. Kharian Bibi 1995 SCMR 784 fol.

Haji Qadar Gul v. Moembar Khan and another 1998 SCMR 2102 and Saeed Ahmed v. The State PLD 1964 SC 266 ref.

Parya Ram and M. Veswani for Appellants.

Soomar Dass R.Parmani for Respondent No.1.

2011 MLD 793

[Karachi]

Before Tufail H. Ebrahim, J

Mst. DORIS THOMAS-Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 819 of 2010, decided on 24th December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss 489-F/420---Dishonestly issuing., a cheque and, cheating,---Bail before arrest, refusal of--Cheques issued by accused had been dishonoured by the bank for reasons of insufficient funds---Name of accused appeared in the F.I.R. and specific role had been assigned to her---Facts on record had established that accused had issued cheques in question with dishonest intention---No apparent mala fide or malice was noticed on the part of the complainant to falsely implicate accused in the F.I.R.---Filing of civil suit by the complainant was no bar to commencement of criminal of proceedings-Prima facie accused had failed to show that cheques were not dishonestly issued for payment of any obligation nor accused was seriously ill and such illness could not be treated in the custody or her arrest would be determinant to her life-Accused having not made out a case for confirmation of pre-arrest bail already granted to her interim pre-arrest bail granted to her was recalled and her bail application stood dismissed.

2010 YLR 1383; 2007 PCr.LJ 1824; 2005 MLD 1021; 2007 PCr.LJ 1064; 2009 YLR 257; 1973 PCr.LJ 397; 2003 SCMR 573; 1991 MLD 368 and 2009 MLD 1189 ref.

Mushtaq A. Jehangiri for Applicant.

Seema Zaidi, A.P.-G. for Respondent.

S. Ashfaq Hussain Rizvi for the Complainant.

2011 M L D 803

[Karachi]

Before Mushir Alam and Nisar Muhammad Shaikh, JJ

GHULAM AKBAR and 2 others---Appellants

Versus

JAHANGIR ALI and 3 others---Respondents

H.C.A. No.58 of 2010, decided on 14th November, 2010.

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

----S. 44---Civil Procedure Code (V of 1908), S.12 (2)---Judgment and decree, setting aside of---Misrepresentation---Sale by co-sharer---Principle of ostensible owner---Appellants were co-sharers in joint undivided property who sought setting aside of judgment and decree passed against other co-sharers who sold their share to respondents---Application filed by appellants was dismissed by High Court---Validity---Share or interest of a co-owner in immovable property could be transferred/sold to another co-owner/co-sharer or, even to stranger and S. 44 of Transfer of Property Act, 1882, recognized validity of such transfers---There was no question of alleged fraud or misrepresentation/concealment of facts---Copy of registered conveyance deed relied upon by appellants itself showed that one of the appellants also purchased undivided share in the same survey number of land in question---Transfer effected between respondents could not be questioned by appellants---Appeal was dismissed in circumstances.

Syed Ansar Hussain for Appellants.

Khurshid Ahmed Qureshifor Respondents Nos.1 to 3.

2011 MLD 830

[Karachi]

Before Muhammad Tasnim, J

GULZAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-589 of 2010, decided on 9th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.393, 452, 337-A(ii), 148 & 149---Attempt to commit robbery, house-trespassing and Shajjah-i-Mudihah---Bail, grant of---Further inquiry---No direct role whatsoever had been assigned to accused and no robbed articles had been recovered from him, except recovery of robbed pistol, for which counsel for accused stated that same had been foisted by the Police just to implicate the accused---Unexplained delay was in lodging of F.I.R. on the part of the complainant---Deeper appreciation of evidence, at bail stage, could not be gone into, and just tentative assessment was to be made just to find out as to whether accused was connected with the commission of offence or not---Recovery of pistol though showed that accused was present at the scene of offence, but F.I.R. did not attribute any role to the accused---Common intention and commission of offence by all accused persons named in the F.I.R., was to be decided once the evidence of the prosecution was recorded which required further inquiry in terms of S.497(2), Cr. P. C. ---Accused was admitted to bail, in circumstances.

Muhammad Aslam Gadani for Applicant.

Zulifqar Ali Jatoi, D.P.-G.

2011 M L D 835

[Karachi]

Before Muhammad Athar Saeed and Munib Akhtar, JJ

MUHAMMAD IQBAL KAMDAR---Appellant

Versus

MUHAMMAD TAHIR AHMADANI and 12 others---Respondents

High Court Appeal No.88 and C.M.A. No. 711of 2010, decided on 24th December, 2010.

Specific Relief Act (I of 1877)---

----S. 39---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Law Reforms Ordinance (XII of 1975), S.3---Suit for cancellation of documents---Application for interim injunctive relief---High Court appeal---Plaintiff filed suit for cancellation of the deed of settlement, the revocation deed and sale-deed of the suit property---Plaintiff had also filed an application for grant of injunctive relief regarding the suit property---Single Judge of High Court having, refused to grant interim injunctive relief to the plaintiff, he had filed High Court appeal---Grievance of the plaintiff was that suit property was sold at the price higher than that was represented to him and thereby depriving him from a portion of his 'share'-Grievance of plaintiff was not that the suit property ought not to have been sold at all---Plaintiff was not and never had been the owner of the suit property; he did not hold any interest or share therein---Whatever claims that he could have against the defendant, were settled in terms of the deed of settlement---All three ingredients i.e. prima facie case, balance of convenience and irreparable loss" must be held to exist for the grant of interim injunctive relief---Prima facie, case had not been made out by the plaintiff for grant of injunctive relief-Matter in the case was yet to be decided which could only be decided when evidence would be recorded---Plaintiff's case failed to come up to the required standard---No case for the grant of interim injunctive relief, having been made out, Single Judge was right in refusing to grant the said relief--Impugned order not calling for any interference, appeal was dismissed, in circumstances.

Ghulam Shabbir v. Nur Begum and others PLD 1977 SC 75; Mrs. Naz Shaukat Khan and others v. Mrs. Yasmin R. Minhas and another 1992 CLC 2540; Habib ud Din v. Hamida Balm and another 1996 SCMR 416; Riaz and others v. Razi Muhammad 1982 SCMR 741; Talib Hussain and others v. Member Board of Revenue and others 2003 SCMR 549; Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 and Abdullah Shah and others v. Humayon and others PLD 1957 Lah. 1054 ref.

Badar Alam for Appellant.

Asim Mansoor for Respondent No.1.

Arshad Tayebaly for Respondent No.2.

2011 M L D 849

[Karachi]

Before Muhammad Tasnim, J

ILYAS---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.385 and M.A. No. 1603 of 2010, decided on 6th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 337-H(2)---Qatl-e­-amd and hurt by rash or negligent act---Bail, grant of---No role, whatsoever for causing injury to any one was assigned to accused---Accused was not arrested from the place of wardat, but was arrested after about one month---No material could be brought to the notice of the court, which would connect accused with the commission of offence---Deeper appreciation of evidence could not be gone into at bail stage, but' tentative assessment was to be made just to find out as to whether accused was connected with commission of offence or not---Accused was admitted to bail, in circumstances.

Achar Khan Gabole for Applicant.

Nadir Ali Chachar for the Complainant.

Zulifqar Ali Jatoi, D.P.-G.

2011 M L D 856

[Karachi]

Before Sajjad Ali Shah and Muhammad Tasnim, JJ

ATTA MUHAMMAD and another---Petitioners

Versus

DISTRICT POLICE OFFICER, SANGHAR and 4 others---Respondents

Criminal Miscellaneous C.P. No.D-1793 and No. D-646 of 2010, decided on 30th December, 2010.

Penal Code (XLV of 1860)---

----S.365-B/34---Criminal Procedure Code (V of 1898), S.561-A---Abduction of woman to compel her for marriage---Quashing of proceedings---Abductee had stated before High Court that nobody had abducted her and that she had married her co-accused---To. the same effect the alleged abductee had also made her statement before the Investigating Officer, which was recorded on the direction of High Court in order to ensure its voluntary nature and the same had been placed on record---Prosecution of the nominated accused in the crime, in circumstances, would be a futile exercise---Proceedings emanating from the impugned F.I.R. were quashed.

Ameer Ali Mahesar for Petitioners.

Mumtaz Alain Leghari, Asstt: A.-G. Sindh along with A.S.-I. Ali Gul Rind Police Station Sarhari and A.S.-I. Lakhmir Jamali, Police Station Sarhari.

2011 M L D 860

[Karachi]

Before Faisal Arab, J

JAWAID MASAUD AHMED KHAN---Plaintiff

Versus

ISLAMUDDIN and 11 others---Defendants

Suit No.315 of 2008 and C.M.A. No.8549 of 2010, decided on 26th November, 2010.

Specific Relief Act (I of 1877)---

----Ss. 12, 42 & 54---Suit for declaration, specific performance and permanent injunction---Application for injunctive order---Plaintiff who was tenant of suit property, claimed to have entered into agreement for purchase of suit property with its owner/landlord for consideration---Legal heirs of deceased owner of suit property denied execution of sale agreement between theirdeceased father and the plaintiff---Plaintiff within the period stipulated in the disputed agreement to sell had not made payment of the balance sale consideration in order to demonstrate on his part his readiness and willingness to perform his part of the alleged bargain, if at all an agreement to sell existed---Plaintiff had prayed for injunctive order directing the defendants not to eject the plaintiff from the suit property till the suit was finally decided---Agreement to sell had clearly shown that plaintiff was entitled to occupy the suit property only in his capacity as tenant; and was obliged to pay the monthly rent---Constructive possession pursuant to the sale was to be handed over to the plaintiff at the time of finalization of the transaction---Occupation of the suit property by the plaintiff, in circumstances was only in his capacity as tenant and not pursuant to the agreement to sell---Plaintiff, in circumstances, was not entitled to occupy the suit premises under disputed agreement to sell which however, would not debar the plaintiff to occupy the suit premises as tenant, which was to be regulated by the relevant laws---Right of the owners to seek eviction of the plaintiff on account of committing default in the payment of rent, could not be taken away when occupation of the plaintiff was in the capacity as tenant---Application of the plaintiff for injunctive order, was dismissed---Authenticity of the sale agreement was to be determined when the parties would adduce evidence in the case.

Ubaid-ur-Rehman for Plaintiff.

M.G. Dastagir for Defendants Nos. 1 to 5.

Muhammad Irfan Siddiqui for Defendants Nos. 7 to 11.

2011 MLD 867

[Karachi]

Before Syed Zakir Hussain and Abdul Hadi Khoso, JJ

BASHIR AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. D-129 and M.As. Nos.3252 to 3254 of 2010, decided on 30th November, 2010.

Penal Code (XLV of 1860)---

---Ss. 365-A, 342, 344, 120, 120-B, 109, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Anti-Terrorism Act (XXVII of 1997), S.7---Kidnapping or abduction, wrongful confinement, concealing design to commit offence, criminal conspiracy, harabbah and terrorism---Appreciation of evidence---Co-accused had already been acquitted and evidence to the very factum of involvement of accused in the case was doubtful---Name of accused was disclosed by co-accused during interrogation and he was neither arrested nor subjected to interrogation nor he was ever produced before any competent Magistrate for identification test through the witnesses---No positive incriminating evidence was available against accused on the basis of which the conviction for any offence against him could be recorded, particularly when witnesses had been declared doubtful---Trial Court had pronounced conviction against accused in absentia---Findings as to conviction and sentence and impugned judgment being contrary to law and against natural justice, were not sustainable---No one should be condemned unheard and no one would be punished for an act, until a fair trial and chance of being heard were afforded to hint---Matter should not be kept pending or passing an order remanding the case to the Trial Court, as such exercise would be an abuse of process of law-Impugned judgment was set aside and accused was acquitted of the charge levelled against him.?

Mehram Ali v. The State 1998 MLD 1411; Muhammad Arif v. The State 2008 SCMR 829; Mir Ikhlaque Ahmed and another v. The State 2008 SCMR 951 and Arab Khan v. The State 2010 SCMR 755 ref.

Asif Ali Abdul Razak Soomro for Appellant.

Naimatullah Bhurgri the State Counsel.

2011 M L D 881

[Karachi]

Before Amir Hani Muslim and Jifan Saadat Khan, JJ

MUHAMMAD YASEEN---Petitioner

Versus

1ST ADDITIONAL DISTRICT JUDGE, HYDERABAD and another ---Respondents

Constitution Petition No. D-906 of 2009, decided on 24th December, 2010.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), S.11 & O. VII, R.11---Constitution of Pakistan, Art.199---Constitutional petition---Rejection of plaint---Res judicata, principle of-Applicability-Factual controversy---Earlier suit was decided in favour of respondent and property in question was handed over to her in execution of decree passed by court of competent jurisdiction---Petitioner, filed another suit challenging area in possession of respondent, while subsequent suit was dismissed---Validity---If "lis" between parties had attained finality then it could not be challenged in the manner as had been done by petitioner that his area of property was encroached upon by respondent, unless it was shown that encroachment had been made after execution proceeding were over---No new cause of action had accrued to petitioner to file suit of the nature and courts below had done substantial justice by dismissing suit of petitioner---Controversy between parties having been settled by courts below did not warrant interference in exercise of constitutional jurisdiction, as it was factual .controversy and scope of constitutional jurisdiction was limited---No case of interference was made out by petitioner and second round of litigation was nothing but an attempt to defeat earlier findings---Petition was dismissed in circumstances.

Hassan Mehmood Baig for Petitioner.

Allah Bachayo Soomro, Additional A.G. for Respondent No.1.

2011 M L D 892

[Karachi]

Before Aqeel Ahmed Abbasi, J

NAZAR MUHAMMAD alias IRFAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application 3 of 2011, decided on 20th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.398, 421, 324 & 353---West Pakistan Arms Ordinance (XX of 1965), S.13---Attempt to commit robbery or dacoity, dishonest or fraudulent removal or concealment of property to prevent distribution among creditors, attempt to commit qatl-e-amd and assault or criminal force to deter public servant from discharge of his duty and possession of unlicensed firearm---Bail, grant of---Further inquiry---Case had been registered at the instance of Police and all the prosecution witnesses were Police Officials---No reason for non-associating the private witness had been mentioned in spite of the fact that alleged offence took place in daylight at public place---No injury whatsoever had been caused to the Police Officials, nor any damage to the Police mobile had been shown---Separate case had been registered regarding unlicensed pistol---Prosecution story could not be considered as free from doubt and case of ineffective firing required further inquiry---Accused was admitted to bail, in circumstances.

Muhammad Mujeeb v. The State 2009 SCMR 448 and Muhammad v. The State 1998 SCMR 455 ref.

Shahbaz Ali Khan Brohi for Applicant.

Qazi Muhammad Bux for the State.

2011 MLD 899

[Karachi]

Before Bhajandas Tejwani, J

ALI BUX and another---Petitioners

Versus

MEHMOOD and 3 others---Respondents

Constitutional Petition No.S-212 and M.A. No.438 of 2006, decided on 7th December, 2009.

Civil Procedure Code (V of 1908)---

----O. IX, R.6 & S.12(2)---Constitution of Pakistan, Art.199---Constitutional petition----Ex parse decree---Challenging ex parte decree on plea of fraud and misrepresentation---Suit was decreed ex pane after due service on the defendant---Defendant instead of filing appeal, filed application under S.12(2), C.P.C. before the court which had passed ex parte decree, which application was finally dismissed up to the High Court---Plaintiff/decree-holder filed execution application for execution of decree and defendant/judgment-debtor, filed another application under S.12(2), C.P. C. for recalling ex parte judgment and decree passed by the Trial Court, which had attained finality up to the High Court---Said application was dismissed by the Trial Court as not maintainable, against which defendant filed appeal before the Appellate Court---Appellate Court vide impugned order remanded the matter to the Trial Court to decide the same afresh, which order of Appellate Court had been challenged in constitutional petition as being illegal, unjust, unconstitutional and without lawful authority---Validity---In the first round of litigation, judgment and decree of the Trial Court was challenged by filing application under S.12(2), C.P.C., which was finally adjudicated on merits, but after lapse of about five years judgment-debtor with intention other than bona fide, repeated his application under S.12(2), C.P.C., which was dismissed by the Trial Court by well reasoned order---Appellate Court disturbed all such findings by converting appeal into revision and set aside well reasoned order of the Trial Court on second application under S.12(2), C.P.C.---Appellate Court decided the matter in cursory manner without taking into consideration available record and in haphazard manner--Impugned judgment and decree passed by the Appellate Court, were not only illegal, but without any lawful authority and jurisdiction, which could not sustain and were set aside, in circumstances.

Gulab Rai C. Jessrani for Petitioner.

Ali Anwar Saahar for Respondent No.1.

Nisar Ahmed G. Abro for Respondents.

2011 MLD 908

[Karachi]

Before Shahid Anwar Bajwa, J

QADIR BUX---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-727 of 2010, decided on 11th February, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 147, 148 & 149---Qatl-e-amd and attempt to commit qatl-a-amd---Bail, grant of---Further inquiry---Delay in lodging F.I.R. which had reasonably and plausibly explained, could not be said to be creating doubt in the case of the prosecution---Case was of two versions and as to who was aggressor, was yet to be determined---Bail had already been granted to one party---If one party was granted bail, other party was also entitled to the same relief in case of counter version---Accused were admitted to bail, in circumstances.

Shah Ali and 2 others v. The State 1976 Pak. Cr.L.J 1021; Akhtar Zaman v. The State 1999 PCr.LJ 1337; Zafar Iqbal v. The State 1999 PCr.LJ 1840; Muhammad Shahzad Siddique v. The State PLD 2009 SC 58; Muhammad Ansar v. The State 2004 PCr.LJ 1035; Arif Din v. Amil Khan and others 2005 SCMR 1402 and Shoaib Mehmood Butt v. Iftikhar Haq and others 1996 SCMR 1845 ref.

(b) Criminal Trial---

----Intention was to be seen and circumstances to be evaluated.

Parya Ram Vaswani for Applicant.

Qurban Ali Malano for the Complainant.

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

2011 M L D 923

[Karachi]

Before Ahmed Ali M. Shaikh, J

HAMID ALLAUDDIN---Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.68 of 2011, decided on 21st February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c), 14 & 15---Prohibition of possession of narcotic drugs and aiding, abetment or association in narcotic offences---Bail, refusal of---Medical grounds---Counsel for accused did not press bail application on merits, but had confined his arguments on medical grounds stating that accused suffered from kidney problem---Counsel had placed on record medical report of accused issued by Medical Officer---3.300 Kgs. of heroin powder was recovered from the possession of accused while he was leaving abroad---Accused did not suffer from the ailment for which medical treatment was not available in the jail---Accused did not suffer from such disease which could prove detrimental to his life---Accused was declined concession of bail on medical grounds.

Malik Muhammad Yousafullah Khan v. The State and another PLD 1995 SC 58; Muhammad Riaz v. The State 2006 PCr,LJ 1459; Dr. Abdullah Hamid Mehmood v. The State PLD 2006 Kar. 393; Ghulam Raza v. Khuda Bux and another 2005 SCMR 1904; Dr. Abdul Hameed's case PLD 2006 Kar. 393 and Muhammad Arshad's case 1997 SCMR 1275 ref.

Raza Hashmi for Applicant.

Ms. Abida Perveen Charmer (SPP) (ANF) for the State.

2011 M L D 933

[Karachi]

Before Sajjad Ali Shah and Muhammad Tasnim, JJ

ALI NAWAZ alias MUHAMMAD KHAN---Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.D-48 of 2009, decided on 28th December, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.365---Anti-Terrorism Act (XXVII of 1997), S.7---Abduction, terrorism---Bail, refusal of---Plea that the accused was not nominated in the F.I.R. was inconsequential, when the abductee had fully implicated him with specific role in his statement recorded under S.161, Cr.P.C.-Complainant had properly explained the delay in reporting the matter to the police, in the F.I.R.---Accused having been specifically named by the abductee in his statement, identification parade was of no significance---No enmity had been pleaded by the accused for his false implication by the complainant---Accused was involved in seven other cases---Bail was declined to accused in circumstances.

Javeed Ahmed v. State 2002 MLD 400 distinguished.

Zahoor Ahmed Baloch for Applicant.

Muhammad Iqbal Kalhbor, Addl. P.G. for the State.

2011 M L D 940

[Karachi]

Before Abdul Nadi Khoso, J

IMDAD HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.913 and M.A. No.5935 of 2010, decided on 24th January, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal Code (XLV of 1860), S.395---Dacoity---Bail, grant of---Surety amount---Determining factors---Reduction of bail bond----Accused sought reduction in surety amount, as he had no sources to deposit bail bond---Plea raised by accused was that if surety amount was not reduced the purpose of granting bail would be defeated and complainant had no objection to reduction of surety amount---Validity---High Court reduced surety amount from Rs.100,000 to 25,000 as it was discretion of court to keep the circumstances and position of accused in mind while passing order regarding surety amount---Bail order passed earlier was modified to the extent of surety amount---Application was disposed of accordingly.

None for Applicant.

Seema Zaidi, A.P.-G. for the State.

2011 M L D 944

[Karachi]

Before Syed Hassan Azhar Rizvi, J

Messrs BANK AL-HABIB LTD.---Plaintiff

Versus

Mst. ZEHRA SARFRAZI and 2 others---Defendants

Suit No. 35 of 2005 and C.M.A. No.2070 of 2008, decided on 17th February, 2011.

Specific Relief Act (I of 1877)---

----S.54---Civil Procedure Code (V of 1908), S.151---Interim relief---Administration of justice---Reconstruction, of building, delay in---Plaintiff was lessee over plot in question and defendants were under obligation to raise construction over the plot---For the last more than six years despite receipt of huge amount from plaintiff, defendants did not take any step for reconstruction of building in question---Plaintiff offered to reconstruct subject property of the suit on demised premises after obtaining approval from Karachi Building Control Authority at his cost---Plaintiff further undertook that he would simultaneously keep paying agreed rent to defendants---Effect---High Court restrained defendants from creating any third party interest over leased portion of suit plot---Offer and undertaking of plaintiff was justified and reasonable, therefore, High Court allowed the plaintiff to reconstruct the property on plot in question---Application was allowed accordingly.

Liaquat Merchant for Plaintiff.

A.F.M. Mukkaram for Defendants.

2011 MLD 956

[Karachi]

Before Aqeel Ahmed Abbasi, J

SHAH NAWAZ and 2 others---Applicants

Versus

BIRJLAL and others---Respondents

Criminal Miscellaneous Application No. 252 of 2010, decided on 7th February, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 265-K --Penal Code (XLV of 1860), Ss.392, 395, 452, 120-A, 34 & 109---Robbery, dacoity, house-trespass and criminal conspiracy---Quashing of proceedings---Application under S.265-K, , Cr.P. C. having been dismissed by the Trial Court, accused persons had filed application under S.561-A, Cr.P.C. for quashing of proceedings against them---Contention of counsel for accused persons was that all the eye-witnesses had stated that applicants present in the court were not the same; and that main prosecution witnesses who were also eye-witnesses of the crime had absolved applicants from the crime---Counsel had further contended that there was no likelihood of conviction of accused persons and no useful purpose was likely to be served by continuing their prosecution before the Trial Court---State Counsel did not controvert the legal position and stated that applicants were not involved in the crime---Proceedings against applicants, in circumstances, were quashed.

Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122 and Muhammad Hussain v. State PLD 2004 Kar. 133 ref.

Asif Ali Abdul Razak, Soomro for Applicant.

Altaf Hussain Surahio, State counsel.

Complainant present in person.

2011 MLD 961

[Karachi]

Before Shahid Anwar Bajwa, J

ZAFAR AHMED---Appellant

Versus

SHAMSUDDIN and another---Respondents

Criminal Acquittal Appeal No.25 of 2007 and M.A. No.3844 of 2010, decided on 9th February, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 417(2-A) & 423(1)---Appeal against acquittal---Dismissal of appeal for non-prosecution---Appeal filed by the appellant was twice dismissed for non-prosecution-Application for restoration of appeal stated that counsel for appellant was present in the court till 11 a.m. and thereafter he received an urgent call from his house and he had to go to his house; and then in his absence, appeal was dismissed for non-­prosecution---No objection to said application had been filed by other party---Reason stated in the application was a personal emergency of the counsel; and professional etiquettes demanded that such a statement by a counsel be normally taken at its face value---First application also stated the same reasons---Appeal was restored.

Muhammad Bakhsh v. The State 1986 SCMR 59; Ghulam Muhammad v. The State 2008 PCr.LJ 439; Muhammad Ramzan v. Allah Ditta and others 1982 SCMR 215 and Muhammad Ashiq Faqir v. The State PLD 1970 SC 177 ref.

Zulifqar Ali Sangi for Appellant.

Mushtaq Ahmed Shahni for Respondents Nos. 1 and 2.

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

2011 M L D 967

[Karachi]

Before Syed Zakir Hussain, J

MUHAMMAD ISMAIL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.S-120 of 2010, decided on 6th December, 2010.

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

----S. 308(2)---Qatl-e-amd not liable to qisas etc.---Appreciation of evidence---No eye-witness of the case---Even the Investigating Officer, Medical Officer and any mashir of place of wardat; and that of securing the dead bodies of the deceased, had not been produced---Evidence of first two witnesses, was not in the direction of their earlier statements made under Ss.161 & 164, Cr.P.C.---No record was available to show, if the deceased children had even. stood subjected to post mortem examination in the process of the investigation---Complainant was declared hostile---One of the eye-witnesses had not been produced in evidence, though his statement under S.164, Cr.P.C. was produced in the court---Other witness failed to support the case against accused and he was not declared hostile---Trial Court had believed the alleged confession of accused and used the same as evidence sufficient for conviction of accused to the offence he was charged with, in total disregard of evidence---Medical Expert after examining accused, in his written medical opinion had stated that accused was suffering from `schizophrenia'; and that in view of the nature of his illness, he was high risk patient of violation in future---Confession of accused, in the light of such opinion of Doctor, could hardly be accepted to be voluntary---Accused was proved to have had an unbalanced mental state by medical evidence-Confession of said accused before the Judicial Magistrate, could not be ruled out to have been an outcome of such state or that of his senselessness at the relevant time---Confession of accused, in circumstances, was doubtful and was not open to become basis for conviction of accused---Trial Court acted erroneously in the matter, with misconception and misinterpretation and disposed of the matter purely on non-appreciation and non-application of the required norms of law and that of justice---Appeal was allowed.

2008 SCMR 396 and Majeed v. The State 2010 SCMR 55 ref.

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

----S. 164---Qanun-e-Shahadat (10 of 1984), Art.37---Retracted confession---Duty of court---Accused could not be convicted solely on the basis of confession---Court must seek corroboration of independent nature against such confession before recording any conviction on the basis thereof---Court was under obligation to enquire into all material points and surrounding 'circumstances to satisfy itself regarding the truthfulness; and voluntariness of the confession---Rule that retracted confession could not become basis of conviction without independent corroboration was not inflexible---Rule of corroboration thereagainst, which served as an abundant caution, which by itself, was acknowledged as rule of prudence, to be put to practice on such like matter, would exclude possibility of doubt as to the guilt of accused, the maker of such confession---Appeal was allowed.

Appellant in Person.

Ali Raza Pathan for the State.

Date of hearing: 6th December, 2010.

2011 M L D 986

[Karachi]

Before Imam Bux Baloch, J

ALLAH DINO---Applicant

Versus

ABDUL AZIZ and another----Respondents

Criminal Miscellaneous Application No.214 of 2010, decided on 22nd March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.324/148/149---Attempt to commit qatl-e-amd---Bail, cancellation of---Respondent/accused who was fugitive from law, remained absconded for a period of more than six years without any plausible explanation for such absconsion-F.I.R. was promptly lodged without any delay and specific role was attributed against him---Medical certificate supported version of complainant and the injured---Fugitive from law would lose the normal rights granted by procedural and substantive law---Unexplained noticeable absconsion of accused, would disentitle him for concession of bail even on merits, if he had a case for grant of ball---Trial Court had granted bail to accused without considering the law laid down by Supreme Court---Bail granted to accused by the Trial Court was recalled, in circumstances.

Rahim Bakhsh v. Shahnawaz and another 2003 SCMR 1996; Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68; Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Awal Gul v. Zawar Khan and others PLD 1984 SC 402 and Mitho Pitati v. The State 2009 SCMR 299 ref.

Mubashir Ali Solangi for Applicant.

Sobhraj L. P. for the Respondent No.1.

Altaf Hussain Surahio for the State.

2011 M L D 994

[Karachi]

Before Ghulam Sarwar Korai, J

JAN MUHAMMAD through Attorney---Applicant

Versus

MUHAMMAD MUSHTAQ QURESHI and another----Respondents

Civil Revision Application No.241 of 2010, decided on 2nd March, 2011.

Civil Procedure Code (V of 1908)---

----Ss. 24---Transfer of case---Appellate Court dismissed application for transfer of case to another court---No direct allegation was raised by applicant about credibility of Presiding Officer of the court from where case was sought to be transferred---Transfer was sought only on the apprehension that earlier two matters were decided by said court which were in between the same parties and subject property was also the same; that the Presiding Officer of that court had made up his mind against the applicant---Validity---If applicant was feeling some apprehension, he could not be 'compelled to proceed with the matter before the same court, while other courts were also there---Respondents would not suffer any financial loss if the case would be transferred from one court to another in the same premises---Case was transferred to other court to decide the same accordingly.

Mian Abdul Qadoos v. Faqirullah Minhas, and others 1994 MLD 1153; Mian Muhammad Rafiq Saigol v. BCCI and others 1996 CLC 1390; Batul Begum and others v. Mst. Sardar Akhtar and another 1989 MLD 106; Habib and others v. Munawar and 5 others 1991 MLD 984 and Sheikh Naseeruddin v. Masood Hassan PLD 1995 Lah. 89 rel.

Mirza Sarfaraz Ahmed and Rahimullah for Applicant.

Shamsul Hadi for Respondent No.1.

Asadullah Balouch, for the State.

2011 M L D 1000

[Karachi]

Before Muhammad Athar Saeed, J

NAZEER MUHAMMAD and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 1086 of 2009, decided on 24th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 324/384/448/34---Attempt to commit qatl-e-amd, extortion and house trespassing---Pre-arrest bail, confirmation of---One of accused persons was complainant who had filed F.I.R. against complainant of the case for an incident which occurred on same place and at the same time---Accused persons were admitted to interim pre-arrest bail---Since pre-arrest bail had also been granted to the complainant in the case; and facts of both the cases were identical, pre-arrest bail granted to accused persons, was confirmed by enhancing the solvent surety.

Mehmood A. Qureshi for Applicants.

Muhammad Nawaz for the Complainant.

Abdullah Rajput, Asst. A.-G. for the State.

2011 M L D 1006

[Karachi]

Before Muhammad Athar Saeed and Munib Akhtar, JJ

MUNAWAR YOUNUS and 3 others---Petitioners

Versus

KARACHI CANTONMENT BOARD, through Cantonment Executive Officer and 2 others---Respondents

Constitutional Petition No.D-540 and C.M.A. No. 2419 of 2009, decided on 13th December, 2010.

Cantonments Act (II of 1924)---

---Ss. 60, 282 & 283---Constitution of Pakistan, Art.199---Constitutional petition---Erection of hoardings and signboards---Enhancement of charges---Cantonment Board gave permission to the petitioners for erection of hoardings and signboards, but enhanced the charges, by means of its Resolution---Validity---Cantonment Board was bound to obtain prior sanction of the Federal Government for enhancing the rates in question, and to get the new rates published in the official Gazette---Such exercise was not carried out in relations to the impugned Resolution---Enhancement of rates and demand based on such purported enhancement therefore, were ultra vires of the Cantonments Act, 1924 and without lawful authority---Demand of such enhanced rates from the petitioners by the Board, was quashed---Petitioners were entitled to proper computation of the amount payable by them in accordance with law---In case the impugned demand at the enhanced rate had been paid by the petitioners, they would be entitled to a refund of the excess amount so paid.

Collector of Customs v. Sheikh Spinning Mills Ltd. PTCL 1999 CL 752; Ejaz Shafi and others v. Federation of Pakistan and others PLD 1997 Kara 604 and Raja Kumar v. Hyderabad Cantonment Board 2006 MLD 549 ref.

Muhammad Abdullah for Petitioner.

Ashraf Ali Butt for Respondent No.1.

2011 M L D 1015

[Karachi]

Before S. Zakir Hussain, J

SHAUKAT ALI---Applicant

Versus

Mst. FARZANA and 2 others---Respondents

Criminal Miscellaneous Application No.172 of 2010, decided on 25th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), 5.302/34---Qatl-e-amd---Application for cancellation of bail---Accused were women, out of whom one was old and the other one was young, and married having a suckling baby and appeared to be pregnant as well---No direct or indirect tangible role appeared in the allegation as to the commission of the crime against any accused---Exercise of discretion in favour of grant of bail to accused persons, was not only justified, but was duty to the service of justice---No material was available which could justify that the bail granting order was wrong and incorrect---State Counsel also supported the bail granting order in favour of accused on the score of their being women, whereas on merits case required further inquiry; and as a matter of law accused were entitled to remain on bail.

Muhammad Akram v. Zahid Iqbal and others 2008 SCMR 1715; 2009 SCMR 1202 and Dil Murad v. The State 2010 .SCMR 1178 ref.

Counsel for the applicant is called absent.

Mahmood A. Qureshi for Respondents Nos.1 and 2 along with respondent present in person.

Abdul Rahman Kolachi, A.P.-G. for the State.

2011 M L D 1022

[Karachi]

Before Syed Hasan Azhar Rizvi, J

YASIR FAROOQ: In re

Insolvency Petition No. Nil of 2007, decided on 21st February, 2011.

Insolvency (Karachi Division) Act (III of 1909)---

----Ss.10 & 15---Sindh Chief Court Rules (O.S.), R. 586 (1) (2)---Declaration of insolvency---Books of account, non-maintaining of---Petitioner did not maintain books of account, therefore, Official Assignee did not recommend issuance of insolvency certificate to him--Validity-Petitioner had neither filed relevant documents nor relevant details of documents/books of accounts in terms of R.586 (1) of Sindh Chief Court Rules (O.S.)---No certificate as required under R. 586 (2) of Sindh Chief Court Rules (O.S.), could be issued to him---Petition was dismissed in. circumstances.

Nemo for Plaintiff.

Qadir Bux Umrani, Official Assignee.

2011 M L D 1027

[Karachi]

Before Bhajandas Tejwani, J

FURQAN QADRI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1198 of 2010, decided on 12th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324134---Qatl-e-amd and attempt to commit qatl-e-amd--Bail, grant of-Further inquiry--Name of accused did not transpire, nor any role had been attributed to hint in the F.I.R.---Accused was produced from jail for identification parade after about 21 days from date of his arrest---Accused remained in the custody of Police for complete 16 days and he must be open to public at Police, Station, but during that period no identification parade was held---Such piece of evidence could not be helpful to the prosecution---Case of accused would require further inquiry as to the involvement of accused in the commission of alleged offence---Accused was admitted to bail, in circumstances.

Mehmood A. Qureshi and Jamshed Iqbal for Applicant.

Abdullah Rajput Asstt: P.G. Sindh for the State.

2011 M L D 1034

[Karachi]

Before Muhammad Athar Saeed and Muhammad Ali Mazhar, JJ

QAMARUDDIN ARIAN---Appellant

Versus

FEDERATION OF PAKISTAN through President of Islamic Republic of Pakistan

and 4 others---Respondents

H.C.A. No.12 of 2010, decided on 11th March, 2011.

Civil Procedure Code (V of 1908)---

----S. 11 & O. VII, R. 11---Specific Relief Act (I of 1877), Ss.39, 42 & 54---Suit for declaration, cancellation of contract and permanent injunction---Cultivation of Army land, contract for--- Termination of plaintiff's contract by authority and awarding such contract to private defendant---Plaintiffs' constitutional petition challenging termination of his contract by authority was dismissed by High Court with observations that authority had retained plaintiff as contractor for management of such land on yearly basis, and on expiry of contract period, he had lost legal claim over such land except any other claim against authority for commission of breach of contract or for loss suffered by him, for which he could approach the civil court---Prayer in suit for declaring termination of plaintiff's contract to be illegal, cancelling contract awarded to private defendant and restraining authority from creating any third party interest in land---Authority's application under O. VII, rule 11, C.P. C., for rejection of plaint for being barred by doctrine of res judicata---Validity---Relief sought in constitutional petition and prayer of plaint in suit were same and identical on which High Court had already given its findings---Plaintiff in order to save himself from barriers of res judicata had impleaded private defendant by seeking' cancellation of his contract---High Court had already held that after expiry of contract period, plaintiff had no legitimate right and lost his claim upon such land---Impleading newly-inducted, contractor as defendant in the suit was a futile and vexatious exercise without any rationale as no relief against him could be granted to plaintiff---Plaint could not be rejected, if plaintiff had filed suit against authority only for recovery of damages on account of commission of breach of contract or for loss suffered by hint---Plaintiff had claimed almost same relief as claimed in constitutional petition with slight variation of cancellation of contract of private defendant, which was not possible in view of such findings of High Court---Plaint in the present suit was rejected for being barred by doctrine of res judicata.

Trustees of the Port of Karachi v. Karachi International Container Terminal Ltd. 2010 CLC 1666; Mustufa Kamal v. Dawood Khan PLD 2004 SC 178 and Muhammad Salimullah v. Additional District Judge, Gujranwala PLD 2005 SC 511 rel.

Mrs. Kausar Anwar Siddiqui for Appellant.

Muhammad Ashraf Mughal, Deputy Attorney General for Pakistan.

Chaudhry Muhammad Rafiq Rajourvi for Respondent Nos.2 and 3.

Muhammad Munsif Jan for Respondent No.5.

2011 M L D 1043

[Karachi]

Before Salman Talib-ud-Din, J

MUHAMMAD ILYAS and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.834 of 2008, decided on 26th June, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 504 & 34---Qatl-e-amd, attempt to commit qatl-e-amd and intentional insult with intent to provoke breach of the peace---Bail, grant of---Further inquiry---According to the complainant, accused appeared to be the person who started the altercation by inflicting "a blow to deceased; while the role assigned to said accused in the counter case was that of the alleged peace-maker who intervened and brought an end to the quarrel---All three accused persons; were alleged to have caused blows to the deceased, but nothing was on record from which it could be said as to which of three inflicted the injury that caused the death of the deceased---Case, in circumstances, was that of further inquiry entitling accused persons to grant of bail---Accused were admitted to bail, in circumstances.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq, 1996 SCMR 1985; Moeenuddin v. The State 1999 PCr.LJ 810; Ghulam Haider v. The State PLD 2003 Kar. 603; Shabbir alias Ghulam Shabbir v. The State 2005 PCr.LJ 38; Mushtaq Ahmed v. The State 2008 MLD 232; Fazal Muhammad v. Ali Ahmed, 1976 SCMR 391 and Shafiqun v. Hashim Ali and others 1972 SCMR 682 ref.

Ishrat Ali Lohar for Applicants.

Bahadur Ali Baloch, State counsel.

2011 M L D 1049

[Karachi]

Before Imam Bux Baloch, J

SAFDAR and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.67 of 2010, decided on 29th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324 & 353---Attempt to commit qatl-e-amd and assault or criminal force to deter public servant from discharge of his duty---Pre-arrest bail, confirmation of---None had received any injury in the attack; and it was yet to be seen at the trial as to whether any attack for murdering assault was committed by accused person or not---Accused persons in their bail application had clearly mentioned mala fide and ulterior motive on the part of the Police---According to F.I. R. incident had taken place mid of city, but ' no independent witness was cited as mashir---Pre-arrest bail already granted to accused persons, was confirmed, in circumstances.

Ali Anwar Sahar for Applicants.

Miss Rubina Dhamrah, State counsel.

2011 M L D 1053

[Karachi]

Before Mushir Alam, C.J. and Syed Hasan Azhar Rizvi J

PRIDE SCHOOL OF NURSING through Principal---Petitioner

Versus

GOVERNMENT OF SINDH through Secretary Health and 2 others---Respondents

C.P. No.D-218 of 2011 and C.M.A. No. 2043 of 2011, decided on 7th March, 2011.

Constitution of Pakistan---

----Art.199---Constitutional petition---Educational Institution---Refusal of Pakistan Nursing Council to allow students of petitioner's Nursing Institution to sit in supplementary examination---Ground for refusal being that such Institution was not recognized by Council for failing to follow its directions---Validity---According to Council's rules, if a nursing/midwifery or LHV candidate submitted Annual Examination Form and allotted Roll Number, but failed to sit in examination for any reason, then such candidate would be eligible to sit in supplementary examination---Record showed that petitioner's institution was not recognized by Council for failing to comply with its directions---Council had directed petitioner institution not to induct fresh students, but petitioner institution had violated same illegally, malafidely and in order to gain money---Students of said institution were neither enrolled with Board nor submitted Examination Forms for Annual Examination, thus, they were not eligible to appear in Supplementary Examination---Students having lost one year due to fault/negligence of petitioner institution would be at liberty to seek appropriate remedy available under law, if they so advised---High Court dismissed constitutional petition in circumstances.

Ch. Muhammad Jamil for Petitioners.

Liaquat Ali Khaskheli for Respondents Nos. 21and 3.

Nazar Akber, D.A. G.

Muhammad Sarwar Khan, learned A.A.-G. Sindh.

2011 M L D 1067

[Karachi]

Before Maqbool Baqar, J

Mst. GUL BANO and 2 another---Applicants

Versus

ALLAH BACHAYO and others-Respondents

Criminal Miscellaneous Application No.S-315 and M.A. No.2249 of 2009, decided on 15th January, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 173---Penal Code (XLV of 1860), S.380---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Theft in dwelling house liable to Tazir---Quashing of order, application for---Respondent/complainant alleged that accused visited complainant with his family members and stayed with him overnight, but slipped away in the morning with daughter of complainant taking away some jewellry with' them---Investigating Officer after concluding investigation and recording statements of the witnesses submitted report before the Magistrate for disposal of the case in "C" class---Magistrate did not accept the same and directed Investigating Officer to submit report under S.173, Cr.P.C. against accused persons, which order had been challenged by applicants/accused in application under S.561-A, Cr.P.C.---Applicants had married against the wishes of the complainant---Daughter of the complainant, after marriage had not ever visited respondent/complainant and neither both applicants or relatives of applicant made accused ever visited the residence of the complainant after the marriage---Allegations in the F.I.R. were mere concoction---Complainant was aware of marriage of the applicants, but in the F.I.R. he had concealed that fact---Both applicants/accused remained in Police custody for three days, but no recovery of said alleged stolen items had been nnade---None of the witnesses had seen applicants/accused stealing the articles as alleged and/or leaving the house of the complainant---Allegations levelled in the F.I.R. against the applicants, were incorrect, rather false---Magistrate ought to have considered all those facts before passing any order on the report under S.173, Cr.P.C., but he had failed to do so---Impugned order passed by the Magistrate was set aside, in circumstances.

Ishrat Ali Lohar for Applicants.

Ali Akbar Shah for Respondent No. I.

Allah Bachayo, who is produced by A.S.-I. Muhammad Sharif.

Muhammad Iqbal Kalhoro, Addl. P.-G. Sindh.

2011 M L D 1075

[Karachi]

Before Ahmad Ali Shaikh and Irfan Saadat Khan. JJ

SHAH FAISAL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.D-53 of 2010, decided on 12th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 353, 34---Anti-Terrorism Act (XXVI of 1997), S.7---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty and terrorism---Nail, grant of----No avert act was attributed to accused even none amongst the prosecution witnesses alleged that he made firing upon them or tried to run---Accused was neither previously convict nor desperate, dangerous or hardened criminal---Accused had been granted bail in the case of possessing arms etc. by the Trial Court---Case had been challaned and accused was no more required for investigation---Accused could not be kept behind the bars for an indefinite period even in heinous offence---Was yet to be determined at trial, whether accused was one of the companions of the notorious criminals or he was merely plying a taxi---Accused having successfully made out a case for bail, he was released on bail, in circumstances.

Riazat Ali Sahar for Applicant.

Syed Meeral Shah, D.P.-G. Sindh for the State.

2011 M L D 1077

[Karachi]

Before M. Iqbal Mahar, J

SUHAIL ASHRAF---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application No.776 and M.As Nos. 2768 and 2769 of 2009, decided on 21st July, 2009.

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---Incident was un-witnessed as none had seen anybody committing murder of deceased-Prosecution witnesses in their statements under S.164, Cr. P. C. had stated that they saw deceased going on motorcycle along with accused and co-­accused---Police during investigation could not recover the crime weapon from accused or collect any circumstantial evidence against him---Accused was in jail since 7-4-2007 and only the complainant had been examined, who also had not implicated the accused---Counsel for accused having made out a case of further inquiry, accused was admitted to bail, in circumstances.

2006 MLD 81 and 2004 SCMR 864 ref.

Ijaz Ahmed Awan for Applicant.

Ali Haider Saleem; A.P.-G. for the State.

2011 M L D 1091

[Karachi]

Before Muhammad Tasnim, J

UMED ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.499 of 2010, decided on 6th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 365, 452 & 395---Qatl-e-amd, kidnapping, house-trespassing, dacoity---Bail, grant of---Further inquiry---No overt act was attributed to accused---Allegation against accused was that he along with other co-accused had abducted a person with a view to kill him, but no material was available on record to substantiate said allegation---Case against accused being of further inquiry, he was admitted to bail, in circumstances.

Wariyam v. The State 2006 PCr.LJ 1611 fol.

Mushtaque Ahmed Kalochi for Applicant.

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

2011 M L D 1098

[Karachi]

Before Shahid Anwar Bajwa, J

ORANGZAIB---Appellant

Versus

THE STATE---Respondent

Spl.Cr.A.T. Appeal No.13 and Confirmation Reference Case No.5 of 2006, decided on 28th February, 2011.

Penal Code (XLV of 1860)---

----Se. 302(b)/365-A/34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Qatl-e-amd kidnapping for ransom---Difference of opinion between two Judges of the High Court---Reference . to third Judge of the High Court, by the Chief Justice---Appreciation of evidence---Sentence, reduction in---Both the Judges had unanimously held that charge against accused under S.302(b), P.P.C. had not been proved---State Counsel as well as complainant had conceded that charge of murder had not been proved against the accused---Accused, in circumstances was acquitted of the charge of murder under S.302(b), P.P.C.---Churri was recovered on the pointation of accused---Evidence regarding recovery of churri had not been shaken in any material respects in cross-examination---Another piece of evidence against accused was recovery of purse and money---Number of currency notes was not given, but those were sealed and were produced in the court at the time of evidence---Evidence on that particular aspect had remained unshaken---Prosecution witness also deposed about recoveries---Evidence and record had established role of accused in the kidnapping---Prosecution had successfully established offence against accused under S.365-A, P.P.C. and S.7(e) of Anti-Terrorism Act, 1997---Considering young age and circumstances of the case, conviction of accused was maintained, sentence of death was modified to life imprisonment.

Imran Ashraf and 7 others v. The State, 2001 SCMR 424; Muhammad Akram v. The State 2009 SCMR 230; Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825; University of Punjab v. Miss Wajiha Arooj, 2008 SCMR 1577; Syed Hashim Ali v. The State 2006 PCr.LJ 1576; Mohtarma Benazir Bhutto another another v. President Pakistan and others PLD 1988 SC 388; Mir Muhammad v. The State 1995 SCMR 614; Muhammad Akbar v. The State 1995 SCMR 693; Khawaja Hassanullah v. The State 1999 MLD 514 and Chief Engineer, Irrigation Department N.-W.F.P. Peshawar and 2 others v. Mazhar Hussain and 2 others PLD 2004 SC 682 ref.

Ashfaq Rafiq Janjua for Petitioner.

Abdul Rehman Kolachi, A.P.-G. for Respondent.

Habib Ahmed for the Complainant.

Dates of hearing: 1st, 8th, 10th, 11th and 15th of November, 2010.

2011 M L D 1108

[Karachi]

Before Syed Zakir Hussain, J

AMEER AMAN---Petitioner

Versus

THE STATE and 7 others---Respondents

Criminal Transfer Application No.89 of 2010, decided on 8th September, 2010.

Criminal Procedure Code (V of 1898)---

----S.526---Penal Code (XLV of 1860), S. 364---Abduction---Application for transfer of case---Pending criminal case filed by complainant/alleged abductee, accused filed cross-case against alleged abductee and her father---Said cross-case having been proved to be false one, was disposed of as "B" class---Proceedings in said cross-case in which attempt was made to win over complainant and frustrate justice, were quashed and F.I.R. in that case was also quashed---Application requesting transfer of case filed by alleged abductee, seemed to be backed not only by mere apprehension for getting no justice in the matter from the Presiding Officer, but was also backed by substantial reasonings---Proceedings pertaining to the case of the complainant, were withdrawn from the court in which same were pending and were transferred to another court, with direction that transferee court would proceed with the case on day to day basis and Investigating Officer was bound down to produce all witnesses before the court on each date.

Mst. Reena daughter of Applicant in person.

Abdullah Rajput Assistant Prosecutor General along with Yousaf Jamal, SIP Arif Afridi, S.-I. Sajjad Hussain and SIP Muhammad Pervez.

2011 M L D 1116

[Karachi]

Before Aqeel Ahmed Abbasi, J

NIZAMUDDIN and 7 others---Applicants

Versus

THE STATE and another---Respondents

Criminal Revision Application No.8 of 2011, decided on 28th February, 2011.

Penal Code (XLV of 1860)---

----Ss. 302/324/147/148/114/149---Criminal Procedure Code (V of 1898), Ss.540, 561-A & 161---Qatl-e-amd and attempt to commit qatl-e­-amd---Application by accused persons under S.540, Cr.P.C. for summoning the prosecution witness for his cross-examination had been dismissed by the Trial Court---Validity---Witness at the time when his statement was recorded, had stated that his statement was recorded by Police---Investigating Officer, had himself stated that statement of said witness was not recorded by him---In view of such statement of Investigating Officer, counsel for accused, realizing the effect of non-recording of statement of prosecution witnesses. under S.161, Cr.P.C. by the Police during investigation, requested for the recalling of prosecution witness---Trial Court under S.540, Cr.P.C. had power to summon and recall any witness at any, stage of the proceedings, if the same was necessary for the proper and just conclusion and decision of the case---Request of applicants/accused persons for summoning and recalling the material witness to the extent of posing a specific question regarding non-recording of his statement under S.161, Cr.P.C., was justified, which would not have been turned down as the same would not adversely affect the case of respondent, whereas the truth would come forward which would help disposal of the case in accordance with the law---High Court directed resummoning of prosecution witness for purpose of his cross-examination.

Khalil Rahman Ayub and others v. Mrs. Syeda Yasmin Zaidi 2008 PLD Kar. 388 and Abdul Raoof v. The State PLD 2001 Lah. 463 ref.

Ghulam Ali A. Samtio for Applicants.

Muhammad Saleem GN Jessar for Respondent No.2.

Naimatullah Bhurgri, State counsel.

2011 M L D 1131

[Karachi]

Before Sajjad Ali Shah, J

Syed RIZWAN ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.S-307 of 2010, decided on 28th March, 2011.

Penal Code (XLV of 1860)---

----Ss. 412 & 392---Dishonestly receiving property stolen in the commission of a dacoity---Appreciation of evidence---Vehicle was alleged to be a stolen vehicle which was involved in criminal case/F.I. R. under S.392, P.P.C.---Nothing was brought on record by the prosecution to show that vehicle in question was case property or was a robbed vehicle---Investigating Officer and prosecution witnesses could not produce copy of F.I.R. in respect of criminal case in which vehicle was allegedly involved---Prosecution had not recorded the statement of complainant in the said crime---Contention of counsel for accused that nothing was on record to demonstrate that the vehicle was stolen for commission of dacoity, or received from a person as stolen property, appeared to be correct---Conviction and sentence awarded to accused by the Trial Court was set aside and he was acquitted and released.

Muhammad Ali v. The State 1968 PCr.LJ 596 and Naseem Rafiq alias Goldi v. The State 1986 PCr.LJ 402 ref.

Syed Jawaid Bukhari for Appellant.

Syed Meeral Shah Bukhari D.P.-G. for Respondent.

Dates of hearing: 21st and 28th March, 2011.

2011 M L D 1142

[Karachi]

Before Gulzar Ahmed and Nisar Muhammad Shaikh, JJ

IQBAL HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.141 and 146 of 2009, decided on 31st July, 2010.

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

---Ss. 6 & 9(c)---Possession and trafficking of narcotics---Appreciation of evidence---Contents of F.I.R. as well as memo of arrest and recovery were corroborated by the evidence of complainant, recovery witness and their evidence could not be shaken on any of the material particulars during their cross-examination---Evidence of said witnesses was further corroborated by positive report of Chemical Examiner in respect of the entire charas secured from the secret cavities/boxes of the Bus on the disclosure of accused---Both witnesses, no doubt belonged to the Anti-Narcotic Force but, same itself could not be considered on a valid reason to discard their statements---Since prosecution had been able to successfully adduce the convincing evidence in support of the alleged recovery of a huge quantity of charas, non-recovery of driving licence of accused or registration Book of the Bus was not of so importance to violate the said recovery of contraband charas---Accused could not furnish cogent reason for their alleged false implication---Involvement of accused in the case had been proved by confidence inspiring evidence of prosecution witnesses, who had no animosity or any interest to depose falsely against them---Evidence adduced by the prosecution during the trial of the case was properly appreciated by the Trial Court---Accused, in circumstances, were rightly found guilty of the charge on the basis of the material brought on record---Conviction and sentence awarded by the Trial Court to accused persons, were maintained, in circumstances.

2009 SCMR 141; 1997 SCMR 543; PLD 1987 FSC 43; PLD 2009 Kar. 191; 2009 PCr.LJ.523 and 1334; 2009 YLR 640, 1380 and 1724; 2008 MLD 797; 2007 PCr.LJ 483; PLD 2007 Kar. 238; 2006 PCr.LJ 123; PLD 2006 Kar. 698; 2004 YLR 356; 2004 PCr.LJ 1224; 2003 PCr.LJ 865; PLD 2003 Kar. 606; 1988 SCMR 1899; 2009 SCMR 291, 306 and 1403; 2008 YLR 2538, 2702 and 2903; Ismail v. The State 2010 SCMR 27; Abdul Rasheed v. The State 2009 SCMR 306; Muhammad Noor and others v. The State 2010 SCMR 927 and Zafar v. The State 2008 SCMR 1254 ref.

Ilamdin Khattak for Appellant.

S. Ashfaq Hussain Rizvi, Special Prosecutor ANF for Respondent (in Criminal Appeal No.141 of 2009).

Abdul Razzak for Appellant.

Mrs. Abida Parveen Channer, Special Prosecutor ANF for Respondent (in Criminal Appeal No.146 of 2009).

Dates of hearing: 14th, 15th, 16th and 17th June, 2010.

2011 M L D 1155

[Karachi]

Before Faisal Arab and

Muhammad Ali Mazhar, JJ

Mst. RUBINA KAUSAR---Petitioner

Versus

DISTRICT POLICE OFFICER, SUKKUR and 8 others---Respondents

Constitution Petition No.D-2144 of 2010, decided on 29th March, 2011.

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

----Ss. 302, 364, 344, 457, 380 & 34---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Constitution of Pakistan, Art.199---Constitutional petition---Scope---Qatl-e-amd, kidnapping or abduction in order to murder, wrongful confinement, lurking house-trespass, theft in dwelling house and possessing unlicensed arm---Quashing of F.I.R.---Petitioner/mother of accused, had sought quashing of F.I.R. against accused---Inquiry report showed that son of the petitioner was not proved innocent and whatever mentioned against him was the matter of evidence---Guilt or innocence of accused, could not be ascertained or determined in the constitutional petition---Determination of correctness or falsity of allegation levelled against the son of the petitioner; the determination of his guilt or innocence; and the ultimate conclusion regarding his conviction or acquittal, was an obligation cast upon the court having jurisdiction to try under the Code of Criminal Procedure on the basis of evidence as could be led during the trial---Petition involved numerous controversial facts which ran into minute details, and could not be decided under constitutional jurisdiction of High Court---Petition was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Quashing of F.I.R.---Determination of guilt or innocence of accused---High Court in exceptional cases could exercise jurisdiction without waiting for Trial Court to pass orders under S.249-A or 265-K, Cr.P.C., if the facts of the case so warranted---Main consideration to be kept in mind, would be whether continuance of the proceedings before the Trial Court would be a futile exercise, wastage of time and abuse of process of court or not---If on the basis of facts admitted and patent on record, no offence could be made out then it would amount to abuse of process of law to allow prosecution to continue with the trial---Where assumption of jurisdiction was without lawful authority and was apparent on the face of the proceedings, same could be quashed in constitutional jurisdiction---Resort to provisions of Art.199 of the Constitution, seeking quashing of case was an extraordinary remedy which could be invoked only in extreme circumstances; and said provisions could never be exploited as a substitute for the prescribed trial; or to decide the question of guilt or innocence of accused---If prima facie an offence had been committed, ordinary course of trial before the court should not be allowed to be deflected by resorting to constitutional jurisdiction.

Miraj Khan v. Gul Ahmed 2000 SCMR 122; Syed Murad Ali Shah v. Government of Sindh; Riffat Ali Barq v. S.H.O. Police Station Muzaffarabad 1991 PCr.LJ 9; Muhammad Aslam v. District Police Officers, Rawalpindi; 2009 SCMR 141; Rafique Ahmad v. The State 1993 MLD 832; Anwar Ahmad Khan v. The State 1996 SCMR 24; Government of Sindh v. Raeesa Farooq 1994 SCMR 1283; Haji Sardar Khalid Saleem v. Muhammad Ashraf 2006 SCMR 1192; Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353; Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317 and Maritime Security Agency, Karachi v. Muhammad Saleem Khan PLD 1994 SC 486 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Quashing of an F.I.R. in exercise of constitutional jurisdiction primarily to save a person from the rigors of an unjustified investigation---If investigation of a criminal case had already been finalized, the High Court would generally be slow in interfering in the matter at such a stage as in case of submission of challan before the court of competent jurisdiction, many remedies would become available to the affected persons---If criminal liability was spelt out from the facts and circumstances of a particular case, accused could be tried upon criminal charge; in such a situation, quashing of F.I.R. would tantamount to throttling the investigation which was not permissible in law---Neither High Court could resolve the factual controversy in constitutional jurisdiction nor assume the role of an Investigating Officer.

Zubair Ahmed Rajput for Petitioner.

Abdul Fatah Malik, Additional Advocate General.

Rizwan Soomro, DSP/SPO City, Zahid Mirani, S.H.O. Police Station A-Section, Khairpur, Abdul Malik Kamangar, S.H.O. Police Station B-Section, Khairpur and PDSP Fida Hussain.

Dareshani Ali Haider for the intervener Haji Muhammad Ramzan.

2011 M L D 1171

[Karachi]

Before Muhammad Ali Mazhar, J

MULO AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-127 of 2011, decided on 6th May, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 337-H(2), 34, 114, 148 & 149---Qatl-e-amd, hurt by rash or negligent act---Principle of constructive liability---Bail, refusal of---Allegation made in the F.I.R. had shown that all co-accused persons in a preplanned manner had committed the murder of father of the complainant and shared common intention with principal accused and facilitated the murder---If several persons would unite with common purpose to do any criminal offence, all those who assisted in the completion of their object, would be equally guilty---Reasonable grounds were available to believe that accused had shared common intention with all the co-accused in the commission of murder---Though the allegation against accused was making aerial firing along with co-accused and had not caused any firearm injury to the deceased, but his undeniable presence at the place of incident, duly armed with weapon, had shown his motive of preplanned concert in furtherance of common object with principal accused---Present was not a case of sudden provocation rendering the matter one of further inquiry---Accused persons including accused duly armed with weapons were waiting for the complainant party on the road and they raised Hakal and stopped the complainant party and committed murder of father of the complainant---No explanation whatsoever was rendered to justify the presence of the accused at the place of occurrence, which had led to a tentative view that the accused shared common intention to commit the murder of deceased---Nothing was available on record to show that complainant party had any motive or reason to falsely implicate accused in the case---Case was at preliminary stage and evidence of none of prosecution witnesses had been recorded---Court at bail stage, could not undertake deeper appreciation of the evidence of prosecution---Reasonable grounds were available to believe that accused had shared the common intention with co-accused in the commission of murder---Accused, in circumstances, was not entitled to the concession of bail---Bail application of accused was dismissed, in circumstances.

Muhammad Sadiq and another v. State 1996 SCMR 1654; Soonharo v. State 2006 YLR 2497; Gulab Dhari v. State 2009 YLR 181; Dhani Bux and others v. State 1989 SCMR 239; Muhammad Younis v. State 2006 YLR 2988; Shah Nawaz v. State 2008 PCr.LJ 676; Gulzra and another v. State 2006 PCr.LJ 1984; 1991 SCMR 322; 2009 YLR 181; 2008 YLR 580 and Muhammad Yaqoob Sub-Inspector v. The State PLD 2001 SC 378 ref.

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

----S. 34---Criminal Procedure Code (V of 1898), S.497---Bail---Constructive liability---Principle and foundation of---If several persons would unite with common purpose to do any criminal offence, all those who would assist in the completion of their object would be equally guilty---Foundation for constructive liability was the common intention in meeting accused to do the criminal act and the doing of such act in furtherance of common intention to commit the offence---In order to constitute an offence under S.34, P.P.C., it was not required that a person should necessarily perform any act with his own hand---If several persons had the common intention of doing a particular criminal act and if, in furtherance of their common intention all of them joined together and aided or abetted each other in the commission of an act, then one out of three could not actually with his own hand, do the act, but if he would help by his presence or by other act in the commission of an act, he would be held to have himself done that act within the meaning of S.34, P.P.C.---Principle of vicarious liability would be looked into even at bail stage, if from the F.I.R., accused appeared to have acted in pre-concert or shared to community of intention with his co-accused who caused fatal injury to deceased and could be saddled by constructive or vicarious liability by invoking S.34, P.P.C.---Court on the basis of material placed, such as F.I.R. and statements recorded by the Police even at bail stage consider the question whether the case of constructive liability was made out or not---Paramount consideration was whether accused was member of unlawful assembly or whether the offence had been committed in furtherance of common object.

2008 YLR 580 and Muhammad Yaqoob Sub-Inspector v. The State PLD 2001 SC 378 ref.

Ghulam Sajjad Gopang for Applicant.

Syed Meeral Shah Deputy Prosecutor General for the State duly assisted by Ahsan Gul Dahri for the Complainant.

Date of hearing: 18th April, 2011.

2011 M L D 1183

[Karachi]

Before Muhammad Ali Mazhar, J

JOKHIO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.162 and M.As. Nos. 1199, 1084 and 1085 of 2011, decided on 2nd May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/148/149---Attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---No empties were recovered from the place of incident and two accused having the same set of evidence were let off by the Police; and they were not only released, but their names were also kept in Column No.2 of the challan---Previous enmity between the parties was an admitted fact and counsel for accused had also placed on record a copy of F.I.R. which was lodged by accused party against the complainant party 20 days earlier before the incident---Sharing of common intention of accused with other accused was always subject to further inquiry; unless there was overwhelming evidence on the contrary---Statements of witnesses recorded under S.161, Cr.P.C. were also not consistent with the statement of complainant in F.I.R.; and all the injuries caused to the injured persons also did not come within prohibitory clause of S.497, Cr.P.C. except one injury---Case against accused being of further inquiry, he was entitled to bail, in circumstances.

Muhammad Ilyas v. The State and another 2010 PCr.LJ 379; Umar Hayat v. The State and another 2008 SCMR 1621; Waris and 2 others v. The State 2000 PCr.LJ 642; Shafqat alias Shafoo v. The State and another 2010 PCr.LJ 304 and SBLR 2010 Sindh 451 rel.

Ishrat Ali Lohar for Applicant.

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

2011 M L D 1190

[Karachi]

Before Muhammad Ali Mazhar, J

JESSA RAM---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.S-594 of 2010, decided on 16th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 249-A---Penal Code (XLV of 1860), Ss.217, 409, 420, 467, 468, 471 & 477-A/34---Prevention of Corruption Act (II of 1947), S.5(2)---Sindh Enquiries and Anti-Corruption Rules, 1993, Rr.2(g), 3 & 11(2)---Sindh Prevention of Bribery and Corruption Act (XXIV of 1950), S.3---Disobeying direction of law by Public Servant, criminal breach of trust by Public Servant, cheating, forgery, using as genuine a forged document, falsification of account and corruption---Powers of Magistrate to acquit accused---Application for acquittal---Registration of criminal case against public servant without prior permission---Trial Court under S.249-A, Cr.P.C. was empowered to acquit accused at any stage of the trial---Requirements to be fulfilled were; firstly that hearing was to be given to the prosecutor and counsel of accused; and secondly that reasons were to be recorded in support of conclusion that charge was groundless; or there was no probability of accused being convicted---Application under S.249-A, Cr.P.C. could be filed at any stage of the proceedings; and it was not necessary and was no requirement that application was to be filed after evidence of all the witnesses was recorded---Magistrate was given power under S.249-A, Cr.P.C. to acquit accused at any stage of the case, if after hearing prosecutor and accused and for reasons to be recorded, he considered that charge was groundless; or that there was no probability of accused being convicted of any offence---Applicant in the present case had not been implicated in the F.I.R.---According to provision of S.3 of Sindh Prevention of Bribery and Corruption Act, 1950, the investigation in the case would be conducted by Police Officer not below the rank of Inspector of Police, but investigation had been conducted by Sub-Inspector of Police without reference to any authorization---Apart from that, criminal case was registered against applicant/accused who was public servant without prior permission of competent Authority which was mandatory under R.11(2) of Sindh Enquiries and Anti-Corruption Rules, 1993---Most crucial and foremost point regarding the accord of permission having remained untouched and had not been decided by the Trial Court, impugned order was set aside by High Court and matter was remanded with direction to decide application under S.249-A, Cr.P.C. afresh within 20 days after hearing the prosecutor and accused and pass order with coherent and convincing reasons after examining the available record.

PLD 2009 SC 102 and PLD 1997 SC 275 ref.

Pirbhulal Goklani and Azizullah Shaikh for Applicant.

Syed Meeral Shah, D.P.-G. for the State.

Date of hearing: 16th May, 2011.

2011 M L D 1202

[Karachi]

Before Gulzar Ahmad and Shahid Anwar Bajwa, JJ

MURAD USMANI and another---Applicants

Versus

THE STATE---Respondent

Bail Applications Nos.505 of 2011, decided on 28th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.409/419/420/468/471/ 109/34---Criminal breach of trust by public servant, cheating by personation, forgery, using as genuine a forged document---Bail, refusal of---Allegation in the case was that serious fraud had been committed in granting of auto loans to a number of fake persons---Such kind of crimes were called "white collar crimes", which were totally different in nature from common crime that take place in the society---Primary instrument for commission for white-collar crime was creation of false documents---Many times culprits operated in a manner that no fingerprints were left and it was difficult to trace them---In the present case it was alleged that registration number of vehicles were picked up and thereafter forged documents were created and loans were given to fake persons---Such crime remained hidden for a long time till the complainants blow the whistle---Fact that loans were granted to fake persons on false documents in respect of false vehicles was partly clear---Detail for as many as 60 such vehicles had been provided in the challan---All said material, prima facie, had reasonably connected accused persons, who were Branch Managers of the Bank, to alleged offences---Counsel for accused had contented that no disciplinary action had been taken against them by the Bank---Validity---Domestic disciplinary action and criminal action, were independent of each other; and result of one could have no bearing whatsoever on result of the other---Bail applications were dismissed in circumstances.

Tariq Bahsir and 5 others v. The State PLD 1995 SC 34; Shamraiz Khan v. The State 2000 SCMR 157; Inspector-General of Police Punjab, Lahore and others v. Muhammad Tariq 2000 PLC 725; Executive Engineer and others v. Zahid Shareef 2005 PLC (C.S.) 701; Government of N.-W.F.P. and 2 others v. Auranzeb 2003 PLC (C.S.) 167 and Arif Ghafoor v. Managing Director, Heavy Mechanical Complex Taxla and others PLD 2002 SC 13 ref.

Behzad Haider for Applicant (in Criminal Bail Application No.504 of 2011).

Khalid Mehmood Siddiqi for Applicant (in Criminal Bail Application No.505 of 2011).

Z.K. Mujahid for the Complainant.

Ashfaq Ahmed Taggar, D.A.-G. along with Inspector Zia Hassan Rizvi, Investigating Officer.

2011 M L D 1212

[Karachi]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

Dr. SOHRAB KHAN---Petitioner

Versus

SPECIAL JUDGE, ANTI-TERRORISM COURT and another---Respondents

Constitutional Petition No.D-331 of 2010, decided on 14th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324/147/148/149 & 425---Anti-Terrorism Act (XXVII of 1997), Ss.6/7---Attempt to commit qatl-e-amd, mischief---Pre-arrest bail, grant of---Only allegation against accused in the F.I.R. was that he was found present at the place of incident, beyond that nothing was alleged against him---Other 17 co-accused named in the same crime had already been granted bail---Accused, in circumstances, was not only entitled to grant of bail on merits, but also on the rule of consistency---Interim pre-arrest bail already granted to accused, was confirmed, in circumstances.

Raiz Wazir Ahmad v. The State 2004 SCMR 1167 ref.

Abdul Sattar Sarki for Petitioner.

Khadim Hussain Khokharo, D.P.-G.

2011 M L D 1232

[Karachi]

Before Nisar Muhammad Shaikh, J

FAZAL MUHAMMAD---Applicant

Versus

S.H.O., POLICE STATION BABERLOI, DISTRICT KHAIRPUR and another---Respondents

Criminal Miscellaneous Application No.304 of 2009 and M.As. Nos.2634, 2635 of 2010, decided on 2nd May, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 154---Registration of criminal case---Application for---During the course of arguments, it had been admitted by the counsel for the parties that long-standing enmity existed between the parties and they had been filing cases against each other---S.H.O., however, could not be allowed to violate mandatory provisions of S.154, Cr.P.C.---S.H.O. appeared to have taken interest in the matter just like a witness or party and instead of lodging F.I.R., had lodged a non-cognizable report concluding the case/report as false and had escaped of his liability fixed under the law---High Court directed the S.H.O. to record the fresh statement of the applicant in verbatim and in case cognizable offence was made out from such statement, register F.I.R. of the applicant in accordance with law; if F.I.R. so registered, was found false during investigation, then action could be taken against applicant/complainant in accordance with law and police would not arrest any of the nominated accused, unless he would collect the tangible evidence.

PLD 2005 SC 539; 2010 PCr.LJ 982 and PLD 2005 Kar. 285 rel.

Zulifqar Ali Sangi for Applicant.

Syed Muhammad Ali Shah for Dr. Muhammad Ismail.

Shamlal A.P.-G.

2011 M L D 1237

[Karachi]

Before Muhammad Tasnim, J

HAZOOR BUX alias Hazooro---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-226 of 2010, decided on 8th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.395 & 394---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Dacoity, voluntarily causing hurt in committing robbery, Haraabah---Bail, grant of---Further inquiry---Unexplained delay in lodging F.I.R.---No recoveries, whatsoever, had been effected from accused---Complainant party though approached the Police Station and got referral letter from the Police for medical treatment, but F.I.R. was not lodged---Complainant after getting treatment and after due deliberation with other companions, lodged F.I.R. against accused and others---No recovery was made from accused---Case was fit in which further inquiry in terms of subsection (2) of S.497, Cr.P.C. was called for---Accused was admitted to bail, in circumstances.

Meenhal and others v. The State 2007 MLD 214 ref.

Ghulam Shabir Dayo for Applicant.

Shamsuddin Kobhar for the Complainant.

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

Date of hearing: 8th September, 2010.

2011 M L D 1246

[Karachi]

Before Tufail H. Ebrahim, J

ZUBAIR KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.24 of 2011, decided on 15th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, grant of---Further inquiry---Accused was not nominated in the F.I.R., nor any role had been assigned to him---No enmity existed between the deceased and the accused---Accused had no motive to commit the crime---No eye-witness of the occurrence was available---No cries of the deceased were heard by anybody including the chowkidar of the premises---Question of recovery of some amount from the accused, stated to be the salary of the deceased, would be decided by Trial Court after recording evidence---Prima facie, the accused being minor under the age of 18 years, was entitled to bail---Accused did not appear to have any direct nexus with the commission of the offence and his guilt needed further probe---Bail was allowed to accused in circumstances.

Siraj Din v. Saghir-ud-Din alias Goga and another 1970 SCMR 30; Bashir Ali v. The State 1971 PCr.LJ 997; Ghulam Shabbir v. The State 1987 SCMR 1291; Nisar Ahmad and others v. The State 1997 MLD 2575; lnayat and another v. The State 1975 PCr.LJ 1271; Hassan Gul and another v. State and another PLJ 1999 Cr.C (Pesh) 773 and Miss Farah Naz v. The State PLD 1979 Lah. 477 ref.

Syed Shoa-un-Nabi for Applicant.

Abdul Rahman Kolachi, Assistant Prosecutor-General, Sindh.

2011 M L D 1257

[Karachi]

Before Tufail H. Ebrahim, J

NAEEM-UR-REHMAN and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.90 of 2011, decided on 5th May, 2011.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.395/337H-(2)---Dacoity, causing hurt by rash or negligent act---Bail, refusal of---Accused were named in the F.I.R. with the specific roles assigned to them therein---Complainant had no enmity or mala fides for false implication of accused in the case---Delay in lodging the F.I.R. had been explained---Accused were involved in several other similar cases and they were likely to repeat the same offence, if released on bail---Registration of other F.I.Rs. against the accused alone could not be considered as a ground to refuse bail to them, but the gravity of the offence and other circumstances of the case had also to be considered while deciding the bail matter---Material available on record had suggested nexus of accused with the commission of the offence---Bail was declined to accused in circumstances.

Khawaja Naveed Ahmed for Applicants.

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

2011 M L D 1263

[Karachi]

Before Salman Hamid, J

HAJAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-1015 of 2010, decided on 7th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/364/114/147/148/149---Qatl-e-amd, kidnapping or abducting in order to murder, rioting armed with deadly weapons---Bail, refusal of---Pendency of several other criminal cases against the accused in which they were on bail, had proved that they were notorious criminals and they had blatantly misused the concession of bail by advancing their criminal activities including the murder of an innocent person---Accused had been arrested after a police encounter, when they were found also in possession of unlicensed weapons---Swearing of affidavits by the complainant and one other prosecution witness exonerating the accused, could be the result of influence and coercion in view of the track record of the accused---Complainant while taking a U-turn in the case had to satisfy the court that the said affidavits had been sworn without any pressure or influence, which was not done---Such affidavits, therefore, could not be given any weight---Accused by virtue of S.114, P.P.C. were, even otherwise, prima facie guilty of having abetted the commission of the offence of murder, which fell within the prohibitory clause of S.497(1), Cr.P.C.---Bail was refused to accused in circumstances.

Mumtaz Ali v. The State 2006 YLR 3029; Allah Bux v. Nazar Hussain Shah and another 1979 SCMR 137 and Saifal v. The State Criminal Bail Application No.S-1062 of 2011 distinguished.

Abdul Haq alias Qavi v. The State 1996 PCr.LJ 1115; Muhammad Shakeel Khan v. The State 1987 PCr.LJ 753; Naseer Ahmed v. The State PLD 1997 SC 347; Shameel Ahmed v. The State 2009 SCMR 174 and Mamaras v. The State PLD 2009 SC 385 ref.

Zulfiqar Ali Naich for Applicants.

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

2011 M L D 1270

[Karachi]

Before Salman Hamid, J

ABDUL HAQUE---Applicant

Versus

A.S.-I. SHER MUHAMMAD and 5 others---Respondents

Criminal Transfer Application No.60 of 2010, decided on 29th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 526---Transfer of case, refusal of---Comments of Trial Court on transfer application and perusal of record had revealed that the applicant was in the habit of making frivolous applications by raising uncalled for allegations against the Presiding Judge, and that it was not for the first time that he had moved such an application---Case of applicant was pending before the Judicial Magistrate since the year 2006, but the applicant had made no efforts to have the same disposed of expeditiously, rather he was not at all interested in its early disposal and wanted to prolong the matter unnecessarily---Court while deciding the application under S.526, Cr.P.C. had to see and explore the intention of the applicant behind the same---Present application for transfer of the case from the court of Trial Magistrate was aimed at and was moved to delay the matter unnecessarily---Petition was based on frivolous grounds and the same was dismissed accordingly.

Rajesh Kumar N. Kapoor for Applicant.

Ameer Ahmed Narejo, State Counsel.

2011 M L D 1279

[Karachi]

Before Abdul Hadi Khoso and Syed Zakir Hussain, JJ

SARMAD TUNIO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.D-607 and M.As. Nos. 3000, 3001 of 2010, decided on 23rd November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Haraabah---Bail, grant of---Further inquiry---Accused was put to identification test after two days of his arrest, before the Magistrate concerned through the witnesses---Accused was in jail in the case for more than two years with no progress in the matter of trial---Matter needed further inquiry---Accused was of tender age being below eighteen years at the time of commission of the offence---Benefit of such aspect was open to accused---Accused was admitted to bail, in circumstances.

Muhammad Anwar v. The State 1983 SCMR 1001 ref.

Ali Nawaz Ghanghro for Applicant.

Ameer Ahmed Narejo, State Counsel.

2011 M L D 1284

[Karachi]

Before Syed Zakir Hussain, J

ABDUL KHALIQUE---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-671 of 2010, decided on 6th December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 364-A---Kidnapping or abducting a person under the age of ten years---Bail, grant of---Charge-sheet was submitted against five absconding persons together with accused, who was the only person shown in custody; and who too, was no more required for the purpose of investigation; and against whom no recovery was said to have been effected during investigation---State Counsel did not dispute the position that the challan had been submitted and accused though was subjected to interrogation and investigation, but no recovery was effected from him---Accused being in jail prima facie led to infer that he was no more required for the purpose of investigation, including the recovery of kidnapees---Circumstances carried the facts constituting an offence under S.363, P.P.C., which involved the punishment, which did not fall within the prohibitory clause of S.497, Cr.P.C.---No bar existed, if the court considered the request of accused for grant of bail in favour of accused as a matter of law---Accused was granted bail, in circumstances.

Azizullah M. Buriro for Applicant.

Abdul Rasheed Soomro, State Counsel.

2011 M L D 1288

[Karachi]

Before Imam Bux Baloch, J

MUHAMMAD KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.160 of 2011, decided on 1st March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.489-F & 420---Dishonestly issuing a cheque, cheating---Bail, refusal of---Witnesses examined during course of investigation under S.161, Cr.P.C., had supported prosecution case---High Court observed that issuance of false cheques was increasing day by day and people were suffering difficulties/agonies and their business due to bouncing of the false cheques, collapsed; such tendency was to be dealt with iron hands---Case had been challaned and was pending for trial---Accused, in circumstances, was declined bail.

Muhammad Munsif Jan for Applicant.

Zahoor Shah, A.P.-G. for State.

2011 M L D 1294

[Karachi]

Before Salman Hamid, J

MUHAMMAD YAHYA and 16 others---Applicants

Versus

MUHAMMAD RAMZAN and others---Respondents

Civil Revision No.3 of 2008, decided on 21st February, 2011.

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

----S. 8---Civil Procedure Code (V of 1908), S.115 & O.VII, R.11---Suit for possession---Rejection of plaint---Plaintiffs had already filed case under Rent Laws against defendant---Defendant in his written statement denied relationship of landlord and tenant between the parties contending that property in question was sold to him in 1960 against adequate consideration which was to be paid in instalments and that he had paid instalments in 1980---Defendant, in circumstances claimed to be owner of property in question---Said case under Rent Laws was finally dismissed for non-prosecution and plaintiffs neither got restored said case nor filed any suit for declaration that defendant was not owner of property in question---After about sixteen years from the date of dismissal of said case, plaintiffs filed suit for possession and recovery of amount as consideration for use and occupation of property in question---Said suit was filed by as many as seventeen plaintiffs and among those five were the persons who earlier in 1985 filed case under Rent laws against the defendant, while rest of them were either sons, daughters, grandsons and granddaughters of deceased of others who were party in the said case---Defendant was shown their servant who was put in possession of property, which stand was in total contrast to the stand taken in the case under Rent Laws---Defendant filed application under O.VII, R.11, C.P.C. for rejection of plaint on grounds that plaint was under-valued on which proper court-fee was not paid; that plaintiff had no cause of action to file suit; that earlier case under Rent Laws which was filed in 1985, was dismissed for non-prosecution; and that plaint was barred for non-joinder and mis-joinder of parties---Application filed by the defendant under O.VII, R.11, C.P.C. was allowed on the ground that suit was hit by the principle of res judicata; and that it was hopelessly beyond the statutory period of limitation---Appeal filed against dismissal order had been dismissed by the Appellate Court below---Validity---Earlier, in the case under Rent Laws filed by the plaintiffs, defendant took the stand that he was in occupation of property in the capacity of an owner and not as a tenant---Despite such claim of ownership of property by the defendant, no steps of initiating litigation were taken by the plaintiffs---Non-action of plaintiffs to such a claim by itself had shown that the plaintiffs had accepted defendant as an owner in possession of property in question---Plaintiffs remained quiet for about sixteen years and thereafter filed suit for possession---Right time for such litigation was immediately after year 1985/1986 within the period of limitation when defendant claimed ownership of property---Such having not been done, time for litigation fell prey to the limitation period---Suit filed by the plaintiffs, was rightly dismissed by the two courts below.

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

----S. 115---Specific Relief Act (I of 1877), S.8---Suit for possession---Revisional jurisdiction---Scope---Provisions of revision would apply only to cases involving illegal assumption and non-exercise or irregular exercise of jurisdiction by the courts below.

Imdad Ali Mashori for Applicants.

Mazhar Ali Siddiqui for Respondents Nos.1 and 2.

Abdul Qadir Abro for Respondents No.5

Date of hearing: 14th February, 2011.

2011 M L D 1303

[Karachi]

Before Mushir Alam, C.J. and Syed Hassan Azhar Rizvi, JJ

WASEEM-UR-REHMAN BAIG---Petitioner

Versus

PROVINCE OF SINDH through the Secretary, Health Department and 3 others---Respondents

Constitutional Petition No.D-2053 of 2008, decided on 10th May, 2011.

Pakistan Medical and Dental Council Ordinance ( XXXII of 1962)---

----S. 33---Pakistan Registration of Medical and Dental Practitioners Regulations, 2008, Regls. 73 to 78---Constitution of Pakistan, Art.199--Constitutional petition---University of Health Sciences---Application for appearance in 3rd Year M.B.B.S. after a gap of 12 years in medical study---Petitioner's plea that due to financial constraints, he could not continue his 3rd Year medical study, thus, such gap in his study was neither intentional nor deliberate; and that many other students, who left their studies in past for some reasons, had been allowed by Pakistan Medical and Dental Council to continue again---Refusal of Executive Committee of Council to allow petitioner to continue such study---Validity---Committee in its meeting held on 23-11-2002 decided that in future a maximum gap of 5 years between two examinations would be permitted for continuation of M.B.B.S. and B.D.S. classes by any student for any reason---Despite having knowledge of impugned decision of the Committee dated 26-12-2002, petitioner approached High Court on 9-10-2008 for first time---Record showed that there was no other student having the gap of more than three years---Petitioner failed to make out case on merits or equity or for discrimination---High Court dismissed constitutional petition.

Ali Gohar Masroof for Petitioner.

Sohail H.K. Rana for Respondent No.3.

Afaq A. Saeed for Respondent No.4.

Muhammad Sarwar Khan, Addl. A.-G. for Respondents.

2011 M L D 1311

[Karachi]

Before Mushir Alam, C.J. and Syed Hassan Azhar Rizvi, J

TAYYAB RAFIQ BALAGAMWALA---Petitioner

Versus

TRUSTEES OF PORT OF KARACHI through Chairperson KPT and 2 others---Respondents

Constitution Petition No.D-2157 of 2010, decided on 26th April, 2011.

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

----Ss.43, 43-A, 52 & 53---Ports Act (XV of 1908), Ss.33, 34 & 35---Customs Act (IV of 1969), Ss.55(1)(b)(c), 207 & 208---Constitution of Pakistan Art.199---Constitutional petition---Deduction of pipeline charges by Karachi Port Trust (KPT) from Let Pass and Deposit (LPD) Account of shipping agent for vessels under its agency having sailed out after getting 'No Demand Certificate' (NDC) or port clearance from Port Trust---Denial of petitioner (shipping agent) to be liable to pay pipeline charges for such vessels under its agency---Validity---Board of Trustees of Port Trust subject to sanction of Federal Government was competent under the law to frame tariff, prescribe scale of tolls, dues, rate and charges for services provided to vessels calling at the Port---Government under S.33 of Ports Act, 1908 could levy port dues---Ports clearance to a vessel could be denied by Port Authority until its owner or master or some other person had either paid or secured to the satisfaction of authorised officer amount of all port dues, charges and penalties to which vessel or her owner or Master was liable under Ports Act, 1908---Non-payment of port dues would entail penalty in terms of S.45 of Ports Act, 1908---Board of Trustees, in exercise of powers under Ss.43 and 43-A of Karachi Port Trust Act, 1886 and Ss.33, 34 and 35 of Ports Act, 1908 had issued S.R.O. dated 7-1-2003 prescribing scale of tolls, dues, rates and charges including pipeline charges---Petitioner by establishing Let Pass and Deposit account and issuing Debiting Instructions to its banker in favour of Port Trust had given guarantee to the Trust to recover amount on behalf of vessel under its agency---Petitioner as shipping agent was "other person" within contemplation of S.43 of Ports Act, 1908, who had "secured" payment of all dues, charges etc., to which vessel or her owner or Master was liable under the Ports Act, 1908 by establishing Let Pass and Deposit Account and issuing such Debiting Instructions to its Bank in favour of the Port Trust---Petitioner had assumed responsibility and liability to pay all port tolls, dues, charges etc., for vessels under its agency, which called at the Port and utilized its services---High Court dismissed constitutional petition in circumstances.

Global Tradeways Ltd., v. Tsavliris Russ (World Salvage and Towage) Ltd., 2004 YLR 2581 and Globle Tradway Ltd. 2004 YLR 2581 ref.

Aga Zafar Ahmed for Petitioner.

Muhammad Ahsan Ghani Siddiqui for Respondents Nos. 1 and 2.

Nemo for Respondent No.3.

Date of hearing: 16th March, 2011.

2011 M L D 1339

[Karachi]

Before Mushir Alam and Nisar Muhammad Shaikh, JJ

ABU BAKR and 12 others---Appellants

Versus

LAL TAJ KHAN and 20 others---Respondents

High Court Appeals Nos.109, 110 and 122 of 2009, decided on 8th October, 2010.

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

----S. 14(3)---Sindh Rented Premises Ordinance (XVII of 1979), Ss. 13 & 15(3)(4)---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Plaintiffs seeking protection of their tenancies in disputed building found by Karachi Building Control Authority to be in dilapidated condition requiring immediate demolition---Application for temporary injunction to restrain Building Control Authority from demolishing disputed building---Validity---Technical Committee of Building Control Authority consisting of members from Pakistan Engineering Council, Pakistan Council of Architects and Town Planners, Secretary of Technical Committee on Dangerous Buildings in its report had declared entire building in dilapidated and ruinous condition and dangerous for lives---Structural Engineer nominated by Pakistan Engineering Council in compliance of court's order passed with consent of parties had recommended in his final report demolition of such dangerous building---Final report of Structural Engineer had corroborated such earlier report of Technical Committee---Parties had not questioned such final report---Demolition process of disputed building was started much earlier, which could not be completed due to non-cooperation of tenants in vacating building---Written statement of owner of building did not disclose his intention either to sell plot or reconstruct new building on demolition of existing building---Building Authority, in exercise of powers under S.14(3) of Sindh Buildings Control Authority Ordinance, 1979 could eject all occupiers of such building including owner and tenants thereof---Tenants were not immune from operation of S.14 of Sindh Rented Premises Ordinance, 1979 despite protection of their rights under S.13 of said Ordinance---Tenants could claim compensation, damages etc., from owner of building as permissible under the law---All three conditions essential for grant of temporary injunction did not exist in favour of tenants---High Court dismissed application for injunction with observations that Building Authority would be at liberty to take action in such matter in accordance with law.

1984 CLC 2476; 1990 CLC 119; 1992 CLC 518; 1993 CLC 2491; PLD 1998 Kar. 307; 1995 SCMR 6; 1998 SCMR 68; 1989 CLC 1975; 1992 CLC 2396; 2002 CLC 218 and PLD 2004 Kar. 492 ref.

Faisal Siddiqui for Appellants (in H.C.A. Nos. 109 and 110 of 2009).

Bilal Aziz Khilji for Appellant (H.C.A. No.122 of 2009).

Nemo for Respondent No.1.

Nemo for Remaining Respondent.

Shahid Jameeluddin Khan for Respondent No.2.

Date of hearing: 25th August, 2010.

2011 M L D 1368

[Karachi]

Before Salman Hamid, J

DEWAN DEVELOPMENT (PVT.) LTD. and 2 others---Plaintiffs

Versus

Messrs MYBANK LTD. through Regional General Manger Karachi---Defendant

Suit No.1294 and C.M.A. No.6463 of 2010, decided on 29th December, 2010.

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

----O. I, Rr. 9 & 10---Mis-joinder and non joinder of parties---Not fatal---Court could add parties either suo motu or on application or oral request---Principles.

The provisions of Rule 10 of Order I, C.P.C., would show that the same are liberal and the court is empowered to substitute or add as plaintiff upon such terms as it thinks just at any stage of the suit. Rule 10 of Order I, C P C., empowers a court to remedy such defect. Mis­joinder by itself is not fatal nor is non-joinder per se fatal. Parties can be added by the Court either on application oral request or suo motu.

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

----Ss. 42, 12 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration, permanent injunction and specific performance of Memorandum of Understanding---Transfer of property by plaintiff in compliance of terms of Memo of Understanding in favour of defendant-Bank with condition that Bank would roll over and restructure plaintiff's liability, which Bank failed to perform---Application for temporary injunction to restrain Bank from creating third party interest in such property---Validity---Such Memo. of Understanding contained certain reciprocal and/or collateral acts to be performed on either side---Conditional transfer of property by plaintiff in favour of Bank was one of such acts to be reciprocated by Bank by rolling over and restructuring of plaintiff's liabilities to enable him to do business make profits and re purchase such property within specified period---Bank had failed to perform its part of contract as agreed upon in terms of Memo. of Understanding---Such Memo of Understanding was still subsisting and valid document and not superseded by subsequent agreement and sale deeds, thus, same was capable of specific performance---No commercial enterprise would enter into an agreement of (Menlo of Understanding in the present case) without any consideration---Such transaction constituted mortgage with conditional sale---Interest of plaintiff in such property was to be safeguarded till decision of case---Bank had yet to comply with terms of the Memo. of Understanding---High Court restrained Bank from creating third party interest in such property till final decision of suit.

Mehran Sugar Mills v. Sindh Sugar Corporation Ltd. and 2 others 1995 CLC 707; Tahir Hussain Malik v. Mst. Najma Rafi 1995 SCMR 1407; S.M. Majeda Khatun Chowdhurani v. Rabindra Chandra DE and others 1952 Dacca 122; Muhammad Amin v. Khamisa and another PLD 1956 Lah. 242; Muhammad Hussain (deceased) through his legal heirs v. Noor Muhammad 1992 CLC 1459; Muhammad Farouk Dossa v. Mrs. Qudsia Dossa and 2 others 1990 MLD 2016; Major (R) Ahmed Khan Bhatti v. Mst. Masooda Fatima PLD 1981 Kar. 398; Qamaruzaaman Khan v. Industrial Development Bank of Pakistan 2009 CLD 460; Sandoz Ltd. and another v. Federation of Pakistan and others 1995 SCMR 1431; Hoshang and others v. Dr. Eddie P. Bharucha and others PLD 1968 Kar. 723; Civil Aviation Authority v. Messrs AER Rianta 2002 CLC 1430; Shahab Shahzad Mirza v. Nadeem Ahmed 2009 YLR 1601; Eidoo Khan v. Abdul Majeed and 3 others 2001 YLR 2634; Mrs. Mussarat Shuakat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189 Muhammad Hussain v. State Bank of Pakistan and others 2001 YLR 2259 and National Bank of Pakistan v. S.G. Fibre Ltd. and others 2004 CLD 689 ref.

Farogh Naseem for Plaintiffs.

Arshad Tayyabally for Defendant.

Dates of hearing: 6th, 13th, 22nd and 23rd December, 2010.

2011 M L D 1380

[Karachi]

Before Khalid Ali Z. Qazi, J

NIAZ ALI and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.822 and M.As. Nos. 3800, 3432, 3433 of 2008, decided on 29th January, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.364, 452, 506(2), 147 & 148---Kidnapping or abducting, house-trespass and criminal intimidation---Bail, grant of---Further inquiry---Court without going into deeper appreciation of evidence on tentative assessment found that case was of further inquiry regarding involvement of one of the accused who was real father of alleged abductee; and so also involvement of yet another accused who was real brother of the second accused and uncle of abductee---Case fell under the category of further inquiry as envisaged under subsection (2) of S.497, Cr.P.C.---Accused, were admitted to bail, in circumstances.

Arbab Ali Chandio for Applicants.

Illahi Bux Jamali for the Complainant.

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

Date of hearing 29th January, 2009.

2011 M L D 1415

[Karachi]

Before Munib Akhtar and Nisar Muhammad Shaikh, JJ

ROSHAN RIND---Petitioner

Versus

S.H.O., POLICE STATION, SANGHAR and 5 others---Respondents

Constitutional Petition No.D-283 of 2010, decided on 15th March, 2011.

Criminal Procedure Code (V of 1898)---

---S.353---Constitution of Pakistan, Art. 199---Constitutional petition---Ensuring attendance of accused---Grievance of the petitioner who was one of the victims of the crime, was that accused were not diligently pursued by the Police and they were not being arrested---Contention of authorities was that after proper investigation, the matter had been challaned; and it was in the hands of the Trial Court to take such action to ensure the attendance of accused---High Court, in circumstances, directed that the petitioner could make appropriate application before the Trial Court within fifteen days; that on such application the Trial Court would take all such actions as required under Cr.P.C. to ensure the attendance of accused; that Trial Court would also issue notice to D.P.O. concerned who would direct a responsible Police Officer to be in attendance before the Trial Court and file report as to what efforts were made by the subordinate Police Officers to ensure the attendance of accused as per challan and that if no positive action was forthcoming within thirty days from the date of application made by the petitioner, then the Trial Court would make a report to High Court, which would be placed on record for such suitable orders as deemed appropriate.

Miss Shabana Kausar for Petitioner.

Muhammad Aslam Sipio, State Counsel.

2011 M L D 1419

[Karachi]

Before Muhammad Ali Mazhar, J

DHANI BUX---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.S.-31 of 2011, decided on 3rd June, 2011.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Statements of witnesses must be in consonance with the probabilities fitting in the circumstances of the case and also inspire confidence in the mind of reasonable prudent mind---If those elements were present then the statement of worst enemy of an accused could be accepted and relied upon without corroboration, but if those elements were missing, then statement of a pious man could be rejected---While appreciating evidence, credence was always to be given to testimony of a witness whose presence on the spot was established, unless it was shown that witness had falsely deposed---Material contradictions and discrepancies in the evidence could create doubt in the prosecution case and, if the eye-witnesses were inimical and interested, such doubt could lead to a reasonable possibility of the witnesses being not truthful; or an inference could be drawn that they by suppressing the truth made a dishonest statement---Mere relationship or enmity was not sufficient to discard the evidence of a natural witness; or hold him not truthful and trustworthy---Such was not an inflexible rule that in all circumstances, such contradictions and discrepancies in the evidence must be treated to be injurious to the credibility of a witness; and his evidence must be excluded from consideration; or he must be held not truthful witness---Ultimate test of veracity of a witness was the inherent merit of his own statement.

1995 SCMR 1627 and PLD 2005 SC 484 ref.

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

----Arts. 117 & 118---Penal Code (XLV of 1860), S.302(b)---Qatl-e-Amd---Burden of proof---Burden of proving the case beyond doubt against accused would lie upon the prosecution---Presumption and probabilities, however, strong may be, could not take the shape of proof---Finding of guilt against an accused could not be based merely on the high probabilities that could be inferred from evidence in a given case---Finding as regards guilt of accused, should be rested surely and firmly on the evidence produced in the case and the plain inference of guilt that could be irresistible, be drawn from the evidence---Mere conjectures and probabilities, could not take the place of proof.

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

----S.302(b)---Qatl-e-Amd---Appreciation of evidence---Benefit of doubt---If a case was to be decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the rule of benefit of doubt to an accused, which had been a dominant feature of the administration of criminal justice, would be reduced to a naught---Benefit of all favourable instances in the prosecution evidence must go to accused regardless of whether he had taken any such plea or not---Any room for benefit of doubt in the prosecution case would go to accused and not to prosecution---Rule of benefit of doubt, was essentially rule of principles which could not be ignored while dispensing justice in accordance with law---Said rule was based on the Maxim, "it was better that ten guilty persons be acquitted, rather than one innocent person be convicted"-Such rule occupied a pivotal place in the, Islamic Law and was enforced rigorously in view of the saying of Holy Prophet (PBUH) that the mistake of Qazi (Judge) in releasing a criminal was better than his mistake in punishing an innocent.

PLD 1973 SC 418 and 2011 SCMR 664 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Trial Court while awarding conviction to accused had failed to consider some glaring contradictions and discrepancies in the evidence---Incident, no doubt had occurred inside the house where the presence of independent witness was not possible, but one eye-witness cited by prosecution who was also a complainant was husband of deceased, while other was her son---In the entire prosecution evidence, it was nowhere stated as to where the hatchet allegedly snatched by the complainant on the spot, disappeared from the scene and whether the said hatchet was ever handed over to the police for chemical examination---Such an important aspect had also been overlooked and ignored by the Trial Court, while passing the judgment---When incriminating hatchet' was snatched by the complainant on the spot, then how it could be recovered from the bushes after six days of the date of incident---Investigating Officer had also failed to investigate the factum of snatching the hatchet from accused, which fact was clearly mentioned in the F.I.R.---Old person of 70 years (accused) was alleged by causing hatchet injuries continuously to deceased for five minutes in presence of a son and husband of the deceased without any resistance---Prosecution had failed to prove the case against accused beyond reasonable doubt and the contradiction appearing in prosecution witnesses---Accused was not armed with a firearm, which could have scared the witnesses away and did riot sound to be natural that husband and son both would allow the assailant to kill a wife and mother in their presence as silent spectators---Presence of all of them at the scene of occurrence at the relevant time, was doubtful---No statement of independent. witnesses was recorded who gathered at the place of occurrence---Evidence of the prosecution witnesses, was neither trustworthy nor confidence inspiring nor consistent to establish accusation against accused---Possibility of accused having been falsely implicated, could not be ruled out, in circumstances---Where more than one possibilities appeared in the case, then possibility in favour of accused was always to be preferred for simple reason that benefit of doubt was never to be extended to the prosecution and was always given to accused---Prosecution having failed to prove its case, beyond reasonable doubt, impugned judgment of the Trial Court was set aside and accused was acquitted of the charge and was released, in circumstances.

Wazir Gul v. State 1975 SCMR 289; Amal Sherin v. State PLD 2004 SC 371; 2009 SCMR 237 and 2008 SCMR 95 ref.

Ayatollah Khawaja for Appellant.

Syed Meeral Shah, Deputy Prosecutor General Sindh for State.

Date of hearing: 6th May, 2011.

2011 M L D 1436

[Karachi]

Before Imam Bux Baloch, J

RAMZAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 555 of 2010, decided on 19th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149/114---Qatl-­e-amd, attempt to commit qatl-e-amd---Rioting armed with deadly weapons, abettor present when offence committed---Bail, refusal of---Accused were named in the F.I.R. with specific roles---Accused had formed an unlawful assembly in furtherance of their common intention and attacked upon the house of the complainant party killing two innocent persons with their indiscriminate firing and causing injuries to complainant, his daughter-in-law and one minor baby---Injured witnesses had supported the prosecution version being eye-witnesses of the incident---Five empty cartridges had been recovered from the place of occurrence---Guilt of accused did not call for further inquiry---Accused were vicariously liable for the eventualities of the event---Bail was declined to accused in circumstances.

Muhammad Waseem Nawaz v. The State 2002 SCMR 1279 and Inayat v. The State 2002 SCMR 129 ref.

Habibullah G. Ghouri for Applicants.

Miss Rubina Dhamrah for the Complainant. Ali Raza Pathan, State Counsel.

2011 M L D 1447

[Karachi]

Before Syed Zakir Hussain, J

SANAULLAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.576 of 2010, decided on 22nd November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)-Penal Code (XLV of 1860), Ss.302, 504, 148 & 149---Qatl-e-amd, intentional insult with intent to provoke breach of the peace---Bail, grant of---Further inquiry---Bail application pertained to an incident of firearm injuries caused by nominated persons together with one unidentified person as reported against---Accused was arrested in the matter as involved being said unidentified culprit---F.I.R. did not show the features of unidentified culprit---Such arrested person was not put to identification test---Statements of the witnesses recorded after about ten days of his arrest disclosed that through some source they had come to know that said arrested person was the unknown culprit---Such being an afterthought, which had made out a case of further inquiry--Charge-sheet had already been submitted in the matter---Bail application moved earlier by accused in the court of first instance, was rejected by an order wherein it was observed that the Investigating Officer neglected to have not put the arrested person to identification test through the complainant and other witnesses; but the bail application was rejected on the ground that the witnesses disclosed the name of said arrested person (as the said unidentified culprit of incident) and that he admitted his guilt before the Police at the time of his arrest---State Counsel had no objection over grant of bail---Accused was admitted to bail, in circumstances.

Safdar Ali Ghauri for Applicant.

Naimatullah Bhurgri, State Counsel.

2011 M L D 1457

[Karachi]

Before Salman Hamid, J

ABDUL RASOOL and 3 others---Applicants

Versus

JUMA KHAN and another---Respondents

Criminal Revision Application No.S-8 of 2010, decided on 27th April, 2011.

Penal Code (XLV of 1860)---

----Ss. 302/324---Criminal Procedure Code (V of 1898), Ss.193 & 435---Qatl-e-amd and attempt to commit qatl-e-amd---Cognizance of offences by courts of sessions---Application for joining persons as accused in the case---Application by complainant under S.193, Cr. P. C. for joining petitioners in sessions case had been accepted by the Trial Court---Various documents brought on record, including the certificate and attendance registers showed that the petitioners were on their respective duties and/or other places with other persons at the relevant time and date when the alleged incident took place---Whatever documents were brought on record or whatever names were disclosed by the petitioners in proof of the fact that they were not available at the time, place and date of incident had gone uncontested and un­rebutted---Presumption deducible from such documents and the names disclosed for the time being, would be taken as correct and up to standard---Trial Court was bound/empowered to call/summon any person to join as co-accused during the trial---Such power had to be exercised when there was ample material before the court, connecting that person in commission of the alleged offence; and in realization of such a conclusion the court had to rely on the testimony by the Investigation Agency; and not on extraneous grounds/materials which did not form record of investigation---In the present case, at least on three occasions at the request from the complainant's side investigation was carried out and the petitioners were found innocent and not present at the time, date and place of incident, advantage thereof ought to go to them---Order accordingly.

Ghulam Dastagir A. Shahani for Applicants.

Respondent No.1 in person.

Kazi Muhammad Bux, State Counsel for Respondent No.2.

Date of hearing: 14th February, 2011.

2011 M L D 1465

[Karachi]

Before Tufail H. Ebrahim, J

WASI AHMED ZUBERI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.534 of 2010, decided on 5th May, 2011.

(a) 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---Accused had issued the cheque to the complainant for certain obligation, which had been dishonoured by the Bank on presentation, prima facie implying that the same had been issued by the accused with dishonest intention---Delay in presentation of cheque to the Bank would not imply mala fides or malice on the part of the complainant to falsely implicate the accused in the case---Heart surgery and acute diabetes of accused had not been substantiated on record by any medical certificate---Prima facie, accused had failed to show that the cheque was not dishonestly issued for payment of any obligation or that he was seriously ill and his illness could not be treated in custody or that his arrest would be detrimental to his life---Offence not falling within the prohibitory clause of S.497(1), Cr.P.C. would simply not justify the grant of extraordinary relief of pre-arrest bail, as deeper appreciation of material on record could not be done while deciding pre-arrest bail application---Bail application was dismissed in circumstances.

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

----S. 498---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Pre-arrest bail---Offence not falling .within the prohibitory clause of S.497(1), Cr.P.C.---Principle---Offence although not falling under the prohibitory clause of S.497(1), Cr.P.C., would simply not justify the grant of extraordinary relief of bail before arrest, as deeper appreciation of material available on record cannot be done while deciding pre-arrest bail application.

Mirza Adil Mustafa Baig for Applicant.

Imtiaz Ali Jalbani, Assistant General, Sindh for the State.

Date of hearing: 26th April, 2011.

2011 M L D 1484

[Karachi]

Before Mushir Alam, C.J. and Syed Hasan Azhar Rizvi, JJ

MUHAMMAD AKBAR SHAH---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Information and Broadcasting and 5 others---Respondents

Constitutional Petition No.D-2633 of 2009, decided on 20th June, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Alternate remedy, non- availing of---Consequences.

If all the litigants are permitted to take all sorts of their disputes to the High Courts without first availing the other remedies available to them under the law, it will not only unnecessarily increase the workload of the High Courts, but would also defeat the provisions of law by which the said remedies have been made available. Such a spree on the part of the litigants would amount to abuse of the constitutional jurisdiction, which is to be exercised by the High Courts in exceptional cases to provide justice, which cannot be otherwise obtained by the aggrieved parties.

The Lahore Central Cooperative Bank Ltd. v. Pir Saif Ullah Shah PLD 1959 SC (Pak) 210; Wali Muhammad Khoso v. Federation of Pakistan 2010 CLC 546 and Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore PLD 1996 SC 246 ref.

Rafique Ahmed Kalwar for Petitioner.

Ashraf Ali Khan Mughal, D.A.-G. for Respondents Nos. 1 and 3.

Kashif Hanif for Respondent No.2.

Irfanullah G. Ali for Respondents Nos.4 and 5.

Salem Mangrio for Respondent No.6.

Date of hearing: 24th May, 2011.

2011 M L D 1498

[Karachi]

Before Ghulam Sarwar Korai, J

NAZIR AHMED---Applicant

Versus

Mst. SHER BANO and another---Respondents

Civil Revision Application No.7 of 2010, decided on 3rd May, 2011.

Contempt of Court Ordinance (V of 2002)---

----Ss.3 & 4---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Ex parte status quo order granted by Trial Court till next date of hearing---Dispossession of plaintiff from suit property by defendant when there was status quo order---Application under O. XXXIX, R. 2(3), C.P. C., for initiating contempt proceedings against defendant-Order of Trial Court accepting such application and directing defendant to restore possession of suit property to plaintiff upheld by Appellate Court---Validity---Proceedings of Trial Court showed that status quo order on subsequent dates sometimes was extended, while sometimes it was not---Alleged dispossession would not come within definition of Ss. 3 & 4 of Contempt of Court Ordinance, 2003 as at relevant time there was no status quo order---High Court set aside impugned orders and accepted revision petition in circumstances.

Masood Khan Ghori for Applicant.

Sikandar Khan for Respondent No. 1.

Date of hearing: 17th March, 2011.

2011 M L D 1521

[Karachi]

Before Mushir Alam, C.J. and Syed Hasan Azhar Rizvi, J

NAVEED AHMED KHAN---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence and 4 others---Respondents

Constitutional Petition No.D-1423 of 2010, decided on 20th June, 2011.

Pakistan Navy Ordinance (XXXV of 1961)---

----Ss. 32, 42 66, 78(a), 79, 138(A) & 140---Official Secrets Act (VIII of 1923), Ss. 5 & 6---Pakistan Prison Rules 1978, R. 201-A---Constitution of Pakistan, Art. 199(3)---Constitutional petition---Steward in Pakistan Navy---Conviction and sentence awarded to petitioner by General Court Martial of Pakistan Navy---Dismissal of petitioner's appeal by Court of Appeal of Pakistan Navy---Petitioner's plea that conviction and sentence awarded to him was on basis of charges totally different from charges shown to him during proceedings before Court of Appeals---Validity---Petitioner under orders of High Court had availed remedy of appeal through his counsel---Petitioner's counsel was shown proceedings of General Court Martial and afforded sufficient time to argue appeal, but had failed to point out any infirmity in evidence or in proceedings of General Court Martial---Sentence was awarded to petitioner on charge of espionage activities, thus, he was not entitled to any ordinary or special remission under R. 201-A of Pakistan Prison Rules---Petitioner had pleaded guilty on all charges and accepted same as true and correct---High Court being not an appellate court in the matter, could not reappraise entire evidence on record to conclude the same to be a case of no evidence and render such conviction to be without jurisdiction---High Court as per provision of Art. 199(3) of the Constitution could not enter into matters relating to Armed Forces---Petitioners could make mercy petition to Chief of Naval Staff---High Court dismissed constitutional petition for not being maintainable.

Ex-Sepoy Liaquat Ali v. Federal Government and others PLD 2002 Lah. 210 ref.

Abdul Razzaq for Petitioner.

Nazar Akber, learned D.A.-G.

Date of hearing: 24th March, 2011.

2011 M L D 1536

[Karachi]

Before Mushir Alam and Syed Hasan Azhar Rizvi, J

S. AKBAR ALI SHAH---Petitioner

Versus

FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Interior ---Respondent

Constitutional Petition No.D-1484 of 2009, decided on 20th June, 2011.

Exit from Pakistan (Control) Ordinance (XLVI of 1981)---

----S. 3---Constitution of Pakistan, Art. 199---Constitutional petition---Placing name of petitioner on Exit Control List (ECL) due to pendency of criminal case against him---Validity---Permitting petitioner to go abroad for several times upon furnishing solvent sureties to High Court and his regular return back would not mean that he could not escape and make himself fugitive of law---Petitioner's name could not be ordered to be deleted from ECL during pendency of criminal case against him---Petitioner after getting an order in his favour from Trial Court could avail remedy for deletion of his name from ECL---High Court dismissed constitutional petition in circumstances.

Sibtain Mehmood for Petitioner.

S. Ashfaque Hussain Rizvi, Special Prosecutor for ANF and Ashraf Ali Mughal, D.A.-G. for Respondents.

Date of hearing: 4th May, 2011.

2011 M L D 1545

[Karachi]

Before Salman Hamid, J

MUNIR AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.S-5 of 2011, decided on 4th February, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 514, 435, 439-A & 516-A---Penal Code (XLV of 1860), S.342/34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Wrongful confinement and Haraabah---Forfeiture of surety bond---Applicant who stood surety for accused, had failed to produce accused in the court despite obtaining many adjournments---Failure of applicant to produce accused despite all latitudes by the Trial Court, had shown that accused was not in his contact and there was every likelihood that accused would not be available at all or at least in the near future---Trial Court, in view of said dismal state of affairs on the part of applicant/surety, was left with no choice, but to forfeit the entire surety bond amounting to Rs.50,000 and to impose penalty of Rs.50,000---No legal requirement existed that full bail bond amount should not be forfeited---Once an accused would jump bail bond, the entire surety amount was liable to be forfeited in the absence of any mitigating circumstances---Trial Court kept the balance of leniency and undue severity well within the required parameters and passed the impugned orders---Impugned order could not be interfered, in circumstances.

Zeeshan Kazmi v. The State PLD 1997 SC 267 ref.

Safdar Ali Ghouri for Applicant.

Nisar Ahmed G. Abro, for the State.

2011 M L D 1555

[Karachi]

Before Salman Hamid, J

MUHAMMAD ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-44 of 2011, decided on 28th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9 & 51---Possessing and trafficking of narcotics---Bail, grant of---Further inquiry---Under provisions of S.51(2) of Control of Narcotic Substances Act, 1997, if the court was of the opinion that it was a "fit case" for grant of bail, court, against security of substantial amount, could grant bail---Sample of only one kilogram was sent for chemical examination out of four kilograms contraband, stated to have been recovered from accused---Accused, in circumstances, had been able to pass test of "fit case" as contemplated under S.51(2) of Control of Narcotic Substances Act, 1997; as well as test of subsection (2) of S.497, Cr.P.C. i.e. further inquiry---Accused was enlarged on bail, in circumstances.

Pervaiz Ahmed v. The State PLD 2008 Kar. 14 and Muhammad Hashim v. The State PLD 2004 SC 856 ref.

Habibullah Ghauri for Applicant.

Abdul Rasheed Soomro, State Counsel.

2011 M L D 1561

[Karachi]

Before Faisal Arab, J

SAEED AHMED-- -Petitioner

Versus

PERVAIZ AHMED and 3 others---Respondents

Constitution Petition No.S-212 and M.As. Nos. 5061, 2610, 3823 of 2011, decided on 22nd June, 2011.

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

----S. 15(2)---Ejectment petition---Bona fide personal need of shop by landlord---Tenant's plea that out of two shops, landlord had got vacated one shop and was in possession thereof, thus, his eviction from suit shop was not justified---Validity---Landlord hat)' adequately explained in evidence that shop got vacated was for his own use, while suit shop was required for use of co-owner of demised premises---Ejectment petition was accepted in circumstances.

Nawab Syed Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236; Syed Farzan Rizvi v. Khalilur Rehman 1981 CLC 1223; Sh. Ejaz Ahmed v. Muhammad Abdul Latif 1984 CLC 2596; Muhammad Aslam v. Muhammad Aslam Zuberi 1986 CLC 686; Ghulam Nabi v. Muhammad Sachal 1986 CLC 2858; Zohra Bibi v. Additional District Judge 1990 SCMR 1243; Ghulam Haider v. Abdul Ghaffar 1992 SCMR 1303; Muhammad Yusuf v. Mst. Quresha Begum PLD 1993 Kar. 502; Latif Ahmad v. Mst. Farrukh Sultana 1996 SCMR 1233; Mst. Gul Nisa v. Muhammad Arif 1996 SCMR 1239, Government of the Punjab, through Secretary Food Lahore and another v. Messrs Habib Bank Ltd. 2000 SCMR 247; Haji Ahmad v. ,Muhammad Ilyas 2001 MLD 1225; Saleemuddin v. Mst. Bibi Jan 2001 MLD 1176; Mst. Khadija Begum v. Mst. Yasmeen PLD 2001 SC 355; Allies Book Corporation through L.Rs. v. Sultan Ahmad and others 2006 SCMR 152; Mst. Shirin Bai v. Famous Art Printers (Pvt.) Ltd. 2006 SCMR 117; Sheikh Muhammad Sadiq v. Elahi Bakhsh 2006 SCMR 12;. Javed Khalique v. Muhammad Irfan 2008 SCMR 28; Raja Riaz v. Chairman Pakistan Space and Upper Atmosphere Research Commission Karachi 2008 SCMR 402; Muhammad Hafeez v. District Judge Karachi 2008 SCMR 398 and Sarwar Ali v. IInd Additional District and Sessions Judge Karachi East and others 2010 YLR 815 distinguished.

Haji Abdul Majeed for Petitioner.

2011 M L D 1577

[Karachi]

Before Syed Hasan Azhar Rizvi, J

AMIR NOMAN and 2 others-Plaintiffs

Versus

FEDERATION OF PAKISTAN through Federal Secretary, Ministry of Housing and Works sand 12 others---Defendants

Suit No.1785 and C.M.As. Nos. 11911, 12489 of 2010, decided on 30th May, 2011.

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

----Ss. 42, 54 & 55---Karachi Building and Town Planning Regulations, 2002, Regls. 2-34 & 19-2.2.6---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for declaration, permanent and mandatory injunctions---Plaintiff's plea that for organizing marriage functions on commercial basis, defendant was establishing a Marriage Garden on a residential plot located in the Housing Society in front of plaintiff's house without permission of Karachi Building Control Authority and City District/Government etc.; and that proposed Marriage Garden would create nuisance to plaintiff and residents of area and cause discomfort in their life and deprive them of peaceful living---Application for interim injunction to restrain defendant from organizing such functions etc.---Validity---Suit plot was located in Housing Society on main Road being a declared commercial road---Defendant had started construction on suit plot after getting permission from Government of Pakistan and submitting to the society a building plan approved by Building Authority for establishing thereon a Marriage Garden---City District Government, had earlier granted 'NOC' to defendant after receiving commercialization fee, but had withdrawn same' subsequently without notice to him, which matter was sub judice in constitutional petition before High Court---Term "commercial (trade) uses" as defined in Cl. 19-2.2.2.6 of Karachi Building and Town Planning Regulations, 2002 included "marriage hall/lawn" also---No regulatory authority existed to control affairs of Marriage' Halls---Issue of nuisance was dependant upon evidence to be recorded at trial---Plaintiff had no prima facie cases grant of injunction---Injunction being an equitable relief could be granted in aid of equity and justice, but not otherwise---Application for interim injunction was dismissed in circumstances.

Mrs. Naz Shaukat Khan and 3 others v. Mrs. Yasmin R. Minhas and another 1992 CLC 2540 and Arif Majeed Malik and others v. Board of Governors Karachi Grammar School 2004 CLC 1029 ref.

Ghulam Abbas Karjatwala v. Hira Javed and others H.C.A. No.382 of 2008 and Puri Terminal Ltd. Government of Pakistan and others 2004 SCMR 1092 rel.

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

----Ss. 54 & 55---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Injunction, grant or refusal of---Scope---Injunction being an equitable relief could be granted in aid of equity and justice, but not otherwise.?

Puri Terminal Ltd. v. Government of Pakistan and other 2004 SCMR 1092 rel.

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

----Ss. 42, 54 & 55---Karachi Building and Town Planning Regulations, 2002, Regls. 2-34 & 19-2.2.6---Suit for declaration, permanent and mandatory injunctions---Plaintiff's plea that for organizing marriage functions on commercial basis, defendant was establishing a Marriage Garden on a residential plot in Housing Society in front of plaintiff's house without permission of Karachi Building Control Authority and City District Government etc.; and that proposed Marriage Garden would create nuisance to plaintiff and residents of area and cause discomfort in their life and deprive them of peaceful living---Application by intervener for joining him as defendant in suit---Intervener's plea that he was engaged in business 'of providing facilities to customers in marriage functions etc.; that defendant had entered in partnership agreement with him for providing such facilities at suit plot; and that restraining marriage functions at suit plot would cause him irreparable loss---Validity---Intervener was neither owner or co-owner of suit plot nor had any direct link with matter in dispute between plaintiff and defendant---Intervener had not produced such partnership agreement, which was an internal arrangement between him and defendant---Suit could be decided on its own merits in absence of intervener---Intervener was not a necessary party in suit---No irreparable loss would be caused to intervener by not joining him as defendant in suit---Such application was dismissed in circumstances. ?

Muhammad Zahid Khan for Plaintiffs.

Khizer Askher Zaidi, Additional Advocate General Sindh for Defendant No.2.

Mrs. Azra Mauqeem for Defendant No.3, CDGK.

Anwer Ali Shah for Defendant No.4.

Abid S. Zuberi, Omer Lakhani and Saad Siddiqui for Defendants Nos.8 to 13.

Afsar Ali Abidi for the Intervenor.

2011 M L D 1597

[Karachi]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

ABDUL RASHID and others---Appellants

Versus

ABDUL GHANI and others---Respondents

H.C.A No.223 of 2008, decided on 13th June, 2011.

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

---S.3---Civil Procedure Code (V of 1908), O. VII, R. 11(d), O. XX, R.7 & O. XLI, R. 1---Sindh Chief Court Rules (O.S.), R. 262---Limitation Act (IX of 1908), Ss. 3, 12, Art. 151---Intra-Court appeal filed without copy of decree---Maintainability---Impugned judgment was passed and decree was signed on 23-6-2008---Application for certified copy of judgment was filed on 24-6-2008, which was obtained on 28- 6-2006---Appeal was filed on 10-7-2008---Decree was prepared by Assistant Sealer on 2-7-2008, and its copy was forwarded to Nazir for information and necessary compliance by Assistant Registrar on 4-7-2008---Application for copy of decree was filed on 18-7-2008, which was obtained on 23-7-2008---Copy of decree was filed in court on 26-7-2008---Respondent's application under O. VII, R. 11(d), C.P. C., for dismissal of appeal as time-barred---Validity---Decree had to follow judgment---Judge of Trial Court had not written date of signing of decree below his signatures as per requirements of R. 262 of Sindh Chief Court Rules (O.S.)---Decree itself revealed that Assistant Sealer had signed same on 2-7-2008 for forwarding same to Judge of Trial Court for his signature---Impugned decree 'could have been signed on 2-7-2008 and not before such date and decree itself was not in existence prior to 2-7-20087---Decree was prepared on 2-7-2008---Application for copy of decree was filed on 18-7-2008 i.e. 16 days after its preparation---Copy of decree was obtained on 23-7-2008 and filed in court on 26-7-2008 i.e. after three days---Period of limitation would start from date on which decree was signed---Total period consumed in obtaining copy of decree and its filing in court came to 19 days---Appeal had been filed within 20 days excluding period spent in obtaining copy of impugned decree---High Court dismissed such application in circumstances.

Ease and West Steamship Co. v. Queensland Insurance Co. Ltd. PLD 1960 Kar. 840; Fayyaz Ahmed v. Hidayat Begum 1997 SCMR 1393; Siddique Khan v. Abdul Shakoor Khan PLD 1984 SC 289; Sher v. Bhai Khan 2008 CLC 232 and 1983 SCMR 883 (sic) ref.

Abdul Majeed and others v. Mst. Haleem and others 1987 CLC 2331; Faqir Muhammad and others v. Punjab 1993 PLD Lah. 439; Government of West Pakistan v. Niaz Muhammad PLD 1967 SC 271; Cooperative Model Town Society v. Mst. Asghari Safdar 2005 SCMR 931; Datari Construction Co. (Pvt.) Ltd. v. A Razak Adamjee 1995 CLC 846; Baseer Ahmad Siddiqui v. Shama Afroz 1988 SCMR 892; Government of sindh v. Muhammad Juman and another 2009 SCMR 1,407; Nuruddin v. Ghulam Mustafa PLD 1974 Kar. 688 and Akbar Khan v. Muhammad Razzak PLD 1979 SC 830 rel.

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

----S. 3---Civil Procedure Code (V of 1908), O. XX, R. 7 & O. XLI, R.1---Sindh Chief Court Rules (O.S.), R. 262---Limitation Act (IX of 1908), Ss. 3, 12, Art. 151---Intra-Court appeal without certified copy of decree-Maintainability-Non-filing of certified copy of decree along with intra-court appeal or within period of limitation would render the appeal non-maintainable---Court could dispense with filing of copy of judgment, but not decree---Period for filing such appeal would commence from date of decree---Time elapsed between announcement of judgment and signing of decree would be included in time requisite for obtaining copies thereof---Principles.

Every Intra-Court appeal filed against the order of a Single Judge of High Court as per Order XLI, Rule 1, C.P.C., has to be accompanied with a copy of the decree appealed from. The time limit for such appeal is twenty days from the date of the decree as per Article 151 of the Limitation Act, 1908. Section 12 of the Limitation Act, 1908 allows the time elapsed between the day of the application and the day of obtaining copy of the decree. The decree should bear date on which it was signed and drawn in accordance with the judgment. Time for filing the "appeal will commence from the date of decree and copy of the judgment can be dispensed with by the Court, but not the decree, as appeal is incompetent if the same is filed without the decree.

Article 151, of the Limitation Act, 1908 clearly stipulates the period of 20 days for filing appeal commences from the date of decree or order as per Order XLI, Rule 1, C.P.C., appeal has to be accompanied with a copy of the decree. If these two provisions of law are read together, it would reveal that the limitation would start running from the date of decree, which is 20 days and any appeal filed thereafter would be barred by limitation.

Once time begins to run, it does not stop, and an appeal filed after the expiry of limitation period would abate as a whole.

The court has the power to dispense with the judgment, but not the decree. Omission to file decree is fatal and renders the appeal non-maintainable, if the same is not filed within the period of limitation.

The period of limitation starts from the date the decree is signed.

Non-filing of the certified copy of decree would be fatal if the same is not filed within the period of limitation.

Abdul Majeed and others v. Mst. Haleem and others 1987 CLC 2331; Faqir Muhammad and other v. Punjab PLD 1993 Lah. 439; Government of West Pakistan v. Niaz Muhammad PLD 1967 SC 271; Cooperative Model Town Society v. Mst. Asghari Safdar 2005 SCMR 931; Datari Construction Co. (Pvt.) Ltd. v. A Razak Adamjee 1995 CLC 846; Baseer Ahmad Siddiqui v. Shama Afroz 1988 SCMR 892; Government of Sindh v. Muhammad Juman and another 2009 SCMR 1407; Nuruddin v. Ghulam Mustafa PLD 1974 Kar. 688 and Akbar Khan v. Muhammad Razzak PLD 1979 SC 830 rel.

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

----S. 12---Exclusion of time requisite in obtaining copy of decree/order-Effect-Limitation would not run during period from date of application till date on which decree/order obtained.

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

----Arts. 151, 152, 153, 155 & 156---Appeal---Limitation once started to run would not stop---Appeal filed after expiry of limitation period would abate as a whole.

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

----O. XLI, R. 1---Appeal---Requirement of filing of certified copy of decree along with appeal or within period of limitation---Validity---Court had power to dispense with filing of copy of judgment, but not decree---Such requirement being mandatory in nature, thus, non-compliance thereof would render appeal as incompetent and not validly instituted---Principles.

Requirement of filing copy of decree along with appeal is sine quo non for filing the appeal, and if the appeal is filed without the same, it will not be presumed to have been validly presented. As per the provisions of Order XLI, Rule 1, C.P.C., court has the authority to dispense with the copy of the judgment, but has no authority or power to dispense with the copy of the decree. Appeal is considered to be valid only when a copy of the decree is appended thereto, and an appeal filed without complying with this mandatory requirement could not be considered to be an appeal properly instituted. The provisions of Order XLI, Rule 1, C.P.C., being mandatory in nature has to be complied with, and an appeal filed in violation of the above provision of law is not competent and a valid appeal.

Non-filing of certified copy of decree would be fatal, if same is not filed within the period of limitation.

Akbar Khan v. Muhammad Razzak PLD 1979 SC 830 and National Refinery Ltd. v. Falcon Enterprises in H.C.A. No.332 of 2006 rel.

Syed Saeeduddin Nasir for Appellants.

Mubarak Ahmed for Respondent No.1.

Date of hearing: 2nd March, 2011.

2011 M L D 1616

[Karachi]

Before Muhammad Tasnim, J

HABIBULLAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.487 of 2011, decided on 13th May, 2011.

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---Incident was unseen---Accused was in custody of the Police under S.54, Cr.P.C. and was shown to have been arrested by the Police in the case---No identification parade was conducted and also no confessional statement was recorded---No recovery whatsoever was effected---Prima facie, accused was not connected with the commission of offence and his case required further inquiry---Accused was admitted to bail, in circumstances.

Ghazi Sarfraz v. The State 2008 PCr.LJ 1520 ref.

Abdul Hafeez Lashari and M. Sakthi Ghazali for Applicant.

Abdullah Rajput, A.P.-G. for the State along with Sub-Inspector Hatim Khan Marwat of Police Station Super Market, Liaquatabad Town, Karachi.

2011 M L D 1621

[Karachi]

Before Mushir Alam, C.J. and Syed Hasan Azhar Rizvi, J

MUHAMMAD ALI---Petitioner

Versus

CONTROLLER OF EXAMINATION, UNIVERSITY OF KARACHI and 4 others---Respondents

C.P. No. D-880 of 2009, decided on 26th February, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational Institution---LL.B. Final Supplementary Examination 2008---Percentage of passing marks of each paper enhanced from 40% to 45% and aggregate marks from 45% to 50% vide Notification dated 12-5-2006 applicable to students enrolled in year 2005 or afterwards---Appearance of petitioner in such examination---Marks-Certificate of petitioner dated 2-5-2009 showing 40% passing marks and 45% aggregate marks---Plea of University that such passing marks and aggregate marks appearing on Certificate was a printing error---Validity---Petitioner by order of High Court was allowed to appear in Final Examination and was declared successful---University, had delivered to petitioner on 23-9-2010 original marks-sheet---No apparent wilful and deliberate negligence on part of University existed---Petitioner had achieved his purpose---High Court dismissed constitutional petition in circumstances.

Abbadul Hussain for Petitioner.

Khalid laved for Respondents.

2011 M L D 1628

[Karachi]

Before Mushir Alam and Syed Zakir Hussain, JJ

ADDITIONAL SECRETARY and another---Appellants

Versus

MUHAMMAD RAFIQUE and another---Respondents

H.C.A. No.206 of 2009, and C.M.As. Nos. 1041 of 2009, 1404 of 2010, decided on 1st February, 2011.

Law Reforms Ordinance (XII of 1972)---

----S. 3(1)---Limitation Act (IX of 1908), Ss. 5, 12(3) & Art. 151---Sindh Chief Court Rules (O.S.), R. 262 ---High Court appeal---Delay, condonation of---Suit decreed by Single Bench of High Court vide short order dated 3-2-2009 followed by reasons recorded on 21-2-2009 and decree was signed on 11-4-2009---Filing of appeal on 8- 5-2009 along with an application under S. 5 of Limitation Act, 1908 for condonation of delay, if any---Validity---Appeal would lie against decree---Period preceding issuance of decree or time consumed in obtaining copy of material on which decree was founded, would be excluded as a matter of right as per S. 12(3) of Limitation Act, 1908---According to S. 12(3) of Limitation Act, 1908 and R. 262 of Sindh Chief Court Rules (O. S.), for computing limitation period, date of signing of decree would be considered as date of decree---Period of limitation of 20 days for filing such appeal would run from, 22-4-2009---Record showed that application for copy was made on 14-2-2009, while copy was made ready on 22-4-2009---Appeal filed on 8-5-2009 was three days earlier to expiration of limitation period of 20 days---Such application was an outcome of appellant's failure to examine relevant law in its proper perspective---Appeal was held to be within time.

Aftab Alam Khan v. The Settlement Commissioner and 3 others PLD 1972 Quetta 97 and Messrs Emirates Air Lines v. Dr. Prof. Haroon Ahmed and 3 others PLD 2006 Kar. 126 rel.

Abdul Waheed Kanju for Appellants.

Mansoorul Arfin for Respondents.

Date of hearing: 24th January, 2011. .

2011 M L D 1644

[Karachi]

Before Bhajandas Tajwani and Ghulam Sarwar Korai, JJ

SHAMAN MAL---Petitioner

Versus

EXECUTIVE ENGINEER IRRIGATION and 5 others---Respondents

Constitutional Petition No.D-347 of 2008, decided on 18th December, 2009.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Demand for payment of outstanding amount on account of contract by petitioner---Petitioner who was a contractor completed work awarded to him to the satisfaction of authorities, and submitted bills, but the authorities avoided to make payment of outstanding amount on different pretext---Case of petitioner of carrying out the work awarded to him, had not been denied by authorities by way of any documents, but averment of the petitioner had been admitted by. the authorities---Formalities,' if any, were to be observed by the concerned officials at the time when the work was awarded to the petitioner---Work awarded to the petitioner was of emergent nature wherein formalities could not have been observed but the authorities were liable to .pay amount in question to the petitioner who had completed the work---Authorities were directed by High Court to make payment of outstanding amount to the petitioner, accordingly.

Nisar Ahmed G. Abro for Petitioner.

Abdul Hamid Bhurgari, Addl. A.G. along with Amjad Pervaiz, Northern Dadu Division.

2011 M L D 1649

[Karachi]

Before Imam Bux Baloch, J

ABDUL GHAFFAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application N1o.S-193 of 2011, decided on 3rd May, 2011.

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

----S. 997---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Haraabah---Bail, grant of---Co-­accused had been acquitted by Trial Court after trial, as the witnesses had not supported the prosecution case---Case of accused in. such circumstances fell under the purview of further inquiry and there was no probability of his being' convicted of any offence on the same evidence---Abscondence of accused would not come in his way for grant of bail if he was otherwise found entitled to bail on merits---Heinousness of the offence was yet to be determined at the trial after adducing evidence by the prosecution, whether a man having a political affiliation and having owned vehicles could commit an offence of robbery in broad daylight---Bail was allowed to accused in circumstances.

Mitho Patafi v. The State 2009 SCMR 299; Abdul Ghani v. The State.2003 PCr.LJ 421; Akhtiar and another v. The State 2006 PCr.LJ 828; Abdul Sattar v. The State 2009 PCr.LJ 722; Muhammad Nawaz v. The State, 2002 SCMR 1381; Ghulam Mustafa v. The State 2000 PCr.LJ 1253 and Sher Ali alias Sheri v. The State 1998 SCMR 190 ref.

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

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Haraabah---Bail---Abscondence of accused---Effect---Abscondence of accused would not come in his way for grant of bail to him, if he otherwise has a good case for bail on merit.

Mitho Patafi v. The State 2009 SCMR 299 ref.

Muneer Ahmed Bijarani for Applicant.

Muhammad Iqbal Mahar for the Complainant.

Abdul Rasheed Soomro, State Counsel.

2011 M L D 1667

[Karachi]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

HUSNAIN RAZ alias KASHIF and 3 others---Appellants

Versus

THE STATE---Respondent

Special Criminal A.T. Appeal No.24 of 2003, decided on 4th June, 2011.

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

----Ss. 302/324/353---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-e-­amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty and terrorists---Appreciation of evidence---Benefit of doubt---Apart from contradicti6ns in the deposition of prosecution witnesses, there were a number of questions, -which remained either unanswered' or cast heavy doubt in respect of which neither any plausible explanation was available, nor was furnished by the prosecution---No explanation was available with the prosecution as to Police Officer who died in incident was in civil dress, when other Police Officials were in uniform, while it was incumbent upon the Police Officials to be in uniform at the time of raid---No explanation was available with the prosecution as to why, no Roznamcha entry was kept by the Police party in respect of the raid---Prosecution had failed to explain as to from which source they received the spy information that absconding accused persons were hiding in the house---As to why the recovery weapon was sent for expert opinion after a delay of 47 days was not explained---Such contradictions and unanswered questions had made the case highly doubtful---Case made out by the prosecution against accused person being full of' doubts, benefit of such doubt would go to accused---Order of the Trial Court convicting accused, in circumstances, could not be sustained---Accused were directed to be released.

Imran Ashraf v. The State 2001 SCMR 424; Muhammad Arshad v. The State 1995 SCMR 1639; Muhammad Yar v. Sawan Mai 1993 SCMR 251; Aurangzeb v. The State 2008 PSC (Cr.L) 965; Ghulam Qadir v. The State 2008 SCMR 1221; Altaf Hussain v. Fakhar Hussain 2008 SCMR 1103; Ashiq Hussain v. State 1993 SCMR 417; Mir Muhammad v. State 1995 SCMR 610; Murtaza Hussain v. The State 1996 PCr.LJ 510 and Abdul Raqeem v. The State 1997 PCr.LJ 690 ref.

(b) Criminal trial---

---Benefit of doubt---Whenever there was slightest of doubt, benefit of the same was to be given to accused, not as a matter of grace, but as of right---Legal infirmity creating reasonable doubt in fulfilling the requirement of' law would make, the whole case doubtful and benefit of the same was to be given to accused.

Tariq Pervez v. The State 1995 SCMR 1345; Fahim Ahmed Farooqi v. The State 2008 SCMR 1572; Imran Ashraf v. The State 2001 SCMR 424 and Ghulam Qadir v. The State 2008 SCMR 1221 rel.

Abdul Razzak for Appellants.

Ali Hyder Saleem, A.P.-G. for the State.

Date of hearing: 14th April, 2011.

2011 M L D 1729

[Karachi]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

Messrs HASHOO (PVT.) LTD. through h Director---Petitioner

Versus

GOVERNMENT OF SINDH through Chief Secretary and 4 others---Respondents

Constitution Petitioner Nos.D-1302 of 1992 and D-2679 of 1993, heard on 11th May, 2011.

Constitution of Pakistan---

----Arts. 24 & 199---Constitutional petition---Right to hold property---Audi alteram partem, principle of---Petitioner was aggrieved of cancellation of allotment in its favour---Validity---Letter issued by authorities did not give any reason for making cancellation of allotment/ lease nor the order was passed with due process of law without providing opportunity of hearing by giving show-cause notice etc. to respondent---No person was to be deprived of his property without due process of law and such was also enshrined in Art. 24 of the Constitution as a guaranteed fundamental right---Order cancelling the allotment of land, on its face was also arbitrary, perverse and without reason and also contrary to principle of audi alteram partem that no person should be condemned unheard, which was to be read in every statute and such order in law could not be sustained---Petitioner was entitled to have award dated 10-7-1979 of Land Acquisition Collector enforced in accordance with law but order of cancellation of allotment to respondent was set aside and such allotment was restored to the respondent---Petition was allowed accordingly.

Faisalabad Development Authority v. Raja Jahangir Nasir and others 2005 SCMR 1247; Asif Iqbal v. Karachi Metropolitan Corporation and 2 others PLD 1994 Kar. 60; Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678 and Moulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others PLD 2008 SC 663 rel.

Ghulam Abbas Soomro and Abdul Qadir Khan for Petitioners (in C.P. No. D-302 of 1992) and for Respondent No.5 (in Cr.P. No.D-2679 of 1993).

Khalid Anwar for Petitioner (in C.P. No. D-2679 of 1993) and for Respondent No.5 (in C.P. No.D-302 of 1993).

Adnan Karim Assistant Advocate General Sindh for Respondent No1.

Ahmed Pirzada for Respondents Nos.2 to 4 (in both petitions).

None present of the respondent No.6 in C.P. No.D-2679 of 1993.

Date of hearing: 11th May, 2011.

2011 M L D 1739

[Karachi]

Before Salman Hamid, J

GHULAM QADIR---Petitioner

Versus

Shrimati SADORI BAI and 3 others---Respondents

Constitutional Petition No.781 of 2009 and M.A. No.6868 of 2010, decided on 4th February, 2011.

(a) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), O. IX, R. 9---Constitutional petition---Dismissal for non-prosecution---Restoration, application for---Applicant's plea that due to poverty, he could not pay professional fee to his counsel, who withdrew their power of attorneys; that he being an illiterate person had no knowledge of date of hearing of such petition fixed by office---Validity---Applicant, after admission of such petition and passing of stay order got adjournments after adjournments including many last chances to argue his case---When such petition was dismissed for non-prosecution, at least three counsel were representing him, while three of his counsel had earlier withdrawn their Power of Attorneys---Three counsel of applicant not having withdrawn their Power of Attorneys were duty bound to safeguard his interest, which had not been done, thus, applicant would be at liberty to have redressal of his grievance as provided under law---Poor person could not afford to engage six counsel in a case and pay their fees---Applicant had not disclosed that out of his six counsel, which of counsel's fee he could not pay due to which such counsel did not appear---Date on which such petition was dismissed was fixed at applicant's request to engage new counsel---Applicant despite having knowledge of relevant date of hearing neither appeared himself nor engaged new counsel---Applicant did engage new counsel for filing restoration application, but not for arguing such petition---Applicant had not denied respondent's plea raised in reply that applicant was present in court premises on relevant date but he opted to remain away despite call in such petition---Such plea of respondent would be taken as true and correct---Person seeking equity must also do equity---Such mala fide conduct of applicant disentitled him from seeking relief of restoration---High Court dismissed restoration application in circumstances.

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

----O. IX, Rr. 4 & 9---Restoration of proceedings dismissed for non-prosecution---Scope---Person seeking equity must also do equity---Mala fide conduct of applicant would disentitle him to relief of restoration.

(c) Equity---

----Person seeking equity must also do equity.

Imdad Ali Mashori for Petitioner.

Ali Raza Pathan, State counsel.

Counsel for Respondents Nos.1 and 2 called absent.

2011 M L D 1748

[Karachi]

Before Ghulam Sarwar Korai, J

Mrs. FEROZ AFAQ AHMED and others---Petitioners

Versus

H. M. ISHAQ M. YAQOOB and another---Respondents

C.P. No.S-66 of 2009, decided on 1st June, 2011.

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

----S. 15(2)---Ejectment petition---Default in payment of rent and conservancy charges, personal bona fide need of shop and construction of mezzanine floor and using same as store-room of demised shop without consent of landlords---Denial of such grounds by tenant---Proof---Landlords had produced in evidence Partnership Deed to show that they wanted entire building including demised shop for running therein partnership business---Landlords had got vacated several offices/shops in same building from their tenants, while ejectment petitions against 6/7 tenants were pending---Landlords had produced in evidence documents regarding their bank accounts and payment of income tax---Ejectment petition had been signed by all landlords, while one of them had filed affidavit-in-evidence---Tenant had failed to produce any document to show payment of rent and conservancy charges for disputed period---Tenant had failed to produce any evidence to establish construction of mezzanine floor on payment of certain amount to one of the landlords---Ejectment petition was accepted in circumstances.

Faqir Muhammad and 8 others v. Abdul Momin and 2 others PLD 2003 SC 594; Mst. Zainab v. Majeed Ali and another 1993 SCMR 356; The Stool of Adansi v. The Stool of Brenase PLD 1958 Privy Council 161; Fida Hussain v. Noor Muhammad Bana 1985 CLC 3014; Muhammad Hanif v. Mumtaz Ahmed PLD 1986 Kar. 16; Raisuddin v. Mashiatullah Khan through his Legal Heirs 1986 MLD 948; Noor Ahmad and another v. Khawaja Imran Ahmed 1988 CLC 1041; Mrs. Qamar Ahsan v. Mrs. Beguma Beg NLR 1990 AC 526; Zaheeruddin v. Raiz Ahmed 1991 CLC 1512; Haji Gulab Baig v. Mst. Syeda Tayaba Ishtiaq 1991 MLD 1377; Capt. (RTD.) Allah Ditta v. Muhammad Siddique 1991 CLC 1881; Chilya Corrugated Board Mills Limited v. M. Ismail and others 1992 CLC 2524; Hafiz-ul-Haq v. Haji Abdul Mastan PLD 1994 Pesh. 235; Mst. Zohra Bai and another v. Messrs Standard Industries Ltd. PLD 1994 Kar. 209; Sher Afgan v. Shaikh Anjum Iqbal 1997 MLD 98; Muhammad Akram alias Akan v. Mst. Pathani through Heirs 2001 MLD 1037 and Province of the Punjab through Secretary, Irrigation and Power Department v. Ch. Mehraj Din and Co. 2003 CLC 504 distinguished.

(b) Evidence---

----Cases should be decided on quality of evidence, but not on quantity of evidence.

Ali Mumtaz Shaikh for Petitioners.

Asim Iqbal for Respondent No.1.

2011 M L D 1758

[Karachi]

Before Imam Bux Baloch, J

REHMATULLAH---Applicant

Versus

THE STATE and 3 others---Respondents

Criminal Miscellaneous Application No.S-29 of 2011, decided on 3rd May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.324/148/149/114/504---Attempt to commit qatl-e-amd, rioting armed with deadly weapons, abettor present when offence committed, intentional insult with intent to provoke breach of the peace---Cancellation of bail, refusal of---Main accused had allegedly caused a firearm injury at the left thigh of the complainant, which was a non-vital part of the body and in such circumstances bail was ordinarily granted to accused---Trial Court, thus, had rightly granted post arrest bail to main accused as well as pre-arrest bail to two co-accused who were not stated to have caused any injury to any person---Application filed by the complainant for cancellation of bail allowed to accused was dismissed in circumstances.

Umar Hayat v. The State 2008 SCMR 1621; Mir Muhammad v. The State 2011 PCr.LJ 361 and Muhammad Umar v. The State and another PLD 2004 SC 477 ref.

Miran Bux v. The State PLD 1989 SC 347 ref.

Syed Aijaz Ali Shah for Applicant.

Altaf Hussain Surahio, State Counsel.

Azhar Hussain Abbasi for Respondents Nos. 2 to 4.

2011 M L D 1806

[Karachi]

Before Salman Hamid, J

SADULLAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-747 of 2010, decided on 14th January, 2011.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/324/337-A(i)/337-F(i)/ 337-H(2)/147/149---Qatl-e-amd, attempt to commit Qatl-e-amd, hurt, rioting---Bail, grant of---Role assigned to accused in the F.I.R. was that a person had received a "Lathi" blow on his shoulder at his hands during a fight, which was minor in nature and did not fall within the prohibitory clause of S.497(1), Cr.P.C.---F.I.R. lodged by the accused party in respect of the same incident was prior in time than the present F.I.R. lodged by the complainant, and it was yet to be determined as to which party had acted in aggression---Co-accused having been released on bail, rule of consistency was also applicable to accused---No further investigation was needed with regard to the accused in view of the allegation made against him in the F.I.R. and his abscondence would not deprive him of his right of bail---Accused was admitted to bail circumstances.

Zainul Abdin v. The State 2010 PCr.LJ 307; Mitho Pitafi v. The State 2009 SCMR 299 and Ali Nawaz v. The State 1995 PCr.LJ 1316 ref.

Shehar Ali alias Shehri v. The State 1998 SCMR 190 and Awal Gul v. Zawwar Khan and another PLD 1985 SC 402 distinguished.

Ashfaq Hussain Abro for Applicant.

Musab Baleegh Dhamraho, State Counsel.

2011 M L D 1829

[Karachi]

Before Ghulam Sarwar Korai, J

KHAIR MUHAMMAD and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S/216 of 2011, decided on 29th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 337-H(2), 120-B, 148 & 149---Qatl-e-amd, hurt by rash or negligent act, criminal conspiracy---Bail, grant of---Further inquiry---F.I.R. was registered against unknown accused persons---Application for registration of F.I.R. was filed by the complainant with delay of about 10 days and role of firing was attributed only to co-accused, who were granted bail---Complainant and witnesses were not eye-witnesses and accused had been implicated falsely due to some grudge---Entire case of the prosecution was of further inquiry---Accused persons having succeeded to make out their case for their release on bail, their bail application was allowed---Accused were released on bail, in circumstances.

Muhammad Sadiq and another v. The State 1996 SCMR 1654; Muhammad v. The State 1998 SCMR 454; Faraz Akram v. The State 1999 SCMR 1360; Noor Muhammad v. The State 2009 SCMR 324 and Manzoor Hussain and another v. The State 2011 SCMR 902 ref.

Muhammad Sadiq and others v. The State 1980 SCMR 203 and Ch. Waris Ali v. The State 2007 SCMR 1607 distinguished.

Altaf Hussain Surhio for Applicants.

Naimatullah Bhurgri for the State.

Amir Ahmed Narejo for the Complainant.

Date of hearing: 29th June, 2011.

2011 M L D 1876

[Karachi]

Before Sajjad Ali Shah and Aqeel Ahmed Abbasi, JJ

Messrs KSB PUMPS COMPANY LTD.---Petitioner

Versus

GOVERNMENT OF SINDH and others---Respondents

Constitutional Petition No. D-1964 of 2011, decided on 16th June, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Non-availability or inefficacy or abandoning of alternate remedy---Jurisdiction of High Court---Scope.

Though there is no absolute bar in entertaining grievances of an aggrieved person in exercise of writ jurisdiction, however, such discretion is to be exercised with circumspection and as an exception and not as a rule. In cases, where there is jurisdictional error, lack of authority and the alternate remedy is not efficacious, depending on facts and circumstances of each case, extraordinary jurisdiction can be invoked.

High Court before exercising its extraordinary jurisdiction must be satisfied about the non-availability or inefficacy of alternate remedy provided under law, and once it is shown to the satisfaction of the High Court that alternate remedy is expedient, effective, then courts would be reluctant to exercise writ jurisdiction, which is not meant to by-pass such authority to render such hierarchy as redundant and superfluous. Tendency to invoke writ jurisdiction by-passing remedy provided under relevant statute was deprecated.

Article 199 of the Constitution of Pakistan provides ample powers to the High Court to remedy a wrong by exercising the extra-ordinary constitutional jurisdiction. However, while exercising such extraordinary jurisdiction, the High Court must be satisfied about the non-availability or inefficacy of alternate remedy provided under the relevant law and once it is shown to the satisfaction of the High Court that alternate remedy provided under the law is expedient and effective, then the courts would be reluctant to exercise writ jurisdiction. The parties cannot be allowed to by-pass such authority provided under the law for redressal of the grievance to render such hierarchy as redundant and superfluous. Such tendency is deprecated.

Once a party resorts to avail a remedy provided under the law, it shall continue to avail the same in the same hierarchy and cannot be allowed to by-pass or abandon such remedy without any reasonable cause.

Pakcom Ltd. and others v. Federation of Pakistan and others PLD 2011 SC 44 ref.

Khalid Mehmood v. Collector of Customs 1999 SCMR 1881; Match Company Ltd. v. Authority under Payment of Wagas Act 2003 SCMR 1493; Commissioner of Income Tax, Companies-II and another v. Hamdard Dawakhana (Wadf), Karachi PLD 1992 SC 847 and CIT v. Eli Lilly Pakistan (Pvt.) Ltd. 2009 PTD 1392 rel.

(b) Sindh Public Procurement Rules, 2010---

----R. 31---Constitution of Pakistan, Art. 199---Constitutional petition---Invitation of bids for installation and commissioning of ultra-filtration plant---Evaluation report issued by procuring agency alleged to be violative of Sindh Public Procurement Rules, 2010 and Invitation of Bids---Rejection of petitioner's complaint by Complaint Redressal Committee and non-filing of appeal thereagainst to Provincial Chief Secretary---Petitioner's plea that such remedy of appeal was inefficacious for entailing forfeiture of bids money in case of dismissal of complaint---Validity---Bidder in genuine complaint case would not lose bid security, but would lose the same only, if Review Panel recommended dismissal of his complaint for being frivolous---Rule 31(13) of Sindh Public Procurement Rules, 2010 was provided to discourage frivolous complaints meant to disrupt smooth public tender process involving time bound financial implications---Such provision regarding forfeiture of bid security would not render such remedy of appeal as qualified or a clog to seek remedy---High Court dismissed constitutional petition for being frivolous with cost of Rs. 50,000.

Messrs Iqbal and Sons J/V AS Engineering v. City District Government C.P. No.D-2829 of 2010 rel.

Farooq Amjad Meer and Lakhani holding brief for Arshad Tayebaly for Petitioners.

Omer Soomro, Sarwar Khan, Addl. A.-G. and Saifullah, A.A.-G. for Respondent No.5.

Date of hearing: 16th June, 2011.

2011 M L D 1890

[Karachi]

Before Muhammad Tasnim, J

ASGHAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 317 of 2011, decided on 13th May, 2011.

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

----Ss. 497/498---Bail---Assessment of evidence---Principle---Deeper appreciation of record cannot be gone into at bail stage, but only its tentative assessment is to be made just to find out as to whether the accused is, prima facie, connected with the commission of crime or not.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 9(c)---Possession of narcotics---Bail, grant of---Further inquiry---Prosecution must have associated some private persons as witnesses at the time of arrest of the accused---Accused was not arrested on the spot and he was arrested subsequently on the statement of co-accused---No private person having been associated to witness the arrest of accused, prosecution case had become doubtful---Offence against accused did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Guilt of accused needed further probe within the meaning of S.497(2), Cr.P.C.---Bail was allowed to accused in circumstances.

Ghulam Murtaza and another v. The State PLD 2009 Lah. 363; Nawaz v. The State 2004 YLR 1118; Muhammad Shahid v. The State 2009 YLR 167; Akhtar Jan v State 2009 YLR 45; Asghar Ali v. The State 2009 PCr.LJ 660 and Ghafoor Ahmed v. The State 2009 YLR 123 ref.

Hakim Mumtaz Ahmed and others v. The State PLD 2002 SC 590 rel.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 9(c) & 25---Bail---Ouster of S.103, Cr.P.C.---Effect---Though private persons are not required to witness the recovery of narcotic substances as provided under the Control of Narcotic Substances Act, 1997, yet the place of recovery and the time of recovery have to be kept in view to prevent false implication of innocent people, looking to the general conduct of police.

Nawaz v. The State 2004 YLR 1118 ref.

Miss Khair-un-Nisa for Applicant.

Abdullah Rajput, Assistant Prosecutor General Sindh for the State.

Date of hearing: 13th May, 2011.

2011 M L D 1898

[Karachi]

Before Mushir Alam and Nisar Muhammad Shaikh, JJ

Messrs TAHA COMMODITY EXPORT through Proprietor and another---Appellants

Versus

KHADIM ALI SHAH BUKHARI (KASB), Bank Ltd. and 2 others---Respondents

1st Appeals Nos. 138 and 139 of 2000, decided on 30th September, 2010.

Civil Procedure Code (V of 1908)---

----O. VII, R. 10---Return of plaint for want of territorial jurisdiction of Trial Court---Scope---Question of such jurisdiction could be decided on basis of averments made in plaint only and not defence set up by defendant---Court for such purpose would accept contents of plaint as correct and could not consider pleas raised in rebuttal to decline assumption of such jurisdiction---Objection to territorial jurisdiction of court, if not patently a legal question, but being a mixed question of law and facts in circumstances of a particular case, such objection could be decided effectively by recording evidence.

Aga Zafar Ahmed for Appellants (in both appeals).

M.Saleem Iqbal for Respondents (in both appeals).

Date of hearing: 30th September, 2010.

2011 M L D 1904

[Karachi]

Before Imam Bux Baloch, J

MOHSIN ALI alias AYAZ and another---Applicants

Versus

GUL HASSAN and another---Respondents

Criminal Miscellaneous Application No.S-334 of 2011, decided on 1st July, 2011.

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

----S. 392/34---Criminal Procedure Code (V of 1898), S.561-A---Robbery---Quashing of F.I.R.---Application for---Normally, every case should be allowed to proceed according to law and resort to provisions of S.561-A, Cr.P.C. should be lightly made, as the same would tend to circumvent the due process of law---Each case must be judged on its special facts and circumstances---Power was vested in the High Court to quash criminal proceedings, if it was satisfied that a false complaint had been brought and the process of court was being abused not to advance the cause of justice, but to subject accused persons to unnecessary harassment---In the present case after a thorough investigation the case had been challaned and was pending in the court of law---Determination of guilt or innocence of accused depended on the totality of facts and circumstances revealed during the trial; and an application for quashing of proceedings before such a stage had reached, was liable to be rejected---If prima facie, the offence had been committed, the ordinary course of trial before the court was not to be allowed to be deflected through an approach to special revisional or inherent jurisdiction of High Court---Prosecution evidence in the case, was to be recorded and without any evidence on record as that was still to be examined by the Trial Court, if inherent powers under S.561-A, Cr.P.C. were invoked, it would mean that proper course of trial was to be diverted---Application was dismissed.

Amir Sultan v. The State 1999 MLD 946 and Ashiq Hussain Thahim v. The State 1999 MLD 535 ref.

Shaikh Mahmood Saeed and others v. Amir Nawaz Khan 1996 SCMR 839; Muhammad Khalid Mukhtiar v. The State through Deputy Director, F.I.A. (C.B.A.) Lahore, PLD 1997 SC 275 and The State v. Asif Ali and another PLD 2001 SC 536 rel.

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

----Ss. 561-A & 190---Quashing of proceedings---Exercise of extraordinary powers of High Court---Scope---Provisions of S.561-A, Cr.P.C. could not be used to override the express provisions of law to offer just another remedy where a remedy already existed to circumvent the normal course of law---Jurisdiction under S.561-A, Cr.P.C. was an extraordinary one preserved only for extraordinary situations, which power must be exercised sparingly with utmost caution only in exceptional cases and not as a matter of routine---According to scheme prescribed by the Code of Criminal Procedure, determination of guilt or innocence of an accused was a serious business which would commence with a pre-trial exercise to be judicially carried out by the competent court of law under S.190, Cr.P.C.---If those allegations levelled and the evidence collected were found worth a trial, then cognizance was taken of the case and accused was summoned to face the trial---Prosecution had the fullest right to adduce its evidence to establish the guilt of the offender; and where accused had a comprehensive right to impeach the credibility and the reliability of the evidence produced by the prosecution, accused then had the right to explain different piece of evidence offered against him by the prosecution, where accused could make a statement on oath in disproof of the allegations levelled against him; and finally where he could produce his own evidence to discredit the prosecution case against him.

Basher Ahmad v. Zafar-ul-Islam PLD 2004 SC 298 rel.

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

----Ss. 561-A, 249-A & 265-K---Quashing of proceedings---Extraordinary powers under S.561-A, Cr.P.C. were to be invoked in exceptional cases where court would find continuation of proceedings was abuse of process of law---Prosecution be given a choice to adduce its evidence and bring relevant record on court file where accused had a chance to discredit the prosecution evidence---Accused had right to invoke the provisions of S.249-A or S.265-K, Cr.P.C., if sufficient material had not been produced by the prosecution during trial---Applicant, in the present case had invoked inherent jurisdiction of High Court directly which could be invoked in exceptional cases, but no exception existed for invoking the inherent powers under S.561-A, Cr.P.C.---Application was dismissed.

Mushtaque Ahmed Shahani for Applicant.

Ghulam Murtaza Korai for the Complainant.

Zulfiqar Ali Jlatoi, Deputy Prosecutor General for the State.

Date of hearing: 30th June, 2011.

2011 M L D 1910

[Karachi]

Before Salman Hamid, J

Messrs BATA PAKISTAN LTD. and another---Petitioners

Versus

Mst. Syda KHATOON ZAHRA and 7 others---Respondents

C.P. No.1325 and C.M.A. No.3687 of 2009, decided on 5th July, 2011.

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

----S. 15(2)(iv)---Constitution of Pakistan, Art. 199---Constitutional petition---Application for ejectment of tenant---Ground of impairment to shop made by unauthorized creation of door on its southern side by tenant---"Impair"---Meaning of---Tenant's plea that such door did not impair shop and that under tenancy agreement, no such permission was required---Ejectment petition dismissed by Rent Controller was accepted by Appellate Court---Validity---According to tenancy agreement, tenant was authorized to alter or erect any partition within shop and renovate same by changing its interior and exterior at his costs---Carving out a door in wall of shop would cover both such words interior and exterior, thus, no prior permission of landlord therefor was required---Dictionary meaning of word "impair" was to damage or to weaken a thing---Wall in question could always be removed and covered by masonry blocks---Landlord had not discharged his burden by bringing on record any evidence or examining an expert witness to establish that the door had impaired utility and material value of shop---High Court set aside impugned order and dismissed ejectment petition in circumstances.

(b) Words and phrases---

----"Impair"---Meaning.

Zafar Ali Edan Mangi and Riaz Muhammad Arain for Petitioner.

Mukesh Kumar G Karara for Respondent Nos.1 to 6.

Nemo for Respondents Nos. 7 and 8.

2011 M L D 1917

[Karachi]

Before Ghulam Sarwar Korai, J

SHAHZADO and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.282 of 2011, decided on 27th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17---Haraabah---Bail, refusal of---Accused who allegedly were armed with K.K. had fired upon complainant party and a young man of 28 years, who was brother of the complainant, became seriously injured and died in the hospital---Accused persons in furtherance of common intention blocked the road, tried to rob the complainant party and while they failed to do so, fired upon the complainant party---Filing affidavits by the complainant and the witnesses stating therein that the F.I.R. was not read over to them and accused persons had committed no offence, amounted the tampering with their evidence as during investigation they had supported the case of prosecution and accused were arrested---Sufficient material was collected by the Investigating Officer and then challan was filed---No legal infirmity was found in the order passed by the court below rejecting bail---Bail application was dismissed, in circumstances by High Court.

Muhammad Najeeb v. The State 2009 SCMR 448 and Muhammad Nawaz alias Najja v. The State 1991 SCMR 111 ref.

Jai Jai Veshno Mangeram for Applicants.

Ameer Ahmed Narejo, State counsel.

2011 M L D 1923

[Karachi]

Before Muhammad Tasnim, J

NEW MODEL HIGH SCHOOL through Administrator---Applicant

Versus

FOUZIA ISLAM and another---Respondents

Revision Application No.189 of 2009, and C.M.As. Nos. 2309, 5771 of 2011, decided on 13th August, 2011.

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

----O.IX, R.4 & S.115---Application for restoration of revision dismissed for non-prosecution---Applicant's plea supported by affidavit of his counsel that such petition dismissed at 12-20 p.m., on relevant date was fixed as Kacha Peshi; that his counsel remained present in court till 12-10 p.m., as he had to appear in other cases before other Benches of High Court and he was under fever also, and when he left the court, he could not remember to inform either court or counsel already appearing in such petition, thus, his non-appearance was not deliberate, intentional or malafidely---Validity---Respondent in counter affidavit had not denied that applicant's counsel was present in court till 12.10 p.m., and waited for his turn---Counsel remaining busy before other Benches of same High Court would be considered sufficient cause while disposing of such application---Matters had to be decided on merits while avoiding technicalities---Affidavit of applicant's counsel showed that his non-appearance on relevant date was not intentional nor was he negligent, rather same had occasioned due to his appearance before other Benches of High Court---High Court restored revision petition to its original position and number and fixed same for hearing.

Muhammad Ashraf v. District Judge Jhelum and others PLD 2005 SC 29 and Abdul Majid and others v. Mst. Zubeda Begum and others 2007 SCMR 866 ref.

Babu Jan Muhammad and others v. Dr. Abdul Ghafoor and others PLD 1966 SC 461 and Salamat Bibi and others v. Settlement and Rehabilitation Commissioner, Multan PLD 1966 SC 467 rel.

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

----O.IX, Rr.4, 7, 9, 13 & O.XVII, R.2---Proceedings dismissed for non-prosecution, restoration of---Scope---Counsel remaining busy before other Benches of same High Court would be considered sufficient cause for such purposes.

Babu Jan Muhammad and others v. Dr. Abdul Ghafoor and others PLD 1966 SC 461 and Salamat Bibi and others v. Settlement and Rehabilitation Commissioner, Multan PLD 1966 SC 467 rel.

Anwar Mansoor Khan and Mrs. Sarwar Jahan for Applicant.

Qamar-ul-Islam for Respondent No.1.

2011 M L D 1931

[Karachi]

Before Muhammad Ali Mazhar, J

NAZIR AHMAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-334 of 2011, decided on 26th August, 2011.

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

----S. 497---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, refusal of---Accused had alleged that he was falsely implicated in the case due to enmity, but in the bail application not a single word had been alleged to show as to what kind of enmity existed between the parties which resulted in the false implication of accused in the case---Eye-witness had also supported the version of the complainant---Postmortem report without any shadow of doubt reflected that there was a mark of ligature on the neck of deceased and doctor who conducted postmortem of deceased was of the opinion that death of deceased occurred due to asphyxia as a result of strangulation---Bail was granted to co-accused for the reason that his name was not mentioned in the F.I.R., while accused had specifically been named and nominated in the F.I.R.---Delay in concluding the trial was due to the fact that either accused or his counsel sought adjournments on several dates of hearing on one or the other pretext---Prosecution could not be blamed for non-conclusion of the trial expeditiously---Delay in lodging F.I.R., could not be attributed to the complainant, as Police had violated the mandatory provisions of S.154, Cr.P.C. and registered F.I.R. later---Medical certificate fully supported the version of the complainant---Specific role having been attributed to accused and he was named in the F.I.R., he had no case for grant of bail---In absence of any reasonable grounds to believe that accused had been falsely implicated in the case, bail application was dismissed, in circumstances.

Miandad v. State 2010 MLD 956; Mst. Shahida v. State 2010 PCr.LJ 992; Jaffer Hussain v. State 2008 PCr.LJ 1444 and Muhammad Hassan v. State 2010 PCr.LJ 572 distinguished.

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

----S. 497---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, grant of---Further inquiry---Principles---Deep scrutiny of evidence at bail stage, was not permissible, nor it was the requirement of law, but the court was not precluded from tentatively pursuing the evidence of eye-witnesses, recovery of weapons, medical evidence and other connected evidence, if any, to form a tentative opinion as to whether accused was prima facie connected with the commission of offence or not---Court while deciding question of bail need not to enter upon the deep appreciation and examination of evidence---Question, however, could not be decided in vacuum and court had to look at the material available---If the answer was in positive, keeping in view the tentative opinion that accused was prima facie connected with the commission of the offence of murder; or where the sentence provided was either death or life imprisonment, then refusal of bail was rule, while grant of bail was an exception and there was no restriction for the court to assess the evidentiary value of the material placed before it---No doubt accused was entitled to the benefit of doubt at bail stage also, but doubt should be shown to exist on a cursory reading of evidence and law; and that could be discerned by tentative evaluation of the material on record---Every hypothetical question, which could be managed, would not make the same a case of further enquiry simply for the reason that same could be answered by Trial Court subsequently after evaluation of evidence---Accused, in order to be released on bail, must further show that there was no reasonable ground for believing that he had committed the offence as alleged against him---Mere possibility of further enquiry, which existed almost in every criminal case, was no ground for treating the matter as one of further inquiry under subsection (2) of S.497, Cr.P.C.---Case of further inquiry would only be made out where data collected by the prosecution, was not sufficient to provide ground for believing that a prima facie case existed against accused.

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

----S. 154---Purpose of recording of F.I.R. apart from setting law into motion, was to provide basis for carrying out investigation in the right direction.

Sardar Akbar F. Ujjan for Applicant.

Syed Sardar Ali Shah, Assistant Prosecutor-General for the State.

Date of hearing: 15th August, 2011.

2011 M L D 1944

[Karachi]

Before Syed Hasan Azhar Rizvi, J

SULTAN AHMAD SHEIKH---Plaintiff

Versus

GETZ PHARMA (PVT.) LTD. through Chief Executive Officer---Defendant

Suit No.1653 of 2008, decided on 9th August, 2011.

Civil Procedure Code (of 1908)---

----O.XIII, R.1---Expression "at the first hearing of the suit" used in O.XIII, R.1, C.P.C.---Scope---Such hearing would be presumed after framing of issues---Principles.

Rab Nawaz v. Muhammad Amir 1999 SCMR 951 and Ghulam Oadir v. Mst. Kundan Bibi 1991 SCMR 1935 ref.

Munir A. Malik for Plaintiff.

Mirza Mehmood Baig for Defendant.

2011 M L D 1969

[Karachi]

Before Irfan Saadat Khan, J

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, KARACHI through Secretary---Appellant

Versus

Syed NASEEMUDDIN ALVI and another---Respondents

IInd Appeal No.129 of 2010, decided on 30th August, 2011.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Declaration of title and mandatory injunction---Concurrent findings of fact by two courts below---Plaintiff purchased a plot from defendant and after receiving full payment from plaintiff, the defendant had issued an allotment letter to him---Grievance of plaintiff was that despite number of requests, defendant did not transfer / mutate the plot in his name---Both the courts concurrently decreed the suit in favour of plaintiff---Validity---Concurrent findings recorded by two courts, if not found to be result of misreading and non-reading of evidence, the same could not be interfered with---Defendant failed to prove that findings recorded by two courts below were in any manner a result of misreading and non-reading of evidence as two courts below after hearing the parties at length and examining evidence produced by them and other relevant material had come to the correct conclusion that plaintiff was entitled to have allotment order in his name---Both the courts below were also right to hold that plaintiff was entitled to take possession of plot in question and defendant was under legal obligation to complete required formalities for transferring of the plot in his favour---High Court declined to interfere in concurrent judgments and decrees passed by two courts below---Second appeal was dismissed in circumstances.

Gulshan v. Amir Ali PLD 1997 Kar. 292; Pakistan Defence Housing Authority v. Munir Ahmed Ghulam Mustafa Akhtar 2006 SCMR 178; Munir Ahmed Ghulam Mustafa Akhtar v. Pakistan Defence Officers Housing Authority 2004 YLR 2047; Syed Rafiul Qadre Naqvi v. Syeda Safia Sultana and others 2009 SCMR 254 and Rafique Usman v. Axact Cyber Solution through Proprietor and 2 others 2010 YLR 155 ref.

Raja Sikandar Khan for Appellant.

Zia-ul-Haq Makhdoom for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 22nd August, 2011.

2011 M L D 1999

[Karachi]

Before Mushir Alam, C.J. and Syed Hasan Azhar Rizvi, J

AMBAREEN K.M. THOMPSON and 2 others---Petitioners

Versus

FEDERATION OF PAKISTAN through the Ministry of Interior, Islamabad and 2 others---Respondents

Constitutional Petition No.D-2720 of 2010, heard on 8th April, 2011.

Pakistan Origin Card Rules, 2002---

----R. 15---General Clauses Act (X of 1897), S. 24-A---Constitution of Pakistan, Art. 199---Constitutional petition---National Identity Card, renewal of---Non-speaking order---Petitioners were aggrieved of letter issued by authorities, whereby work permit was cancelled and authorities did not renew National Identity Card for overseas Pakistanis---Validity---Discretion vested in Authority was to be exercised judiciously and not arbitrarily---Exercise of such discretion against the subject should have been based on sound principles of justice, equity, fairness and in accordance with spirit of the provision in which it occurred and was not merely at the whims of the authority---No doubt that Government reserved to itself the discretionary power to accept or reject request of the petitioners but while rejecting the request of petitioners, Government was expected to act justly, fairly and reasonably, which the authorities did not do---High Court directed the authorities to take decision at their own after providing opportunity of hearing to petitioners---Constitutional Petition was disposed of accordingly.

Chairman, State Life Insurance Corporation v. Hamayun Irfan 2010 SCMR 1495; Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi 1998 SCMR 2268; Zain Yar Khan v. The Chief Engineer, C.R.B.C. WAPDA D.I. Khan 1998 SCMR 2419 = 1998 PLC (CS) 1484; Mehr Ali v. Noor Muhammad 2007 SCMR 1965; Government of Pakistan v. Farheen Rashid 2011 SCMR 1; Muhammad Yousuf v. Province of Sindh PLD 1976 Kar. 1219; Aziz Ahmed v. Secretary, Regional Transport Authority, Quetta PLD 1984 Quetta 106; Messrs Dadabhoy Investment (Pvt.) Limited v. Federation of Pakistan PLD 1995 Kar. 33 and Ghulam, Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan) Lahore PLD 1964 SC 829 ref.

Haq Nawaz Talpur and Tahmasp R. Rizvi for Petitioners.

Abdul Samad for Respondent No.2.

Nazar Akbar, D.A.-G. for Official Respondents.

Date of hearing: 8th April, 2011.

2011 M L D 1

[Lahore]

Before Ijaz Ahmad Chaudhry and Sh. Ahmad Farooq, JJ

ZESHAN and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1822 and Capital Sentence Reference No.38-T of 2009, decided on 3rd November, 2010.

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

----S. 7(e)-Penal Code (XLV of 1860), S.365-A---Abduction for ransom---Appreciation of evidence-F.I.R., delay in registration---Sentence, quantum of---First offenders---Press statement of police---Irregularities during investigation---Effect---Accused persons were convicted by Trial Court for abduction for ransom and were sentenced to death---Complainant had given a plausible explanation in the F.I.R. itself for delay, as he was being continuously threatened by accused and he could not put his own life and life of his son at stake by reporting the matter to police immediately---Such explanation/justification was natural and appealed to even a person of ordinary prudence---Mere delay in lodging of F.I.R. was not always fatal to case of prosecution or conclusive proof of false implication or innocence of accused persons---Complainant was real father of abductee and it was unbelievable that he would have concocted a false story of abduction of his real son implicating accused persons with whom he had allegedly a trivial dispute regarding unsatisfactory performance of repair of "sofas" and its payment---Disclosures made by police in his press conference as well as minor irregularities committed by police during investigation could not be preferred or given more credence as compared to the statements of eye-witness and actual victim of the occurrence, coupled with recovery of three pistols, a car and a huge amount of ransom recovered from accused persons---Two accused were real brothers out of them one was of 21 years of age at the time of occurrence and the third accused was carpenter by profession who had no previous criminal history---All accused were first offenders and deserved to be treated leniently regarding quantum of sentence, therefore, High Court while maintaining their convictions converted death sentence into imprisonment for life---Appeal was allowed accordingly.

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

----S.365-A---Abduction for reason---Appreciation of evidence---Sole witness---Quality and not quantity of evidence is to be taken into consideration---Conviction can be based on the testimony of sole natural and truthful witness.

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

----S.103---Recovery---Police witnesses---Scope---Police' witnesses who witnessed recoveries were equally worthy of credence, in absence of some tangible evidence to the contrary as a private witness.

Ch. Anwaar-ul-Haq Pannu and Mian Sikandar Hayat for Appellants.

Tariq Javed, DPP for the State.

Date of hearing: 3rd November, 2010.

2011 M L D 31

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD ZAHID---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE---Respondent

Writ Petition No. 6380 of 2009, decided on 14th May, 2010.

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

----S. 54---Sale agreement---Evidentiary value---Mere such agreement would not create any interest in or charge on property-No body would become owner of property by entering into such agreement---Such agreement would have no legal value without registration of document on its basis.

Mian Munir Ahmed v. Mrs. Manzar Jafari 1987 MLD 2922; Abdul Karim Khan v. Mst. Zahida Khan 2008 YLR 2434 and Ms. Shaista Shams v. Seema Begum PLD 2008 Kar. 424 rel.

(b) Punjab Rented Premises Act (VII of 2009)---

----S.15---Ejectment petition---Entertainment of frivolous applications causing delay in disposal of ejectment petition discouraged by superior courts.

(c) Punjab Rented Premises Act (VII of 2009)---

----S.28---Appeal against ejectment order by a person not party to ejectment proceedings---Not competent.

Hameed Jilani v. Abdul Aziz Ghafoor 2005 MLD 1232 rel.

Muhammad Ameer Bhatti for Petitioner.

Mian Muhammad Asif Rasheed Sial for Respondent No.3.

Ch. Muhstaq Ahmed Sindhu for Respondent No.4.

2011 MLD 67

[Lahore]

Before Ch. Muhammad Tariq and Mian Shahid Iqbal, JJ

MUHAMMAD SALEEM-Petitioner

Versus

MUHAMMAD SHAUKAT ALI and another---Respondents

R.F.As. Nos. 446 of 2007 and 16 of 2008, heard on 16th September, 2010.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of sale agreement was decreed---Order of Trial Court directing plaintiff to deposit sale price of suit land within specified time, otherwise his suit would stand dismissed---Non-deposit of such amount by plaintiff, but filing of appeal against decree and suspension of its operation by High Court subject to deposit of such amount---Non-compliance of such order of High Court by plaintiff---Application for extension of time to deposit such amount and stay application dismissed for non-prosecution--Application for restoration of such dismissed applications along with application under S. 5 of Limitation Act for condonation of delay caused in filing appeal---Validity--Plaintiff had not complied with direction of Trial Court, thus, his suit stood dismissed---Plaintiff had not applied to Trial Court or High Court for extension of time before expiry of time fixed by either of them---Entire proceedings in appeal were nullity in eye of law---Plaintiff had not shown any cogent reason for condonation of delay---High Court dismissed appeal along with such listed applications.

Ch. Muhammad Ashraf Mohandra for Appellant.

Bashir Ahmad Chaudhry for Respondent.

Date of hearing: 16th September, 2010.

2011 MLD 82

[Lahore]

Before Sh. Najam-ul-Hasan and Muhammad Anwaarul Haq, JJ

MUHAMMAD JAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1110 and M.R. No.322 of 2005, heard on 9th July, 2010.

Penal Code (XLV of 1860)---

---Ss. 302(b), 337-F(iv) & 337-L(2)---Qatl-e-amd, Ghayr-Jaifah mudihah and other hurt---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Ocular account was in line with medical evidence---F.I.R. was lodged promptly, leaving little room for concoction of false story---Identity of the accused could not be disputed as the occurrence took place in broad-daylight---Accused was known to the witnesses---Motive for crime had been fully proved by the prosecution in view of pending litigation between accused and the deceased---Pistol and TAPPA were recovered on pointation of the accused and supported the prosecution case as the injuries found on the person of the deceased were caused by firearm---Complainant was mother of the deceased and was injured during the occurrence; being inmate of the house, she was a natural witness---No reason for false implication of the accused was brought on record---Prosecution though had proved its case, yet there were mitigating circumstances---Accused dragged the deceased wife out of house of her parents into the street raising possibility that he might have intended to took her with him against her will but fired shot when she resisted---Injuries on the persons of the witness also reinforced in said possibility---Accused fired a single bullet and did not repeat the shot---In view of such extenuating circumstances together with young age of the accused, his death sentence was converted into imprisonment for life---Death sentence was not confirmed and the Murder Reference was answered in the negative.

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

----Ss. 302(b), 337-F(iv) & 337-L(2)---Qatl-e-amd, ghayr-jaifah mudihah and other hurt---Sentence---Age---Mitigating circumstance---Age of 23/24 years was considered as mitigating circumstance for lesser sentence---Sentence of death was converted into life imprisonment in circumstances

Ch. M.S. Shad for Appellant.

Chaudhry Sadaqat Ali for the Complainant.

Awais Mazhar, Deputy Prosecutor-General for Respondent.

Date of hearing: 9th July, 2010.

2011 M L D 96

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD BASHIR and 2 others---Appellants

Versus

ABDUL RAUF and another---Respondents

Regular Second Appeal No. 34 and Civil Revision No. 1318 of 2002, heard on 12th July, 2010.

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

----Ss. 12 & 42---Plaintiffs filed suit for declaration and permanent injunction on the ground that they had not executed any agreement to sell and the same was an outcome of fraud and misrepresentation---Defendants contested the suit for declaration by the plaintiffs and filed suit for specific performance of agreement to sell---Trial Court decreed suit of the plaintiffs and dismissed the suit filed by defendants---Appellate Court, on appeals, reversed findings of the Trial Court---Contention raised by the plaintiffs was that agreement to sell had not been proved as both the marginal witnesses had not been produced---Validity---Purchaser of the stamp paper had not been produced as a witness who was important witness for bringing on record the intention to purchase the stamp paper---Defendants had produced only one witness who stated that the disputed document was not written before him nor anyone signed before him; the other witness narrated altogether different story---Defendants had failed to prove the execution of document and payment of consideration---High Court set aside the judgment and decree passed ,by Appellate Court and restored the judgment and decree passed by Trial Court---Appeal was allowed by High Court.

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

----Art. 79---Specific Relief Act (I of 1877), Ss.12 & 42---Suit for declaration and specific performance---If the document was attested by two witnesses and one of the two witnesses supported the execution of document while the other denied the same in his presence, such witness fell for short of the required standard to discharge the onus and document in such circumstances was not proved.?

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

----Art. 79---Where the execution of document was in issue, it was essential and mandatory upon the person relying upon the document to examine marginal witnesses.?

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

----Arts. 17(2) & 79---Under Arts.17(2) and 79 of Qanun-e-Shahadat, 1984, the agreement was to be attested by two witnesses in case the document created financial obligations.?

Hameed ud-din Kasuri for Appellant.

Muhammad Yaqous Ch., Muhammad Imran Sarwar and Afzal Ahmad Qureshi for Respondents.

Date of hearing: 12th July, 2010.

2011 M L D 117

[Lahore]

Before Ch. Iftikhar Hussain, J

ASGHAR ZAHID---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 10082/B of 2010, decided on 30th September, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque-- -Bail, grant of---Cheque of Rs.11,00,000 issued by the accused to the complainant had been dishonoured by the Bank on presentation---Earlier, accused had been released on bail in the case by the Magistrate on the filing of an affidavit by the complainant regarding a compromise having been reached between the parties---Subsequently, on the application filed by the complainant, Magistrate cancelled the bail granted to accused, in which he even did not choose to appear---Accused, thereafter was again arrested and Sessions Court had refused to allow him relief of bail vide impugned order---Accused was behind the bars for more than four months and the offence alleged against him was not hit by the prohibitory clause of S. 497(1), Cr.P.C.---Court while determining the question of bail, could not go to the extent of giving a finding qua the rights of the parties in the case---Abscondence of accused was not a clog in his way for grant of bail to him, when his case had been found fit for bail---Accused was admitted to bail in circumstances.

Ch. Muhammad Arshad Ramay for Petitioner.

Khurram Khan, Deputy Prosecutor-General on behalf of respondent No. 1/State with Muhammad Ishaq, S.-I. with police record.

Ch. Nawab Ali Mayo for Respondent No. 2.

2011 M L D 129

[Lahore]

'Before Nasir Saeed Sheikh, J

HAQ NAWAZ---Petitioner

Versus

MACHHIA and 5 others---Respondent

C.R. No. 1360 of 2003, decided on 24th August, 2010.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2--Suit for declaration and permanent injunction with the prayer that the order passed by Sub-Divisional Canal Officer be declared illegal and without lawful authority---Plaintiff also filed an application for the grant of temporary injunction---Defendants contested suit on the ground that the impugned order had been implemented before institution of the suit---Trial Court accepted application for the grant of temporary injunction---Appeal filed by defendants was allowed by the Appellate Court---Validity---Record revealed that suit was instituted by plaintiff on 30-2-2001 after implementation of the impugned order dated 24-1-2001---Appellate Court had rightly found that the restraining order should not have been issued by the Trial Court in view of the peculiar circumstances of the case---Plaintiff could not point out any illegality in the impugned order---Petition was dismissed by High Court.

Hafiz Khalil Ahmed for Petitioner.

Munir Ahmed Khan Zai for Respondents.

2011 M L D 135

[Lahore]

Before Muhammad Khalid Alvi, J

PROVINCE OF PUNJAB through Executive Engineering, and 2 others---Appellants

Versus

Messrs AMMICO CONSTRUCTION (PVT.) LIMITED, LAHORE through Chief Executive Engineer---Respondent

F.A.O. No.91 of 1997, decided on 5th May, 2009.

Arbitration Act (X of 1940)---

----Ss. 14, 17 & 39---Limitation Act (IX of 1908), Art.158---Making award rule of the court---Objection to---Limitation---Respondent company after completion of construction work according to agreement, raised certain claims against appellant Authority before the nominated arbitrators---Both arbitrators found respondent entitled to recover amount claimed by respondent company---Application filed by the respondent company under Ss.14 & 17 of Arbitration Act, 1940 for making award as rule of the court, was accepted and Executive Engineer of the Appellant Authority appeared in court and stated that he had no objection with regard to making the award rule of the court in accordance with law---When award was finally made rule of the court, appellant Authority assailed the same through appeal---Validity---Article 158 of Limitation Act,. 1908 had provided 30 days' time to the parties from the date of filing of award to raise objection, if any---After said period no party could be allowed to raise any objection with regard to the award---No provision of law required a court to fix a particular date inviting objections from either party; it was choice of the parties, within the prescribed period of limitation, to raise any objection or not---Executive Engineer of the appellant Authority appeared before the court and made a specific statement that he had no objection if award was made rule of the court---Appellant Authority had been continuously represented till the last date of impugned order and it never bothered to raise any objection with regard to the award---Award could not be objected to at such a belated period in circumstances.

Rafey Ahmed Khan, A.A.-G. for Appellant.

Chaudhary Inayat Ullah for Respondent.

Date of hearing: 5th May, 2009.

2011 M L D 144

[Lahore]

Before Sh. Ahmad Farooq, J

Syed MUHAMMAD ABBAS NAQVI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 9450/B of 201.0, decided on 22nd September, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.380/406/420---Theft in dwelling house, criminal breach of trust, cheating---Bail, refusal of---Parties, prima facie, had no business transaction---Complainant had no mala fide intention for false implication of accused in the case---Accused had got published advertisement in different newspapers pretending himself to be a "peer" possessing some spiritual power and as such he had deprived the complainant of a huge amount on the pretext of winning prize money on the prize bonds---Section 380, P.P.C. though had been deleted during investigation, yet accused had, prima facie, committed criminal breach of trust---Offences allegedly committed by the accused, no doubt, did not fall within the prohibitory clause of S.497(1), Cr.P.C., but he was not entitled to bail, as he was likely to repeat the offence and cheat the people by pretending to be a "Peer"---Such like people were responsible for destroying the social and moral fabric of the society---Accused was behind the bars for the last about two months only and had, prima facie, misappropriated an amount of Rs. 15,00,000 in addition to fraudulently procuring cheques amounting to Rs.13,20,000 from the complainant---Bail was declined to accused in circumstances.

Mian Muhammad Waseem for Petitioner.

Rana Muhammad Saeed Akhtar for the Complainant.

Muhammad Iqbal Chaudhry, D.P.G. with Muhammad Afzal S.-I.

2011 MLD 152

[Lahore]

Before Tariq Javed, J

SAEED AHMAD---Petitioner

Versus

SHAHZAD PERVAIZ and others---Respondents

Writ Petition No.2192 of 2008, decided on 23rd February, 2010.

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

----S. 5, Sched. & S.14---Constitution of Pakistan, Art.199--Constitutional petition---Suit for recovery of dower and maintenance allowance---Family Court and Appellate Court had concurrently decreed suits filed by the plaintiff---Validity---Defendant husband had contracted second marriage without consent of first wife and was living with his second wife and had failed to pay maintenance to first wife and minor child for the last five years---First wife maintained that Haq Mahr fixed at the time of marriage was one building in which she was residing and 10 acres of. agricultural land; she, however, alleged that after having given the suit land in dower, the defendant sold the same except 27 Kanals---Defendant (husband) could not point out any illegality in the impugned concurrent judgments of the courts below---Ten acres of agricultural land which was mentioned in Nikahnama, having been given to the plaintiff (first wife) in lieu of dower along with house, Trial Court had rightly come to the conclusion that she was entitled to possession of 27 Kanals land and amount of sale proceed of land which was sold by the defendant---Defendant who was man of means, could easily afford to provide maintenance allowance for his minor daughter living with the plaintiff.

Arbab Mir Muhammad v. Mst. Iram Iltimas and 4 others PLD 2005 SC 24; Mst. Jameela Begum V. Additional District Judge and 3 others 2005 MLD 376; Mst. Falak Naz v. Federal Land Commission, Islamabad and another 2002 CLC 518 and Sabir Hussain v. Nusrat Bibi 2009 YLR 1272 ref.

Mazhar Ali Bhatti for Petitioner.

Ghulam Murtaza Malik for Respondents No.3 and 4.

2011 M L D 176

[Lahore]

Before Shaukat Umar Pirzada, J

Mst. MARYAM HASEENA and 3 others---Petitioners

Versus

Syed EJAZ HUSSAIN SHAH and 3 others---Respondents

Writ Petition No. 5175 of 2009, decided on 8th July, 2010.

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

----S. 5 & Sched.---Suit for recovery of dower---Dower being property of wife given to her by father-in-law through agreement executed by him a day before her marriage also finding mention in Column 16 of her Nikahnama---Refusal of father-in-law to execute registered document as per terms of such agreement---Suit by wife against her husband and father-in-law for specific performance of such agreement---Father-in-law alleged such agreement and Column to be forged and fabricated---Proof---Wife tendered in evidence Nikahnama and such agreement by examining marginal witnesses thereof---Validity---Record showed that marriage was an arranged one and in pursuance thereof, father-in-law had executed such agreement with his free will---Such agreement was comprehensive reflecting understanding reached between two families---According to agreement, husband had no property at all, thus, his father for having hand of plaintiff for his son transferred a portion of his house to her having value of Rs.50,000---According to agreement, in case of failure of father-in-law to transfer such property through registered document, plaintiff had a right to enforce same through a court of law---Father-in-law had admitted his signature on Nikahnama as witness---Wife by producing marginal witnesses had proved such agreement---Father-in-law could prove alleged interpolation in Nikahnama by producing its certified copy, but he had not done so knowing fully well that there was no such interpolation---Father-in-law during cross-examination had admitted that all blank columns of Nikahnama were crossed, while Column 16 thereof was filled and not crossed---Presence of wife at time of execution of such agreement was not necessary as same was not a commercial transaction settled between a buyer and seller---Marriage was an arranged one, and its terms and conditions would have been settled amongst elders of both families and not by bride and bridegroom, and womenfolk including bride were not allowed to participate in such meetings---Father-in-law could not prove his such plea---Oral evidence could not be preferred over unrebutted documentary evidence---Suit was decreed with direction to father-in-law to transfer such property to plaintiff within specified time, other-wise she would'be entitled to file execution petition for its recovery.

Sadaruddin v. Aslam Madad Ali and others PLD 2008 Kar. 205 rel.

(b) Evidence---

----Oral evidence could not be preferred over documentary evidence.

Mian Ishfaq Ahmad Sial for Petitioners.

Azmat Ali Khan Tagga for Respondent No.4.

Respondent No.3 in person.

2011 MLD 196

[Lahore]

Before Ijaz ul Ahsan, J

PROVINCE OF PUNJAB through Member, Board of Revenue---Petitioner

Versus

ANWAR JALIL and others---Respondents

Writ Petition No. 82-R of 2006, decided on 6th August, 2010.

(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S.2(2)---Notified Officer---Cognizance---Scope---Notified Officer may take cognizance of a matter, which was either pending before him or was remanded to him by Supreme Court or High Court.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S.2(3)---Pending matters, decision of---Principles---All pending matters were required to be decided in accordance with repealed law.

Ch. Zafar Ul Haq and another v. The State PLD 1968 Lah. 437 ref.

(c) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----S.2(8) & (9)---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2(2)---Settlement Scheme No.1, Paragraph 28---Constitution of Pakistan, Art. 199---Constitutional petition---Evacuee property---Determination of price---Authorities disputed the price of property in question which was determined by Notified Officer---Validity---According to paragraph 28 of Settlement Scheme-I, Notified Officer/Deputy Settlement Commissioner was authorized to determine the price according to notification, dated 14-11-1974, under Displaced Persons (Compensation and Rehabilitation) Act, 1958---In item No.6, it was clearly laid down that Deputy Secretary (Rural), Board of Revenue, would exercise powers of Notified Officer---Matter relating to determination of price fell within the definition of "pending matters" and Notified Officer at the relevant time had the jurisdiction to assess the price in accordance with law---Notified Officer exercised his powers validly in accordance with law and petitioner failed to establish that the Notified Officer exercised powers not vested in. him or that in exercise of his powers he acted illegally or with material irregularity---High Court declined to interfere in the price of property in question determined by Notified Officer---Petition was dismissed in circumstances.

Government of Punjab, Colonies Department, Lahore and others v. Muhammad Yaqoob PLD 2002 SC 5; Ch. Zafar Ul Haq and another v. The State PLD 1968 Lah. 437 and Muhammad Aslam v. The Chief Settlement and Rehabilitation Commissioner, Lahore PLD 1967 Lah. 375 ref.

Syed Aal-e-Ahmad for Appellant.

S.M. Neem for Respondents Nos. 2 to 27.

Muhammad Anwar Warraich for Respondent No.28.

Date of hearing: 25th May, 2010.

2011 M L D 223

[Lahore]

Before Mamoon Rashid Sheikh, J

NUSRAT BIBI---Petitioner

Versus

S.H.O. and another---Respondents

Writ Petition No. 13336 of 2010, decided on 21st June, 2010.

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

----S. 154---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court---Scope---Petitioner seeking direction to police to register F.I.R.---Validity---Under the provisions of S.154, Cr. P. C., the S.H.O. is under a legal obligation to register an F.I.R. whenever allegations regarding commission of cognizable offence are levelled before him---High Court, however, in the matters of ordering registration of F.I.Rs., has a discretion while exercising its constitutional jurisdiction and may therefore, in the peculiar circumstances of a given case, decline to exercise its constitutional jurisdiction.

Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 fol.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Non-­availability of alternative remedy---Effect---Every case has to be decided on its peculiar facts and circumstances and in the presence of an alternative statutory remedy constitutional petition is not maintainable.

Rai Ashraf and others v. Muhammad Saleem Bhatti and others Civil Petition No. 1398-L of 2009 fol.

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

----Ss. 22-A, 22-B & 154---Constitution of Pakistan, Art.199---Constitutional petition---Petitioner had assailed the order of Justice of Peace declining the request of petitioner to direct the S.H.O. to register case against the respondent---Validity---Case of the petitioner, as per the Police report, appeared to be based on a false premise---Petitioner also had the alternative statutory remedy by way of filing a criminal complaint but she had not exhausted said remedy before filing the constitutional petition---Constitutional petition, was dismissed, in circumstances---Petitioner, however, may avail of the alternative remedy provided by law by way of filing of a private complaint in respect of her allegations, if so advised, which shall not be influenced by any observation made in the present judgment.

Muhammad Aslam v. Justice of Peace/Additional Sessions Judge, Burewala, District Vehari and another 2010 PCr.LJ 296 and Gul Waiz and another v. Zuhra Bibi and others 2010 PCr.LJ 45 distinguished.

Abdul Ghaffar Khan for Petitioner.

Kalim Ilyas, Assistant Advocate-General Punjab on Court's call.

2011 M L D 226

[Lahore]

Before Sagheer Ahmed Qadri, J

TAIMUR SHEHZAD---Petitioner

Versus

SAQIB LATIF and others---Respondents

Writ Petition No. 585 of 2010, decided on 18th October, 2010.

(a) Islamabad Rent Restriction Ordinance (IV of 2001)---

----Ss. 9, 10 & 17---Constitution of Pakistan, Art.199---Constitutional petition---Landlords filed ejectment petition against tenant on the ground of their bona fide personal need and expiry of lease agreement---Tenant contested petition on the ground that the alleged lease agreement was forever and the rent of the shop would be enhanced with the rate of 6% per annum uptil five years---Rent Controller allowed ejectment petition on the ground of personal need and occupation---Appeal filed by tenant was dismissed by appellate court---Validity---Contention of the tenant that under lease agreement, the tenancy was perpetual tenancy and therefore, ejectment petition was not maintainable had no force---If any such lease or tenancy was created on the basis of an unregistered document same had no lawful effect and could only be treated tenancy/lease for a period of less than one year, however; such document could only be taken into consideration as valid document for the purpose of deciding relationship between landlord and tenant---Constitutional petition was dismissed.

Maneklal Mansukhbhai v. Hormusji Jamshedji Ginwalla and Sons AIR 1950 SC 1; B.P. Sinha v. Som Nath AIR 1971 Allahabad 297; Allies Book Corporation through L.Rs. v. Sultan Ahmad and others 2006 SCMR 152; Rasees-ud-Din and others v. Man Muhammad Farooq and others 2001 SCMR 1801; Shahid Nadeem and others v. Muhammad Shafi 2000 SCMR 542; Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398; Sohail Ahmad Bajwa through Special Attorney v. Muhammad Riaz 2005 MLD 1184; Mst.Ashraf Alia v. Dr.Asif Majeed 1991 CLC 53; Malik Muhammad Zakria Kansi v. Dr. Bashir Ahmed PLD 2001 Quetta 40; Abdul Hameed Khan v. Mrs. Saeeda Khalid Kamal Khan and others PLD 2004 Kar. 17; Muhammad Yousaf v. Nisar Ahmad and another 2002 CLC 526; Abdul Majid v. Anwar Ali 1983 CLC 2511; Mehboob Alam v. Miss Tehseen Shafqat Khan and others PLD 2001 Kar. 238; Muhammad Rafique v. Messrs Habib Bank Ltd., 1994 SCMR 1012; M.K. Muhammad and another v. Muhammad Abu Bakar 1993 SCMR 200; Hafiz Altaf Ahmed v. Haji Ahmed Din 2005 CLC 1758; Qaiser Javed Malik v. Pervaiz Hameed and 2 others 2009 SCMR 846; Mrs.Tahira Dilawar Ali Khan through Attorney and 2 others v. Mst. Syeda Kaneez Sughra and 2 others PLD 2007 Kar. 50 and Darbari Lal Mudi and others v. Raneeganj Coal Association Ltd. AIR (31) 1944 Patna 30 ref.

Muhammad Rafiq v. Messrs Habib Bank Ltd. 1994 SCMR 1012; M.K. Muhammad and another v. Muhammad Abu Bakar 1993 SCMR 200; Hafiz Altaf Ahmed v. Haji Ahmed Din 2005 CLC 1758 and Qaiser Javed Malik v. Pervaiz Hameed and 2 others 2009 SCMR 846 rel.

Maneklal Mansukhbhai v. Hormusji Jamshedji Ginwalla and Sons AIR 1950 SC 1 and B.P.Sinha v. Som Nath AIR 1971 Allahabad 297 distinguished.

(b) Islamabad Rent Restriction Ordinance (IV of 2001)---

----Ss.1(ii) & 17---S.R.O. 538/(I)/2004 dated 24-6-2004---Constitution of Pakistan, Art.199---Constitutional petition---Contention of the tenant was that the eviction proceedings could not be initiated in respect of the demised premises in view of S.1(ii) of Islamabad Rent Restriction Ordinance, 2001 and S.R.O. 538(I)/2004 dated 24-6-2004 wherein it was provided that. Islamabad Rent Restriction Ordinance, 2001 should apply to all residential and commercial buildings besides rented lands---Both Rent Controller and Appellate Court had dealt with said question and repelled the contention---Validity---Said findings of both courts below had not been challenged by the tenant---Such question at the stage of constitutional petition, therefore, could not be agitated---Constitutional petition was dismissed.

(c) Islamabad Rent Restriction Ordinance (IV of 2001)---

----S. 17---Constitution of Pakistan, Art.199---Constitutional petition---Contention of the tenant that disputed premises was not required by the landlords for their bona fide personal use and occupation and that the landlords were already in occupation of sufficient space in the property in their possession to enhance their business activities, therefore, the ground for personal bona fide need was just an excuse for pressurizing the tenant for enhancement of the rent---Validity---No evidence was brought on record by the tenant if any space available with the landlords was ever let out by them after getting vacated from the previous tenants or if any such space was available which was not used intentionally by the landlords---Contention of tenant was repelled and constitutional petition dismissed.

Muhammad Ilyas Sheikh for Petitioner.

Mohsin Akhtar Kayani for Respondents.

2011 M L D 237

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD ASIF and others---Petitioners

Versus

THE STATE---Respondent

Criminal Revision No. 614 of 2010, decided on 8th June, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 514---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Forfeiture of bail bonds---Accused for whom the petitioners had stood sureties was a fugitive from law in a murder case and he had been declared a proclaimed offender by Trial Court---Sureties who appeared to be persons of limited means and law profile could not be believed to launch any successful operation to dig out the exact present particulars of the accused, overpower him and compel him to surrender before the court for facing the trial---Even the Government machinery with all its power and mobility had been unsuccessful in hauling up the accused to bring him to the court of law---However, it did not mean that the petitioners had no knowledge of the antecedents of the accused or of their own economic strength and they had happily and readily offered themselves to be the sureties of a criminal---Liability of the petitioners as sureties, therefore, could not be denied, who had failed to discharge their obligations and they were liable to pay penalty under the law---Forfeiture and infliction of penalty to the tune of Rs. 1,00,000 each was, however a bit harsh---Said penalty in the attending circumstances of the case was reduced to Rs.60,000 each to meet the ends of justice.

Tahir Zia Mohar for Petitioners.

Aamir Jalil Siddiqui, A.A.-G.

2011 M L D 255

[Lahore]

Before Sagheer Ahmed Qadri, J

AKBAR SHAH and others---Petitioners

Versus

FAZAL-UR-REHMAN and others---Respondents

C.R. No. 667 of 2001, decided on 11th October, 2010.

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

----S. 13---Pre-emption suit---Performance of Talb-e-Muwathibat---Requirements---Performance of Talb-e-Muwathibat as required under S.13 of the Punjab Pre-emption Act, 1991 should be proved while providing exact date, time, place as well as name of the informer and Majlis.

Mst. Saleem Akhtar v. Chaudhry Shauk Ahmed 2009 SCMR 673; Ali Muhammad- v. Ghulam Muhammad 2003 CLC 282; Haq Nawaz v. Muhammad Kabir 2009 SCMR 630; Muhammad Suleman v. Shaukat Ali 2009 SCMR 678; Khyber Khan and others v. Haji Malik Amanullah Khan 2007 SCMR 1036 and Ali Muhammad v. Muhammad Bashir 2007 SCMR 1531 ref.

Mst. Saleem Akhtar v. Chaudhry Shauk Ahmed 2009 SCMR 673 rel.

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

----S.13---Pre-emption suit---performance of Talb-e-Muwathibat---Essentials---Talb-e-Muwathibat was a jumping demand which immediately should have been pronounced, even delay of minutes could adversely affect the right of a prospective pre-emptor.

Mst. Saleem Akhtar v. Chaudhry Shauk Ahmed 2009 SCMR 673; Ali Muhammad v. Ghulam Muhammad 2003 CLC 282; Haq Nawaz v. Muhammad Kabir 2009 SCMR 630; Muhammad Suleman v. Shaukat Ali 2009 SCMR 678; Khyber Khan and others v. Haji Malik Amanullah Khan 2007 SCMR 1036 and Ali Muhammad v. Muhammad Bashir 2007 SCMR 1531 ref.

Mst. Saleem Aklltar v. Chaudhry Shauk Ahmed 2009 SCMR 673 rel.

Muhammad Younias Bhatti for Petitioners.

Sh. Zameer Hussain for Respondents.

2011 MLD 264

[Lahore]

Before Syed Akhlaq Ahmad, J

ZAHEER ABBAS---Petitioner

Versus

S.S.P. ISLAMABAD and others---Respondents

Writ Petition No. 3838 and C.Ms. Nos. 2, 1 of 2010, decided on 3rd September, 2010.

Penal Code (XLV of 1860)---

---Ss. 376/365-B/34---Constitution of Pakistan, Art.199---Rape and abduction---Constitutional petition---Quashing of F.I.R.---Bail, refusal of---Accused along with three others stood specifically nominated in the impugned F.I.R. and definite allegation of abduction and zina-bil-jabr, had been levelled against him and three others therein---Question regarding correctness or otherwise of the allegation contained in the impugned F.I.R. and also of the parallel version advanced by accused, was a question which necessarily called for holding a factual inquiry, which exercise could not be undertaken by High Court in constitutional summary proceedings under Art.199 of the Constitution---Impugned F.I.R. was at its investigation stage and it was 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---High Court declined interference in the matter.

PLD 2008 Lah. 66; 2009 SCMR 141; Col. Shah Sadiq v. Muhammad Ashiq and another 2006 SCMR 276 and Dr. Ghulam Mustafa v. The State and others 2008 SCMR 76 rel.

Raja Haseeb Sultan for Petitioner.

Zaheer Abbas petitioner in person.

2011 MLD 278

[Lahore]

Before Ijaz Ahmad, J

Haji PERWAIZ KHAN and 3 others---Petitioners

Versus

PAKISTAN CIVIL AVIATION AUTHORITY and another---Respondents

Writ Petition No. 1718 of 2006, decided on 26th October, 2010.

Punjab Land Acquisition Rules, 1983---

----Rr. 14 & 15---Civil Aviation Authority Ordinance (XXX of 1982), Ss.4 & 5---Constitution of Pakistan, Art.199---Constitutional petition---Land acquisition for Civil Aviation Authority (CAA)---Leasing out of surplus acquired land by CAA for establishment of CNG Station--Refusal of CAA to restore surplus land to its original owner, rather leasing out same to another person for establishment of CNG Station---Plea of CAA that CAA had legal right to utilize surplus land according to its option for raising finances---Validity---Purpose of acquisition of land as mentioned in Notification was its utilization by CAA---CAA had constructed Airport and allied on some part of acquired land---CAA had neither utilized nor proposed or intended to utilize surplus land for any other public purpose allied with purpose specified in Notification---Government being a custodian of property of people could only deprive citizens of their right to own and possess land, if same was required for public purpose and benefit of pubic at large---CAA could not retain surplus land for an undefined purpose, thus, same was liable to be returned to its original owner---Original owner had been paid compensation for acquired land besides compensation for compulsory acquisition @ 15%---Construction of Airport and allied facilities including roads had attracted Estate Developers in the adjoining areas resulting in manifold increase in value and price of surplus land---High Court accepted constitutional petition while directing original owner to return double amount of compensation received by him from CAA less 15% amount of compulsory compensation.

Mst. Asmat-un-Nisa and another v. Government of N.-W.F.P 2010 SCMR 480; Mst. Kishwar Sultana and others v. Province of Punjab and others 2004 MLD 1604; Syed Zainuddin and 9 others v. Assistant Commissioner-Cum-Collector, Quetta and 2 others 1996 MLD 731; Mullah Ghulam Ali and others v. Commissioner of Karachi and 2 others PLD 1983 Kar. 602 and Ali Shan v. Mirpur Development Authority and 6 others 2001 MLD 295 ref.

Rana Ziladar Khan v. Province of Punjab through Collector Silakot and others 2010 YLR 1212; Province of Punjab through Collector, Lahore and another v. Saeed Ahmed and 4 others PLD 1993 SC 455; Nazir Ahmad and 8 others v. Commissioner, Lahore Division, Lahore and 3 others 2000 MLD 322; Province of Punjab and others v. Mian Saeed Ahmad 1990 ALD 658 and Sajjad Ahmad and another v. Secretary, Government of the Punjab, Revenue Department/Member Board of Revenue and 2 others 2007 CLC 811 rel.

Malik Muhammad Kabir for Petitioners.

Anis-ud-Din for Respondents.

2011 M L D 285

[Lahore]

Before Ch. Shahid Saeed, J

MUHAMMAD ASLAM and others---Petitioners

Versus

MUHAMMAD AJMAL and others---Respondents

Civil Revision No. 135 of 1997, decided on 10th November, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Arbitration Act (X of 1940), Ss.8 & 24---Suit for declaration---Appointment of referee---Referee was appointed with the consent of counsel for parties---Referee though had to decide the matter according to his personal knowledge, but his act of acquiring further information, would not vitiate his report---Nothing would be wrong, if referee, in order to supplement or augment his knowledge, had chosen to affirm or re-affirm same through other sources---Both the parties were legal heirs of deceased who died issueless; and all the legal heirs were entitled to get their share according to law---Contention of counsel for the defendants that referee could not take any assistance from any corner while preparing the report, had no force and same was repelled---Courts below while passing impugned judgments and decree took a count of every bit of evidence placed before them; and were not shown to have overlooked any part of the record from their judicious consideration---Finding of the courts below on question of fact and law based on proper appreciation of oral as well documentary evidence, were susceptible to review to be upset or substituted in revisional jurisdiction---Concurrent findings of the courts below based on material on record, would not be amenable to interference by High Court in revision.

Mian Wasaf Saeed for Petitioners.

S.M. Ibrahim Shah Bhukhari for Respondents.

Date of hearing: 10th November, 2010.

2011 M L D 299

[Lahore]

Before Syed Akhlaq Ahmed, J

MUHAMMAD NAWAZ---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 1328-B of 2010, decided on 26th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Issuing bogus cheques---Bail, refusal of---Memo of return of cheques in dispute by the bank revealed that said cheques were dishonoured by the dank with two objections i.e. account closed; and photo account---Said objection of the bank, prima facie established that accused had no intention to pay amount in question to the complainant from the day one---Accused defrauded the complainant of his huge amount by issuing bogus cheques of his account which was already closed and further which was a photo account---Act of accused amounted to financial murder of the complainant---Accused, in circumstances, did not deserve any leniency---Finding of Investigating Officer, that whole defrauded amount had been paid by accused to the complainant through two property dealers, was also without any basis---Police file had shown that Investigating Officer never issued any notice to complainant to appear before him or to join the investigation---Complainant had categorically denied before the High Court to have received any amount from accused or from said two property dealers---Offences with which accused was charged, though did not fall under prohibitory clause of S.497, Cr.P.C., however, grant of bail in such like cases was not a rule of universal application---Each case had to be seen on its own facts and circumstances---No mala fide or ulterior motive appeared on the part of the complainant to falsely involve accused as in the case---Accused was not entitled to the concession of bail, his bail application stood dismissed, in circumstances.

2005 PCr.LJ 144; 2005 SCMR 306; PLD 2005 Lah. 607; 2009 SCMR 1488; Muhammad Akram v. The State 2008 MLD 303; Shameel Ahmad v. The State 2009 SCMR 174; Muhammad Afzal Javed v. Muhammad Akram and another 2010 P.Cr.R. 622; Muhammad Siddique v. Imtiaz Begun and 2 others 2002 SCMR 442 and Muhammad Naeem v. The State 2010 PCr.LJ 504 rel.

Tanveer Iqbal for Petitioner.

Kh. Sohail Iqbal D.P.G. for the State assisted by Syed Iqrar Haider Shah for the Complainant.

Muhammad Rafique Complainant in person.

Khaliq Dad A.S.-I./I.O. along with record.

2011 MLD 311

[Lahore]

Before Muhammad Anwaarul Haq, J

Mian MUHAMMAD SHABBIR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 12722-B of 2010, decided on 7th December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonouring of cheque---Bail, refusal of---Counsel for accused admitted that a compromise between the parties had taken place and in view of the same pre-arrest bail of accused was confirmed---Counsel had further admitted that both the cheques given to the complainant, had been dishonoured and pre-arrest bail so granted to accused had also been recalled---Counsel for accused was unable to explain about four years' absconsion of accused---Though case against accused did not' fall within the prohibitory clause of S.497, Cr.P.C., and accused was behind the bars for a considerable long period; and bail in such like case was a rule and refusal was an exception, but conduct of accused clearly reflected that he had misused the relief of bail earlier granted to him as his cheques given to the complainant had been dishonoured and he remained fugitive from law for about four years---Such was sufficient to make case of accused an exception to the general rule and that disentitled him for any discretionary relief in his favour---Bail petition filed by accused being devoid of any force, was dismissed, in circumstances.

Zafar Iqbal v. Muhammad Anwar and other 2009 SCMR 1488 and Tariq Bahsir and 5 others v. The State PLD 1995 SC 34 ref.

Zia Ullah Khan for Petitioner.

Rana Tassawar Ali Khan Rana, Deputy Prosecutor-General for the State with Javed Iqbal S.-I. with record.

Suhail Mushtaq Chaudhry for the Complainant.

2011 M L D 322

[Lahore]

Before Ch. Shahid Saeed, J

MUHAMMAD ARSHAD KHAKWANI---Petitioner

Versus

I. U. B. and another---Respondents

Writ Petitions Nos. 4836 and 4213 of 2009, decided on 18th May, 2010.

(a) Public functionaries---

----Statutory bodies are governed under Acts, rules, regulations and statutes which are meant for the purpose and no one is allowed to supersede the same---University functionaries are presumed to act under the law and no one can exceed from its domain, neither supersede nor deviate---If provisions of Act are not complied with, then institutions cannot run smoothly as is required under the law and guarantees provided by the Constitution.

(b) Islamia University of Bahawalpur Act (IV of 1975)---

----Ss.15, 30 & Schedule 5---Constitution of Pakistan, Art. 199---Constitutional petition---Quo warranto, writ of---Locus standi---Appointment of Chairman of teaching department---Petitioner assailed appointment of Chairman of Law Department on the ground that he did not qualify to be so appointed---Contention of authorities was that petitioner did not have any locus standi to file the petition---Validity---Islamia University was a public institution and any person could file quo warranto, if any act was being done by the authority against public interest and in violation of the statutes, therefore, petition was rightly filed by the petitioner---Vice Chancellor failed to observe relevant law and statutes prior to passing of orders of appointment, which were declared illegal, without lawful authority and of no legal effect and the same were set aside---Petition was allowed in circumstances.

Petitioner in person.

Masud Ashraf Sheikh Advocate/Legal Advisor of IUB. Ch. Khalid Nawaz A.A.-G.

2011 MLD 326

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

UMAR SHAHZAD alias SHAIB---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No.1814 of 2004 and Murder Reference No.294 of 2009, heard on 2nd December, 2010.

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

----S. 302(b)/34---Qatl-e-amd---F.I.R. was promptly lodged with all the necessary details of occurrence, which had ruled out the possibility of any consultation or deliberation on behalf of the complainant---One of the prosecution witnesses being real father of the deceased and other one his brother-in-law, presence of said two witnesses along with deceased at the place of occurrence which was shop of deceased, was very natural and plausible---No reason of false implication of accused by said witnesses was available and there was no reason to doubt their testimony because they had no enmity of any sort with the accused---Mere relationship of witness was not sufficient to discredit his testimony---Even otherwise, substitution in such like cases, where both eye-witnesses were closed relatives of the deceased, was a rare phenomenon because it was impossible that near kith and kin would let off the real culprit and would substitute another person in a murder case---No material contradiction was found between the ocular and medical evidence---No empty having been recovered from the spot, mere report of Forensic Science Laboratory that gun recovered from accused was in working order, was of no avail to the prosecution---Acquittal of all other co-accused would not advance the case of accused in any manner, firstly for the reason that their case was quite distinguishable; as none of them had caused any injury to the deceased; and fatal injury had been attributed to accused only; secondly principle of "Falsus in uno Falsus in omnibus" had no universal application; and grain had to be sifted from the chaff to ensure justice---Prosecution had succeeded in proving its case against accused beyond any reasonable doubt---No reason existed to interfere with finding of the Trial Court regarding conviction of accused under S.302(b), P.P.C.---Conviction of accused which was in accordance with law, was maintained.

Haji v. The State 2010 SCMR 650; Khalid Saif Ullah v. The State 2008 SCMR 688; Ali Gohar v. State 1996 SCMR 549 and Khadim Hussain v. The State 2010 SCMR 1090 ref.

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

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Prosecution had alleged a specific motive, but had failed to prove the same---Accused and deceased having no previous enmity, exact cause of incident remained in mystery---No allegation was of repetition of the fire by accused--Recovery of weapon of offence in absence of any crime-empty from the spot had lost its significance---Age of accused at the time of occurrence was about 18 years---Accused in peculiar circumstances of the case, deserved benefit of doubt to the extent of his sentence one out of two provided under S.302(b), P.P.C.---Accused was entitled for the benefit of doubt as an extenuating circumstance, while deciding his question of sentence---Maintaining conviction of accused under S.302(b), P.P.C., his sentence of death was altered into imprisonment for life---Benefit of S.382-B, Cr.P.C. was also extended to accused.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188 and Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 ref.

Azhar Hameed Chaudhry for Appellant.

Ch. Muhammad Mustafa, Deputy Prosecutor-General for the State.

Date of hearing: 2nd December, 2010.

2011 M L D 337

[Lahore]

Before Muhammad Anwaarul Haq, J

MUHAMMAD RAMZAN---Petitioner

Versus

S.H.O. and others---Respondents

Criminal Miscellaneous No.1798-H of 2010, decided on 9th December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 491---High Court (Lahore) Rules and Orders Volume-V, Chapter-4, Part-F (Rules Framed under S.491(2), Cr.P.C.) Rr.16 & 17---Habeas corpus petition---Petitioner stated that alleged detenue telephonically contacted him two days prior to filing of petition and informed him that she was living in a very critical condition as the respondents had detained her in a locked room and were not allowing her to move any where; and were exercising undue pressure upon her to get a decree for dissolution of marriage from the Family Court--Alleged detenue was produced in the court by the Police and she controverted the story narrated by the petitioner in his habeas corpus petition; she stated that she was living with her parents with her own free-will and did not want to go with her husband/petitioner, who had filed said petition only to harass her and her family members---Lady further stated that it was second petition of the petitioner before the High Court, whereas his earlier similar petition moved in the Trial Court was dismissed----In view of growing tendency of filing frivolous habeas corpus petitions before the courts, certain rules/instructions regarding habeas petitions had been issued by the High Court; if petition was found baseless or unjustified, the court should seek guidance from Rr.16 & 17 framed under S.491(2), Cr. P. C. under High Court (Lahore) Rules and Orders Volume-V, Chapter-4, Part-F---It was necessary in such like cases to require the parties, keeping in view their social status to deposit a hand some security amount before proceeding any further in the petitions relating to female especially---Court was bound to see that if habeas corpus petition was filed to disgrace the respondent, then in appropriate case, while deciding the matter, the petitioner should be burdened with costs/forfeiture of security so deposited; and if the court deemed it necessary, the security could be ordered to be paid to the respondent as compensation---Present case was appropriate where security amount deposited by the petitioner should be paid to alleged detenue as compensation.

Shahid Mehmood Khan Khilji for Petitioner.

Taswar Ali Khan Rana, Deputy Prosecutor-General for the State.

Mst. Saeed Kanwal Muhammad Jahangir Khan, A.S.-I. with record.

Muhammad Tariq Naveed Dhiloon for Respondents Nos. 3, 4, 7, 8 and 12.

2011 MLD 346

[Lahore]

Before Shahid Hameed Dar, J

KHURRAM BASHIR---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 1911-B of 2010, decided on 10th November, 2010.

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

----S.498---Penal Code (XLV of 1860), S.337-A(i)/354/452---Causing hurt "shajjah"; assault or criminal force to woman with intent to outrage her modesty; house-trespass after preparation for hurt, assault or wrongful restraint---Pre-arrest bail, grant of---Allegations made in the F.I.R. did not show that the empty handed accused had committed any act falling within the definition of S.452, P.P.C.---Accused had not caused any injury to the wife of the complainant, nor did he tear her shirt---False implication of accused in the case due to malice or ulterior motive of the complainant could not be ruled out--Extra ordinary relief of pre-arrest bail could be lawfully extended to a person who did not appear to have committed a non-bailable offence or room for further inquiry into his guilt would appear within the meaning of S.497(2), Cr.P.C.---Primary object of bail before arrest was to save innocent persons from the apprehension of being arrested for a tainted purpose carved out by the mischievous wire puller driven by malice and malignancy of intention---Injuries received by the wife of the complainant, according to her Medico-Legal Report fell within the definition of S.337-A(i), P.P.C. which was a bailable offence, punishable with two years' R.I.--Pre-arrest bail was allowed to accused in circumstances.

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

----S.498---Pre-arrest bail---Purpose and scope---Pre-arrest bail is an extra-ordinary relief, the scope whereof is narrow, but it can be lawfully extended to a person who does not, prima facie, appear to have committed a non-bailable offence, or there is room for further probe into his guilt within the meaning of S.497(2), Cr.P.C.---Primary object of pre-arrest bail is to save the innocent persons from the apprehension of being arrested for a tainted purpose, carved out by the mischievous wire puller, driven by malice and malignancy of intention.

Malik Waheed Anjum for Petitioner.

Malik Riaz Ahmad Saghla, D.P.G. for Respondents.

Muhammad Aslam, S.-I.

2011 M L D 351

[Lahore]

Before Mansoor Akbar Kokab, J

Mst. TABASSUM---Petitioner

Versus

WAQAR HUSSAIN and another---Respondents

Writ Petition No. 13921 of 2010, heard on 28th September, 2010.

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

----S. 5 & Sched.--Constitution of Pakistan, Art.199---Constitutional petition---Suit for dowry articles and maintenance allowance---Petitioner's suit for recovery of dowry articles and maintenance allowance was decreed by Trial Court to the sum of Rs.280,000 as dowry articles and Rs.3,000 per month as maintenance allowance---Appellate Court reduced amount of dowry articles from Rs.280, 000 to Rs.50,000 and maintenance allowance from Rs.3000 to Rs.2000 per month---Validity---Petitioner in her affidavit which equated with her examination-in-chief as a witness, had nowhere mentioned her claim about maintenance allowance, which meant that she did not even substantiate contents of the plaint---List of dowry articles was subsequently prepared by the sister of the petitioner which had no signature or note of bridegroom's family member, pertaining to correctness of the same---Value of each article or receipts (photocopies) of the alleged purchased articles of dowry had been considered as reliable one in spite of the fact that neither any executant of the same appeared in the witness box nor from the receipts, it was established that as to who purchased the article from whom and in some cases the receipts were post-dated than the marriage---Maintenance allowance for the period of iddat was not challenged in the original claim and it was far the first time raised in constitutional petition---Such claim though not considered as far as extended period of pre-divorce life for the purpose of maintenance allowance and certainly was a right of divorcee woman towards her ex-husband imposing duty, making him answerable to Allah and that duty was only discharged if the maintenance was provided on a reasonable scale---Constitutional petition was dismissed by High Court.

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

----S. 5 & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Recovery of dowry articles and maintenance allowance---Reasonable scale'---Connotation---Termreasonable scale' referred to ability of the ex-husband, and as pre-divorce period and Iddat period were conjoined therefore no severing line could be drawn for the purposes of ability to provide the maintenance allowance.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Jurisdiction of High Court---Scope---Under certain statutory provisions, the courts', special courts' and tribunals' judgment or order were to be assailed only once before the higher forum by way of only right of appeal or revision, whereas the second appeal was either not provided or specifically barred---Constitutional petition under Art.199 of the Constitution had been made a tool to avail the remedy not available to litigant---Statutory provisions specifically and consciously enacted by the legislature either to ease the litigant public for expeditious decision and finality of the case or making the litigation effective or saving the litigant undue dragged into lengthy and endless process of pending lis, was completely frustrated.

Government of Pakistan v. Muhammad Yasin and another PLD 1997 SC 401; Mehmood Begum v. Chief Settlement Commissioner West Pakistan and another PLD 1962 Lah. 911 and Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 ref.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---While entertaining the constitutional petition for admission of hearing, against judgment and decree or order which had devoid of second appeal and related to statute providing only one right of appeal, High Court should put in use of its energies by testing the matter at issue of the concerned constitutional petition at the touchstone of settled criteria---Any leniency by the court while admitting the constitutional petition for regular hearing in such cases would tantamount to piling up the junk of backlog of the cases and thereby such delinquency did not only put the court in trouble in adjudication of un-adjudicable matter but also hampered vested right of the party, whereby he was forcibly dragged into litigation, incurring burden in terms of time and money.

Government of Pakistan v. Muhammad Yasin and another PLD 1997 SC 401; Mehmood Begum v. Chief Settlement Commissioner West Pakistan and another PLD 1962 Lah. 911 and Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 rel.

Muhammad Arif Pervaiz for Petitioner.

Sh. Naveed Sheharyar for Respondents.

Date of hearing: 28th September, 2010.

2011 M L D 358

[Lahore]

Before Rauf Ahmad Sheikh and Shahid Hameed Dar, JJ

MUHAMMAD MUNIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 216 and Murder Reference No.353 of 2007, heard on 14th October, 2010.

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Eye-witnesses had been proved to be natural witnesses of the occurrence and their presence on the spot at the relevant time also stood established---No element of any grudge or enmity between the accused and the eye-witnesses had been brought on record---Accused could not be substituted for any other culprit---Eye-witnesses had confidently recorded their statements and corroborated each other on almost every material aspect of the case, without any material discrepancy, contradiction or dishonest improvement---Motive as alleged stood proved---Matter had been reported to the police with utmost promptitude by complainant --"Chhuri" got recovered by accused was found to be stained with human blood---Medical evidence had further supported the prosecution version---Accused had never been looking after his minor children and, thus, the plea of being the father of the children, whose mother he had brutally murdered, would not provide a mitigating circumstance in his favour---Conviction and sentence of death of accused were upheld in circumstances.

Noor ul Hassan Khan for Appellant.

Rana Kashif Saleem Arfaa, Law Officer for Respondent.

Date of hearing: 14th October, 2010.

2011 M L D 367

[Lahore]

Before Sardar Tariq Masood and Hassan Raza Pasha, JJ

MUHAMMAD EJAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1319-B of 2010, decided on 8th September, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.365-A & 377---Kidnapping or abduction for extorting property valuable security etc., sodomy---Bail, refusal of---Accused along with his co-accused had allegedly abducted a 13 years old boy for ransom---Vehicle used for abduction was being driven by the accused---Evidence was available to show that accused was not a simple driver of the said vehicle, rather he had the knowledge of the abduction of the minor boy and was sharing the common knowledge with his co-accused---Conduct of accused after the occurrence in having avoided his arrest by the police for nine days, was also relevant---Medical evidence had prima facie, indicated the commission of the offence of sodomy on the abductee---Abductee in his statement recorded under S.161, Cr. P. C. had specifically made the accused and his co-accused responsible for his forcible abduction in the vehicle---Sufficient incriminating material was available on record to connect the accused with the crime---Bail was refused to accused in circumstances.

Malik Jawad Khalid for Petitioner.

Shahid Ali Shahzad Bhatti for the Complainant.

Ch. Mubarik, D.P.G. for the State with M. Zubair,. S.-I.

2011 MLD 373

[Lahore]

Before Syed Akhlaq Ahmad, J

Rao ABID ALI---Petitioner

Versus

HINA JABBAR and 2 others---Respondents

Writ Petition No.22259 of 2010, decided on 19th October, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Plaintiff filed suit for dissolution of marriage and recovery of dowry articles or its value to the sum of Rs.396,250 along with gold ornaments---Defendant contested suit on the ground that he had returned dowry articles to the plaintiff in the presence of the witnesses--Trial Court decreed suit of the plaintiff for recovery of dowry articles or Rs.200, 000 as its price in lieu thereof excluding articles which were given as gift---Both parties filed appeals which were dismissed by appellate court vide consolidated judgment and decree---Validity---Stand of defendant of return of dowry articles was outside the scope of his pleadings; so it could not be legally considered---Defendant had not produced any receipt of return of dowry articles to the plaintiff---Defendant had failed to point out any misreading or non-reading of material evidence which might have affected the concurrent judgments and decrees of both courts below---High Court declined to interfere in constitutional jurisdiction---Constitutional petition was dismissed in limine.

Ch. Javed Iqbal for Petitioner.

Rao Abid Ali in person.

2011 M L D 378

[Lahore]

Before Sardar Tariq Masood and Syed Akhlaq Ahmad, JJ

THE STATE---Petitioner

Versus

KHURRAM SHAHZAD and others---Respondents

Murder Reference No. 45/T of 2003, heard on 11th August, 2010.

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

----S.374---Penal Code (XLV of 1860), S.302(6)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Constitution of Pakistan, Arts. 9 & 10(1)---Qatl-e-amd, act of terrorism---Accused convicted and sentenced in absentia---Validity---Accused were tried in absentia and they had not been arrested even after the announcement of judgment by Trial Court---Accused had not filed any appeal against their conviction and sentence and Trial Court had submitted the case to High Court for confirmation of death sentence awarded to absconding accused---Right to defend themselves at the trial had been denied to accused and they had been deprived of their right to consult a legal practioner---Trial of accused in absentia was violative of Articles 9 & 10(1) of Constitution and, thus, was not sustainable in the eye of law---Accused had not been afforded any opportunity of hearing and had been condemned unheard, which was also against the principles of natural justice---Murder Reference was, consequently, answered in negative and the case was remanded to Trial Court with the direction to proceed against the said accused under S.512, Cr. P. C. and to try them afresh strictly in accordance with law as and when arrested---Death sentence of accused was not confirmed in circumstances.

Zia Ullah Khan and others v. Government of Punjab and others PLD 1989 Lah. 554; Government of the Punjab through Secretary Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602; Qari Abdul Hayee and another v. The State 2005 YLR 1865; Muhammad Arif v. The State 2008 SCMR 829; Mir Ikhlaque Ahmad and another v. The State 2008 SCMR 951 and Arbab Khan v. The State 2010 SCMR 755 ref.

(b) Constitution of Pakistan---

----Arts. 9 & 10(1)---Penal Code (XLV of 1860), S.302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-e-amd, act of terrorism---Trial in absentia---Trial of accused in absentia is violative of Articles 9 & 10(1) of the Constitution and contrary to the principles of natural justice and as such is not sustainable under the law.

Zia Ullah Khan and others v. Government of Punjab and others PLD 1989 Lah. 554; Government of the Punjab through Secretary Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602; Qari Abdul Hayee and another v. The State 2005 YLR 1865; Muhammad Arif v. The State 2008 SCMR 829; Mir Ikhlaque Ahmad and another v. The State 2008 SCMR 951 and Arbab Khan v. The State 2010 SCMR 755 ref.

Ch. Mubarak Hussain Deputy Prosecutor-General for Appellant.

Tanveer Iqbal Khan for the State.

Date of hearing: 11th August, 2010.

2011 M L D 386

[Lahore]

Before Syed Akhlaq Ahmad, J

MUHAMMAD SOHAIL MAJEED---Petitioner

Versus

Mst. BUSHRA REHMAN and another---Respondents

Writ Petition No. 20535 of 2010, decided on 21st October, 2010.

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

----S. 5, Sched. & S.14---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Suit for dissolution of marriage on the basis of Khula, recovery of dowry articles, maintenance, gold ornaments and dower amounting to Rs.50,000---Petitioner instead of filing appeal against the impugned judgment and decree passed by Judge Family Court before appellate court had directly challenged the same in constitutional petition before High Court---Petitioner had remedy under the law to file appeal against the impugned judgment and decree passed by Judge Family Court before District Judge but instead of availing his remedy, before the proper forum, he had directly challenged the same before High Court through constitutional petition---Petitioner had not resorted to the legal course---High Court dismissed constitutional petition being not maintainable.

Muhammad Sharif v. Judge Family Court Bahawalpur and 3 others 2002 CLC 270 rel.

Faiz Muhammad Balal for Petitioner.

Muhammad Aslam Chaudhary for Respondent No.1.

2011 M L D 392

[Lahore]

Before Sardar Tariq Masood, J

NAJJAN BIBI---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 171-CB of 2010, decided on 8th February, 2010.

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

----S.497(5)---Penal Code (XLV of 1860), S.324---Attempt to commit qatl-e-amd---Application for cancellation of bail, refusal of---Accused allegedly had made a solitary fire shot on the leg of the complainant---Medico-legal report had revealed that the fire shot had been made from a very close range---If the assailant had intended to kill the complainant, then he could have selected the most vital part of his body for firing from such a close range---Fire shot had not caused any injury to the bone and had been declared by the Doctor as "Ghair Jaifah Mutlahimah'' falling under S.337-F(iii), P.P.C. entailing punishment up to three years' R.I. as "Tazir"---Trial Court was yet to determine whether accused had any intention to kill the complainant or simply wanted to injure him---Offences levelled against the accused did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Bail granting order was not patently illegal, erroneous, factually incorrect, nor the same had resulted in miscarriage of justice---Accused had not misused the concession of bail---Petition was dismissed in limine in circumstances.

2007 YLR 2131; 2005 MLD .823; 1998 PCr.LJ 516; Umer Hayat v. The State and others 2008 SCMR 1621; Shahid Arshad v. Muhammad Naqi Butt and 2 others 1976 SCMR 360 and Muhammad Imran v. Gohar Rehman and another 1982 SCMR 1068 ref.

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

----S.497(5)---Bail, cancellation of---Principles---Considerations for grant of bail and cancellation of bail are totally different---Strong and exceptional grounds are required for cancellation of bail---Bail granting order cannot be interfered with unless the same is found to be patently illegal, erroneous, factually incorrect and to have resulted in miscarriage of justice.

Nadeem Iqbal Chaudhry for Petitioner.

2011 MLD 398

[Lahore]

Before Syed Akhlaq Ahmad, J

AMEER ABDULLAH KHAN and 2 others---Petitioners

Versus

D.P.O., MIANWALI and 4 others---Respondents

C.M. No. 2 and Writ Petition No. 23150 of 2010, decided on 29th October, 2010.

Penal Code (XLV of 1860)---

----S. 365---Criminal Procedure Code (V of 1898), Ss.22-A & 22-B---Constitution of Pakistan, Art.199---Constitutional petition---Kidnapping or abducting with intent secretly and wrongfully to confine person---Accused contended that having prepared the discharge report, Police had become functus officio and could not reopen the case---Validity---Accused were specifically nominated in the F.I.R./supplementary statement---Discharge report prepared by Police was never submitted before Area Magistrate who did not dismiss/cancel the complaint which was still under investigation---Case called for factual inquiry which could not be undertaken by the High Court in its constitutional jurisdiction under Art.199 of the Constitution--Interference in statutory duty of Police to investigate a crime was not proper-Petition was dismissed in circumstances.

2005 PCr.LJ 1559 distinguished.

Muhammad Abdullah and another v. The State 1975 PCr.LJ 438 and Muhammad Iqbal and 3 others v. Superintendent of Police and 3 others PLJ 1994 Lah. 431 rel.

Muhammad Sharif and 8 others v. The State and another 1998 SCMR 304; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 and Dr. Ghulam Mustafa v. The State and others 2008 SCMR 76 fol.

Shoaib Zafar for Petitioners.

2011 M L D 417

[Lahore]

Before Syed Akhlaq Ahmad, J

Hakeem ABDUL GHAFFAR---Petitioner

Versus

PROVINCE OF PUNJAB through District Officer Revenue and 2 others---Respondents

Civil Revision No.3318 of 2010, decided on 7th October, 2010.

Specific Relief Act (I of 1877)---

---Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Plaintiff filed suit for declaration and permanent injunction against defendants on the ground that he had purchased the disputed property in open auction and had deposited 1/5th of the total auction price---Plaintiff also filed an application under O.XXXIX, Rr.1 & 2, C.P.C. for the grant of temporary injunction---Authorities contested suit and application on the ground that disputed property was owned by the Provincial Government---Trial Court accepted application of the plaintiff---Appellate Court on appeal, vacated the temporary injunction issued by Trial Court---Plaintiff asserted that the Provincial Board of Revenue had not given any notice of cancellation of auction proceedings and as such the order passed by the competent authority was illegal and liable to be set aside--Validity--Held, there was no legal requirement for the competent authority/Provincial Board of Revenue to give any notice to the plaintiff at the time of not approving/confirming the auction proceedings---Plaintiff had claimed right over the disputed property which already stood cancelled from his name for the last about 17 years; despite lapse of considerable period he himself did not bother to deposit the remaining auction price of the disputed property or agitated his right before the competent revenue authorities---Possession of the plaintiff over the disputed property was totally illegal and that of trespasser and he could not claim any legal cover for the same from the court---Revision petition was dismissed by High Court in limine.

Khan Ashfaque-ur-Rehman Khan v. Member Board of Revenue and another 1986 SCMR 129 rel.

Ashfaq Ahmad Malik for Petitioner.

2011 M L D 429

[Lahore]

Before Sh. Najam-ul-Hassan and Sardar Tariq Masood, JJ

LIAQAT ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 2041 and Murder Reference No.831 of 2005, heard on 20th December, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b)/324/148/149---Qatl-e-amd, attempt to commit qatl-e-­amd---Appreciation of evidence---Complainant and even some other witnesses were Police officials and there was no reason for their presence at the place of occurrence as they were not the residents of the area and had come from a far off place---Presence of deceased. at the place of occurrence was also without reason--Statements of said witnesses could not be relied upon without any corroboration from an independent source, which was missing in the case---Version of the prosecution coming on record through F.I.R. was found in contradiction with medical evidence---Prosecution case was belied by medical evidence, in circumstances---Complainant and both 'injured witnesses had changed their Stance, while appearing in the court---Such a change in the statement of the complainant and the witnesses, clearly led to an inference that the witnesses were trying to improve their case by bringing in line with the medical evidence---Improvements/contradictions made by eye-witnesses, while appearing in the Trial Court, had created serious dents in the prosecution case---Co­-accused who was assigned the same role as that of accused, had been acquitted by the Trial Court---Involvement of accused in the case had become doubtful, in circumstances; and it was not possible to ascertain as to who was the person responsible for the death of the deceased---Ten guilty persons could be released, but the court could not take risk of convicting an innocent person---Prosecution had failed to prove the motive part of its case---Ocular account brought on record in the case could easily be said to be not above board---Recovery of gun was not supportive to the prosecution, the crime empties recovered from the place of occurrence matched with the gun recovered from the acquitted co-accused and there was no other crime empty---Prosecution case was based on evidence which was full of doubt---Conviction and sentence awarded to accused by the Trial Court were set aside and he was acquitted of the charge and was released.

Akhtar Ali and others v. The State 2008 SCMR 6; Ayub Masih v. The State PLD 2002 SC 1048 and Muhammad Akram v. The State 2009 SCMR 230 ref.

Muhammad Yaha Daha for Appellant.

Shahid Bashir Chaudhry, Deputy Prosecutor-General.

Date of hearing: 20th December, 2010.

2011 M L D 446

[Lahore]

Before Sagheer Ahmad Qadiri and Ijaz Ahmad, JJ

LIAQAT ALI and others---Appellant

Versus

PROVINCE OF PUNJAB---Respondent

R.F.As. Nos. 55 and 91 of 2002, decided on 2nd December, 2010.

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

----Ss. 4, 18 & 23(2)---Acquisition of land---Collector gave award of compensation of acquired land but the amount of compensation for the trees was not awarded---Landowners being aggrieved of the said award filed reference to the Referee Court under S.18 of the Land Acquisition Act, 1894---Referee Court fixed compensation for Ghair Mumkin Khundar land at Rs.6382 per kanal and "Maira" land at Rs.9060 per kanal---Both landlords and authorities filed appeals against the said decision of Referee Court---Contention raised by landowners was that if the document referred by authorities was taken into consideration even then the price of the land should be Rs.11851.80 per kanal for the Maira land and Rs.24236 per kanal for the Banjar Qadeem---Validity---Document produced by authorities disclosed the average price of Maira land at Rs.11851.80 and "Banjar Qadeem" at Rs.24236 per kanal---Authorities could not escape the contents of the document produced by landowners---No document was available on the record to justify refusal to approve the compensation for the damage caused to the trees---Said amount was payable and had to be .distributed among all the landowners---Referee Court had wrongly observed that the disputed transactions related to the sale of the disputed land for residential purpose whereas the disputed land had been acquired for construction of the Dam---Landowners were also entitled to compensation for diminished utility of their land---Finding of the Referee Court wherein the compensation was not awarded was not sustainable---High Court allowed appeal filed by the landowners and dismissed the one filed by authorities by declaring market value of the disputed land as had been mentioned in the document produced by the authorities but awarded the same @ Rs.13000 per kanal for Maira land and Rs.28000 per kanal for Banjar Qadeem and further Rs.36310 as compensation of trees as per the shares, after taking into consideration the blocking of the access to the remaining land and differential in the price of alienation of the same.

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

----S. 23---Determination of compensation---Nature of prospective use of the land sold in the Revenue Estate was not a matter to be considered while determining the compensation, however; the use of the land at the time of acquisition in fact, was one of the matters to be considered for such purpose.

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

----S. 23---Determination of compensation---Differential in the price of land in case of compulsory acquisition and in case of voluntarily sale was also to be taken into consideration.

Sardar Muhammad Ashfaq Abbasi for Appellant.

Shahid Mehmood Abbasi, A.A.-G for Respondent.

Date of hearing: 30th November, 2010.

2011 MLD 459

[Lahore]

Before Ch. Iftikhar Hussain, J

SAJJAD AZMAT CHAHAL---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 12659/B of 2010, decided on 24th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.406---Criminal breach of trust---Bail, grant of---Further inquiry---Accused who was previous non-convict, was behind the bars since 27-9-2010---Alleged offence did not attract the prohibition contained in S.497(1), Cr.P.C.---Mere involvement of huge amount or heinousness of offence, itself was no ground to decline the relief of bail to accused, where its extension, could be otherwise justified---Both accused and complainant had gone to the civil court with their respective claims/suits in respect of the dispute involved in the case and all said suits between the parties were pending before civil courts---Any verdict regarding the correctness or validity of the plea of the parties therein was to be returned therefrom; and till such time case against accused called for further inquiry into his guilt---Case, in circumstances was covered under subsection (2) of S.497, Cr.P.C.---Object of law was not to withhold bail to accused as punishment in advance---Case for grant of bail to accused having been made out, he was admitted to bail, in circumstances.

Ch. Muhammad Anwar Bhinder for Petitioner.

Rana Muhammad Iqbal, District Public Prosecutor for the State with Nasir Iqbal, A.S.-I. with police record.

Ch. Fayyaz Ahmad for the Complainant.

2011 M L D 473

[Lahore]

Before Sardar Muhammad Shamim Khan, J

HABIBULLAH KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos. 3690-B and 2350-B of 2010, decided on 30th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/34/404---Qatl-e-amd and dishonest misappropriation of property possessed by deceased at the time of his death---Bail, grant of---Further inquiry---Incident was an unseen occurrence and accused were not nominated in the F.I.R. and prosecution had produced two different sets of last seen evidence against accused persons---In view of last seen evidence it could not be ascertained with certainty that; if both the deceased were taken by accused persons---Veracity of supplementary statement of prosecution witness, would be adjudged at the time of trial---Police allegedly recovered 'pistol from the possession of accused, but the empty cartridges allegedly secured from the car, were not found fired from the pistol recovered from the possession of accused persons according to the report of Forensic Science Laboratory---Recovery of pistol, in circumstance, was not a corroborative piece of evidence against accused---Recovery of mobile phone from the possession of accused, prima facie seemed to be doubtful---Case of accused having come within the purview of further inquiry, accused were admitted to bail, in circumstances.

Abdul Ghani v. The State 2009 YLR 795; Muhammad Shahid v. The State and others 2009 YLR 2281; Maulana Abdul Aziz v. The State 2009 SCMR 1210; Sajid Khan v. The State 2009 YLR 274; Muhammad Ilyas v. The State 2009 YLR 2311; Abdul Aziz and another v. The State and another 2010 PCr.LJ 1619; Rana Muhammad Asqhar Ali v. The State 2007 YLR 204; Raja Fazal-ur-Rehman v. Muhammad Afzal and another 2010 SCMR 179 and Zafar Munir v. The State 2006 MLD 1905 ref.

Sh. Muhammad Farooq and Sh. Muhammad Faheem for Petitioner (in Criminal Miscellaneous No. 3690-B of 2010).

Kh. Qaisar Butt and Malik Shahnawaz Khokhar for Petitioner (in Criminal Miscellaneous No. 2350-B of 2010).

Syed Badar Raza Gillani for the Complainant.

Hassan Mehmood Khan Tareen, D.P.-G. along with Qayyum Akhtar, S.-I. with record.

2011 M L D 535

[Lahore]

Before Shahid Hameed Dar, J

Syed FARAZ SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1616-B of 2010, decided on 4th November, 2010.

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

---Ss. 154, 155, 156, 173 & 195---Registration of criminal case---Taking cognizance by the court---Registration of a criminal case was entirely a different phenomenon from the one, pertaining to the taking of cognizance by a court of law on the report under S.173, Cr.P.C.---Complaint within the meaning of S.195, Cr.P.C., could be made a part of the prosecution record, even after the registration of F.I.R.; as no compelling restriction was available in that regard.

Saeed Ahmad v. The State 1996 SCMR 1132; Abdul Qadeer v. The State 2010 YLR 2064; Muhammad Shahid Maqbool Bhatti v. Sajid Hussain and another 2010 MLD 722; Muhammad Hussain v. Muhammad Shafi 2008 SCMR 235; Syed Riaz Hussain v. The State 2010 YLR 2093 and Muhammad Shafi v. Deputy Superintendent of Police Malik Gul Nawaz PLD 1992 Lah. 178 ref.

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

----Ss. 497 & 155(2)---Penal Code (XLV of 1860), Ss.420, 468, 467 & 471---Cheating, forgery, using as genuine a forged document---Bail, refusal of---Offence under Ss.468 & 471, P.P.C. being non-cognizable could be validly investigated by the Police without fulfilment or requirement of S.155(2), Cr.P.C., as S.420, P.P.C. was cognizable and in presence of a cognizable offence, the non-cognizable offences could be lawfully investigated by' the Police seeking prior permission of the Magistrate---Accused did not appear to be innocent at all in the whole episode and reasonable grounds were available to believe that he had committed the offence, alleged against hint---Accused had the history of involvement in a couple of other criminal cases of alike nature---Attending circumstances of the case did not constitute need for further inquiry into the guilt of accused as contemplated by S.497(2), Cr.P.C.

Muhammad Faizal Malik for Petitioner.

Raja Ikram Amin Minhas for the Complainant.

Malik Riaz Ahmad Saghla, D.P.-G. with Aziz, S.-I. .

2011 MLD 541

[Lahore]

Before Nasir Saeed Sheikh, J

MUHAMMAD IQBAL---Petitioner

Versus

NATIONAL DATABASE REGISTRATION AUTHORITY through Chairman and 3 others---Respondents

Writ Petition No. 25097 of 2010, decided on 3rd December, 2010.

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

----S. 99(1)(cc)---Constitution of Pakistan, Art.199---Constitutional petition---Petitioner sought issuance of writ of quo warranto against the elected Member of the National Assembly to appear before High Court and to explain as to how she was holding the alleged seat of National Assembly---Petitioner asserted that said Member did not personally appear in her B.A. Examination in the year 2002 and B.A. degree had been procured through fraud and she had to be disqualified to be elected and from holding her position as Member National Assembly after getting verification of record of the National Database and Regulatory Authority and university record of degree---Record revealed that the petitioner had made use of the record of election petition which was pending before an Election Tribunal and wanted a second decision on the basis of said record from High Court--Such duplication of proceedings on the basis of record of the Election Tribunal, which was already seized of the same matter against the said Member National Assembly could not be allowed by High Court---Petitioner had raised disputed questions of facts and instead of moving any application before the National Database Regulatory Authority for getting verification from the same about the particulars of the Member National Assembly had instituted the constitutional petition---Constitutional petition was dismissed by High Court.

Hafiz Hamidullah v. Saifullah Khan and others PLD 2007 SC 52 and Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others PLD 2010 SC 817 ref.

Aziz-ur-Rehman Chowdhury v. M. Nasir Uddin, and others PLD 1965 SC 236; Muhammad Liaquat Munir Rao v. Shams-ud-Din and others 2004 SCMR 489; M.U.A. Khan v. M. Sultan and another 1981 SCMR 74; Ghulam Rasool v. Muhammad Hayat PLD 1984 SC 385; Syed Ali Raza Asad Abidi v. Ghulam Ishaq Khan, President of Pakistan and another PLD 1991 Lah. 420 and Halsbury's Laws of England, 4th Edition, 1989, Volume 1(1), at page 372 para. 274 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Quo warranto, writ of---Scope---Grant of relief of a writ of quo warranto was not a matter of course and the conduct and motives of the petitioner could be looked into by High Court when such a prayer was submitted.

Aziz-ur-Rehman Chowdhury v. M. Nasir Uddin, and others PLD 1965 SC 236; Muhammad Liaquat Munir Rao v. Shams-ud-Din and others 2004 SCMR 489; M.U.A. Khan v. M. Sultan and another 1981 SCMR 74; Ghulam Rasool v. Muhammad Hayat. PLD 1984 SC 385; Syed Ali Raza Asad Abidi v. Ghulam Ishaq Kharl, President of Pakistan and another PLD 1991 Lah. 420 and Halsbury's Laws of England, 4th Edition, 1989, Volume 1(1), at page 372 para. 274 rel.

Faisal Ali Qazi for Petitioner.

2011 MLD 547

[Lahore]

Before Kh. Imtiaz Ahmad, J

KHAN MUHAMMAD and 7 others---Petitioners

Versus

Mst. NOOR MAI and another---Respondents

C.R. No. 95-D of 1996, decided on 3rd November, 2010.

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

----Ss. 8 & 42---Gift---Suit for declaration and possession on the ground that one of the defendants had sold her property to them through registered sale-deed and further alienation of the property to other defendant through alleged attorney and mutations thereof were fictitious---Plaintiffs prayed for cancellation of the same---Defendants contested the suit and filed written statement whereas one of the defendants admitted claim of the plaintiffs---One of the defendants also filed suit for declaration against plaintiffs on the ground that they were owner in possession of the disputed property on the basis of alleged sale and gift deed---Trial Court dismissed suit of the plaintiffs whereas decreed the suit filed by defendants in consolidated judgment and decree---Appellate Court, on appeals, upheld the judgment and decree of Trial Court---Plaintiffs asserted that defendants had neither mentioned in the plaint nor stated in the evidence as to when the offer, acceptance and delivery of possession of the gift was made; mere possession in no way proved the factum of gift-Validity-Most important aspect constituting the valid gift i.e. offer, acceptance and delivery of possession had neither been alleged in the plaint, nor proved through evidence---Disputed property had never been gifted---Both courts below had not even discussed such aspect of the case which was necessary for constituting the valid gift, however mere entry of mutation of gift could, in no way, be said that valid gift had been made---Both courts below had committed illegality by declaring the valid gift in favour of defendants---High Court allowed petition and set aside the impugned judgments and decrees passed by both courts below and decreed the suit filed by plaintiffs.

2010 MLD 843; 2005 CLC 1938; 2004 MLD 620; 2000 MLD 1117; 2001 CLC 527; 1998 SCMR 1354; 1996 MLD 377; 2004 SCMR 1043; PLD 2003 SC 849; PLD 2003 SC 31; 1998 CLC 323 and 2009 SCMR 54 ref.

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

----S. 115---Revision---Scope---Concurrent findings of facts arrived at by the courts below could not be interfered with unless and until the court had come to the conclusion that the findings were perverse, patently against evidence or so improbable that acceptance thereof would tantamount to perpetuating grave miscarriage of justice.

2009 SCMR 54 ref.

Sagheer Ahmed Bhatti for Petitioners.

Muhammad Tufail Alvi for Respondents.

Date of hearing: 2nd November, 2010.

2011 MLD 562

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

AMJAD SAEED---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No. 671, Criminal Revision No.553 of 2005, and Murder Reference No.616 of 2003 decided on 5th April, 2010.

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

----S.302(b)/149---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Injured witness had not uttered a single word against the accused in his statement before the Trial Court, nor did he state that the complainant had accompanied him---Complainant had enmity with the accused and medical evidence was not exactly in line with the ocular account furnished by him, which had created further doubt in the prosecution case---Two co-accused introduced by the complainant by their" names with the similar role of indiscriminate firing, had been acquitted by Trial Court and his evidence could not be credited with truth qua the present accused without any strong corroboration, which was lacking in the case---Reports qua the abscondence of accused had not been put to him while recording his statement under S.342, Cr. P. C., which, even otherwise, could not be considered as a corroborative piece of evidence in the absence of any substantive evidence against him---Benefit of every doubt had to be given to the accused---Accused was acquitted in circumstances.

Kathi Odhabhai Bhimabhei and others v. State of Gujrat 1993 SCMR 2405; Muhammad Farooq and another v. The State 2006 SCMR 1707; Muhammad Aslam Khan v. The State 1999 SCMR 172; Qaiser Khan and another v. The State and others 2009 SCMR 471; Iftikhar Hussain arid another v. State 2004 SCMR 1185; Sarfraz alias Sappi and others v. The State 2000 SCMR 1758; Muhammad Akram v. The State 2009 SCMR 230; Abdul Khaliq v. The State 2006 SCMR 1886; Rahimullah Jan v. Kashif and another PLD 2008 SC 298 and Muhammad Zaman and another v. The State PLD 2008 Kar. 348 ref.

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

----S. 302(b)/149---Qatl-e-amd---Appreciation of evidence---Principle---Courts for safe administration of justice follow the principle of appraisal of evidence i.e. sifting of grain out of chaff---If ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of accused facing the same trial then the Court must search for independent corroboration on material particulars.

Iftikhar Hussain and another v. State 2004 SCMR 1185 and Sarfraz alias Sappi and others v. The State 2000 SCMR 1758 ref.

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

---S.302(b)/149---Qatl-e-amd---Appreciation of evidence---Benefit of doubt, extension of---Principle---In case of doubt, its benefit must go to the accused not as a matter of grace, but of right.

Muhammad Akram v. The State 2009 SCMR 230 ref.

Azam Nazir Tarar for Appellant.

M.M. Alam Chaudhry, Additional Prosecutor-General for the State.

Messrs Syed Naeem Shahid and Shakeel Anwar Khan for the Complainant.

Date of hearing: 29th March, 2010.

2011 M L D 589

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD AKHTAR---Petitioner

Versus

SENIOR MEMBER BOARD OF REVENUE and another---Respondents

Writ Petition No. 19478 of 2005, decided on 2nd December, 2010.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

---S. 30(2)-Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan, Art.199--Constitutional petition---Allotment under Grow More Food Scheme---Allegation of fraud---Jurisdiction of civil court---Petitioner had challenged the order passed by Senior Member, Board of Revenue whereby he had asked the Member (Colonies), Board of Revenue for an action under S.12(2), C.P.C. regarding his order passed in the year 2004, through which he had dismissed the application moved by the respondents against the petitioner and filed proceeding under S.30(2) of the Colonization of Government Lands (Punjab) Act, 1912---Petitioner asserted that he was allotted disputed land under Grow More Food Scheme in the year 1960 and after the grant of proprietary rights proceedings under S.30(2) of the Colonization of Government Lands (Punjab) Act, 1912 could not have been initiated---Petitioner further asserted that the allegation that the disputed land was within prohibited zone had been thrashed more than once and found to be baseless by different authorities---Proprietary rights were granted to the petitioner in the year 1987 and sale-deed was executed in his favour on payment of full price---After lapse of more than, 50 years of allotment and 23 years of registration of sale-deed and repeated inquiries at the instance of respondents, under the orders of Board of Revenue and Provincial Governor, in which it was held that the allegations levelled by the respondents were baseless, no ground was available to re-open the complaint filed by the respondents which was dismissed due to non-appearance, however; the respondents could move an application for restoration, if so desired, but Senior Member, Board of Revenue could not have termed the said order of dismissal to be result of fraud---No fraud was proved to have been committed in obtaining the original allotment or in execution of the alleged sale­-deed---High Court allowed constitutional petition and set aside the impugned order.

2001 CLC 564; 1996 MLD 258 and 1994 SCMR 975 ref.

Province of Punjab through District Collector, Vehari v. Ghulam Muhammad 1994 SCMR 975 and 1996 MLD 258 rel.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 30(2)-Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan, Art.199---Constitutional petition---Allotment under Grow More Food Scheme---Contention that the fraud allegedly committed was the concealment of the fact that the disputed land was within limits of Municipal Committee i.e. prohibited zone and as such was not available for allotment but the petitioner manoeuvred it illegally-.--Effect---Record revealed that the disputed land was out of prohibited zone when allotted, the subsequent expansion of town or extention of limits would not render the allotment as illegal.

Province of Punjab through District Collector, Vehari v. Ghulam Muhammad 1994 SCMR 975 rel.

(c) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 30(2)---Constitution of Pakistan, Art.199---Constitutional petition---Contention that in consequence of impugned order fresh proceedings had been initiated and the same were pending before the Senior Member, Board of Revenue therefore, High Court had no jurisdiction under Art.199 of the Constitution was without substance because fresh proceedings were initiated as a result of an illegal and unjustified order.

M.A. Ghafar-ul-Haq for Petitioner.

Azhar ul Haq Toor, A.A.-G.

2011 M L D 599

[Lahore]

Before Rauf Ahmad Sheikh, J

Mst. NAHEED BASHIR-Petitioner

Versus

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

Writ Petition No. 9326 of 2006, decided on 30th November, 2010.

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

----S. 5 & Sched. ---Constitution of Pakistan, Art.199---Constitutional petition---Plaintiff (wife) filed suit for dissolution of marriage, maintenance and recovery of dowry articles or its value to the sum of Rs.106, 900---Defendant (husband) contested suit---Trial Court decreed suit for recovery of dowry articles or a sum of Rs. 90,000 in lieu thereof and maintenance for the period of iddat at the rate of Rs.2000 per month and further Rs.25000 as maternity charges along with maintenance of minor at the rate of Rs.2000 per month while dismissed the claim for maintenance of wife---Appellate Court, on appeal, reversed findings of the Trial Court regarding recovery of dowry articles and dismissed the same on the ground that the primary evidence was not produced and maintained findings of the Trial Court to the extent of maintenance and delivery charges---Wife had asserted that two copies of the list of dowry articles were prepared, one of which was given to her husband; however the Appellate Court had disbelieved such contention---If more than one copies of the list of dowry articles were prepared and all were signed, then every copy thereof was the primary evidence---Technicalities of Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908 were not applicable to the proceedings before the Family Court---Contention of the husband, that no dowry articles were given, could not be accepted---Judgment passed by Appellate Court was not sustainable on account of non-reading of the reliable evidence---High Court allowed constitutional petition and set aside the judgment and decree passed by Appellate Court and restored the 'one passed by Trial Court.

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

----Preamble, S.5 & Sched.---Technicalities of Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908 were not applicable to the proceedings before the Family Court.

Mian Muhammad Aslam Pervaiz for Petitioner.

Nemo for Respondents.

Date of hearing: 30th November, 2010.

2011 M L D 617

[Lahore]

Before Asad Munir, J

Mst. SAIRA SHAH NAWAZ---Petitioner

Versus

PUNJAB UNIVERSITY and others---Respondents

Writ Petition No. 22986 of 2010, decided on 3rd December, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Petitioner had challenged the decision of the University disallowing her to join the third semester in M.Sc. Biochemistry on the ground that as per Prospectus of the University it was upto the students to make choice to pursue the programme in Biochemistry or Biotechnology and the authorities had no power to dictate the particular course. which a student could undertake---Contention raised by the University authorities was that according to proceeding or decision of the faculty meeting held on 22-8-2007, the right of the students to opt for M.Sc. Biochemistry pr Biotechnology had been curtailed by limiting the number of students in each discipline to fifteen (15) according to merit and the petitioner had been placed in the M.Sc. Biotechnology course on the basis of her merit---Validity---Prospectus issued in the year 2009 appeared to have greater sanctity and had an overriding effect vis-a-vis the decision of the faculty, taken two years earlier on 22-8-2007, however there was no reflection of the said decision in the prospectus, issued two years later---Prospectus had to be followed in every respect and in absence of any condition or limitation with regard to the choice of the students to join either of the two courses, the institute could not deprive the petitioner of a right which, being based on legitimate/reasonable expectation, had accrued to her---Such decision of the faculty was in direct conflict with the prospectus which had given an unconditional right to the students to exercise their choice, however the said decision could not be reconciled with the prospectus nor could the two be construed harmoniously---High Court allowed constitutional petition and declared the decision of the University as unlawful and directed the authorities to allow petitioner to join and pursue the course of M.Sc. Biochemistry in the third and fourth semester accordingly.?

Sultana Khokhar and 2 others v. The University of Punjab through its Registrar PLD 1962 SC 35 and Adnan Tariq v. Vice-Chancellor of the University of Punjab PLD 1993 Lah. 341 distinguished.

Naila Iqbal v. Principal, Government College for Women, Multan 2006 CLC 506 rel.

Ch. Salman Zahoor for Petitioner.

Shehzad Shaukat for the Punjab University.

2011 M L D 636

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

ABDUL RASHID ZARGAR---Petitioner

Versus

ADNAN alias CHIKNA and 3 others---Respondents

Criminal Revision No. 734 of 2010, heard on 23rd September, 2010.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S.190---Qatl­-e-amd, acts done by several persons in furtherance of common intention---Trial Court dismissed petitioner's complaint filed under S.190, Cr.P.C. during pendency of trial---Validity---F.I.R. was registered on the complaint of present petitioner/complainant against the accused persons---Petitioner remained silent on the alleged mala fide and inefficiency of the Investigating Officer for four years; his plea could not be entertained at the belated stage of the trial as he should have agitated the matter promptly before the Trial Court---Law favoured the diligent and not the indolent---Revision petition was dismissed.

Habibullah v. Political Assistant, Dera Ghazi Khan and others 2005 SCMR 951 ref.

Muhammad Salina and 4 others v. Fazal Muhammad and another2001 SCMR 1738 and Muhammad Azad v. Ahmad Ali and 2 others PLD 2003 SC 14 fol.

Dr. Flamed Ahmed Ayaz for Appellant:

Mian Muhammad Awais Mazhar, Deputy P.-G. for the State.

Date of hearing: 23rd September, 2001.

2011 MLD 648

[Lahore]

Before Ch. Muhammad Tariq, J

Mst. SHAZIA BIBI---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous No.12381/CB of 2010, decided on 23rd November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.452, 354, 148 & 149--House-trespass, assault or criminal force to a woman with intent to outrage her modesty---Petition for cancellation of bail---According to Police file, respondents accused joined the investigation and according to the findings of inquiry, no occurrence had taken place---Allegation of .complainant was not established---Accused persons were not required by the Police for further investigation---Parameters prescribed for cancellation of bail were different from bail before arrest or bail after arrest---No allegation was levelled against accused persons that they had misused the concession of bail before arrest---Case of accused persons being of further inquiry, Trial Court had rightly confirmed bail before arrest of accused persons---No interference being called for, petition for cancellation of bail, was dismissed, in circumstances.

Syed Tayyab Mahmood Jafri for Petitioner.

Noor Ahmad Bhatti, District Public Prosecutor.

Raja Rustam Zaheer and Ch. M. Yaseen Zahid for Respondents.

Bashir Hussain, A.S.-I. with record.

2011 MLD 682

[Lahore]

Before Shaukat Umar Pirzada, J

ABDUL RASHEED---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SAHIWAL and another---Respondents

Writ Petition No. 3494 of 2010, decided on 1st December, 2010.

(a) Punjab Rented Premises Ordinance (XXI of 2007)---

----S. 13---Punjab Rented Premises Act (VII of 2009), Ss.8, 9 & 22---Constitution of Pakistan, Art.199---Constitutional petition---Landlord filed petition for ejectment of tenant on the grounds of default in payment of rent and expiry of tenancy period---Rent Controller allowed application for leave to contest with direction to the tenant to deposit past rent within one month and future rent on the 5th of each month---Rent Controller, on failure of the tenant to comply with the said order, passed the ejectment order--Appellate Court, on appeal, allowed the same and set aside the impugned order and remanded the case to Rent Controller---Landlord asserted that it was the duty of the Rent Controller to note that an amount of 10% of the annual value of the rent had been deposited in the Government Treasury and if not, then should order for such deposit, which had not been done, therefore the landlord could not be held responsible exclusively for the non-compliance of S.9 of the Punjab Rented Premises Act, 2009---Validity--Punjab Rented Premises Ordinance, 2007 was elapsed and was replaced by the Punjab Rented Premises Act, 2009 and under S.8 of the said Act period given for bringing the tenancy agreement in conformity with the provisions of the Act stood extended for another two years till 16-9-2011---Rent Controller should not have issued process till deposit of amount in the Government Treasury---Appellate order was not sustainable also for the reason that if same was allowed to remain in the field, such would amount to rewarding tenant for his non-compliance of order of Rent Controller as he had failed to deposit the amount of rent---Non-deposit of penalty amount by landlord in the Government Treasury was an omission on his part as also on the part of the Rent Controller who had not taken notice thereof before issuing the process, rectifiable in the circumstances of the case; however, the landlord was ready to deposit 'the said amount in the Government Treasury---High Court allowed constitutional petition and set aside the appellate order and restored the order passed by Rent Controller subject to condition that the landlord should deposit the penalty amount of the annual value of rent in the Government Treasury within one month, otherwise the ejectment petition should stand dismissed.

(b) Punjab Rented Premises Ordinance (XXI of 2007)---

----S. 13---Punjab Rented Premises Act (VII of 2009), Ss.8 & 9---Constitution of Pakistan, Art. 199---Constitutional petition---Punjab Rented Premises Ordinance, 2007 was elapsed and was replaced by the Punjab Rented Premises Act, 2009 and under S.8 of the said Act period given for bringing the tenancy agreement in conformity with the provisions of the Act stood extended for another two years till 16-9-2011.

Zahid Mehmood for Appellant.

Ahassan Hafeez for Respondent.

Date of hearing: 1st December, 2010.

2011 M L D 688

[Lahore]

Before Ch. Iftikhar Hussain, J

NAZAR KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 6732-B of 2010, decided on 8th July, 2010.

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

----S.497(2)---Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl-e-amd---Bail, grant of---Accused was specifically attributed a single injury on the left thumb of the brother of the complainant, which was a non-vital part of his body---Said injury having been declared to be "Shajjah Ghayr Jaifah" by the Doctor fell under S.337-F(i), P.P.C., which was bailable--Vicarious liablility of the accused for other injuries on the person of the injured witness was to be determined at his trial---Guilt of accused, thus, required further probe within the meaning of S.497(2), Cr.P.C.---Accused was not a previous convict and was behind the bars for the last five and a half months---Commencement of trial was not a clog in the way of accused to get bail---Accused was admitted to bail in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

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

----S.497---Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl-e-amd---Bail, grant of---Vicarious liability, determination of---Vicarious liability of accused for the offences not specifically attributed to him in the occurrence, is to be determined by the Trial Court at his trial.

(c) Criminal Procedure Code (V of 189.8)---

---S.497---Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl-e-amd---Bail, grant of---Commencement of trial--Effect---Commencement of trial in the case by itself may not be a clog in the way of accused to get the relief of bail.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

Saleem Akram Chaudhry for Petitioner.

Ch. Abdul Razzaq, D.P.-G. for Respondent No.1.

Zahoor Ahmad, S.-I. with police record for the State.

Respondent No.2 Imtiaz Ahmed Complainant with Mian Muhammad Aslam, Advocate.

2011 M L D 695

[Lahore]

Before Sagheer Ahmed Qadri, J

FAHMEEDA BEGUM---Petitioner

Versus

ZAFAR IQBAL and others---Respondents

Civil Revision Nos.358 of 2003, decided on 11th October, 2010.

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

----S. 13---Pre-eruption suit---Plaintiff's suit for possession through pre-emption was dismissed by Trial Court and the same was maintained by appellate court---Plea raised by defendant was that plaintiff in her plaint did not mention the place, time as well as "majlis" where she allegedly carne into knowledge about the disputed sale---Validity---Plaintiff did not mention in the plaint that how and at what time she came into knowledge of the sale---Neither the informer was examined nor time and place of the knowledge was brought on record---Findings on the issues were rightly passed by both the courts below---Revisional petition was dismissed by High Court.

Mst. Saleem Akhtar v. Chaudhry Shauk Ahmed 2009 SCMR 673; Ali Muhammad v. Ghulam Muhammad 2003 CC 282; Haq Nawaz v. Muhammad Kabir 2009 SCMR 630; Muhammad Sideman v. Shaukat Ali 2009 SCMR 678; Khyber Khan and others v. Haji Malik Amanullah Khan 2007 SCMR 1036 and Ali Muhammad v. Muhammad Bashir 2007 SCMR 1531 ref.

Mst. Saleem Akhtar v. Chaudhry Shauk Ahmed 2009 SCMR 673 rel.

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

---S. 13---Pre-emption suit---Plaintiff-pre-emptor must mention the place, time, date and "majlis" and the manner in which he or she came into the knowledge of the sale.

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

----S. 13---Pre-emption suit---Talb-e-Muwathibat-Proof--Performance of "Talb-e-Muwathibat" should be proved in positive and unambiguous manner.

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

----S. 13---Pre-emption suit---Talabs, performance of---Proof---Pre­emption decree could only be passed under S.13 of the Punjab Pre-emption Act, 1991 when talbs i.e. "Talb-e-Muwathibat" and subsequently performance of "Talb-e-Ishhad" was proved on record.

Sh. Zameer Hussain for Petitioner.

Sh. Iftikhar Ahmad for Respondents.

2011 M L D 704

[Lahore]

Before Shahid Hameed Dar, J

Mst. HUMERA ARSHAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 2011-M of 2010, decided on 10th December, 2010.

Criminal Procedure Code (V of 1898)---

---Ss. 516-A & 561-A---Penal Code (XLV of 1860), Ss.406/506---Criminal breach of trust, criminal intimidation---Superdari of car---Trial Court as well as the Sessions Court had refused to give the car in question to petitioner on "Superdari" vide impugned orders---Validity--Claim of the petitioner being the last possessor of the said car was hardly questionable---Accused had allegedly received the car from the petitioner as a deal struck between them---Matter regarding determination of title of the car was sub-judice before Civil Court--Impugned orders had been passed arbitrarily and injudiciously, especially the observations made by Sessions Court qua the last possession of the car in question, which were absolutely out of place and alien to the investigation record---Petitioner had already deposited an adequate security in the event of defeat of her claim of ownership of the car according to the order of Trial Court---Impugned orders were set aside and the car in question was given to petitioner on "Superdari" in circumstances.

Muhammad Shahzad Khan, Kakar, for Petitioner.

Nadeem Anwar for Respondent No.2.

Arshad Mehmood, Deputy Prosecutor General.

2011 MLD 722

[Lahore]

Before Sayyed Mazhar Ali Akbar Naqvi, J

SHABINA NAZ---Petitioner

Versus

SPECIAL JUDICIAL MAGISTRATE and another---Respondents

Writ Petition No. 12959 of 2010, decided on 25th June, 2010.

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

----S.164---Constitution of Pakistan, Art.199---Constitutional petition---Refusal to record statement under S.164, Cr.P.C.---Petitioner assailed Sessions Judge's order whereby he upheld Magistrate's order declining to record her statement under S.164, Cr.P.C.---Validity---Power of the Magistrate to record statement was discretionary in nature--If the Magistrate found mala fide behind seeking of permission for recording such statement, he was under no obligation to record the same---Petitioner failed to give reason for seeking permission to record her statement in a District other than the District of her own residence---Mala fide of the petitioner was evident--Orders of refusal to record the statement passed by the Magistrate and the Sessions Judge did not suffer from any illegality warranting High Court's interference---Constitutional petition was dismissed in circumstances.

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

---S. 164---Nature of the power of Magistrate--Power of the Magistrate to record statement under S.164, Cr.P.C. was discretionary in nature---If a Magistrate found mala fide behind seeking of permission to record statement, he was under no obligation' to record such statement.

Fateh Shah v. Muhammad Hassan and 2 others 1983 PCr.LJ 1893 ref.

Mst. Kalsoom Bibi v. District and Sessions Judge, Bahawalpur and another 2008 MLD 421 and Nahar Singh v. Empror AIR 1921 Allahabad 61 rel.

Muhammad Ashraf for Petitioner.

Imtiaz Ahmed Kaifi, Additional Advocate General (on courts call).

2011 M L D 727

[Lahore]

Before Shahid Hameed Dar and Hassan Raza Pasha, JJ

Malik MAQBOOL HUSSAIN and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1575-B of 2010, decided on 23rd September, 2010.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 324/353/188/ 186/148/149/427---West Pakistan Regulation and Control of Loudspeakers and Sound Amplifiers Ordinance (II of 1965), Ss.3/4---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-e­amd, assault or criminal force to deter public servant from discharge of his duty, disobedience to order duly promulgated by public servant, obstructing public servant in discharge of public functions, rioting armed with deadly weapon, mischief by causing damage, causing terrorism---Bail, grant of---Many co-accused facing almost similar and identical charges had been released on bail by Trial Court and complainant had not assailed the said order---Accused and other protestors, according to F.I.R., had come on the road to press their demands regarding increase in salary etc. and this peaceful gathering had exploded into the alleged action only on their arrest by the police---Involvement of accused in other cases without conviction could not impede the grant of bail to them---Nobody out of an alleged mob of 250 or 300 people at this stage could be held specifically responsible for the commission of the alleged offences, which could be best done by Trial Court after recording evidence---Medicolegal report of the injured person had shown only a grazed wound on his left arm, which fell within the definition of S.337-F(i), P.P.C. punishable with one year's R.I---Section 7 of the Anti-Terrorism Act, 1997, was also open to serious exception in its application---Case of accused, thus, called for further inquiry, as envisaged under S.497(2), Cr.P.C.---Accused were admitted to bail in circumstances.

Shaukat Aziz Siddiqui for Petitioners.

Muhammad Nazir Abbasi, Standing Counsel along with Shafique Ahmad S.-I. for the State.

Ch. Abdul Aziz for the injured.

2011 M L D 730

[Lahore]

Before Sardar Muhammad Shamim Khan, J

NOOR SAMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3460-B of 2010, decided on 2nd November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.376---Rape---Bail, grant of---Further inquiry---Occurrence took place at night time and the complainant did not give any source of identification---Allegation of rape against accused required further inquiry as according to medico-legal examination of the complainant, conducted by the Lady Doctor, no marks of violence were present all over her body; and on local examination, no injury was present in perennial area---Although hymen of the complainant was not intact according to the medico-legal report, but the Lady Doctor did not observe any fresh tear in the hymen, rather two fingers could pass inside vagina without tenderness---Medico-legal report of the complainant revealed that she was not virgin at the time of her medical examination---Report of DNA test also revealed that vaginal swabs of alleged victim did not generate any male DNA profile---No comparison, in circumstances could be made with DNA profile of accused---Investigating Officer had recommended for the discharge of accused from the case as he was innocent---Accused was admitted to bail, in circumstances.

Shahbaz Masih v. The State 2005 YLR 3140 and Aamir Ali and others v. The State 1984 SCMR 521 ref.

Malik Muhammad Awais Khalid for Petitioner.

Tahir Mehmood for the Complainant.

Hassan Mahmod Khan Tareen, learned D.P.-G.

Habib Hussain, A.S.-I. with record.

2011 MLD 736

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD SHARIF and another---Petitioners

Versus

Malik ABDUL RAZZAQ and others---Respondents

Civil Revision No. 644, Civil Revision No.721 and Writ Petition 16022 of 1993, heard on 14th October, 2010.

(a) West Pakistan Urban Rent Restriction Ordinance (V of 1959)---

----Ss. 13---Civil Procedure Code (V of 1908), O.XXI, Rr.97 & 98---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenants was allowed by Rent Controller---Petitioners, during pendency of execution proceedings against tenants filed objection petition before executing court claiming themselves to be in possession of the disputed property since 1963 in their own right and asserted that ejectment order passed against the judgment-debtor could not be executed against them---Executing Court allowed objection petition filed by the petitioners while dismissed the one filed by one of the petitioners---Decree-holder filed appeal which was allowed by appellate court and the case was remanded to the executing court with direction to proceed with the matter in accordance with law while the appeal filed by one of the petitioners was dismissed---Plea raised by petitioners was that they were not impleaded as party in the eviction petition before the Rent Controller, despite the fact that petitioners were in possession of the disputed property which was fully established on the record---Validity---Petitioners were never impleaded as party in the ejectment petition despite the fact that decree-holder had the knowledge that petitioners were in possession of the disputed property since decades---Decree-holder not only admitted possession of the petitioners but also conceded that they were not impleaded as party in the eviction petition---Petitioners were neither tenants of the decree-holder under a contract/agreement nor they were a statutory tenants---Impugned order of Rent Controller could not be executed against the petitioners---High Court allowed constitutional petition along with other revision petitions against the impugned judgment passed by appellate court.

Faqir Abdullah and others v. Government of Sindh through Secretary and others PLD 2001 SCMR 131 and Ali Muhammad and another v. Muhammad Tufail and 3 others 2002 CLC 1900 rel.

(b) Decree---

----Order or a decree was binding only against a party to the suit and not on a stranger.

Ch. Mushtaq Hussain and Ahmed Waheed Khan for Petitioners.

Muhammad Ahmad Qayyum for Respondents.

Date of hearing: 14th October, 2010.

2011 MLD 741

[Lahore]

Before Shaukat Umar Pirzada, J

.Hafiz HUSNAIN RAZA SHAH and 2 others---Petitioners

Versus

BAHA-UD-DIN ZAKARIYA UNIVERSITY, MULTAN through Vice-Chancellor and 2 others---Respondents

Writ Petition No. 8730 of 2010, heard on 1st November, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Petitioners had challenged the act of University restraining them to appear in M.Phil. third semester examination---Contention raised by petitioners was that they had qualified the Graduation Assessment Test (General) which was the prerequisite for the admission in M.Phil. but the respondents had objected that the said qualification had not been acquired by the petitioners within the time given to them for the purpose---Petitioners and many other candidates could not qualify the Graduation Assessment Test (General) within the prescribed period, but University did not take any action against them which meant that for all practical purposes the University either waived of that condition or compromised on the closing date for acquiring that qualification---Validity---Contention of the petitioners, that they had been given discriminatory treatment as against various other candidates who had qualified the said test beyond the period prescribed by the university, but they had been allowed to continue their studies while the petitioners had been denied said relief, was not without substance---Conduct of the University authorities was against the rule of consistency as also discriminatory qua the petitioners---Petitioners after completing their first semester were never served any notice by the University in terms of alleged condition which led to the conclusion that the university had either waived of or relaxed the said condition; however suddenly restraining the petitioners from their studies was too harsh and amounted to ruining their, future career---Petitioners had qualified the requirement of Graduation Assessment Test (General) therefore, they also deserved the same treatment which the university had given to many other students---Constitutional petition was allowed.

Muhammad Ashraf Qureshi for Petitioners.

Malik Muhammad Tariq Rajwana for Respondent.

Date of hearing: 1st November, 2010.

2011 M L D 759

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD ANWAR NAZ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.6289-B of 2010, decided on 6th August, 2010.

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

----S.497---Penal Code (XLV of 1860), Ss. 409/467/468/471/477-A/109--Criminal breach of trust by public servant; forgery of valuable security; forgery for purpose of cheating; using as genuine a forged document; falsification of accounts, abetment---Bail, grant of---Co-accused with a similar role had already been admitted to bail by Trial Court and the role of accused as compared with that of the said co-accused was of lesser magnitude---Evidence against accused being in the shape of documents and in exclusive possession of prosecution, the same was not likely to be tampered with by him---Accused had taken the charge in the year, 2006, whereas the alleged embezzlement pertained to year 2000---Charge in the case had not been framed so far and the accused could not be placed at the helm of prosecution for indefinite period---Accused being a government servant, he could not possibly abscond if admitted to bail---Bail was allowed to accused in circumstances.

Saeed Ahmed v. The State 1995 SCMR 170 and Firdous Ahmad Khan v. The State 2004 MLD 208 ref.

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

----S.497---Bail---Delay in trial---Effect---Every accused till the pronouncement of conviction is presumed to be innocent and any innocent person cannot be kept behind the bars for an indefinite period without any progress in trial.

Muhammad Latif Khawaja for Petitioner.

Ms. Shaista Qaiser, Deputy Attorney General for Pakistan.

Ch. Abdul Hafeez, Assistant Director, FIA, Faisalabad with the complete record.

2011 M L D 769

[Lahore]

Before Sh. Ahmad Farooq, J

JAN MUHAMMAD MUGHAL---Petitioner

Versus

TARIQ SALEEM DOGAR, Director-General Anti-Corruption, Punjab, Lahore and 4 others---Respondents

Writ Petition No. 17316 of 2008; decided on 13th January, 2011.

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

----S.182---Constitution of Pakistan, Art.199---Constitutional petition---Scope---Giving false information with intent to cause public servant to use his lawful power to an injury to another person---Petitioner made written complaint against respondents/Nazim Union Council and Secretary to Nazim, wherein petitioner levelled certain allegations of corruption against said respondents---Allegations were thoroughly investigated in two enquiries, but same were found to be false and baseless, and respondents were exonerated---Recommendations for institution of proceedings under S.182, P.P.C. were made against the petitioner for giving false information---Petitioner filed constitutional petition seeking direction for taking action against respondents on the same charge--High Court, in exercise of its constitutional jurisdiction, could not go into the factual controversy between the parties, which could only be resolved by the proper forum after recording evidence of both the parties---Constitutional petition to the extent of challenging the dropping of enquiry against respondents who had been exonerated; being not maintainable was dismissed.

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

----S. 182--Constitution of Pakistan, Art.199---Constitutional petition---Giving false information with intent to cause public servant to use his lawful power to the injury of another person---Petitioner/ complainant against whom initiation of proceedings under S.182, P.P.C. were recommended to be taken, authorities had not issued any show-cause notice to the petitioner to appear and explain his position; which was mandatory requirement of law-Non-fulfilment of said mandatory requirement had deprived the petitioner of his legal right of opportunity of hearing--No one should be condemned unheard and opportunity of hearing, was the vested right of a party before passing any adverse order against that party---Petitioner had a right to explain his position that he had acted bona fide and complaint filed against respondents was not tainted with ill-will or malice---Order for initiation of proceedings against the petitioner under S.182, P.P.C., in circumstances, was not justified and to that extent order was not sustainable in the eyes of law---Impugned order was set aside only to the extent it dictated to initiate proceedings against the petitioner under S.182, P.P. C.

Rai Tanveer Arshad Khan for Petitioner.

Jawad Hassan, Additional Advocate General Punjab.

2011 MLD 778

[Lahore]

Before Muhammad Naseem Akhtar Khan, J

Dr. SHABBIR AHMAD and others---Petitioners

Versus

Mian MUHAMMAD ABBAS---Respondent

Civil Revisions Nos.492 of 2006/BWP and 41 of 2007/BWP, decided on 20th October, 2010.

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

----S. 6---Civil Procedure Code (V of 1908), O.XIV, R.S & O.XIII, R.2---Suit for pre-emption---Trial Court dismissed petitioner's application for striking out certain issues and accepted respondents' application for production of a document as additional evidence---Validity---High Court framed issues arising out of pleadings of the parties to be decided by the Trial Court on the basis of evidence of parties--Document ordered by the Trial Court to be produced by the petitioner was held to be not necessary for just and effective decision of the case, rather, application was meant to fill the lacuna of the respon­dents' case---Impugned orders were set aside.

Sardar Muhammad Hussain Khan for Petitioners.

Malik Abdul Ghafoor Awan for Respondent.

Date of hearing: 19th October, 2010.

2011 M L D 790

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD AMIR---Petitioner

Versus

GHULAM HUSSAIN---Respondent

Writ Petition No. 1473 of 2005, decided on 17th August, 2010.

Penal Code (XLV of 1860)---

----S.420---Criminal Procedure Code (V of 1898), Ss. 195, 155 & 156---Constitution of Pakistan, Art. 199---Cheating and dishonestly inducing delivery of property---Constitutional petitions--Quashing of F.I.R.---Challenged stamp paper had been issued prior to the institution of the suit, so provisions of Ss. 195, 155 and 156, Cr.P.C. were not attracted in the matter---Civil as well criminal proceedings could proceed at the same time and the Civil Court which was trying the civil suit was competent to lodge the F.I.R.---When case was registered under both cognizable or non-cognizable' offences, provisions of S.155(2), Cr. P. C. Were not attracted and the matter could be investigated even without permission of a Magistrate--Constitutional petitions were consequently dismissed, with the direction to Investigating Officer to investigate the matter and submit the challan before the Magistrate within the prescribed period.

2004 YLR 830; 2007 PCr.LJ 864 and 2007 MLD 763 ref.

Nemo for Petitioners.

Agha Muhammad Ali Khan for Respondents.

2011 M L D 799

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD ZULFIQAR---Petitioner

Versus

SNOBER PERVEEN and 5 others---Respondents

Writ Petition No. 2380 of 2010, heard on 10th November, 2010.

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

----S. 5 & Sched.---Transfer of Property Act (IV of 1882), S.130---Constitution of Pakistan, Art.199---Constitutional petition---Plaintiff (husband) filed suit for restitution of conjugal rights---Defendant (wife) also filed suit for recovery of Rs.200,000 as damages incorporated as a condition in Nikahnama---Both suits were consolidated---Judge, Family Court dismissed suit of the plaintiff whereas decreed the suit filed by defendant---Plaintiff filed appeals against the judgments and decrees of Trial Court, the same were dismissed by Appellate Court through a consolidated judgment---Plaintiff asserted that the Judge, Family Court had no jurisdiction to entertain suit for recovery of damages on behalf of the defendant as the suit for recovery of Rs.200,000 on account of payment of damages could not proceed before the Judge, Family Court; it could only proceed as an ordinary civil suit---Plaintiff further contended that the entry of amount of Rs.200,000 in the Nikahnama could not be termed as the property of the wife and further that the disputed amount was also not covered under the rule of actionable claims as envisaged by S.130 of Transfer of Property Act, 1882---Validity---Contention of the husband was that suit for recovery of amount was not maintainable as it was not yet the property of wife and she only had a claim to recover the amount from husband on the basis of a special condition incorporated in Nikahnama was misconceived as the matter fell within the exclusive jurisdiction of the Family Court because Nikahnama was fully supported by the Schedule of West Pakistan Family Courts Act, 1964 (as amended on 1-10-2002) and by virtue of amendment in item No.9 of the Schedule personal property belonging to the wife by all means vested in the lady with the right to bring an action against husband to claim the said amount upon proof that she was divorced without any reason attributed to her---Wife was vested with the right of action and what was termed as actionable claim in the Transfer of Property Act, 1882; the said condition became operative the husband became indebted to the wife in the disputed amount, however, even if such debt was beneficial interest so occurring, was conditional or did not fall within the meaning of actionable claim was a property and transferable as such---Constitutional petition was dismissed by High Court.

PLD 2007 Lah. 515 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Concurrent findings of two courts below could not be interfered with in the constitutional jurisdiction of High Court until and unless, there was any illegality, infirmity, misreading/non-reading of evidence or jurisdictional error.

Ms. Najma Rashid for Petitioner.

Chaudhry Ali Muhammad for Respondent No.1.

Rana Mukhtar, Secretary Union Council No.268, Faisalabad for Respondent No.3.

Date of hearing: 10th November, 2010.

2011 M L D 811

[Lahore]

Before Sh. Najam-ul-Hasan and Manzoor Ahmad Malik, JJ

NAVEED ABBAS---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1333 and M.R. No. 445 of 2005, heard on 27th July, 2010.

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

----S. 302(b)---Qatl-e-amd---Circumstantial evidence---Requisites---Proved circumstances must be incompatible - with any reasonable hypothesis of the innocence of the accused---No link in the chain should be broken and the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused---Circumstantial evidence should be so interconnected as to form a continuous chain, one end of which touches the dead body and the other end touches the neck of the accused, thereby excluding all the hypothesis of his innocence.

Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1041; Sarfraz Khan v. The State 1996 SCMR 188; Asadullah and another v. State 1999 SCMR 1034; Siraj v. The Crown PLD 1956 FC 123 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Accused was not named in the F.I.R.---Accused had been involved in the case along with his four co-accused on the basis of extra-judicial confession and last seen evidence---All the four co-accused had been acquitted by Trial Court and their acquittal had not been challenged either by the State or by the complainant---Extra­judicial confession allegedly made by accused did not fit in the medical evidence and was not corroborated by any independent evidence and the same could not be relied upon---Prosecution witness had not stated anything about his social status or influence over the family of the deceased, which could prompt the accused to confess his guilt before him---"Chhuri" recovered at the instance of accused was of no avail to prosecution in the absence of report of Chemical Examiner or of Serologist to show the same was blood-stained, which even otherwise was an ordinary "Chhuri"---Prosecution case was not free from doubt and accused was entitled to its benefit as a matter of right and not as a matter of grace---Accused was acquitted in circumstances.

Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State 1996 SCMR 188; Asadullah and another v. State 1999 SCMR 1034; Siraj v. The Crown PLD 1956 FC 123; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103; Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Ahmad v. The Crown PLD 1951 FC 103-107; Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence-Extra-judicial confession-Corroboration-Extra-judicial confession must be received with almost caution and court before acting upon a retracted extra-judicial confession must inquire into all material points and surrounding circumstances to satisfy itself fully that the same cannot but be true---Since an extra-judicial confession is not a direct evidence, it must be corroborated in material particulars before being made the basis of conviction.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 and Ahmad v. The Crown PLD 1951 FC 103-107 ref.

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

----S.164---Confession---Extra judicial confession---Questions to be kept in mind by court before relying on extra-judicial confession-Extra-judicial confessions by now have become the signs of incompetent investigation---Judicial mind before relying upon such weak type of evidence, capable of being effortlessly procured must ask a few questions like, why the accused should at all confess, what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the nature and gravity of the offence involved, what is the relationship or friendship of the witnesses with the maker of confession and what, above all, is the position or authority held by the witnesses.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 ref.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt, extension of-Principle-hi case of doubt the benefit thereof must accrue in favour of the accused as matter of right and ndt of grace---For giving benefit of doubt it was not necessary that there should be many circumstances creating doubts---If there is a single circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession, but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v: The State 1995 SCMR 1345 ref.

Muhammad Inayyatullah Cheema for Appellant.

M.M. Alam Chaudhry, Addl: Prosecutor-General Punjab for the State.

Date of hearing: 27th July, 2010.

2011 M L D 822

[Lahore]

Before Shahid Hameed Dar, J

UMAR FAROOQ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.7878/B of 2010, decided on 18th August, 2010.

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

----S.497---Penal Code (XLV of 1860), S.302/148/149---Qatl-e-amd, rioting armed with deadly weapon---Bail-Police opinion---Effect---Opinion of Investigating Officer, if not based upon any cogent or plausible material, would be of no consequence to the case of accused and it would not bind the court in any manner---Police opinion may be relevant and persuasive if the data collected during investigation inspires confidence and, prima facie, appeals to common prudence, otherwise the same is to be rejected for the purpose of bail---Police can only conduct investigation and formulate an opinion, but they cannot do so by evaluating the prosecution evidence, which is the exclusive jurisdiction of the Trial Court.

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

----S.497---Penal Code (XLV of 1860), S.302/148/149---Qatl-e-amd, rioting armed with deadly weapon---Bail, refusal of---Investigating Officer had made every effort to make an uncalled for, uncanny and unscrupulous investigation in the case---Accused was specifically named in the F.I.R. with the role of having fired with his rifle the fatal shot on the back of the deceased---Post mortem report of the deceased had fully corroborated the ocular account---Eye-witnesses through their statements recorded under S.161, Cr.P. C. had impeccably endorsed the story mentioned by complainant in the F.I.R.---Rifle had been recovered at the instance of accused---Challan with the name of accused mentioned in its column No.3 had been submitted in the court---Reasonable grounds existed to believe the nexus of accused with the occurrence, which fell within the prohibitory clause of S.497(1), Cr.P. C.--Bail was declined to accused in circumstances.

Muhammad Hayat v. The State 1974 PCr.LJ 450; Nisar Ali v. The State NLR 1992 Criminal 699; Allah Rakha v. The State PLD 1984 Lah. 395; Muhammad Anwar v. The State NLR 1999 Criminal 704; Rehmat Ullah alias Rehman v. The State and another 1970 SCMR 299; Abbas v. The State 2009 PCr.LJ 384; Tabbasum Ali v. State 2004 YLR 822 and Abid Hussain Khan v. The State 2010 PCr.LJ 564 ref.

Ch. M. Inayat Ullah Cheema for Petitioner.

Khurram Khan, D.P.-G. with Mukhtar S.-I.

2011 M L D 832

[Lahore]

Before Ch. Muhammad Tariq, J

TARIQ JAVAID and 11 others---Petitioners

Versus

MUHAMMAD SATTAR -Respondent

Civil Revision No.897 of 2009, heard on 30th November, 2010.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement---Trial Court decreed the suit---Appellate Court dismissed appeal of defendant---Defendant denied execution of agreement to sell by his predecessor-in-­interest contending that suit was time-barred---Validity---Plaintiff did not file suit for specific performance during life of the predecessor-in-­interest of defendant---Suit was time-barred for having been filed after unexplained delay of 23 years---Evidence on record corroborated defendant's possession of suit land---Agreement to sell was not signed by the predecessor-in-interest of defendant---Unless and until an agreement had been signed by both the parties, no right or liability of the parties was created---Where vendee had not signed the agreement, he could not be said to have agreed to the terms and conditions of the agreement---Person could only be presumed to have become party to an agreement to sell when he signs such agreement---Plaintiff could not derive any benefit, nor could seek the specific performance of the agreement which was not duly signed by the vendor and did not fall within the definition of "concluded contract"---Documentary evidence produced by plaintiff did not support his version---Courts below erred' while decreeing the suit of plaintiff---Revision was accepted in circumstances.

2010 SCMR 334 fol.

Sh. Naveed Shahryar for Petitioners.

Ch. Nazar Hussain and Ch. Ahmad Khan Gonbdal for Respondent.

2011 M L D 844

[Lahore]

Before Shahid Hameed Dar, J

UMAR HAYAT---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 8293-B of 2010, decided on 9th August, 2010.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.337-A(iii)/34---Hurt "shajjah "---Bail, grant of---Accused while armed with a "Sota" had given a beating to the wife of the complainant in the company of his co-accused---Complainant had categorically burdened the co-accused with the responsibility of causing injury on the left cheek of his wife by hurling a brickbat on her, which had fractured her nasal bone---Single injury shown in the medico-legal report of the victim did not, corroborate the version of the complainant---Participation of accused in the incident was yet to be determined at the trial---Reasonable grounds were available to make the case of accused of further inquiry into the guilt within the meaning of S.497(2), Cr.P.C.-Accused was admitted to bail in circumstances.

Gohar Razaq Awan for Petitioner.

Khurram Khan, D.P.-G. for the State.

Nasim Ullah Khan Niazi for the Complainant.

Shafi Ullah A.S.-I. with Police file.

2011 M L D 857

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD SHAFI---Petitioner

Versus

MUHAMMAD IQBAL and others---Respondents

Civil Revisions Nos.269 and 270 of 2006, heard on 19th October, 2010.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Suit for declaration and possession on the ground that one of the defendants by playing fraud and misrepresentation had got executed general power of attorney in his favour on the pretext that he wanted to obtain loan for some business but by playing fraud he sold the disputed property---Defendants contested suit and filed written statements---Trial Court decreed suit of the plaintiff-Appellate Court, on appeals, reversed findings of the Trial Court and dismissed the suit---Validity---One of defendants' witnesses admitted during cross-examination that the plaintiff was a blind man and had no son, daughter or wife while the other witness stated that the power of attorney was executed without recording the statement of the plaintiff because the plaintiff never appeared before the Sub-Registrar and the power of attorney was executed just after making -inquiry from the other defendant---Such was a case of fraud, concealment of facts and misrepresentation---High Court allowed petitions and set aside the judgments and decrees passed by Appellate Court and restored the one passed by Trial Court.

Zafar Iqbal Mirza for Petitioner.

Mushtaq Ahmad Mohal for Respondents.

Date of hearing: 19th October, 2010.

2011 M L D 862

[Lahore]

Before Sagheer Ahmed Qadri, J

SHAHZAD KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2185-B of 2010, decided on 13th January, 2011.

Criminal Procedure Code (V of 1898)---

----S.498---Prohibition (Enforcement of Hadd) Order (4 of 1979)---Transporting narcotics---Pre-arrest bail, grant of---Despite prior information accused was not apprehended on the spot---Complainant Investigating Officer had not mentioned in the F.LR. that the accused had fled away after throwing two bags of liquor, whose identity was subsequently determined---No statement of any independent person had been recorded regarding the identity of accused---Investigating Officer had not even conducted any investigation regarding the ownership of the motorcycle taken into possession by him, which showed mala fides on his part---Ad interim pre-arrest bail granted to accused was confirmed in circumstances.

K.M. Kiyani for Petitioner.

Khawaja Sohail Iqbal, Deputy Prosecutor-General.

Muhammad Arif, S.-I./I.O/Complainant in person.

2011 M L D 873

[Lahore]

Before Sagheer Ahmad Qadri and Rauf Ahmad Sheikh, JJ

MUDASSAR ALI SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.92 and Murder Reference No.13 of 2007, heard on 7th February, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Prosecution witness, who was minor daughter of both accused and deceased, was 7/8 years old, proved to be a competent witness---Said witness though was in her tender age, but the questions put and the answers given by her proved that she was sensible enough to testify and her tender age was not a hurdle in that regard---Minor witness had categorically stated that her "Papa" (accused), had fired at her `Mama'---Other prosecution witness was also it natural witness---Strong ocular account.. furnished by minor witness, was duly corroborated by other prosecution witnesses, who had seen accused standing while armed with pistol near the deceased and then injured---Report of Forensic Science Laboratory, which was though in negative, was merely a corroborative piece of evidence and would not by any stretch of imagination be sufficient to ignore the strong ocular account furnished by minor witness---Evidence on record had fully proved case against accused---Accused was rightly convicted, but there were certain mitigating circumstances in the case---Motive was not proved---What happened immediately before the occurrence, was not unveiled---Accused, after the occurrence did repent and tried to save life of the deceased---Occurrence took place in the heat of passion for the reason which were not explicitly brought on the record---Sentence of death awarded to accused was on the higher side aid harsh though he was responsible for causing qatl-e-amd of the deceased---Imprisonment for life would meet the ends of justice---Appeal was accepted to the extent of sentence only---Maintaining conviction of accused under S.302(b), P.P.C., his death sentence was converted to the sentence for life imprisonment, with benefit of S.382-B, Cr. P. C.

Hasnain Shah v. The State 1999 SCMR 1937; Abbas Hussain and another v. The State and another 1992 SCMR 320; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Munawar Hussain v. The State 1983 SCMR 1165; Sajid and another v. The State and another 1998 PCr.LJ 114; Muhammad Salim v. Muhammad Aslam and others 1983 SCMR 53; Abdul Rashid alias Sheda Mota and another 2002 SCMR 1842; Mandoos Khan v. The State 2003 SCMR 799; Ellahi Bakhsh v. Rab Nawaz and another 2002 SCMR 1842; Mandobs Khan v. The State 2003 SCMR 884; Abdur. Rauf v. The State and another 2003 SCMR 522; Raja Sarfraz Azam Khan and others v. The State and another 2005 YLR 584; Noor Muhammad v. The State and another 2005 SCMR 1958; Muhammad Tariq and others v. The State 2000 PCr.LJ 47; Mst. Shah Azizan and another v. The State 1997 PCr.LJ 1563 and Muhammad Akram The State 2003 SCMR 855 ref.

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

----Art. 3---Child as competent witness---Under Art.3 of Qanun-e-Shahadat, 1984, a child in-the age of 8/9 years, if gave statement which indicated that said witness understood the questions and gave answers intelligently and rationally, then same could not be ignored merely due to tender age of the witness.

Nazir Hussain v. The State PLD 1984 Lah. 509; Muhammad Din and 2 others v. The State 1989 PCr.LJ 238 and Muhammad Ilyas v. Kabir Hussain and another 2003 YLR 806 ref.

Raja Ghaneem Aabir Khan for Appellant.

Muhammad Usman, D.P.-G. for the State.

Mrs. Sardar Abbas for the Complainant.

Date of hearing: 7th February, 2011.

2011 MLD 894

[Lahore]

Before Tariq Javaid, J

Mst. SHAZIA SHAFI---Petitioner

Versus

UNIVERSITY OF HEALTH SCIENCES and others---Respondents

Writ Petitions Nos. 661, 777, 587, 707, to 709 of 2010, decided on 23rd February, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational Institution---Petitioners were denied admission to M.B.B.S. by University of Health Sciences on seats reserved for backward and underdeveloped Districts---Petitioners contended that candidates/students securing lesser marks than them were admitted to M.B.B.S. while they were offered course in B.D.S.---Validity---University's explanation that petitioners were excluded from subsequent merit lists of M.B.B.S. as they had joined classes of B.D.S. was illogical---Effect---Petitioners had obtained more marks and mentioned M.B.B.S'. their first choice but University did not allow them to exercise their option---Petitioners were entitled to admission to M.B.B.S. which they were denied due to flawed policy of the University---Applications of petitioners could only be considered for B.D.S. after determining their chances of admission to M.B.B.S. on merit and reserved seats---Simultaneous publication of lists for admission to M.B.B.S. and B.D.S. without making provision for adjustment on reserved seats was not justifiable---Students/candidates obtaining lesser marks could not be preferred to students getting more marks; the whole exercise was illegal---Petitioners' choice should have been. given preference to administrative convenience---Procedure adopted by the University resulted into miscarriage of justice---University was directed to admit the petitioners to M.B.B.S. classes--,-No satisfactory explanation was given for publishing second and third merit lists after commencement of classes---Petitions were allowed.

Malik Muhammad Naeem Iqbal for Petitioner.

M.A. Hayat Haraj for U.H.S.

Muhammad Qasim, Litigation Officer, Nishter Medical College, Multan.

Javaid Saeed Pirzada, A.A.-G.

2011 MLD 902

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MIAN MUHAMMAD and 2 others---Petitioners

Versus

SHER AHMED and 9 others---Respondents

Civil Revision No.87 of 2004, heard on 28th January, 2011.

Specific Relief Act (I of 1877)---

----S. 42-Transfer of Property Act (IV of 1882), S.60---Limitation Act (IX of 1908), Arts. 148 & 28---Suit for declaration---Mortgaged property---Trial Court dismissed suit---Appellate Court dismissed appeal---Plaintiffs contended that they had become owner of the suit land as defendants had failed to redeem the same within statutory period of limitation for redemption of the mortgaged property---Validity---Right of redemption of the mortgage charge was available to mortgagor under S.60 of the Transfer of Property Act, 1882---Limitation for redemption of mortgaged property was covered under Art.148 of the Limitation Act, 1908---Courts below did not examine the documents on record and considered only the issue of limitation with reference to Arts.148 and 28 of the Limitation Act, 1908---Document available on record showed that a decree for redemption of mortgage had been passed in favour of defendant by a competent court on the basis of which the Revenue Authorities had attested the mutation---Courts below failed to examine the said document---Suit land had been redeemed through a decree of the court and defendants were in possession of the same---Possession of suit land by defendants was admitted by plaintiffs---Suit for declaration was not maintainable in circumstances and in view of the plaintiffs admission as to possession of the suit land by defendants---Courts below made error by deciding the suit on the basis of Art.28 of the Limitation Act, 1908 which was not relevant in the circumstances of the case---Revision was dismissed.

Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063; Ismail and 22 others v. Rehmat Ali and 15 others 1993 SCMR 92; Lala Hem Chand v. Lala Pearey Lal and others AIR 1942 PC 64; Ram Brich Singh and others v. Mt. Sonjhari Koer AIR 1920 Pat. 538 and Nando Khahar and another v. Sri Bhup Narain Singh AIR 1935 Pat. 164 ref.

Malik Muhammad Suleman Awan for Petitioner.

Ex parte for Respondents.

Date of hearing: 28th January, 2011.

2011 M L D 916

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

MUHAMMAD AMIR RASHID and another---Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.1851 of 2004, heard on 22nd December, 2010.

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

----Ss.302(b), 324 & 449---Qatl-e-amd, attempt to commit qatl-e-amd, house-trespass in order to commit offence punishable with death---Sentence---Maximum sentence of imprisonment awarded to accused for more than one offence at one trial challenged---Both the accused had been tried as juveniles~ by Trial court and sentenced to imprisonment for life each on two counts under S.302(b), P.P.C. to ten years' R.I. each under S.324, P.P.C. and also to ten years each under S.449, P.P.C.---All sentences were directed to run consecutively---Defence counsel did not press the appeal on merits and prayed for making all the said sentences to run concurrently with the benefit of S.382-B, Cr. P.C.---Deputy Prosecutor-General had not opposed the prayer---No reason whatsoever had been offered by the Trial Court for directing all the sentences of the accused to run consecutively---Record did not show that the accused were already, undergoing any previous term of life imprisonment---According to law in one trial the total sentences would be deemed to be a single sentence, aggregate of which could not be more than a life sentence---Trial Court had also withheld the mandatory benefit of S.382-B, Cr. P. C. from the accused without giving any reason therefor---Courts, no doubt, have discretion either to grant or refuse benefit of S.382-B, Cr. P. C. to accused, but such discretion has to be exercised judicially and keeping in view the established principles qua the exercise of discretion---Peculiar facts and circumstances of the case had demanded the acceptance of the prayer of the defence counsel---Convictions and sentences of accused were consequently maintained, but all the sentences of imprisonment awarded to them by Trial Court were directed to run concurrently---Benefit of S.382-B, Cr. P. C. was also extended to accused---Appeal was disposed of accordingly.

Mst. Zubaida v. Falak Sher and others 2007 SCMR 548; Muhammad Ilyas v. The State 2009 SCMR 1042; Muhammad Umar alias Umri v. The State 2009 SCMR 891 and Shah Hussain v. The State PLD 2009 SC 460 ref.

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

----S.35---Penal Code (XLV of 1860), Ss.302(b), 324 & 449---Qatl-e-­amd, attempt to commit qatl-e-amd, house trespass in order to commit offence punishable with death---Sentence in case of conviction of several offences at one trial---Scope---In one trial the total sentences shall be deemed to be a single sentence, aggregate of which cannot be more than a life sentence.

Mst. Zubaida v. Falak Sher and others 2007 SCMR 548 ref.

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

----S.382-B---Penal Code (XLV of 1860), Ss.302(b), 324 & 449---Qatl­-e-amd, attempt to commit qatl-e-amd, house trespass in order to commit offence punishable with death---Benefit of S.382-B, Cr. P. C., extension of---Discretion---Courts no doubt have discretion either to grant or decline benefit of S.382-B, Cr.P.C. to an accused, but such discretion should be exercised judicially in the light of the established principles qua exercise of direction.

Muhammad Ilyas v. The State 2009 SCMR 1042; Muhammad Umar alias Umri v. The State 2009 SCMR 891 and Shah Hussain v. The State PLD 2009 SC 460 ref.

Qamar Zaman Qureshi for Appellants.

Ch. Muhammad Mustafa, D.P.-G. for the State.

Date of hearing: 22nd December, 2010.

2011 M L D 930

[Lahore]

Before Kh. Imtiaz Ahmad, J

NAIMAT ULLAH---Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No. 590-B of 2010, decided on 6th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.381, 411 & 34---Theft by clerk or servant of property in possession of master and dishonestly receiving stolen property---Bail, grant of---Further inquiry---Articles valuing more than one crore had been stolen away by the unknown persons in absence of the complainant and his family members, but the matter was reported to the Police after more than three months---Explanation furnished by the complainant for such delay, itself was a question of further inquiry---If the articles of such a huge amount had been stolen, a man of prudent mind could not wait for three months for lodging of F.I.R.-That aspect itself required further inquiry---It was no where mentioned in the F.I.R. that as to when and after how much time of occurrence, alleged confession was made by accused---Alleged recovery of cash did not connect accused with crime---There was no probability of the conclusion of the trial in the near future---Accused who was behind the bars since 15-9-2008, could not be kept behind the bars for an indefinite period---Case of accused requiring further inquiry, he was admitted to bail, in circumstances.

Muhammad Tanvir Chaudhry for Petitioner.

Complainant in person.

Muhammad Nazir Abbasi, Standing Counsel with Muhammad Abbasi, S.-I.

2011 M L D 941

[Lahore]

Before Hassan Raza Pasha, J

GHULAM QASIM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE LAYYAH and 8 others---Respondents

Writ Petition No. 13137 of 2010, decided on 8th December, 2010.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Constitution of Pakistan, Art.199---Constitutional petition---Courts below dismissed petitioner's application under S.12(2), C.P. C.---Validity---Petitioner had admitted withdrawing the declaratory suit after joint statements against the impugned decree negating his version that he received knowledge of the decree at such belated stage, i.e. after 29 years---Person taking advantage of a transaction had to prove the genuineness of the document through which the transaction had been executed---Respondents proved their stance through irrebuttable oral and documentary evidence--Appearance of petitioner's mother/the donee lady in the court along with her counsel and the joint statement of the parties made in the court were proved by the record---Two decrees and judgments were available in support of respondents and the same were never challenged during the life of the donee lady/petitioner's mother---Petitioner failed to prove his allegations---Constitutional petition was dismissed for being without force.

Ahsan Raza Hasmi for Petitioner.

2011 M L D 948

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD ADNAN ZIA---Petitioner

Versus

THE STATE and 2 others---Respondent

Criminal Miscellaneous No. 11514/B of 2010, decided on 26th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420/467/468/471---Prevention of Corruption Act (II of 1947), S.5(2)---Cheating, forgery, using as genuine a forged document and corruption---Pre-arrest bail, refusal of---Case was lodged against accused at on receipt of a complaint---Investigation of the case was entrusted to Inquiry Tease who inspected the site and took into possession the relevant record---According to the report of Inquiry Team, accused in connivance with contractors caused great monetory loss to the Government---Accused, in departmental Inquiry, was awarded minor penalty of reduction in pay scale---Charge against accused was that he along with co-accused prepared bogus bill and made bogus payment of huge amount by preparing fictitious estimate/work order---Charges levelled against accused were of heinous nature---Accused was a government servant and custodian of public exchequer, who had misused his authority---Bail before arrest was an extraordinary relief which could not be extended in such like offences-Ad interim pre-arrest bail already grantee% to accused, was recalled, in circumstances.

Zafar Iqbal Chaudhry for Petitioner.

Muhammad Naeem Sheikh, D P.-G. with Ijaz Akbar Bhatti, Deputy Director (Technical), ACE, Gujranwala.

2011 MLD 964

[Lahore]

Before Syed Akhlaq Ahmad, J

Syeda SAMEERA AKHLAQ and another---Petitioners

Versus

JUDGE FAMILY COURT, LAHORE and another---Respondents

Writ Petition No.1065 and C.M. No.1 of 2011, decided on 19th January, 2011.

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

----S. 5 & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for custody of minor and maintenance of wife and minor---Trial Court allowed interim maintenance of minor as Rs.20,000 but passed no order as to maintenance claimed by plaintiff/wife---Wife contended that Chairman, Arbitration Council having dismissed the notice of Talaq, she was entitled to maintenance allowance while maintenance awarded to minor was not in line with financial status of defendant/father---Validity---Trial Court did not pass order as to maintenance of plaintiff wife in view of the statement of husband that he had given talaq to her---Defendant husband denied quantum of his salary alleged by plaintiff---Plaintiff did not produce any proof of defendant's financial status in the Family Court or in the High Court---Judge, Family Court, rightly made the order of interim maintenance which could be modified later without affecting petitioners adversely-Constitutional petition was dismissed.

Atta Muhammad v. Mst. Shahnaz Khatoon and 6 others 2006 YLR 1708 and Munir Alain through Special Attorney v. Civil Judge/ Judge Family Court Lahore and 2 others 2009 CLC 442 rel.

Ahmad Shahzad Farooq Rana for Petitioner.

2011 M L D 983

[Lahore]

Before Sardar Muhammad Shamim Khan, J

MUHAMMAD AMIN---Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous Nos. 4101-B and 3189-B of 2010, decided on 23d November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497-Penal Code (XLV of 1860), Ss.395/412---Dacoity, dishonestly receiving property stolen in dacoity---Bail, grant of---F. I. R. was lodged after a delay of five days---Culprits were not identified by the prosecution witnesses at the time of occurrence---Complainant had not given the source of his knowledge about the accused and their mode of committing dacoity---Accused had been involved in the case on the basis of hearsay evidence---Complainant had submitted an affidavit before the Magistrate for not granting physical remand of one accused to police, as he had forgiven him---Doctor had also 'given an affidavit to the police about the presence of other accused in his hospital at the time of occurrence in connection with the operation of his wife regarding delivery of child---No prosecution witness had identified the recovered articles to be the same as having been forcibly taken away by the accused at the time of dacoity---Another case got registered by the complainant against the accused persons had been cancelled on having been found false---Guilt of accused was subject to further inquiry in circumstances and they were admitted to bail accordingly.

Mian Abbas, Sardar Zafar Iqbal Tareen and Muhammad Yousaf Khan for Petitioners.

Rao Zahid Latif for the Complainant.

Hassan Mahmood Khan Tareen, learned D.P.-G. for the State.

Muhammad Nazeer, A.S.-I. with record.

2011 MLD 991

[Lahore]

Before Syed Akhlaq Ahmad, J

MUNAWAR RASUL---Petitioner

Versus

HAFSA RASUL and 2 others---Respondents

Writ Petition No.1103 of 2011, decided on 20th January, 2011.

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

----S. 5, Sched. & S.17-A---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance for minors---Trial Court struck off defendant's right of defence and dismissed his application for setting aside the order---Validity---Defendant had not paid interim maintenance of five months to his minor daughters---Defendant did not take seriously court's order to pay the accumulated outstanding maintenance and absented himself from the court---Trial Court passed the impugned order within its authority under S.17-A of the West Pakistan Family Courts Act, 1964---Defendant failed to point out any illegality or infirmity in the impugned orders calling for interference of High Court in its constitutional jurisdiction---Constitutional petition was dismissed in limine.

Syed Masood-ul-Hassan Shah for Petitioner.

2011 M L D 996

[Lahore]

Before Ch. Muhammad Tariq and Mian Shahid Iqbal, JJ

ALLAH RAKHA and 22 others---Petitioners

Versus

Mst. BHAGWANI BAI and 40 others---Respondents

Writ Petitions Nos. 173-R of 1987 and 341-R of 1984 and Civil Appeal Nos. 343, 344 of 1995, heard on 20th September, 2010.

(a) Punjab Alienation of Land Act (XIII of 1900)---

----S.3(2)---Sale of agricultural land through mutation by an agriculturist in favour of non-agriculturist---Validity---Such sale without previous sanction of Deputy Commissioner concerned would not be a legal sale, thus, would be liable to be cancelled.

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

----S.42---Mutation---Evidentiary value---Mutation being merely a proof of transaction would not create any right.

Nemo for Petitioners.

Abdul Wahid Chaudhry for Respondents Nos. 33, 35 to 41.

Date of hearing: 20th September, 2010.

2011 M L D 1001

[Lahore]

Before Manzoor Ahmad Malik, J

LIAQAT---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos.10-B and 862-CB of 2011, decided on 4th February, 2011.

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

----S.497(2)---Penal Code (XLV of 1860), S.302/148/149/109---Qatl-e-amd, rioting armed with deadly weapons, abetment---Bail, grant of-Accused, Accused according to F.I.R. had fired on the left thigh, a non-vital part of the body of the deceased---Four persons from the accused's side had also received fire arm injuries---Cross-version had also been registered against the complainant side, which had been found correct in the investigation---Trial Court was yet to determine after recording evidence of both the sides, as to which was aggressor and which was aggressed upon---Case of accused, therefore, was one of further inquiry within the ambit of S.497(2), Cr.P.C. and commencement of his trial could not deprive him of his right of such bail---Co-accused had already been allowed bail by High Court and the accused also deserved bail on the principle of consistency---Bail was allowed to accused in circumstances.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845; Fazal Muhammad v. Ali Ahmad .1976 SCMR 391; Mst. Shafiqan v. Hashim Ali and others 1972 SCMR 682; Abid Ali alias Ali v. The State 2011 SCMR 161 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

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

----S.497(2)---Penal Code (XLV of 1860), S.3021148/149/109---Qatl-e-­amd, rioting armed with deadly weapons, abetment---Bail---Case of counter-versions---Further inquiry---7n case of counter-versions arising from the same incident, one given by the complainant in the F.I.R. and the other given by the opposite party, bail is normally granted on the ground of further inquiry as contemplated under S.497(2), Cr. P. C.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845 ref.

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

----S.497(5)---Penal Code (XLV of 1860), S.302/148/149/109---Qatl-e-­amd, rioting armed with deadly weapons, abetment---Cancellation of bail, refusal of---Accused had allegedly fired on the right flank of the deceased---Same allegation had been levelled against the co-accused, who had already been allowed bail by High Court---Grounds for grant of bail and cancellation of bail were different altogether---No ground for cancellation of bail granted to accused was made out---Petition was dismissed accordingly.

Muhammad Asif Mughal for Petitioner.

Khalid Mian for the Complainant.

Arshad Mehmood, Deputy Prosecutor-General and Abbas, S.-I. with record for the State.

2011 M L D 1012

[Lahore]

Before Sagheer Ahmad Qadri, J

RASHEED AHMAD KHAN through Special Attorney---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE LAYYAH and 2 others---Respondents

Writ Petition No.760 of 2011, decided on 24th January, 2011.

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

----S. 5 & Sched.---Limitation Act (IX of 1908), Art.120---Constitution of Pakistan, Art.199---Constitutional petition---Suit for maintenance---Trial Court decreed the suit awarding past maintenance for 4 years till the period of "iddat"---Appellate Court upheld the judgment of Trial Court---Defendant contended that past maintenance allowance could not be granted for more than a period of 3 years---Validity---Defendant remained out of country during last five years of marriage leaving behind the family and visited the country only twice---Nothing was brought on record to unsettle the factual controversies and the findings of the courts below---No period of limitation was prescribed under the Limitation Act, 1908 for filing suit for maintenance allowance and was governed by Art.120 of the Limitation Act, 1908 which provided period of six years for filing any suit for which no period of limitation was prescribed---Constitutional petition was dismissed for being without merit.

Muhammad Aslam v. Zainab Bibi and 3 others 1990 CLC 934 and Syed Mudassar Altaf v. Deputy Commissioner/Collector Lahore PLD 1993 Lah. 810 rel.

Muhammad Nawaz v. Khursheed Begum and 3 others PLD 1972 SC 302 fol.

Syed Mumtaz Ahmad Gillani for Petitioner.

2011 M L D 1020

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUKHTAR AHMAD---Appellant

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.2388-B of 2010/BWR, decided on 8th February, 2011.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.365-B/376---Abduction and rape---Bail, grant of---Accused was not named in the F.I.R.---Abductee was stated to have solemnized marriage with the accused and sought protection of law to live with him as his wife---Accused had also filed a suit for restitution of conjugal rights for allowing the abductee to live with him as his wife---On the other hand statements of the alleged abductee recorded under Ss.161 and 164, Cr.P.C. involving the accused in the offence, were not supported by her medico legal report---Prima facie, case of accused needed further probe within the meaning of S.497(2), Cr. P. C. ---Bail was allowed to accused in circumstances.

Muhammad Aslam Khan Dhukkar for Petitioner.

Tariq Mahmood Khan for the Complainant, Asghar Ali Gill, D.P.-G. along with Abdul Ghaffar, A.S.-I. with record.

2011 M L D 1024

[Lahore]

Before Ijaz Ahmad, J

MIRZA IRFAN---Petitioner

Versus

MUHAMMAD YAQOOB---Respondent

Civil Revision No.1247 of 2010, decided on 22nd February, 2011.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2, 3 & 4---Limitation Act (IX of 1908), Art.159---Suit for recovery of amount upon bill of exchange etc.---Application to defend the suit without affidavit---Effect---Trial Court passed ex parte decree---Defendant's application for setting aside the ex parte decree was allowed---Defendant, after lapse of 24 days from submission of application for setting aside the ex parte decree, filed application for leave to appear and defend the suit which was allowed by the Trial Court---Plaintiff contended that the application for setting aside the ex parte decree should have been accompanied by the application for leave to appear and defend the suit and that the application for leave to appear and defend was not accompanied by affidavit---Validity---Trial Court illegally entertained the application for leave to appear and defend the suit---Defendant had the knowledge of the institution of the suit when he made application for setting aside the ex parte decree---Where application for leave to defend was not filed with application for setting aside the ex parte decree, the same had to be filed within 10 days of the service of notice or the knowledge as per requirement of Art.159 of the Limitation Act, 1908---Application for leave to defend was barred by tine---Affidavit was the basic document under O. XXX VII, R.3, C.P.C. which should disclose such facts as would make it incumbent upon plaintiff to prove the consideration---Application seeking leave to appear and defend the suit without affidavit could not be entertained---Impugned order were set aside---Allegations made in the plaint were held to have been admitted by the defendant on account of his failure to obtain the required leave---Plaintiff was entitled to a decree in circumstances.

Raja Zahid Hussain v. Director-General National Housing Authority, Islamabad and 2 others 2005 YLR 1521, Raja Zahid Hussain v. Director-General National Rousing Authority, Islamabad and 2 others 1998 CLC 1183 rel.

Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Malik Zafar Iqbal v. Messrs APCO through Managing Partner Apco, Bahawalpur 1998 .CLC 1133 and Umer Khan v. Haji Musa Jan 2008 SCMR 1101 fol.

Mirza Umar Asadullah for Petitioner.

Raja Muhammad Aftab Kiyani for Respondent.

2011 M L D 1032

[Lahore]

Before Sardar Tariq Masood, J

MUHAMMAD ZAFFAR SHAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 569-B of 2010, decided on 4th March, 2011.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.506/148/149---Criminal intimidation, rioting armed with deadly weapons---Pre-arrest bail, grant of---Dispute over same marriage _was going on between the parties---Police investigation revealed that accused was neither armed with any pistol at the time of occurrence, nor any money had been snatched from the complainant---Simple threats did not constitute criminal intimation as defined under S.503, P.P.C.---Accused was not required by the police for any recovery---Incarceration of accused would serve no useful purpose---Ad interim pre-arrest bail allowed to accused was confirmed in circumstances.

2004 SCMR 1167 ref.

Malik Muhammad Usman Bhatti for Petitioner.

Muhammad Waseem Khan Baber, DDPP with Inayat, S.-I. Complainant in person.

2011 M L D 1041

[Lahore]

Before Tariq Javaid, J

MUHAMMAD AYAZ and others-Petitioners

Versus

AMANAT ALI and others---Respondent

Civil Revision No.73 of 2010, decided on 6th May, 2010.

Specific Relief Act (I of 1877)---

----S. 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Landlord and tenant---Plaintiffs (sub-tenants) filed suit for permanent injunction against the landlord and the tenant on the ground that they (plaintiffs) were sub-tenants of the tenant and should not be ejected illegally---Plaintiffs also filed an application for interim relief---Trial Court allowed in term relief whereas the appellate court set aside the order of the Trial Court---Contention by landlord was that there was no. relationship of landlord and tenant between him and the plaintiffs and that the application for deposit of rent by plaintiffs was collusive in order to defeat the execution proceedings pending against the tenant and the plaintiffs had entered into an agreement for sub-tenancy, which was not permissible under the terms of tenancy between the landlord and the tenant---Validity---Record revealed that proceedings between the landlord and the tenant were decided by the Rent Controller for ejectment of tenant---Sub-tenancy appeared to be a device to defeat the lawful decrees passed by courts below in the previous round of litigation---Suit filed by plaintiffs appeared to be one of gross abuse of process of law and had to be decided on a preliminary issue of maintainability---High Court dismissed revision petition in limine having been filed in gross abuse of the procedure and law provided for redressal of grievances of the bona fide litigants.

1984 SCMR 689 rel.

Ahmad Raza for Petitioners.

Muhammad Ramzan Khalid Joiya for Respondent No. 1.

2011 M L D 1051

[Lahore]

Before Ch. Iftikhar Hussain, J

QAISAR ABBASS and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos. 1620-B and 2123-B of 2011, decided on 11th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, grant of---Inquiry Magistrate and Deputy Superintendent of Police had given divergent opinions regarding the involvement of accused persons in the case---Father of the deceased, an eye-witness according to F.I.R., had made a statement before High Court that the accused persons had reached the spot after the occurrence---Case against accused, thus required further inquiry into their guilt and the same was covered under S.497(2), Cr.P.C.---Accused being police constables were not likely to abscond and they were not previous convicts---Accused were admitted to bail in circumstances.

Ch. Amir Hussain for Petitioners (in both petitions).

Khurram Khan, D.P.-G. for the State with Muhammad Arif S.-I.

Rab Nawaz Complainant in person.

2011 M L D 1059

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD ZAFAR and 7 others---Petitioners

Versus

MEMBER (JUDICIAL-V) BOARD OF REVENUE PUNJAB, and 3 others---Respondents

Writ Petition No.9372 of 2010, decided on 21st December, 2010.

Colonization of Government Lands (Punjab) Act (IV of 1912)---

---S. 11---Notification No. 3393-95/1854-CLV, dated 28-5-1995, issued by Government of Punjab, Colonies department---Constitution of Pakistan, Art.199---Constitutional petition---Proprietary rights---Legal heirs, entitlement of---Predecessor-in-interest of petitioners was a lessee and proprietary rights of land measuring 318 Kanal, were granted to petitioners as occupancy tenants---Authorities on coming to know that petitioners were not occupancy tenants, the conveyance deed was cancelled---Plea raised by petitioners was that all legal heirs were entitled to grant of 100 Kanal of land independently being the lessee of the land---.Validity---Lessee alone, under Notification No.3393-95/1854-CLV, dated 28-5-1995, was entitled to be granted the proprietary rights of 100 Kanal of land but legal heirs of lessee were not entitled to 100 Kanal land individually--- Petitioners did not challenge the vires of Notification No.3393-95/1854-CLV, dated 28-5-1995, and applied for grant of proprietary rights under that notification, admitting the same as valid legislation---High Court in exercise of constitutional jurisdiction set aside the order of cancellation of conveyance deed only to the extent of 100 Kanal, under their possession as they were entitled for grant of proprietary rights of 100 Kanal of land as lessee as per Notification No. 3393-95/1854-CLV, dated 28-5-1995---Petition was allowed accordingly.

Malik Muhammad Latif Khokhar for Petitioners.

Muhammad Javed Saeed Pirzada, A.A.-G. for Respondents.

Date of hearing: 14th December, 2010.

2011 M L D 1070

[Lahore]

Before Sh. Najam ul Hasan and Sardar Tariq Masood, JJ

Mst. RAFAQAT BIBI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.800-B of 2011, decided on 21st February, 2011.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.51---Bail---Section 497, Cr.P.C. not applicable to offences under the Control of Narcotic Substances Act, 1997---Section 51 of the Control of Narcotic Substances Act, 1997, has ousted the implication of S.497, Cr.P.C. from the cases relating to narcotics punishable with death---Said S.51 relates to the Control of Narcotic Substances Act, 1997, which is a special law dealing only with the offences relating to narcotic drugs, psychotropic substances and to control the production, processing and trafficking of the same, whereas Criminal Procedure Code, 1898, is a general law and special law has always precedence over the general law---When the law makers provide some special provision in the Statute to bar the jurisdiction of Special Court established under the said enactment, due weight is to be given to such special provision of law as against general principles governing such cases, when accused approaches the Special Court or the High Court.

The State v. Javed Khan 2010 SCMR 1989 ref.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51---Sale of narcotic drug---Bail, refusal of---Accused had allegedly committed an offence under S. 9(c) of the Control of Narcotic Substances Act, 1997, punishable inter cilia with death---Provisions S.497, Cr.P.C. were not applicable to such offences by virtue of S.51 of the said Act---Sample of one gram heroin taken out of a lot of 1500 grams heroin recovered from the possession of accused was deemed to be sufficient by the Chemical Examiner for analysis, who had given a positive report in this regard---Nothing was shown on behalf of accused that the local police was against her---Such a big quantity of heroin could not be possibly planted on the accused for her false involvement in the case---Drug paddlers had also started associating women and even kids with their business of deadly narcotics, considering that law had soft corner for them---Accused was caught red-handed with huge quantity of heroin---Non-existence of any criminal record against the accused or her family was no ground to grant her bail---Trial of accused was in progress---Bail was declined to accused in circumstances.

The State v. Javed Khan 2010 SCMR 1989 ref.

Ijaz Farhat for Petitioner.

Shahid Bashir Chaudhry, Deputy Prosecutor General with Muhammad Basharat, Sub Inspector with record for Respondents.

2011 M L D 1088

[Lahore]

Before Shahid Hameed Dar, J

KHALIL-UR-REHMAN alias GUDOO---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.230/B of 2011, decided on 11th March, 2011.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.376/511---Attempt to commit rape---Bail, refusal of---Sufficient incriminating material had been collected against the accused during investigation---Accused overawed by his lecherous sentiments had committed the shameful act with the nine years old girl without caring for her age and his relationship with her---Delay in lodging the F.I.R. did not damage the prosecution case, as the minor victim must have been badly frightened because of the oppressiveness of the crime committed with her and also due to the threats extended to her by the accused---Affidavit transmitted by the father of the victim from abroad to the Investigating Officer was of no avail to the accused, as he resided permanently abroad and was not present in the country on the day of the alleged occurrence; he must have been persuaded by his family members to rescue the accused, who was the husband of his real sister---Record did not suggest any strained relations between the parties---Accused was a desperate sex-monger---Offence alleged against accused was hit by the prohibition contained in S.497(1), Cr.P.C.---Bail was refused to accused in circumstances.

Raja Zakar Hussain for Petitioner.

Ch. Muhammad Waheed Khan, Deputy Prosecutor General Punjab for the State.

Khawar Riaz Qadri for the Complainant.

Muhammad Ajmal, S.-I. with record.

2011 M L D 1092

[Lahore]

Before Shahid Hameed Dar and Rauf Ahmed Sheikh, JJ

MUHAMMAD ISMAIL alias GOGA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.41 and Murder Reference No.346 of 2007, heard on 14th December, 2010.

Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-Amd---Appreciation of evidence---Eye-witnesses having no previous grudge or enmity with the accused had no reason to implicate him falsely and let the actual culprit to go unpunished, despite their blood relationship with the deceased---Promptly lodged F.I.R. had rooted up the possibility of deliberation and preliminary inquiries---Recovery of both the pistols at the behest of accused had been proved by independent witnesses---Report by Forensic Science Laboratory was positive---Accused had been firing at the deceased with both the pistols---Weakness or absence of motive by itself was not a mitigating circumstance---Accused had made at least fourteen fires with two pistols. at the deceased showing deep hatred and aversion towards him---Number and seats of the injuries sustained by the deceased had shown the cruel and merciless manner in which he was killed---Strong and confidence inspiring evidence on record had proved the brutal murder of the deceased by the accused---No extenuating circumstance was available in favour of accused---Conviction and sentence of death of accused were upheld in circumstances.

2010 SCMR 97; 2004 SCMR 1185; 1995 SCMR 1735; PLD 2008 SC 416; 2008 SCMR 1106 and 2006 SCMR 1796 ref.

Raja Zaheer Ahmad for Appellant.

Rana Kashif Saleem Afraa, Law Officer, for the State.

Asif Ali Minhas for the Complainant.

Date of hearing: 14th December, 2010.

2011 M L D 1105

[Lahore]

Before Sh. Ahmad Farooq, J

AAMER MEHMOOD HUSSAIN---Petitioner

Versus

NAEHA AAMER SAYED and 2 others---Respondents

Writ Petition No.24016 of 2010, heard on 11th March, 2011.

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

----S. 17-A---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Interim maintenance, quantum of---Father/defendant challenged the rate of interim maintenance allowance awarded to his daughters---Quantum of interim maintenance allowance was not excessive in view of status of parties and expenses incurred on the education of daughters---Determination of adequacy and inadequacy of the quantum of interim maintenance allowance would require factual inquiry which could not be undertaken by the High Court in its constitutional jurisdiction---Impugned order was interlocutory in nature and was based on tentative assessment and the same could not be questioned in the constitutional jurisdiction of the High Court---Constitutional petition was dismissed accordingly.

Dinsab Kasimsab v. Mahammad Hussen Dinsab and another (AIR (32) 1945 Bombay 390) and Mst. Ghulam Fsatima V. Sheikh Muhammad Bashir PLD 1958 (W.P.) Lah. 596 distinguished.

Mst. Sitwat Chughtai and another v. The Judge, Family Court, Lahore and another PLD 2009 Lah. 18 rel.

Shahzad Mehmood Butt for Petitioner.

Mrs. Hina Hafeezullah Ishaq for Respondents.

Date of hearing: 11th March, 2011.

2011 M L D 1120

[Lahore]

Before Ijaz Ahmad Chaudhry and Sheikh Ahmad Farooq, JJ

MUSADDAQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1393 and Murder Reference No.504 of 2005, heard on 29th November, 2010.

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

----S.302(6)---Qatl-e-amd---Appreciation of evidence---F.I.R. had been lodged with sufficient promptitude with a specific role assigned to the accused---Incident was a daylight occurrence---Complainant as well as other eye-witnesses due to previous litigation had sufficiently recognized the accused at the spot at the relevant time---Both the eye-witnesses including the complainant had unanimously mentioned the mode and manner of the occurrence, explaining each and every material aspect of the incident including involvement of the accused and the role played by him therein---Blood-stained earth and crime empties collected from the spot had substantiated the ocular evidence---Crime empties had matched with the pistol recovered from the accused after his arrest---Relationship of the witnesses with the complainant or the deceased and their inimical behaviour towards the accused were not sufficient to smash their evidence, which could be believed even without corroboration, if the same inspired confidence---Medical evidence' had further supported the ocular testimony---Motive set up by the prosecution stood established on record---Involvement of accused in the commission of murder of the deceased having been fully proved, his conviction was upheld---Sequence of firing assigned to nine accused one by one by the complainant in the F.I.R. as well as in the private complaint had smacked mala fides on his part---Complainant had tried to involve in the case the maximum number of members of the other side including the real culprit---Prosecution witnesses had exaggerated the story and had not spoken the whole truth---Matter had been patched up between the parties and they had remained peaceful for 16/17 years---Record did not reveal as to under what circumstances the murder of the deceased had been committed---Possibility that the accused might have murdered the deceased under the influence of his elders could not be ruled out---Death sentence of accused was reduced to imprisonment for life in circumstances.

Muhammad Ahmad and another v. The State and others 1997 SCMR 89 ref.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Interested witness---Credibility---Corroboration---Mere relationship of the witnesses with the complainant or the deceased and their inimical behaviour towards the accused would not be sufficient to smash their evidence---Such evidence can be believed without corroboration if intrinsic worth of the same inspires confidence of the court and leads to inference that the witnesses were present at the scene of crime and had seen the occurrence.

Muhammad Ahmad and another v. The State and others 1997 SCMR 89 ref.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Interested witness---Corroboration---Rule of requiring independent corroboration of testimony of interested witnesses is a rule 9f prudence, which is not to be applied rigidly in each case.

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

----S.302(b)---Qatl-e-amd---Death sentence, award of---Essentials---To award a capital punishment to an accused person, prosecution/ complainant has to produce trustworthy, reliable and unyielding oral evidence; concrete substantiating material in support of ocular account; accurate support from the medical evidence; and sound or cogent reasons for committing the offence---Only a compact evidentiary structure built up by the prosecution can bring the guilt of an accused home in a murder case and even a slight lapse on the part of the prosecution can cause damage to such structure.

Azam Nazir Tarar for Appellant.

Tariq Javed, Deputy District Public Prosecutor for the State.

Hafiz Khalil Ahmad for the Complainant.

Date of hearing: 29th November, 2010.

2011 M L D 1134

[Lahore]

Before Nasir Saeed Sheikh, J

Mst. NAZAR BIBI and 8 others---Appellants

Versus

IMTIAZ HUSSAIN---Respondent

Regular Second Appeal No.9 of 2004, heard on 26th January, 2011.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance---Trial Court dismissed the suit---Appellate Court accepted the appeal and decreed the suit---Validity---High Court had all the powers to look into the legality of the judgment and decree passed by the First Appellate Court---Plaintiff failed to prove the execution of the agreement through convincing evidence---Alleged part payment was neither projected in the plaint nor the same was mentioned in the agreement to sell---Scribe denied the affixing of the signatures and thumb impression of the witnesses in his presence---Trial Court rightly concluded that the agreement to sell appeared to be fraudulent---Appellate Court set aside the judgment and decree of Trial Court by overlooking the facts and evidence of the case---Appeal was accepted, in circumstances, while judgment and decree of the Appellate Court was set aside.

Muhammad Tufail v. Muhammad Younas and others 2006 CLC779 and Nazir Ahmad and another v. M. Muzaffar Hussain 2008 SCMR 1639 distinguished.

Yasin alias Muhammad Hussain and 7 others v. Muhammad Siddique and 5 others 1994 CLC 836; Mst. Farrukh Jabin v. Maqbool Hussain through Legal Representatives and others PLD 2004 SC 499; Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398 and Muhammad Iqbal and another v Mukhtar Ahmad and L.Rs. 2008 SCMR 855 and Fazle Ghafoor v. Chairman, Tribunal Land Disputes, Dir, Swat at Chitral at Mardan and 6 others 1993 SCMR 1073 ref.

Ch. Inayatullah for Appellants.

Taqi Ahmad Khan for Respondent.

Date of hearing: 26th January, 2011.

2011 M L D 1149

[Lahore]

Before Shaukat Umar Pirzada, J

PROVINCE OF PUNJAB through District Collector, Vehari---Petitioner

Versus

NIAZ ALI and 4 others---Respondents

Civil Revision No.422-D of 1996, heard on 30th November, 2010.

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

----S.115---Limitation Act (IX of 1908), S.5---Revision---Limitation---Condonation of delay---Petitioner was not able to explain delay with cogent reasons---Effect---Petitioner was not entitled for condonation of delay and application under S. 5 of Limitation Act, 1908, was not maintainable---Application was dismissed in circumstances.

1994 SCMR 975; Chairman Evacuee Trust Property Board, Govt. of Pakistan, Lahore v. President of Quetta Hindu Punchayat Masjid Road, Quetta and others PLD 2010 Quetta 4 and Muhammad Ashfaq v. Member (Revenue) Board of Revenue, Punjab, Lahore and another PLD 2008 SC 703 rel.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 10---West Pakistan Land Revenue Act (XVII of 1967), S.163---Specific Relief Act (I of 1877), S.42----Cancellation of allotment---Land falling in prohibitory zone---Determination---Land in question was allotted to plaintiff but subsequently order of allotment was reviewed and allotment was cancelled by revenue authorities on the ground that the land fell within prohibitory zone/municipal limits on the date when cancellation order was passed---Validity---Finding of revenue authorities was violative of instructions of Board of Revenue, according to which limits of prohibitory zone should be measured as existed at the time of allotment in question, which was firstly on 4-12-1956, when the land was originally allotted and then on 30-6-1976, when alternate land was allotted and not when proprietary rights were to be conferred---Authorities did not produce any documentary evidence to establish that land in question fell within prohibited zone on the date of its original allotment or when alternate land was allotted to plaintiffs---Authorities failed to point out any illegality, irregularity, error of jurisdiction, misreading or non-reading of record/evidence in the judgment passed by Lower Appellate Court---Judgment and decree passed by Lower Appellate Court in favour of plaintiffs was in accordance with law and did not require any interference by High Court---Revision was dismissed in circumstances.

Province of Punjab v. Ghulam Muhammad 1994 SCMR 975 rel.

Zafarullah Khan Khakwadi for Appellant.

Syed Kabir Mehmood and Muhammad Jaffar Javed Khan for Respondent.

Date of hearing: 30th November, 2010.

2011 M L D 1179

[Lahore]

Before Sh. Ahmad Farooq, J

LIAQAT ALI---Petitioner

Versus

ADDITIONAL INSPECTOR GENERAL POLICE (INVESTIGATION BRANCH), PUNJAB and 3 others---Respondents

Writ Petition No. 4473 of 2010, decided on 31st May, 2010.

Penal Code (XLV of 1860)---

----Ss. 380/458---Police Order (22 of 2002), Art.18(6)---Constitution of Pakistan, Art.199---Constitutional petition---Theft in dwelling house, lurking house-trespass---Transfer of investigation---Petitioner had challenged order whereby investigation in the case was transferred and contended that neither a notice was given to him prior to passing of impugned order whereby investigation was transferred; nor investigation could have been transferred after submission of the challan in the court---Validity---Impugned order had been passed by District Police Officer in exercise of powers under Art.18(6) of Police Order, 2002, after following the procedure prescribed therein---Grievance of the petitioner that no notice was given to him prior to the passing of impugned order, was belied from the recommendation contained in memorandum wherein it was mentioned that the Standing Board heard the parties as well as Investigating Officer prior to recommending the transfer of the investigation---High Court, while exercising constitutional powers, could not give a conclusive finding regarding the truthfulness or otherwise of the said observation incorporated in the memorandum as it was a factual controversy which required recording of evidence---No legal bar existed for reinvestigation of a criminal case even after submission of final report under S.173, Cr.P.C. and the Police could carry out the fresh investigation and submit its report to the Trial Court---Impugned order, in circumstances, was not illegal, arbitrary and without lawful authority---Petition was dismissed.

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

----Ss.154 & 173---Re-investigation---No legal bar existed for reinvestigation of a criminal case even after submission of final report under S.173, Cr.P.C. and the Police could carry out the fresh investigation and submit its report to the Trial Court.

Muhammad Yousaf v. The State and others 2000 SCMR 453; Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 and Saddar Din v. Deputy Inspector-General of Police (Investigation) Capital City Police, Lahore and 6 others PLD 2009 Lah. 585 ref.

Mian Khalid Habib Elahi for Petitioner.

Shafiq Ahmad Bhutta for Respondent No.4.

Jawad Hassan Addl: A.G.

2011 M L D 1187

[Lahore]

Before Manzoor Ahmad Malik, J

MUHAMMAD ARSHAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2851-B of 2011, decided on 16th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/148/149---Attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Firearm injury allegedly caused by accused on the left thigh of the injured, was covered under S.337-F(iii), P.P.C., maximum punishment whereof was three years, which was outside the prohibitory clause of S.497, Cr.P.C.---Injury was on non-vital part of the body of the injured and there was no allegation of repetition of firing against accused---Trial Court was to determine, whether the provisions of S.324, P.P.C. were attracted or not---Accused was behind the bars and was no more required for the purpose of investigation---Case of accused was that of further inquiry within the ambit of subsection (2) of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Muhammad Umar v. The State and another PLD 2004 SC 477 ref.

Shaharyar Sheikh for Petitioner.

Arshad Mehmood, Deputy Prosecutor-General.

Nasir A.S.-I. with record.

2011 M L D 1195

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

ZAHOOR AHMAD and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.180-J of 2008, decided on 25th November, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 457---Qatl-e-amd and lurking house-trespass or house-breaking by night---Appreciation of evidence---Accused was not nominated in the F.I.R.---Previous enmity between the parties was admitted and in view of said enmity, statements of the prosecution witnesses without independent corroboration, could not be taken into consideration---Alleged recovery of hatchet after the passage of three months, was doubtful---Though during the course of identification test parade, complainant had identified accused, but the complainant while appearing as prosecution witness, had admitted that prior to identification test parade, accused was seen by him in the Police Station, which fact had also not been refuted by the Investigating Officer---Even otherwise, both parties were related inter se and in case accused persons being not with muffled faces at the time of occurrence, identification of accused was not difficult for the prosecution witnesses at the spot---On the basis of same prosecution evidence, Trial Court had acquitted co-accused---Prosecution had badly failed to substantiate its case against accused to the hilt; and the impugned judgment rendered by the Trial Court was based on misappreciation of evidence available on record and was against all canons of law recognized for the dispensation of criminal justice---Sentence inflicted upon accused by the Trial Court was set aside and he was acquitted of the charge and was ordered to be released.

Rana Sajjad Hussain for Appellant.

Mian Muhammad Awais Mazhar, Deputy P.G. for the State.

Date of hearing: 25th November, 2010.

2011 M L D 1228

[Lahore]

Before Shahid Hameed Dar, J

NASEER AHMED and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.7389-B of 2010, decided on 15th July, 2010.

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

----S.497---Penal Code (XLV of 1860), S.365-B---Kidnapping, abducting or inducing woman to compel for marriage etc---Bail, grant of---Alleged abductee had been refuting the allegation contained in the F.I.R. right from its inception---Alleged abductee, in her statement made before Magistrate under S.164, Cr.P.C. while rebuting the allegations made by her father (complainant) had stated that she being sui juris had contracted marriage with the brother of the accused of her free will and accord, which had annoyed her father and that she had not been abducted by anyone---To the same effect the alleged abucttee had also submitted her sworn affidavit before the Sessions Court giving her age as 16/17 years---Pubert woman could contract marriage of her own accord without the indulgence of a "Wali"---Abductee, in the attending circumstances, might be held as a woman having attained puberty and the case of accused, thus, called for further probe into their guilt---Accused were admitted to bail accordingly.

Mst. Zeenat Bibi and another v. The State and 2 others 2005 PCr.LJ 1312; Abdul Ghaffar v. Ishtiaq Ahmad Khan 1997 PCr.LJ 1150; Mauj Ali v. Syed Safdar Hussain Shah 1970 SCMR 437 and Hafiz Abdul Waheed v. Mrs. Asma Jehangir PLD 2004 SC 219 ref.

(b) Islamic law---

----Marriage---Validity---Consent of "Wali" is not required and a sui juris Muslim female can enter into valid Nikah/marriage of her own free will.

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

Ch. Nazir A. Ranjha for Petitioner.

Khurram Khan, D.P.-G.

2011 M L D 1234

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUNIR---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.218-B of 2011/BWP, decided on 1st March, 2011.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/392/411/34---Qatl-e-Amd, robbery, dishonestly receiving stolen property---Bail, grant of---Accused was not nominated in the F.I.R. and he was involved in the case by the complainant through his supplementary statement made during investigation---All the accomplices of the accused had been declared proclaimed offenders, but nobody could be punished for the misdeeds of others and kept behind the bars as hostage for their abscondence---Commencement of trial by itself was no bar for grant of bail to accused in view of S.497(4), Cr.P.C.---Case of accused squarely fell under S.497(2), Cr.P.C. and required further inquiry into his guilt---Accused was admitted to bail in circumstances.

Wisal Khan v. The State 1992 PCr.LJ 398 and Wazir and 2 others v. The State 1993 PCr.LJ 1007 rel.

Nadeem Iqbal Ch. for Petitioner.

Ch. Haq Nawaz for the Complainant.

Khalid Pervaiz Uppal, D.P.-G. with Iftikhar S.-I.

2011 M L D 1249

[Lahore]

Before Kh. Imtiaz Ahmad, J

MERAJ AGRO, CHEMICAL (PVT.) LTD. through Chief Executive---Petitioner

Versus

MUHAMMAD SIDDIQUE---Respondent

Civil Revision No.471 of 2008, decided on 18th February, 2011.

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

----O. XXXVII, Rr. 2 & 3---Suit for recovery of amount on basis of dis-honored cheque---Leave to defend suit, application for---Defendant's plea that son-in-law of plaintiff was Accountant of defendant, who while leaving job without intimation took away books of accounts and cheque books belonging to defendant; that before filing suit by plaintiff, defendant had registered criminal case against plaintiff and his son-in-law---Trial Court accepted leave application subject to furnishing of Bank guarantee by defendant equal to suit amount---Validity---Imposition of condition was discretion of court which should not be harsh---Defendant had plausible defence---Instead of imposing harsh condition of submission of bank guarantee, defendant could be directed to submit personal surety bond or surety of any other person supported by documents of title of immovable property having value equal to suit amount---High Court modified impugned order and directed defendant to submit such bond within specified time.

Agha Jee Cotton Factory v. Hakim Trading Company Rahim Yar Khan 1995 CLC 302; Saran v. Haji Mahmood NLR 1994 AC 658 Khalid Javed and Co. v. Javed Oil Industries 1988 SCMR 391; Messers Ark industrial Management Ltd. v. Messrs Habib Bank Limited PLD 1991 SC 976; Muhammad Tariq Siddiqui v. Nasir Ali and another 2011 CLC 191 Karachi and Raja Saud Ahmad Khan v. Sabir Hussain 2000 CLC 199 ref.

Abdul Rauf Ghauri v. Mrs. Kishwar Sultana and 3 others 1995 SCMR 925 rel.

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

----O. XXXVII, Rr. 2 & 3---Suit for recovery of amount on basis of negotiable instrument---Leave to defend suit---Imposition of condition by court while granting such leave---Scope---Imposition of condition being discretion of court, such condition should not be harsh.

Abdul Rauf Ghauri v. Mr. Kishwar Sultana and 4 others 1995 SCMR 925 rel.

Safdar Ramay for Petitioner.

Mian Mushtaq Ahmed for Respondent.

Date of hearing: 17th February, 2011.

2011 M L D 1255

[Lahore]

Before Mazhar Iqbal Sidhu, J

ALLAH DITTA---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.198--B of 2011/BWP, decided on 9th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.365/420/201---Kidnapping, cheating and causing disappearance of evidence of offence---Bail, refusal of---Accused deceitfully abducted the complainant, deprived her of ornaments of gold, sold her and made her honour on stake---Accused played horrid acts with an innocent poor widow and committed hooliganism---Accused had been found guilty in the case---No ground being available for grant of bail to accused, bail petition stood dismissed, in circumstances.

Mehar Falik Sher Sial for Petitioner.

Khalid Pervaiz Uppal, D.P.-G. with Ashraf Malik A.S.-I.

Syed Zeshan Haider for the Complainant.

2011 M L D 1260

[Lahore]

Before Manzoor Ahmad Malik, J

MUHAMMAD USMAN SAFDAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.270-B of 2011, decided on 28th January, 2011.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.302/324/337-A(ii)/ 148/149---Qatl-e-amd, attempt to commit Qatl-e-amd, rioting armed with deadly weapons---Bail, grant of---Further inquiry---Injuries sustained by three persons of the accused side were not mentioned in the F.I.R.---Case was of two versions, one set up by the complainant in the F.I.R. and the other given in the cross version lodged on behalf of accused side---Challan had been submitted in the court by the police in both the matters---Trial court was yet to determine as to which party had aggressed upon the other party---Six co-accused of accused had already been released on bail by High Court and principle of consistency was attracted in the case---Submission of challan and fixation of the case for hearing could not deprive the accused of his right of bail gained by him on account of his case having been found of further inquiry under S. 497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Abid Ali alias Ali v. The State 2011 SCMR 161 rel.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

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

----S.497---Penal Code (XLV of 1860), Ss.302/324/337-A(ii)/148/149---Qatl-e-amd, attempt to commit Qatl-e-amd, rioting armed with deadly weapons---Bail, grant of---Further inquiry---Challan received in the court and the case fixed for hearing---Effect---When the case of accused is prima facie found of further inquiry within the meaning of S.497(2), Cr.P.C., he gains a right to be released on bail, which could not be taken away by the receipt of the challan in the court and fixation of the case for hearing.

Abid Ali alias Ali v. The State 2011 SCMR 161 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

Ch. Mumtaz Ahmad Bhalwana, for Petitioner.

Arshad Mehmood, D.P.-G. for the State with Zulfiqar A.S.-I. with record.

Muhammad Ashraf Nawaz Chheena for the Complainant.

2011 M L D 1268

[Lahore]

Before Sardar Muhammad Shamim Khan, J

Syed SHAUKAT ALI GILANI and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 3636-B of 2010, decided on 30th September, 2010.

Criminal Procedure Code (V of 1898)---

----S.498---Electricity Act (IX of 1910), S.39-A---Theft of electricity---Pre-arrest bail, grant of---Case had been registered against the accused after an unexplained delay of three days---Electricity meter from where the accused were getting direct supply of electricity illegally through PVC wire, was not installed in their name---Record did not show that the electricity meter in question was under the use of accused---Nobody had seen the accused fitting PVC wire with the main line for getting direct supply and having seized the unit of meter---Prosecution witnesses mentioned in the F.I.R. were all subordinate to the complainant and nobody from the vicinity had been joined at the time of raid or inspection---Offence charged against the accused did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Involvement of accused due to suspicion, presumption and mala fides could not be ruled out---Case of accused needed further inquiry---Accused were admitted to pre-arrest bail in circumstances.

Ch. Pervez Aftab for Petitioners.

Malik Riaz Ahmad Saghla, learned D.P.-G.

Shaukat Habibi, S.D.O., Pak Gate Sub-Division MEPCO, Multan.

Muhammad Mushtaq Ahmad S.-I. with record.

Syed Shaukat Ali Gilani and Syed Qaswar Hussain Gilani, petitioners on interim bail.

2011 M L D 1273

[Lahore]

Before Nasir Saeed Sheikh, J

ADIL NAEEM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.333-B of 2011, decided on 1st April, 2011.

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

----S.497---Penal Code (XLV of 1860), S.322---Qatl-bis-Sabab---Bail in non-bailable cases---Scope---Nobody can claim bail as a right in bailable case even though the same do not fall within the prohibitory clause of S.497, Cr.P.C.

Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442; Munir Hussain v. The State 1994 PCr.LJ 406 and Atta Muhammad v. The State 2005 PCr.LJ 1648 ref.

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

----S.497---Penal Code (XLV of 1860), Ss.302/322/324/279/109---Qatl-e-amd, Qatl-bis-sabab, attempt to commit Qatl-e-amd, rash driving on a public way, abetment---Bail, refusal of---F.I.R. revealed that driver of the Car was driving it in a very rash and negligent manner at a very high speed and started rotating the car which resulted in crushing five persons to death and causing serious injuries to two persons---Accused petitioner at the time of occurrence was acting as a Referee of the Drag Car Race and his presence at the spot was specifically mentioned in the statements of the three prosecution witnesses recorded under S.161, Cr.P.C.---Accused, prima facie, was involved in the offences charged as a Referee in the Drag Car Race and he could not be held to be an altogether innocent participant in the occurrence---Offence under S.109, P.P.C. had also been added with other offences, some of which fell within the prohibitory clause of S.497, Cr.P.C.---Offence under S.322, P.P.C. being non-bailable in nature, accused could not claim bail as a matter of right---Accused had not pleaded any reason for his false involvement in the case---Bail was declined to accused in circumstances.

Muhammad Nadeem v. The State 1998 MLD 1537; Siraj Din v. The State 2001 YLR 1307; Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442; Munir Hussain v. The State 1994 PCr.LJ 406 and Atta Muhammad v. The State 2005 PCr.LJ 1648 ref.

Muhammad Shoaib Shaheen for Petitioner.

Ch. Waheed Ahmad Khan, D.P.-G. with Mahdi Khan Inspector for the State.

2011 M L D 1281

[Lahore]

Before Rauf Ahmad Shaikh, J

ISHTIAQ AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.112-B of 2010, decided on 15th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/201/365/364---Qatl-e-amd, disappearing evidence of offence and kidnapping---Bail, grant of---Extra judicial confession---Delay in registration of F.I.R.---Benefit of doubt---Charge, framing of---Deceased disappeared in June, 2002, who could not be traced out despite hectic efforts---Prosecution witnesses alleged that in January, 2009, accused made an extra-judicial confession on the basis of the same F.I.R. was registered on 17-4-2009---Plea raised by accused was that there was an unexplained delay of seven years in registration of F.I.R. and only reason for false implication was a dispute over possession of the house owned by deceased---Validity---Joint confession allegedly made by accused before complainant, her sister, mother and brother-in-law had no value in the eyes of law---Alleged extra judicial confession was made in January, 2009 but F.I.R. was lodged on 17-4-2009 and dead body had not been recovered---Involvement of accused in commission of offence as was alleged by prosecution was doubtful and such doubt was to be resolved in his favour even at bail stage---Mere fact that charge had been framed, was no ground to withhold the concession of bail in view of such facts---Bail was allowed in circumstances.

Sh. Muhammad Mansha for Petitioner.

Mian Muhammad Awais Mazhar, D.P.-G., for the State, along with Muhammad Mehfooz., S.-I., with record.

Saqib Akram for the Complainant.

2011 M L D 1286

[Lahore]

Before Ch. Iftikhar Hussain, J

SAEED AMMAR BIN ALI ALVI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2485-B of 2011, decided on 14th April, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss.408/381---Criminal breach of trust by servant, theft by servant---Bail, grant of---Further inquiry---Offences against accused were not hit by the prohibition contained in S.497(1), Cr.P.C.---Declaration of accused as proclaimed offender having been allegedly managed by the complainant with the collusion of local police, could not come in the way of accused to grant bail to him---Commencement of trial was not a clog to prohibit grant of bail to accused, when he otherwise was found entitled to bail and his guilt needed further probe---Accused was behind the bars for the last five months and he was not a previous convict---Bail was allowed to accused in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.408/381---Criminal breach of trust and theft by servant---Bail, grant of---Commencement of trial---Effect---When case of accused is found fit for bail and is covered under S.497(2), Cr.P.C., then he becomes entitled to bail as of right irrespective of his trial having been commenced.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

G. Abbas Zaidi for Petitioner.

Khurram Khan, D.P.-G. for State with Muhammad Aslam, A.S.-I. with police record.

Saeed-ur-Rehman with Mr. Aziz Ahmed Bhatti for the Complainant.

2011 M L D 1289

[Lahore]

Before Ch. Iftikhar Hussain and Sh. Ahmad Farooq, JJ

MUHAMMAD ANWAR---Appellant

Versus

DISTRICT POLICE OFFICER GUJRANWALA and 11 others---Respondents

Intra Court Appeal No.128 of 2011 in Writ Petition No.25373 of 2010, heard on 28th April, 2011.

(a) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Constitutional petition---Quashing of F.I.R.---Scope---F.I.R. can be quashed at any stage of the case when it is proved on record that further proceedings in the F.I.R. would amount to abuse of the process of law.

(b) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Constitutional petition---Quashing of proceedings---Grounds---Proceedings could be quashed on the grounds that the case was of no evidence; that it was based on mala fides; that it was purely of civil nature; that there was lack of jurisdiction and that unexceptional delay occurred in the disposal of the case causing deplorable mental, physical and financial torture to the person proceeded against.

Pervez Ellahi v. The Federation of Pakistan and others 1995 MLD 615 ref

(c) Constitution of Pakistan---

---Art.199---Penal Code (XLV of 1860), Ss.420/467/468/471---Constitutional petition---Cheating and dishonestly inducing delivery of property, forgery of valuable security, forgery for purpose of cheating, using as genuine forged document---Quashing of F.I.R.---Accused had allegedly prepared a forged document and he was nominated in the F.I.R.---Accused had been declared guilty during investigation and the case had been sent to court for trial---Charge had been framed against the accused---Prima facie, a case having been made out against the accused, court could refuse quashing of F.I.R.---High Court in exercise of its constitutional jurisdiction was also not vested with any power to take the role of an investigator or to embark upon or evaluating the facts and evidence of any case---Truthfulness or falsehood of the allegations levelled in the F.I.R. could only be thrashed out by a detailed inquiry through a prescribed procedure and competent forum---Any departure from the said procedure would amount to obstruct or divert the ordinary course of criminal procedure, which was not permissible under the law---Accused, however, if so advised could raise his grounds before Trial Court by filing an application under the relevant provision of law.

Badar-ur-Islam v. District Police Officer, Faisalabad and 3 others 2007 YLR 2766 and Pervez Ellahi v. The Federation of Pakistan and others 1995 MLD 615 ref.

Malik Abdus Sattar Chughtai for Appellant.

Naeem Tariq Sanghera for Respondent.

Date of hearing: 28th April, 2011.

2011 M L D 1292

[Lahore]

Before Ijaz Ahmad Chaudhry, C.J. and Mazhar Iqbal Sidhu, J

Mst. HURRIYA NAVEED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.4831-B of 2011, decided on 17th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.365 & 365-A---Kidnapping for ransom---Bail, grant of---Accused though was nominated in the F.I.R., but being fair sex her case would come within the mischief of proviso of S.497, Cr.P.C.---Accused was in family way and to her extent investigation was complete; and she was no more required for further investigation---Facts and circumstances of the case, prima facie, persuaded the court to grant her bail---Accused was admitted to post arrest bail, in circumstances.

Barrister Muhammad Ahmad Pansota and Mujahid Ahmad Pansota for Petitioner.

Syed Nisar Ali Shah for the Complainant.

Tariq Javaid, D.P.-G. for the State.

2011 M L D 1300

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD BASHIR CHEEMA and others---Petitioners

Versus

GUL ZAMAN QURESHI and others---Respondents

Civil Revisions Nos.379 and 380 of 2000, heard on 5th April, 2011.

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

----S.54---Sale deed---Area of land mentioned in sale-deed and its calculation on basis of measurement of boundaries being different---Effect---When land was sold with definite boundaries, then boundaries would prevail, unless it was clear from circumstances surrounding sale that a smaller extent that was covered by boundaries was intended to be sold.

Subbayya Chakkiliyan v. Manjam Muthia Goundan and another AIR 1924 Madras 493 and Raghunandan Thakur v. Babu Kishundeo Narain Mahta and others AIR 1926 Patna 257 rel.

Muhammad Younas Bhatti for Petitioners.

Muhammad Ilyas Sheikh for Respondents.

Date of hearing: 5th April, 2011.

2011 M L D 1308

[Lahore]

Before Ch. Muhammad Tariq and Shahid Hameed Dar, JJ

Sh. FAQIR MUHAMMAD---Appellant

Versus

LAND ACQUISITION COLLECTOR and others---Respondents

R.F.As. Nos.168 and 169 of 2002, heard on 19th April, 2011.

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

----S. 23----Determinative of compensation of acquired land---Awards relating to other lands showing higher price---Such awards neither pertained to same revenue estate nor were announced during period in which award under challenge was pronounced---Landowners could not derive any benefit out of such awards.

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

----S. 23---Acquired land, compensation of---Assessment of market value of big tracks of land on basis of price of small piece of land---Scope.

Price of small piece of land cannot form basis of market value of big tracks of land. If some piece of land is sold for a higher price due to its peculiar location, it does not mean that all the lands in the same vicinity must also be assessed at the same rate. Such claimant is required to prove that the acquired land can also be put to the same use.

Imran Hassan Ali for Appellants.

Azhar Naveed Shah and Syed Muazzam Ali Rizvi for Respondents.

Date of hearing: 19th April, 2011.

2011 M L D 1330

[Lahore]

Before Sh. Ahmad Farooq, J

Syed GHULAM ABBAS SHIRAZI---Appellant

Versus

GHULAM HUSSAIN SINDHU---Respondent

R.S.A. No.92 of 2007, decided on 27th April, 2011.

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

----S.13---Right of pre-emption---Talb-e-Muwathibat---Proof---Finding of fact---Suit filed by pre-emptor was dismissed by Trial Court but Lower Appellate Court allowed the appeal and decreed the suit in favour of pre-emptor---Plea raised by vendee was that the land in question was adjacent to that of pre-emptor, therefore, he had the knowledge of sale in favour of vendee---Validity---Merely because land of pre-emptor was adjacent to land in dispute did not ipso facto prove that pre-emptor had knowledge of the sale right from the date of sale in question---Question of making requisite "Talbs" was a question of fact and finding of Lower Appellate Court on a question of fact could not be disturbed while deciding second appeal---No misreading or non-reading of evidence, oral or documentary, was pointed out by vendee---In absence of such misreading and non-reading of evidence, a finding of fact recorded by Lower Appellate Court could not be discarded by High Court while deciding second appeal---Appeal was dismissed in circumstances.

Muhammad Ramzan v. Lal Khan 1995 SCMR 1510; Mst. Amir v. Soini 1997 MLD 2376; Amir Abdullah and others v. Muhammad Bukhsh 2006 CLC 200; Muhammad Sadiq and 2 others v. Barkat Ali and 4 others 1990 CLC 533; Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mahmood 1985 CLC 657; Shahzada Muzaffar Ali v. (1) Mst. Aqha Begum and (2) Ghulam Hussain and others PLD 1968 Lah. 372; Ata Ullah Khan and others v. Mst. Surraya Parveen 2006 SCMR 1637; Mst. Sarwari Begum v. Jabbar alias Lolia PLD 1965 (W.P.) Lah.32 and Khadam Hussain and others v. Gulab and another PLD 1954 Lah. 471 ref.

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

----S.13---Talb-e-Muwathibat---Term "jumping demand"---Connotation---Talb-e-Muwathibat which is usually called "jumping demand" only means that as soon as pre-emptor comes to know of the sale, he should immediately, there and then, express his intention to file a suit for pre-emption in the same assembly before which he received the information---No physical jumping is necessary to constitute Talb-e-Muwathibat.

Rab Nawaz v. Anwar Ali and 4 others PLD 2004 Lah. 784; Amir Jan and 3 others v. Haji Ghulam Muhammad PLD 1997 SC 883 and Haji Lal Shah and another v. Abdul Khaliq and another 2004 SCMR 409 rel.

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

----S. 13 (3)---General Clauses Act (X of 1897), S. 26---Talb-e-Ishhad---Dispatching of notice---Presumption---Letter/notice sent through registered cover must have reached the addressee---If notice of Talb-e-Ishhad has been sent by pre-emptor through registered post (Acknowledgement Due) within time, such is the sufficient compliance of law and Talb-e-Ishhad is proved, in circumstances.

Ghulam Abbas and another v. Manzoor Ahmad and another 2008 SCMR 1366 rel.

Dr. A. Basit and Malik Shakeel Ahmad for Appellant.

Ch. Muhammad Anwar Bhindar for Respondent.

Date of hearing: 12th April, 2011.

2011 M L D 1350

[Lahore]

Before Syed Hamid Ali Shah and S. Ali Hassan Rizvi, JJ

MUHAMMAD TAHIR NAEEM-Appellant

Versus

Rana ABAD ALI---Respondent

R.F.A. No.299 and C.M. No. 3-C of 2008, decided on 26th January, 2009.

Civil Procedure Code (V of 1908)---

----O.XXX VII, Rr. 2, 3 & 4---Suit for recovery of money on basis of negotiable instrument-Non-filing of application by defendant within 10 days for grant of leave to defend---Passing of ex parte decree---Dismissal of defendant's first application for setting aside order of ex parte proceedings---Dismissal of defendant's second application under O. XXXVII, R. 4, C.P. C. for setting aside ex parte decree---Validity--Defendant had not assailed ex parte decree within period of limitation, thus, same had attained finality---Application for setting aside ex parte order being incompetent had rightly been dismissed by Trial Court---High Court dismissed appeal in circumstances.

Muhammad Akhtar Padda for Appellant.

Mian Shahbaz Ali for Respondent.

2011 M L D 1355

[Lahore]

Before Sagheer Ahmad Qadri and Rauf Ahmed Shaikh, JJ

Mst. NUSRAT ARA---Appellant

Versus

ABDUL QAYYUM and another---Respondents

Criminal Appeal No.94 of 1999, heard on 7th February, 2011.

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

----S.302---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd---Appeal against acquittal---Material discrepancies regarding the prosecution story had rightly been noticed by Trial Court---Complainant and the other eye-witness had made many improvements in their statement at the trial and even at some points they did not support each other---Ocular account was not corroborated by medical evidence---Incriminating recoveries of blood stained earth and iron rod did not connect the accused with the murder of the deceased---Evidence of recoveries could be used for corroboration of the main allegation of murder, which the prosecution had failed to prove---Adequate incriminating evidence had not come on record to connect the accused with the crime---Judgment of acquittal passed by Trial Court after proper and correct appraisal of evidence could not be interfered with, even if reappraisal thereof would exhibit another view---Appeal against acquittal of accused was dismissed in circumstances.

Zakir Khan and others v. The State 1995 SCMR 1793; Abdur Rashid v. Umaid Ali and 2 others PLD 1975 SC 227; Ali Muhammad and another v. The State 1985 SCMR 1834; Abdul Razzaque v. The State 2003 PCr.LJ 1256; Muhammad Akbar v. The State 1998 SCMR 2538; Manzoor alias Mujan and another v. The State PLD 1979 Kar. 276; Allah Bakhsh and others v. The State 1976 PCr.LJ 1272; Muhammad v. The State 1989 PCr.LJ 834; Ali Sher v. The State 1985 PCr.LJ 1812; Arif Hussain and another v. The State 1983 SCMR 428; Abdul Wahab and another v. The State 1985 PCr.LJ 771; Amir and another v. The State 1984 PCr.LJ 1182; Shamsherwan v. The State 1985 SCMR 34; Akhtar Gul alias Akhtari v. The State 1985 SCMR 233; The State v. Abba Ali Shah alias Abba Umer and another PLD 1988 Kar. 409; Muhammad Afzal v. The State 1983 SCMR 1; Abdul Rehman and others v. The State 1983 SCMR 958; Muhammad Shafi v. The State PLD 1987 FSC 16 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

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

----S.417---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Appeal against acquittal---Scope and extent---Judgment of acquittal gives a double presumption of innocence in favour of accused and the same cannot be interfered with unless shown to be perverse, completely illegal giving no other conclusion except his guilt, or based on misreading of evidence resulting in miscarriage of justice.

Muhammad Zafarullah Khan for Appellant.

Ch. Waheed Ahmed Khan, Deputy Prosecutor-General for Respondents.

Muhammad Azam Khan Sultanpuri, Advocate with Abdul Qayyum, Respondent No.1.

Date of hearing: 7th February, 2011.

2011 M L D 1377

[Lahore]

Before Kh. Imtiaz Ahmad, J

ABDUL GHANI---Petitioner

Versus

MUHAMMAD SHARIF---Respondent

C.R. No.240-D of 2011, decided on 11th March, 2011.

Specific Relief Act (I of 1877)---

----S. 12---Oaths Act (X of 1873), S. 10---Qanun-e-Shahadat (10 of 1984), Art. 163---Specific performance of agreement to sell---Proof---Special oath---Provisions of Art. 163 of Qanun-e-Shahadat, 1984---Applicability---During pendency of appeal before Lower Appellate Court, plaintiff offered the defendant to take oath on the Holy Quran, which he took, resultantly the appeal filed by plaintiff was dismissed---Plea raised by plaintiff was that provisions of Art. 163 of Qanun-e-Shahadat, 1984, were not complied with by Lower Appellate Court at the time of deciding the appeal---Validity---When any person made an offer to other party to make statement on oath, such offer was not under Art. 163 of Qanun-e-Shahadat, 1984 but under Oaths Act, 1873---If such offer was accepted then the person making the offer could not resile from it---Plaintiff himself made the offer that if defendant would make oath on the Holy Quran that he had not entered into an agreement to sell nor received the consideration amount then his appeal should be dismissed as withdrawn---Offer of plaintiff was duly accepted and defendant made the statement on the Holy Quran to the same effect---Once again plaintiff made statement duly thumb marked by him that he had heard the statement and in view of the statement, plaintiff did not want to prosecute the appeal and same be dismissed as withdrawn, thus it was on that basis appeal of plaintiff was dismissed by Lower Appellate Court---High Court did not find any illegality in the judgment passed by Lower Appellate Court, therefore, the same was maintained---Revision was dismissed in circumstances.

Dr. Abdul Ghaffor Raza and 2 others v. Mst. Razia Begum 1995 SCMR 918; Captioned Mahmood Ali Butt v. Inspector-General of Police, Punjab, Lahore and 10 others PLD 1997 SC 823 and Muhammad Ijaz v. Additional District Judge, Islamabad and 3 others

2005 CLC 1164 ref.

Javed Ahmed Khan for Petitioner.

2011 M L D 1383

[Lahore]

Before Sh. Azmat Saeed, J

Mrs. RIFFAT SHAHID and 2 others---Petitioners

Versus

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

Writ Petition No.3296 of 2011, decided on 18th April, 2011.

Punjab Rented Premises Ordinance (XXI of 2007)---

---Ss. 2(d), 15 & 22---Qanun-e-Shahadat (10 of 1984), Art. 115---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Leave to defend, application for---Relationship of landlord and tenant between parties denied by tenant on ground that respondent was not owner of demised premises---Withdrawal of earlier ejectment petition filed by father of respondent---Tenant in earlier ejectment proceedings denied his relationship with respondent's father and claimed to be tenant of respondent under rent deed---Order of Rent Tribunal rejecting tenant's leave application to contest upheld by Appellate Court---Validity---Tenant in earlier ejectment proceedings had repeatedly admitted to be tenant of respondent, thus, was estopped from denying such relationship in view of Art. 115 of Qanun-e-Shahadat, 1984---Not only owner of demised premises, but person entitled to receive rent thereof would fall within definition of term "landlord" and could seek ejectment of tenant---Tenant had failed to make out any ground for grant of leave to contest ejectment petition--Impugned orders did not suffer from any legal infirmity and jurisdictional defect---High Court dismissed constitutional petition in circumstances.

Mst. Seema Begum v. Muhammad Ihsaq and others PLD 2009 SC 45 rel.

Syed Rashid Rahim for Petitioners.

Waqar Anjum for Respondents.

2011 M L D 1393

[Lahore]

Before Nasir Saeed Sheikh, J

GHULAM MUHAMMAD---Petitioner

Versus

MUHAMMAD JEHANGIR and 14 others---Respondent

Writ Petition No. 1920 of 2011, decided on 1st March, 2011.

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

----S. 29---Civil Procedure Code (V of 1908), S. 12(2)---Compromise decree, setting aside of---Minor applicants' plea that exchange of their property through compromise signed on their behalf by their mother was result of fraud and misrepresentation---Validity---Guardian Court had appointed mother as guardian of property of minors---Compromise contained an undertaking of mother to finalize compromise after obtaining necessary permission from Guardian Court---Record showed that mother had not appeared in court and made statement in support of compromise, rather brother of minors had made statement regarding exchange of property belonging to minors---According to S. 29 of Guardians and Wards Act, 1890, guardian of property could not enter into any transaction for disposal of property belonging to minor without prior permission of Guardian Court---Compromise decree to the extent of minors had been passed without permission of Guardian Judge---Compromise decree was set aside in circumstances.

Jaffar Abbas and 2 others v. Ahmad and another PLD 19.91 SC 1131; Mst. Tahira Bibi v. Shah Dad and 2 others PLD 1989 Pesh. 32; S. Zaheer Hussain Naqvi v. Mrs. Sahehzadi Amna Saeed and others 2002 YLR 1984 and Muhammad Jamal v. Mst. Gulshan Afroz and others 2005 YLR 2352 ref.

Malik Shahzad Famed Langrial for Petitioner.

2011 M L D 1402

[Lahore]

Before Muhammad Yawar Ali, J

ANJUM NIAZ CHAUDHRY and 8 others---Petitioners

Versus

MANAGING DIRECTOR, SUI NORTHERN GAS PIPELINE LIMITED and 2 others---Respondents

Writ Petition No.18318 of 2010, decided on 20th October, 2010.

(a) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----S. 11---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Compressed Natural Gas (CNG) Filling Stations---Charging of excessive rates by Gas Supply Company---Contract entered between petitioner and company contained a clause for referring dispute to Authority for its resolution---Petitioner had not availed his remedy under such contract or S. 11 of Oil and Gas Regulatory Authority Ordinance, 2002---Constitutional petition filed without availing an alternate remedy would not be maintainable---High Court dismissed such petition accordingly.

Haji Khan Wali and another v. Director General CD and MD Peshawar and 3 others 2005 YLR 3102 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Alternate remedy, non- availing of---Effect---Petition would not be maintainable---Principles.

A petition under Article 199 of the Constitution would not be maintainable if the same' has been tiled without availing of an alternate remedy. Jurisdiction conferred under Article 199 of the Constitution is not an additional remedy provided by law. High Court while hearing a petition under Article 199 would have jurisdiction to interfere only if the petitioner had no other adequate remedy available.

Haji Khan Wali and another v. Director General CD and MD Peshawar and 3 others 2005 YLR 3102 rel.

Mian Shabaz Ali Anjum for Petitioners.

Muhammad Umar Sharif for Respondents.

2011 M L D 1405

[Lahore]

Before Abdus Sattar Asghar, J

LAL KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 269 of 2008/BWP, 31 of 2009 and Criminal Revision No.14 of 2009, heard on 15th June, 2011.

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

----Ss. 302(b)(c) & 448---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd and house-trespass---Appeal against acquittal--Appreciation of evidence---Testimonies of the complainant and prose­cution witness, had transpired that no specific injury was attributed to accused persons on the person of deceased or on the body of the complainant---Medical evidence produced by the prosecution did not support complainant's version regarding active participation of said accused person in the alleged occurrence---Two of said accused persons were nominated in the F.I.R., while remaining accused persons, were involved through supplementary statement made after two days of the alleged occurrence as well as after the demise of the deceased---All said accused persons were found innocent by the police in the police investigation---Since no overt act was established on the part of the said accused persons and even their presence or participation in the alleged occurrence was doubtful, their implication in the crime appeared to be the result of throwing wider net to involve maximum number of kith and kins of accused---Prosecution having not been able to prove any charge against said accused persons through any confidence inspiring or reliable evidence, Trial Court had rightly acquitted them---Appeal against acquittal of accused persons, was dismissed, in circumstances.

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

---Ss. 302(b)(c) & 448---Qatl-e-amd and house-trespass---Petition for enhancement of sentence---Appreciation of evidence---Arraignment of accused, was not shrouded in mystery---Accused in his statement under S.342, Cr.P. C. had not denied the occurrence---Cross-version advanced by accused was not approved by Investigating Officer during the course of investigation---Accused did not produce any defence evidence to substantiate his version of self-defence---Version of accused as regarded venue of the alleged occurrence was also not established by him---In the prosecution evidence complainant's version that the occurrence took place inside his house, was supported by the Investigating Officer as well as through the site-plan-Accused, had no intention to kill deceased; he had not collie prepared with any lethal weapon to the house of the deceased, rather situation aggravated in result of exchange of abuses between accused and the deceased when accused by trespassing, entered into his house by climbing over the wall to catch his pigeon---Occurrence, in circumstances, was outcome of sudden provocation due to exchange of abuses between accused and the deceased, whereupon accused taking hatchet lying in the courtyard of the house of the complainant, caused head injury to deceased with wrong side of the hatchet---Present, was not a case of pre-meditation, rather mens rea developed at the spur of the moment in result of sudden provocation---Accused did not repeat any injury to deceased---Parties were related to each other and there was no previous animosity between the parties---Case was of loss of power of self-control at the spur of the moment in result of the exchange of abuses between accused and deceased---Since accused had no intention to cause murder of deceased, act of accused, would amount to culpable homicide not amounting to murder---Complicity of accused did not attract the provisions of S.302(b), P.P.C., but it fell in the ambit of S.302(c), P.P.C. and accused 'was convicted under S.302(c), instead of S.302(b), P.P.C.-Conviction of accused under S.448, P.P.C. for commission of house-trespass and sentence of 6 months' R.I., was also maintained---Criminal revision filed by the complainant for enhancement of sentence of accused, was dismissed.

Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 and Muhammad Akbar alias Akku v. The State 2009 SCMR 1192 fol.

Mian Muhammad Afzal Wattoo for Appellant.

Malik Muhammad Latif, D.P.-G. for the State.

Mian Muhammad Tayyab Wattoo for other Respondents.

Date of hearing: 15th June, 2011.

2011 M L D 1416

[Lahore]

Before Abdul Waheed Khan, J

Sardar MUHAMMAD ASHIQ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, PATTOKI and 6 others---Respondents

Writ Petition No.12298 of 2011, decided on. 7th June, 2011.

Civil Procedure Code (V of 1908)---

----S.148---Specific Relief Act (I of 1877), S. 12---Constitution of Pakistan, Art.199---Constitutional petition---Suit for specific performance of contract-Application for enlargement of tune---Dismissal of application---Suit was decreed by the Trial Court with the direction to deposit decretal amount payable to defendants within the period of one month; and that in case of anon-deposit of said amount, the suit would be deemed to be dismissed---Plaintiff who failed to deposit said amount as per direction of the Trial Court, filed application for extension of time for deposit of said amount, which application was dismissed---Revision petition `filed against order of the Trial Court, having also been dismissed by Appellate Court below, the plaintiff had filed constitutional petition---As per terms of the judgment and decree of the Trial Court, the suit stood automatically dismissed after the expiration of one -month and said court had become functus officio---Court could not have extended the time, not only because of non-compliance had operated into automatic dismissal of suit, but also because a very valuable right had thereby accrued to the defendant---Nothing was available to suggest that impugned orders of the courts below were without lawful authority and of no legal effect---Petition was dismissed.

Shujat Ali v. Muhammad Riasat and others PLD 2006 SC 140 rel.

Malik Ali Imran for Petitioner.

2011 M L D 1434

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD BANARAS---Petitioner

Versus

NASIR MAHMOOD and others---Respondents

Criminal Miscellaneous No. 2171-BC of 2010, decided on 14th March, 2011.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), S.302/324/148/149---Qatl-e­-amd, attempt to commit Qatl-e-Amd, rioting armed with deadly weapons---Cancellation of bail, refusal of---Accused were, no doubt, nominated in the F.I.R., but the deceased in his dying declaration made just after the occurrence had categorically named two other co-accused, who had fired at him---Said statement of the deceased was corroborated not only by the post-mortem report but also by the Doctor who had conducted postmortem examination of the deceased---Accused being the real nephews of one accused appeared to have been involved in the case just to widen the net---One of the accused had been alleged to have made only aerial firing---Case against accused, thus, needed further probe into their guilt and they had been rightly granted bail by Sessions Court---Petition for cancellation of bail was dismissed accordingly.

Qazi Muhammad Amin for Petitioner.

Ch. Mehmood Akhtar Khan for Respondents.

Malik Muhammad Usman, D.P.-G. with Khalid Mehmood', S.I.

2011 M L D 1442

[Lahore]

Before Sardar Muhammad Shamim Khan, J

TALIB HUSSAIN---Petitioner

Versus

S.H.O., POLICE STATION KOT MITHAN and 15 others---Respondents

Writ Petition No.12436 of 2010, decided on 31st January, 2011.

(a) Constitution of Pakistan---

----Art. 199---Penal Code (XLV of 1860), Ss. 382/436/447/148/149---Constitutional petition---Theft after preparation made for causing death etc., mischief by fire to destroy house etc., criminal trespass, rioting armed with deadly weapons---Quashing of F.LR.---According to the story put forth by the complainant, accused petitioner and co-accused respondents after taking the possession of the house of his nephews (accused persons of murder case) had set the same on fire and taken away household articles therefrom---Complainant had lodged the present F.I.R. against the accused on the basis of malafides in order to exert pressure against the complainant party of the murder case to effect compromise---Contradictory version taken by the complainant in the present F.I.R. and his application submitted under S.22-A, Cr. P. C. had clearly indicated that trial of the present case was not likely to end in conviction of accused---High Court in its constitutional jurisdiction could quash any F.I.R. based on mala fide facts or law---Complainant had lodged the present F.I.R. on the basis of malafides in order to put pressure on the accused for saving the skin of his son, nephews and other close relatives, who were nominated accused of the murder case---F.I.R. was quashed, in circumstances.

Muhammad Anwar v: Senior Superintendent of Police and others 1995 PCr.LJ 1616 rel.

(b) Constitution of Pakistan---

---Art. 199---Penal Code (XLV of 1860); Ss.382/436/447/148/149---Theft after preparation made for causing death etc., mischief by fire to destroy house etc., criminal trespass, rioting armed with deadly weapons---Constitutional jurisdiction---Scope---Quashing of F.I.R.---High Court in its constitutional jurisdiction can, quash any F.I.R. registered on the basis of mala fides of facts or in law.

(c) Constitution of Pakistan---

----Art. 199---Penal Code (XLV of 1860), Ss. 382/436/447/148/149---Theft after preparation made for causing death etc., mischief by fire to destroy house etc., 'criminal trespass, rioting armed with deadly weapons---Constitutional jurisdiction---Scope---Quashing of F.I.R.---F.I.R. can be quashed if prosecution case is not likely to end in conviction.

Muhammad Anwar v. Senior Superintendent of Police and others 1995 PCr.LJ 1616 rel.

Syed Athar Hassan Bukhari and Muhammad Ayub Buzdar for Petitioner.

Ch. Muhammad Afzal Jatt for Respondent.

Malik Muhammad Bashir Lakhesir, A.A.-G. Lateef, S.I. and Aslam, S.I. with record.

2011 M L D 1449

[Lahore]

Before Abdul Waheed Khan, J

MUHAMMAD ASLAM---Appellant

Versus

MUHAMMAD NAZEER and 2 others---Respondents

F.A.O. No.139 of 2009, decided on 6th June, 2011.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1, 2(3) & O.XLII, R.1(2)---Disobedience of order for temporary injunction---Application filed by the plaintiff for grant of temporary injunction was granted---Defendant in violation of said injunction order sold the shop in dispute---On filing application by the plaintiff against the defendant for disobedience of injunction order, court below convicted the defendant to suffer four months simple imprisonment for committing wilful violation of order of Court below---Validity---In view of provisions of R.2(3) of O.XXXIX, C.P.C., court was not competent to convict the defendant in disobedience or breach of injunction; at the most, the court could attach the property of the person guilty of disobedience or detain him in prison as a preventive measure---Even for awarding the penalty of attachment of the property and the detention in civil prison, a show-cause notice upon the person guilty of disobedience was necessary---Impugned order of the conviction of the defendant, was set aside and the matter was remanded to the Appellate court for further proceedings with the matter, in circumstances.

Shabbir Ahmad Khan for Appellant.

Saif-ul-Haq Ziai for Respondents.

2011 M L D 1468

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

AAMIR and 2 others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.1228 of 2010, heard on 20th September, 2010.

Penal Code (XL V of 1860)---

----Ss.367-A & 377---Criminal Procedure Code (V of 1898), S.345---Kidnapping or abducting in order to subject person to unnatural lust, sodomy---Appreciation of evidence---Compromise---Both the complainant as well as the victim appeared before High Court at the time of arguments and voluntarily made a statement that they did not want to pursue the case any more and had no objection if the accused were acquitted of the charge---Prosecution case after having been examined from each and every aspect, was not likely to succeed---Reasons advanced by Trial Court for convicting the accused also had no weight---Offence charged against the accused was non-compoundable and the question was whether compromise could be effected in a non-compoundable offence---Compromise was meant to promote harmonious living and maintain cordial relations between the parties---Accused were acquitted in circumstances and their appeal was allowed accordingly.

Ghulam Shabbir and 2 others v. The State 2003 SCMR 663 ref.

Mian Abdul Qaddus for Appellants.

Mian Muhammad Awais Mazhar, D.P.-G. for the State.

Mehr Asif Ali, for the Complainant.

Date of hearing: 20th September, 2010.

2011 M L D 1473

[Lahore]

Before Ch. Muhammad Tariq, J

Syed TAMTARRAQ MOHSAN SHAH---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SAHIWAL and 6 others---Respondents

Writ Petition No.13700 of 2010, decided on 24th January, 2011.

Punjab Rented Premises Act (VII of 2009)---

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Rent Tribunal had accepted the ejectment petition and Additional District Judge dismissed tenant's appeal---Tenant contended that execution of agreement to sell with the landlord had brought relationship of landlord and tenant to an end---Validity---Tenant had not produced the agreement to sell before the courts below---Alleged agreement to sell, being an unregistered document, did not create any title in tenant's favour---Petitioner was tenant under predecessor-in-­interest of the respondents and after death of said predecessor, he had become statutory tenant of respondents by operation of law, therefore, relationship of landlord and tenant did exist between the parties---Rent Tribunal could order ejectment where relationship of landlord and tenant stood established---Courts below passed elaborate and well reasoned orders---Constitutional petition was dismissed in limine.

Syed Athar Hasan Bukhari for Petitioner.

2011 M L D 1478

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

AZMAT BIBI and others---Petitioners

Versus

Mst. HAMIDAN BIBI and 3 others---Respondents

Civil Revision No.313-D of 1995, heard on 22nd February, 2011.

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

----Art. 124---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Plaintiff claiming to. be entitled to inherit land left by deceased as before his death, his wife and daughter were not heard of for more than 7 years---Defendant's plea that he was General Attorney of such two ladies; who were still alive---Effect---Daughter, if assumed not to be traceable or to have died before deceased, would be entitled to her share in land left by deceased---Wife, if died before death of her husband, would not receive any share in land left by him---Defendant had taken a specific stand with a different story that such two ladies were alive, thus, burden to prove same had shifted to defendant for being beneficiary of such two ladies---Plaintiff was held, not bound to prove that such two ladies were dead.

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

----S. 4---Qanun-e-Shahadat (10 of 1984), Art. 124--Succession---Daughter, if assumed not to be traceable or to have died before deceased, would be entitled to her share in land left by deceased---Wife, if died before death of her husband, would not receive any share in land left by him.

Muhammad Suleman Bhatti for Petitioners.

Ashfaq Ahmad and Ch. Abdul Ghani for Respondents.

Date of hearing: 22nd February, 2011.

2011 M L D 1494

[Lahore]

Before Muhammad Ameer Bhatti, J

Mst. MISBAH FATIMA---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary and 4 others---Respondents

Writ Petition No.11633 of 2010, decided on 7th June, 2011.

(a) Locus poenitentiae, principle of---

----Illegal order---Validity---Perpetual rights could not be claimed on basis of an illegal order---Principle of locus poenitentiae could be invoked in respect of an order being illegal or contrary to or in contravention of any provision of law.

(b) Constitution of Pakistan---

----Art. 199--General Clauses Act (X of 1897), Ss. 24 & 24-A---Constitutional petition---Civil Service---Appointment of Educator in Education Department---Withdrawal of appointment order without issuing show-cause, notice or providing opportunity of hearing to petitioner after having served for about eleven (11) months efficiently and diligently---Validity---Appointment order of petitioner was neither illegal nor contrary to any provision of law nor issued by an incompetent authority---Competent authority had passed appointment order after scrutiny of documents---Respondent had no authority to withdraw such appointment order without any justification---Respondent did not allege that petitioner had obtained appointment order by committing fraud or misrepresentation---Respondent had no locus poenitentiae to recall such order after same having been implemented---Petitioner had secured a vested right, which could not be taken away or withdrawn by authority without providing her an opportunity of hearing---High Court declared impugned order to be illegal and without lawful authority.

Mrs. Anisa Rehman v. PIAC and others 1994 SCMR 2232 rel.

(c) Public functionaries---

----Duty of public functionaries to perform their duties within parameters prescribed by law.

(d) Administration of justice---

----When law requires a thing to be done in a particular manner, then same should be done in such manner or the same should not be done at all---Principles.

PLD 2005 Kar. 128 and 2007 PSC 281 rel.

Sh. Usman Karimud Din for Petitioner.

Siddique Ahmad for Respondent No.5.

Firdous Butt, A.A.-G.

Muzaffarul Haq, Litigation Officer o/o EDO (EDU) Faisalabad.

Rana M. Younas Aziz, Law Officer Punjab School Education.

Ms. Rukhsana Nighat, Headmistress.

2011 M L D 1502

[Lahore]

Before Ch. Shahid Saeed, J

GHULAM SARWAR---Petitioner

Versus

MEMBER (JUDICIAL-VII) and 2 others---Respondents

Writ Petition No.240/R of 2010, heard on 14th June, 2011.

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

----Ss. 10 & 11---Constitution of Pakistan, Art. 199---Constitutional petition---Consolidation scheme, confirmation of---Petitioner had sold his share of land aggrieved by allotment of land less than his entitlement---Dismissal of petitioner's revision: petition by Board of Revenue---Validity---Scheme had already been finalized and all shareholders/ owners had been given their respective shares of land---Petitioner having sold his share of land had no locus standi in such matter---Alienation of whole or part of holding by petitioner would disentitle him to discretionary relief in constitutional jurisdiction as after alienation, rights of parties could not be re-adjusted and pre-consolidation condition could not be restored-Petitioner had no locus standi to file constitutional petition---Revenue authorities had rightly passed concurrent findings of fact and law---High Court dismissed constitutional petition in circumstances.

Muhammad Hayat Member Board of Revenue and others 1992 CLC 2351; Anwar Ali and 7 others v. Government of the Punjab through District Officer Revenue Jhang and 10 others 2008 CLC 278 and Abdul Ghani v. Abdul Farooq and others 1993MLD 1643 ref.

Rana Maqbool Hussain for Petitioner.

Ch. Muhammad Tufail for Respondent No.2.

Muhammad Azeem Malik, Additional Advocate General for the State.

Muhammad Nawaz, Halqa Patwari.

Date of hearing: 14th June, 2011.

2011 M L D 1518

[Lahore]

Before Kh. Imtiaz Ahmad, J

MUHAMMAD BASHIR---Petitioner

Versus

NOOR REHMAN---Respondent

Civil Revision No.725 of 2005, heard on 14th June, 2011.

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

----S.54---Criminal Procedure Code (V of 1898), Ss.22 & 22-A---Application for injunction---Suit land being Shamilat Deh possessed by plaintiff---Plaintiffs application to Ex-Officio Justice of Peace for registration of criminal case against defendant for having cut trees standing on suit land---Order of Justice of Peace directing plaintiff to approach revenue authorities---Effect---Such order would debar plaintiff to file application for injunction for protecting his possession.

(b) Co-sharer---

----Co-sharer in possession of specific property not beyond his share could protect his possession till taking place of partition in accordance with law.

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

----O. VII, R. 11(a) ---Specific Relief Act (I, of 1877), S. 54---Suit for permanent injunction -- Plaintiff being co-sharer in Shamilat Deh land seeking protection of his possession thereon---Application for rejection of plaint---Validity---Co-sharer in possession of specific property not beyond his share could protect his possession till taking place of partition in accordance with law---Plaint could not be rejected without determining that whether possession alleged by plaintiff was in excess of his share or not---Plaintiff had got cause of action to file suit as he could retain possession till partition, if found to be in possession within his share---Application for rejection of plaint was dismissed in circumstances.

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

----O.VII, R.11---Rejection of plaint---Scope---Merely form of the suit being incorrect could not be made basis for rejecting its plaint.

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

----O.I. Rr. 3, 10 & O.VII, R.11---Specific Relief Act (I of 1877), S.54---Suit for permanent injunction---Suit land being Shamilat Deh in possession of plaintiff---Non-impleading of all co-sharers as party in suit---Rejection of plaint---Scope---Provisions of O. VII, R.11, C.P.C., would not apply to such case.

Abdul Rehman v. Sher Zaman and others 2004 CLC 134 SC (AJ&K) rel.

Sheikh Zameer Hussain for Petitioner.

Sheikh Istiqamat Ali for Respondent.

Date of hearing: 14th June, 2011.

2011 MLD 1527

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD' RAFIQ and another---Petitioners

Versus

Mistri FAIZ MUHAMMAD and Others---Respondents

Civil Revision No.544-D of 2002, decided on 21st April, 2011.

Civil Procedure Code (V of 1908)---

----O. XXVI, R. 9 ---Specific Relief Act (I of 1877), Ss. 42, 54 & 55---Suit for declaration, mandatory and permanent injunction---Plaintiff alleged that defendant had encroached upon his land---Written consenting offer signed by both parties. and their counsels requesting Trial Court to refer such matter to a Referee nominated therein and decide suit on basis of his report---Appointment of Referee by court after recording statements of parties and their counsel directing him to visit spot in presence of parties and submit report about encroachment, if found any---Report of Referee along with "Naqsha Tajawaz" filed in court supported plaintiff's claim --Decree passed by Trial Court on basis of such report upheld by Appellate Court---Validity---Defendant had not denied his statement made before Trial Court and his signatures on such offer---Report submitted by Referee/Local Commission would amount to a content decree---Statements of parties seeking decision of suit on basis of report of such Referee had amounted to an agreement, and Referee was relegated to position of an Arbitrator and his decision had amounted to a consent decree---High Court dismissed revision petition in circumstances.

Muhammad Rashid and 3 others v. Murad Khan through L.Rs., 1997 CLC 1763 rel.

Munir Ahmad Kiani for Petitioners.

Niaz Mahmood Raja for Respondents.

2011 M L D 1532

[Lahore]

Before Muhammad Ameer Bhatti, J

KHALID RASHID and 5 others---Petitioners

Versus

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

Writ Petition No.2037 of 2010, decided on 8th June, 2011.

Exit from Pakistan (Control) Ordinance (XLVI of 1981)---

----Si 3---Constitution of Pakistan, Arts. 4, 9 & 199---Constitutional petition---Placing name of petitioner on Exit Control List (ECL) due to investigation being conducted by Anti Corruption Establishment into allegations of massive corruption levelled against him---Validity---Placing of petitioner's name on ECL would amount to interference in his liberty and movement during pendency of such investigation, which was against fundamental rights as guaranteed by the Constitution---High Court directed authority to remove petitioner' name from ECL.

Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others PLD 2010 Lah. 230 rel.

Agha Abut Hassan Arif for Petitioner.

Azar Deputy Attorney General.

Ms. Firdous Butt, A.A.-G. for Respondent.

2011 M L D 1553

[Lahore]

Before Sardar Muhammad Shamim Khan, J

BAHAR HUSSAIN alias BAHAR KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.583-B of 2010, decided, on 22nd March, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.392/411---Robbery, dishonestly receiving stolen property---Bail, grant of---Complainant had reported the matter to the police after a delay of 19 days without any plausible explanation---Despite the occurrence having taken place at night, no source of identification of accused had been given in the F.I.R.---Accused and his co-accused had allegedly injured the complainant and other prosecution witnesses, but no medical evidence in this regard was available on record---All the three accused, including the present petitioner, were alleged to have forcibly snatched the Motorcycle etc from the complainant, but the complainant himself had exonerated the two co-accused from the case by filing an affidavit, on the basis of which they had already been released on bail by the Magistrate---Accused was in jail for the last 7-1/2 months and his trial had not yet started---Guilt of accused needed further probe---Bail was allowed to accused in circumstances.

Tahir Islam v. The State 2009 PCr.LJ 677 ref.

Mehr Muhammad Haseeb Qadir for Petitioner.

Rana Kashif Saleem Arfaa, Law Officer.

Rab Nawaz A.S.-I. with record.

2011 M L D 1558

[Lahore]

Before Sagheer Ahmad Qadri, J

RAB NAWAZ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.201 of 2010, heard on 2nd June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 540---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Re-­summoning of prosecution witnesses---Trial Court had declined to recall the four prosecution witnesses for cross-examination on behalf of the accused---Although the order of Trial Court showed that the accused due to absence of his counsel had requested the court for providing him defence counsel at State expense, yet neither his statement in this respect had been recorded, nor his signatures were obtained on the order-sheet--When accused had already engaged a private counsel then his absence on one occasion was no ground for appointment of a defence counsel at State expense---Discrepancy of the date in the order-sheet showed that Trial Court in a hurry to conclude the trial had made this error or perhaps the order was recorded later on---No doubt law required the disposal of cases as early as possible, but not in a manner to give an impression of injustice having been done to any of the parties-Impugned ,order was consequently set aside with the direction to Trial Court to allow one opportunity to accused petitioner to cross-examine the required prosecution witnesses and in case of his failure to do so close his right of cross-examination---Petition was disposed of accordingly.

Najeebullah Khan and others v. The State and others 2007 SCMR 210 and Nadeem Wali v. State and another 2006 YLR 3308 ref.

Zia-ur-Rehman Randhawa for Petitioner.

Ch. Muhammad Ubaid Ullah Bhatti and Muhammad Saleem, S.-I. for Respondent.

Date of hearing: 2nd June, 2010.

2011 M L D 1564

[Lahore]

Before Rauf Ahmad Sheikh and Mamoon Rashid Sheikh, JJ

LEHRASAB HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.28-J of 2010 and Criminal Revision No.221 of 2002, heard on 11th January, 2011.

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

----S. 302(b)---Limitation Act (IX of 1908), S.5---Qatl-e-amd---Appreciation of evidence---Jail appeal had been filed with a delay of more than seven years---Plea of accused that he had remained under a bona fide mistake that the appeal had been forwarded and his relatives had also preferred appeal, was a valid ground for condonation of delay---Technicalities would not be allowed to hamper the course of justice---Powers regarding condonation of delay under S.5 of the Limitation Act, 1908, should be liberally exercised to ensure administration of justice in its true spirit---Deceased just after about one hour of the occurrence and before one hour and five minutes of his demise had categorically stated that accused had caused the injuries to him---Said dying declaration of the deceased was duly proved by the prosecution witnesses, who like the deceased had no reason for false implication of accused in the case, and the same did not need any further corroboration-Eye-witnesses had reasonably explained their presence near the place of occurrence and they had remained firm about having witnessed the occurrence---Prosecution had failed to positively establish the motive alleged by it and it must suffer for the same---Trial Court had rightly considered said failure of prosecution as a mitigating circumstance and sentence of imprisonment for life awarded to accused had met the ends of justice---Appeal of accused was dismissed in circumstances.

Ziaul Rehman v. The State 2001 SCMR 1405; Adil Hussain v. The State 2003 YLR 1901; Mian Muhammad Nawaz Sharif v. The State PLD 2009 SC 814; Akhtar Hussain alias Kaki v. The State 2009 PCr.LJ 444; Ghulam Qasim v. The `State 2008 PCr.LJ 230; Abdul Sattar v. The State and another 2008 AC 862; Mst. Zahida Bibi v. The State PLD 2006 SC 255; Majeed v. The State 2010 SCMR 55 and Noor Muhammad v. The State and another 2010 SCMR 97 ref.

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

----S. 5---Penal Code (XLV of 1860), S.302(b)---Qatl-e-amd---Limitation---Condonation of delay---Principle---Technicalities should not hamper the course of justice and the powers regarding condonation under S.5 of the Limitation Act, 1908, should be liberally exercised to ensure administration of justice in its true spirit.

Mian Muhammad Nawaz Sharif v. The State PLD 2009 SC 814 ref.

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

---S. 302(b)---Qatl-e-amd---Appreciation of evidence---Motive---Mitigating circumstance---Weakness or absence of motive is not a mitigating circumstance by itself, but once it is alleged, the same must be positively established, and if prosecution fails to do so, then it must suffer.

Noor Muhammad v. The/State and another 2010 SCMR 97 ref.

Aamir Shafiq Qureshi for Appellant.

Syed Hamid Ali Bokhari for the Complainant.

Ch. Muhammad Waheed Khan, Deputy Prosecutor General.

Date of hearing: 11th January, 2011.

2011 M L D 1574

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD IMRAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 4021-B of 2011, decided on 23rd June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.167/218---Police Order (22 of 2002), Art.155-C---Public servant framing incorrect record---Pre­-arrest bail, refusal of---Accused being an Investigating Officer of a murder case had re-written certain case diaries apparently to damage the prosecution case and had been found guilty of fabricating the statements recorded under S.161, Cr.P.C. of some witnesses by changing their version qua some important facts detailed in the F.I.R.--High Court while disposing of a writ petition had observed that the said Investigating Officer had committed heinous crime and he could not be relieved of his responsibility, when he had himself admitted the disparity between the statements written in two different handwritings---Director General, Anti-Corruption Department, was directed by High Court to look into the matter and proceed against the Investigating Officer in accordance with law---Accused after extensive inquiry had been found guilty of the offence as alleged in the F.I.R.---Accused had failed to show any malice or ulterior motive on the part of the complainant, which was a condition precedent for grant of extraordinary relief of bail before arrest---Prima facie, reasonable grounds appeared to believe that the accused had committed a non-bailable offence---Pre-arrest bail was declined to accused in circumstances.

Asghar Ali Gill for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor General Punjab.

Dr. Zafar Iqbal Shakir, Deputy Director, ACE.

2011 M L D 1586

[Lahore]

Before Ijaz Ahmed Chaudhry, C J

Ch. SHER MUHAMMAD through Legal Heirs---Appellant

Versus

Dr. MUHAMMAD QASIM GHARA and 2 others---Respondents

Regular First Appeal No.343 of 2005, heard on 3rd May, 2011.

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

----Arts. 17 & 79---Specific Relief Act (1 of 1877), S.12---Agreement to sell---Proof---Marginal witnesses and scribe-Non-payment of consideration---Parties entered into agreement to sell on 26-7-1990 but plaintiffs filed suit on the basis of renewed agreement dated 18-9-1996, and the suit was decreed by Trial Court in favour of plaintiffs---Plea raised by defendant was that plaintiffs did not perform their part according to agreement dated 26-7-1990 and subsequent agreement was a result of fraud---Validity---Plaintiffs did not produce scribe of renewed agreement to sell dated 18-9-1996, such lapse on their part was fatal---Marginal witnesses could not be considered as substitute of the scribe---Names of two witnesses of plaintiffs were not available on subsequent agreement to sell and name of one of such witnesses did not figure in the list of witnesses submitted by plaintiffs along with their plaint, therefore, statement of scribe was of paramount consideration---During cross-examination of both the witnesses of plaintiffs, they admitted that no payment was made by vendee to the vendor in their presence---Most essential requirements for execution of agreement to sell were missing, therefore, Trial Court erred in law while holding that plaintiffs had proved execution of alleged agreement to sell---Plaintiffs failed to prove execution of renewed agreement to sell dated 18-9-1996 as non production of scribe of the document had cast doubts about its veracity---High Court in exercise of appellate jurisdiction set aside the judgment and decree passed by Trial Court and the suit filed by plaintiffs was dismissed---Appeal was allowed in circumstances.

Muhammad Rasheed Khan v. Mst. Mehr-un-Nisa 2009 SCMR 740; Rab Nawaz and 13 others v. Mustageem Khan and 14 others 1999 SCMR 1362 and City Education Board (Registered) Sialkot through Director v. Mst. Maqbool Nasreen PLD 2008 Lab. 51 rel.

Chilya Corrugaged Board Mills Ltd. v. M. Ismail and another 1992 CLC 2524 and Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 ref.

M. Yaqoob Sidhu for Appellants.

Aatir Mehmood for Respondents.

Date of hearing: 3rd May, 2011.

2011 M L D 1618

[Lahore]

Before Umar Ata Bandial, J

AHMAD SHER and 7 others---Petitioners

Versus

PROVINCE OF PUNJAB through Superintendent Canal Officer, Jhelum and 7 others---Respondents

Civil Revision No.1781-I of 2009, decided on 26th January, 2011.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2--Suit for declaration and permanent injunction---Grant of interim injunction---Defendant/Irrigation Authorities, had concurrently closed down the outlet from which the plaintiffs were receiving irrigating water and defendants shifted lands of the plaintiffs to another outlet---Aggrieved by said orders of the Irrigation Authorities, the plaintiffs filed suit for declaration and permanent injunction---Trial Court granted interim relief to the plaintiffs and suspended order passed by Irrigation Authorities---Matter concerning interim relief had been prolonging since 2009, and suit had made no progress---In the matter of interim relief, it was mandate of law that the interest of all the parties concerned, must be attended to---Apart the fact that the Irrigation Authorities had expressed their view in favour of the impugned modification of the irrigation water supply, until evidence was brought on record by the plaintiffs showing that defendants irrigators were also receiving satisfactory supply of canal water under the outlet which was closed down; it was premature for High Court to direct an injunction as that was harmful to the irrigation requirement of defendants---As an interim measure; an arrangement which served the interest of all irrigators, both. plaintiffs and defendants, must be adopted, even though such arrangement could not fully satisfy such persons---Allegation that other outlet, to which land of the plaintiffs was shifted, was not capable of satisfactorily supplying water needs of the plaintiffs land, was no ground for rejecting said arrangement by ignoring the detriment caused to the defendant irrigators---Arrangement proposed by Departmental Authorities, was restored until the decision of the suit, in circumstances.

Allah Baksh Gondal for Petitioners.

Zaka-ur-Rehman Awan, Addl: A.G. and Ijaz Ahmad Chadhar for Respondents Nos.7 to 8.

Nawazish, S.D.O. and Ghulam Farooq, Sub-Engineer.

Date of hearing: 26th January, 2011.

2011 M L D 1624

[Lahore]

Before Abdul Waheed Khan, J

M. YASIN and others---Petitioners

Versus

BARO (deceased) through Fatima Bibi and others---Respondents

Civil Revision No.657 of 2011, heard on 17th June, 2011.

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

----S.13---Failure of the plaintiffs to mention the place and time as to when they made talb-e-muwathibat, was fatal for suit---Suit, in circumstances, was rightly dismissed concurrently by the courts below---In absence of any illegality or irregularity in the impugned judgments, same could not be interfered with, in circumstances.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 and Mst. Bashiran Begum v. Nazar Hussain and another PLD 2008 SC 559 rel.

Muhammad Abdullah Ch. for Petitioners.

Date of hearing: 17th June, 2011.

2011 M L D 1632

[Lahore]

Before Abdus Sattar Asghar, J

ABDUL KHALIQ and 3 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, MINCHINABAD and 4 others ---Respondents

Writ Petition No.1763 of 2011, decided on 19th May, 2011.

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

----O. XXVI, Rr. 9 & 10---Appointment of Local Commission to make local investigations---Scope---Court either suo motu or at request of a party could appoint Commission, if deemed the same necessary for deciding matter in dispute---Report of Commission and evidence taken by him would form part of record in case---Any party, if so desired, with permission of court could examine Commissioner touching matter referred to him or finding mention in his report.

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

----S. 8---Civil Procedure Code (V of 1908), O. XXVI, Rr. 9 & 10---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for possession of land---Appointment of Tehsildar as Local Commission for demarcation/Hadbarari of suit land to ascertain actual Khata Number and Khasra Number in which same was situated---Report of Tehsildar that demarcation of suit land for being situated in populated area was not possible---Rejection of report of Tehsildar by Trial Court without inviting objections of parties---Order of Trial Court directing Deputy Collector to appoint a senior Revenue Officer for such purpose---Revision petition filed against such order dismissed by Additional District Judge---Validity---Trial Court could appoint Commission either suo motu or at request of any party---Trial Court had passed impugned order in presence of counsel for parties---Deputy Collector had submitted report of demarcation and Trial Court had invited objections of parties thereon---Order XXVI, R. 10, C.P.C., provided sufficient safeguards to rights of both parties in order to utilize or otherwise such report as a piece of evidence---Defendant had faded to point out infringement of any of his rights---Courts below had passed impugned orders in lawful exercise of jurisdiction---High Court dismissed constitutional petition in circumstances.

Abdul Majeed Bhatti for Petitioners.

Ahmad Mansoor Chishti and Muhammad Khalid Shahid Buttar for Respondents Nos.3 to 5.

2011 M L D 1641

[Lahore]

Before Amin-ud-Din Khan, J

Syed ATTA HUSSAIN SHAH---Appellant

Versus

Ch. RIASAT ALI---Respondent

S.A.O. No. 12 of 2006/BWP, decided on 26th May, 2011.

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

----Ss. 2(c)(i), 13(6) & 15---Ejectment application---Denial of relation-ship of landlord and tenant between the parties---Tentative rent order---Striking off defence---Tenant appeared in the court, and filed written reply and denied relationship. of landlord and tenant between the parties---Before appearance of tenant on the first date, while entertain­ing the application, the Rent Controller passed tentative rent order to deposit arrears of rent and monthly rent---Tenant after appearing in the proceedings made an application for recall of said' tentative rent order---Rent Controller refused to recall said order and struck off the defence of the tenant; and passed ejectment order against the tenant--Appeal filed by the tenant against order of Rent Controller was dismissed by Appellate Court below on the ground that appeal was not entertainable against order passed by Rent Controller under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959---Tentative rent order passed by Rent Controller was behind the back of tenant, without taking into consideration the matter whether the relationship of landlord and tenant existed between the parties---First Appellate Court had not applied its mind to the facts of the case or it seemed as it had not even seen the orders passed by the Rent Controller---Orders passed by Rent Controller and that of Appellate Court, were set aside and case was remanded by High Court to the Rent Controller with the direction to frame an issue with regard to existence of relationship of landlord and tenant first and then decide that issue after taking evidence of the parties.

Mian Muhammad Suleman Joiya for Appellant.

Raja Muhammad Sohail Iftikhar for Respondent.

2011 M L D 1646

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD HAYAT and 3 others---Petitioners

Versus

MUHAMMAD KHAN and 5 others---Respondents

Civil Revision No.972 of 2004, heard on 29th September, 2010.

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

----S. 42---Suit for declaration---Trial Court dismissed the suit and appellate court remanded the case to Trial Court---Defendant contended that appellate court remanded the case without considering question of limitation in order to allow the plaintiffs to fill the lacunae of the case---Validity---Prima facie, the suit was hit by limitation but appellate court on its own directed plaintiffs to amend the plaint and challenge the registered sale deeds of disputed property---No legal sanctity was attached to the impugned order.

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

----O.XLI, R.23---Remand---Circumstances/criteria under which appellate/revisional court can remand a case enumerated.

The law has laid down certain criteria that an appellate/revisional court can remand a case in the following circumstances:

(a) where there has been erroneous exclusion of evidence;

(b) where the burden of proof has been placed on the wrong party;

(c) where the Trial Court has misunderstood the case;

(d) where material issues have not been determined by the lower court;

(e) where the suit was dismissed on the ground that it was brought in the name of the wrong plaintiff or wrong defendant;

(f) where the suit was found to be bad for multifariousness;

(g) where the decision is based on inadmissible evidence and such an evidence is reversed;

(h) where the relevant facts have not been taken into consideration;

(i) without parties' consent to a remand;

(j) where amendment is allowed in the pleadings at an appellate stage; and

(k) where plaint was wrongly rejected for non-payment of court-fee.

Ch. Muhammad Naeem for Petitioners.

Abdul Wahid Ch. for Respondents.

Date of hearing: 29th September, 2010.

2011 M L D 1652

[Lahore]

Before Nasir Saeed Sheikh and Muhammad Khalid Mehmood Khan, JJ

VICE-CHANCELLOR, UNIVERSITY OF HEALTH SCIENCES---Appellant

Versus

BREEHA ZAINAB and others---Respondents

I.C.A. No.174 of 2010 in Writ Petition No.7848 of 2009, heard on 23rd February, 2011.

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

----Ss.2, 8, 10, 22 & 23---Constitution of Pakistan, Art. 199---Law Reforms Ordinance (XII of 1972), S. 3(2)---M.B.B.S. Course, admission in---Seats reserved for disabled students---Order of Vice-Chancellor in capacity of Chairman of Academic Council of University refusing admission to respondent (disabled person)---Acceptance of respondent's constitutional petition by High Court---Infra Court Appeal by University---Maintainability---Academic Council of University under Chairmanship of Vice Chancellor had power to make decisions about admission to students in M.B.B.S., classes---According to Ss. 8 & 10 of University of Health Sciences Lahore Ordinance, 2002, Vice-Chancellor was one of "officers" and "authorities" of University respectively---Academic Council was mentioned as an Authority in S.22(iv) of the Ordinance---Remedy of revision against orders of such Council qua admissions of students in M.B.B.S. classes was provided under S.10 of the Ordinance---Appellant in earlier round of litigation had objected to maintainability of constitutional petition filed by respondent on-ground of availability of remedy of revision to her under S.10 of the Ordinance, and then respondent had opted to first avail such remedy before the Chancellor---Remedy of revision was available to respondent against order of Vice-Chancellor refusing her admission---Such order would be treated as original order for purpose of Proviso to S.3(2) of Law Reforms Ordinance, 1972---Intra-Court Appeal was not competent and dismissed in circumstances.

?

Mst. Karim Bibi and others v. Husain Bakhsh and another PLD 1984 SC 344 and Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore PLD 1985 SC 107 rel.

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

----S.3(2), Proviso---Constitution of Pakistan Art. 199---Infra-court appeal---Maintainability---Scope---Where remedy of appeal, revision or review was available against original order forming basis of constitutional petition, Intra court appeal would not be competent. ?

Mst. Karim Bibi and others v. Husain Bakhsh and another PLD 1984 SC 344 and Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore PLD 1985 SC 107 rel.

M.A. Hayat Haraj for Appellant.

Shujah Haider Syed for Respondent No.1.

Date of hearing: 23rd February, 2011.

2011 M L D 1684

[Lahore]

Before Altaf Ibrahim Qureshi, J

LAIK KHAN and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 8326-B of 2011, decided on 15th July, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 426(1-A)(c)---Penal Code (XLV of 1860), S.302/34---Qatl­-e-amd---Bail, grant of---Accused was arrested on 16-3-2009, whereas co-accused was arrested on 10-3-2009 and since their arrest both accused were continuously incarcerated in jail---Accused, in circumstances had also earned a statutory right, introduced vide proviso (c) of S.426(1-A), Cr.P.C.---Cases in which accused were in custody, were to be given preference---Expeditious trial was a right of an accused---Accused were not responsible for causing delay in the trial of the case---When a specific direction was issued by High Court with regard to expedite the trial, same must be acted upon by the Trial Court for faithful compliance of said direction---Non-compliance of the direction issued by the High Court, coupled with statutory ground; were considered sufficient for enlargement of accused on bail---To keep accused in jail for no fault on their part, when they were no more required for any purpose, would be of no avail to the prosecution---Accused were not hardened or desperate criminal---Accused were admitted to bail, in circumstances.

Ch. Munawar Iqbal for Petitioners.

Ch. Karamat Ali, Deputy Prosecutor General.

Muhammad Khan, Sub-Inspector with record.

2011 M L D 1695

[Lahore]

Before Sagheer Ahmad Qadri and Ijaz Ahmad, JJ

ASKARI AVIATION (PVT.) LTD. and others---Appellants

Versus

CIVIL AVIATION AUTHORITY and others---Respondents

I.C.A. No.42 of 2011, decided on 17th May, 2011.

Pakistan Civil Aviation Authority Ordinance (XXX of 1982)---

----Ss. 6 (3) & 16 (3)--- Law Reforms Ordinance (XII of 1972), S. 3---Intra Court appeal--- Embarkation fee--- Passengers, not provided with tickets--- Appellant company was providing aviation facilities and was engaged in transporting Pakistan Army troops on peace keeping mission of United Nations, through chartered planes--- Grievance of appellant that as it did not provide any ticket to Pakistan Army troops, therefore, Civil Aviation Authority could not demand embarkation fee from them--- Validity--- Appellant was just a contractor to transport Pakistan Army troops under the contract through chartered planes---Contract showed that it was agreed without any consideration of fixed amount, the air lifting services were to be provided to General Head Quarters / Pakistan Army, therefore, in no manner appellant's case could be taken falling under the ambit of S. 6(3) of Pakistan Civil Aviation Authority Ordinance, 1982--- Appellants in the agreement in question had themselves termed the troops as passengers--- Division Bench of High Court declined to interfere in the order passed by Single Judge of High Court who had rightly dismissed the constitutional petition--- Intra-Court appeal was dismissed, in circumstances.

Messrs Fatima Enterprises and others v. Federation of Pakistan through Secretary, Ministry of Education, Islamabad and others 1999 MLD 2889 and International Brands (Pvt.) Ltd. v. Federation of Pakistan through Secretary Revenue Division, Islamabad and 3 others 2005 PTD (Trib.) 2229 ref.

Army Welfare Sugar Mills Workers Union v. Army Welfare Sugar Mills 2009 SCMR 2002; SWE-PAK Pharmaceuticals Limited v. Registrar Trade Unions, Balochistan and another 1992 PLC 405 and M.U.A. Khan v. M. Sultan and another MLD 1974 SC 228 rel.

Aftab Ahmad Khan for Appellants.

Tanvir-ul-Islam for Respondents:

2011 M L D 1726

[Lahore]

Before Amin-ud-Din Khan, J

HADAYAT BIBI and others---Petitioners

Versus

Mst. LAL KHATOON and others---Respondents

Civil Revision 76-D of 1999/BWP, heard on 6th June, 2011.

Civil Procedure Code (V of 1908)---

----O.XXXII, Rr. 1, 2, 3---Specific Relief Act (I of 1877), S. 42---Suit for declaration against minors---Limitation---Main attack by counsel for defendants was that some of defendants were minors and no guardian ad litem was appointed by the courts; and no application under O.XXXII, C.P.C. was moved---All the minors were sued through their guardians---Minor defendants were sued through their mother, whereas another defendant (minor) was sued through his father; no prejudice thus had been caused to the minors as they were sued through their mother or father, who had no interest against the minors---If the appointment of the guardian of the minors ad litem by a formal order of the court was not made and no prejudice had been pleaded or shown, then it would remain only a formality that guardian ad litem was not appointed, which made no difference---Matter being of inheritance, limitation could not be a hurdle in the way of claiming the inheritance, specially when plaintiff was a pardhanashins lady---When there was no evidence on record showing specific ouster of plaintiff from the suit property, who was a legal heir of deceased, property in question would remain a joint property and possession of one co-sharer would be assumed to be the possession of all the co-­sharers---In absence of any jurisdictional defect, misreading or non-reading of evidence by courts below, revision petition against concurrent judgments and decrees, was dismissed, in circumstances.

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

Raja Muhammad Iftikhar Sohail for Petitioner.

Mian Muhammad Salam Joia and Jam Mohjoob Ahmed for Respondents Nos. 4 to 9.

Date of hearing: 6th June, 2011.

2011 M L D 1745

[Lahore]

Before Amin-ud-Din Khan, J

Messrs CHINA BEIJING CORPORATION---Petitioner

Versus

AHMAD BAKHSH CONSTRUCTION CO. and others---Respondents

Writ Petition 6050 of 2010/BWP, decided on 22nd June, 2011.

Civil Procedure Code (V of 1908)---

----O. IX, Rr.6, 13 & S.12(2)---Constitution of Pakistan, Art.199---Constitutional petition---Ex parte decree---Application for setting aside ex parte decree---Suit was decided ex parte as representatives of the defendant failed to appear in the court---Suit had been filed against defendant company through its Project Manager, who was dealing with the matters at place 'B', meaning thereby the sub-office of the company in the shape of Project Manager was available at place 'B'---Defendant had not denied the appearance in the court by its representatives---Application for setting aside ex parte decree filed by the defendant under O.IX, R.13, C.P.C. and S.12(2), C.P.C. could not be pressed into service simultaneously---Defendant could choose any one of those as those were self-contradictory---Objections taken by the defendant in the High Court had not been taken before the lower courts---Defendant (petitioner) had not come to the High Court with clean hands as his counsel who also appeared in the lower courts, had taken the stand that persons who appeared on behalf of the defendant in lower courts were not authorized---Constitutional petition was dismissed in circumstances.

Sh. Karim-ud-Din for Petitioner.

Sh. Faisal Muneer Ahmad and Naveed Khalil Chaudhary, A.A.-G. for Respondent.

Date of hearing: 22nd June, 2011.

2011 M L D 1756

[Lahore]

Before Rauf Ahmad Sheikh, J

SHAFIQ-UR-REHMAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.73-B of 2011, decided on 8th February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.377---Unnatural offence---Bail, grant of---Benefit of doubt---Further inquiry---Accused was not nominated in the F.I.R., which was lodged after about 9 hours of the occurrence---Accused was the next door neighbour of the complainant/victim, who was student of 11th class; his omission to mention the name of accused in the F.I.R., had given rise to many questions; and the allegation against accused clearly needed further probe and inquiry---Supplementary statement recorded on the next day could not be equated with the F.I.R. in any manner---Substitution of accused for person originally nominated in the F.I.R., cast doubt regarding involvement of accused in the commission of the alleged offence---Slightest doubt regarding prosecution version, was to be resolved in favour of accused, even at bail stage---Accused, in circumstances, was admitted to post arrest bail, in circumstances.

Muhammad Ilyas v. The State 2010 PCr.LJ 1782; Noor Muhammad v. State 2008 SCMR 1556 and Ghulam Abbas v. The 2004 YLR 3166 ref.

Malik Samim Asghar for Petitioner.

Muhammad Usman, D.P.-G. and Ghulam Mustafa, A.S.-I. for the State.

Muhammad Ilyas Siddiqi for the Complainant.

2011 M L D 1761

[Lahore]

Before Sardar Muhammad Shamim Khan, J

Sheikh MUKHTAR AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.4452-B of 2010, decided on 13th January, 2011.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.409---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust, criminal misconduct---Bail, grant of---F.I.R. had been registered with an extraordinary delay of more than four years without any proper explanation---Accused had allegedly embezzled various crops belonging to agronomist Research Centre and caused huge financial loss to the same---Complainant had levelled joint allegation against the accused and his co-accused---Secretary Agriculture had exonerated the accused and his co-accused from the charges---Co-accused had already been granted bail by High Court and case of accused was at par with his case---All the documentary evidence having been collected by the prosecution, the same was not likely to be tampered with by the accused---Case of accused fell within the purview of further inquiry---Accused was admitted to bail in circumstances.

Hussain Haqani v. The State 2000 PCr.LJ 161 ref.

Muhammad Khalid Farooq and Altaf Ibrahim Qureshi for Petitioners.

Hassan Mehmood Tareen, D.P.-G.

Tanvir Iqbal, Deputy Director A.C.E. Multan.

2011 M L D 1767

[Lahore]

Before Ijaz Ahmad, J

ZAIN IFTIKHAR SUKHAIRA---Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY through Registrar, and 3 others---Respondents

Writ Petition No.3213 of 2011, decided on 14th April, 2011.

Constitution of Pakistan---

----Art.199---Penal Code (XLV of 1860), Ss.419, 420, 468, 471 & 109---Prevention of Corruption Act, (II of 1947), S.5---Constitutional petition---Allegation of possessing false LL.B. degree by petitioner---petitioner who had allegedly passed L.L.B. examination, possessed degree by a University and he was enrolled as an advocate with the Bar Council---Subsequently LL.B. degree of the petitioner was found as fake, a criminal case under Ss.419, 420, 468, 471 & 109, P.P.C. and under S.5 of the Prevention of Corruption Act, 1947 was registered against the petitioner---Concerned university issued notice to the petitioner to appear before Committee and also to file written reply to the charge-sheet against him---Notice issued to the petitioner by the university though was not happily worded, but the weakness of the language of the notice, would not lead to conclusion that the Members of the Committee were biased, pre-determined and prejudiced against the petitioner---Held, University should requisition the original record regarding the examination of the petitioner from Investigating Agency, so that the petitioner should have a chance to examine the same in original; and the Members of the Committee would have a chance to confront the petitioner with the original record, which was the requirement of law---Petitioner would be given a fair chance to defend himself---Disciplinary proceedings should be conducted in a fair and transparent manner---Prayer of the petitioner for declaring the report illegal and void ab initio and to restrain the authorities from proceeding further, could not be acceded to; and the writ could not be issued as it would tantamount to thwarting the process---Constitutional petition was accepted accordingly.

Iftikhar Ahmed Khan and 2 others v. University of Azad Jammu and Kashmir through Vice-Chancellor and others 2010 CLC 1765 and Messrs Amin Textile Mills (Pvt.) Ltd. v. Commissioner of Income-Tax and 2 others 2000 SCMR 201 rel.

Mian Abbas Ahmad for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

2011 M L D 1773

[Lahore]

Before Sardar Tariq Masood, J

ABDUL QADIR KHAN MAMDOT---Petitioner

Versus

REGIONAL POLICE OFFICER, MULTAN and 5 others---Respondents

Writ Petition No.2952 of 2011, decided on 29th March, 2011.

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

----Ss. 420, 468 & 471---Constitution of Pakistan, Art.199---Constitutional petition---Cheating, forgery and using as genuine a forged document---Petitioner seeking stay of criminal proceedings till the final decision of pending suit with a further prayer that authorities be restrained from causing arrest of accused/petitioner in the said case---Petitioner was not a party in the proceedings before the Trial Court where criminal proceedings were pending against co-accused; and he himself had not appeared in the said court and was not even a party in the civil suit as defendant---Petitioner being an alien in both the criminal and civil proceedings pending in the courts his request for staying of the proceedings in the criminal case, was not justified---Proceedings in a criminal case need not be stayed till the decision of the civil suit as a universal rule---Civil suit and criminal proceedings could proceed side by side on their own merits---Merely because the civil proceedings relating to the same transaction had been initiated, could not be considered a legal bar in continuation of criminal proceedings which could proceed concurrently, because conviction for a criminal offence was altogether a different matter from civil liabilities---While spirit and purpose of the criminal proceedings was to punish offender for commission of crime, the purpose behind the civil proceedings was to enforce rights arising out of the agreements and contracts---Both the proceedings, in law, could co-exist and could proceed simultaneously, without any legal restriction---Judgment of civil court being not admissible in criminal proceedings to establish the truth of the facts upon which it was rendered, contention of the petitioner that proceedings in criminal trial be stayed till the final decision of the civil suit, had no force at all---In the present case, no proceedings qua the petitioner were pending in any court and he had not surrendered before the Police nor before any court; he was not a party in the civil suit and his co-accused was facing both proceedings in criminal and civil court---Accused was nominated accused in the case; he had directly approached the High Court that the Police be restrained to arrest him---High Court could not interfere into the process of investigation when direct evidence was available against him---Petitioner had not approached the Trial Court for stay of proceedings; and had directly moved the High Court by invoking the constitutional jurisdiction, though he and his co-accused were having a remedy before the Trial Court for seeking the asked relief---When a person had an alternate remedy for approaching the court of first instance, then he could not invoke constitutional jurisdiction of High Court---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Court could not deflect the normal procedure as provided by law---While invoking constitutional jurisdiction, court could not stifle the investigation or other proceedings during the investigation.

Muhammad Akbar v. The State and others PLD 1968 SC 281; Abdul Ahad v. Amjad Ali and others PLD 2006 SC 771; Sheraz Ahmad and others v. Fayyaz-ud-Din and others 2005 SCMR 1599; Riaz-ul-Haq v. Muhammad Aashiq Jorah and others 2000 SCMR 991; A. Habib Ahmad v. M.K.G. Scott Christian and others PLD 1992 SC 353; Abdul Haleem v. The State and others 1982 SCMR 988; Muhammad Tufail v. The State and another 1979 SCMR 437 and Akhlaq Hussain Kiyani v. Zafar Iqbal Kiyani and others 2010 SCMR 1835 distinguished.

Seema Fareed and others v. The State 2008 SCMR 839; Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512; Ahmad Saeed v. State 1996 SCMR 186; Talib Hussain v. Anar Gul Khan 1993 SCMR 2177; DIG of Police v. Anees-ur-Rehman Khan PLD 1985 SC 134 and Malik Huda Bakhsh v. The State 1995 SCMR 1621 rel.

Waqar Hassan Mir for Petitioner.

Mian Ijaz Hussain for Respondent No.4.

Mehr Nazar Abbas Chawan, A.A.-G. with Nazir, S.-I.

2011 M L D 1783

[Lahore]

Before Ch. Shahid Saeed, J

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE and 3 others---Petitioners

Versus

KASHIF IFTIKHAR---Respondent

Civil Revision No.1072 of 2007, heard on 11th July, 2011.

Educational Institution---

----Result of examination---Unfair means---Proof---Plaintiff was not satisfied with marks in one paper and after rechecking his marks were increased---Education Board instead of issuing matriculation certificate, initiated disciplinary proceedings against plaintiff on the allegation of using unfair means and overwriting the marks in his answer sheets---Trial court decreed the suit in favour of plaintiff and appeal filed by Education Board was dismissed by Lower Appellate Court---Validity---Education Board relied upon circumstantial evidence that plaintiff in connivance with Head Examiner had got his marks enhanced but the Head Examiner denied the allegations---One could not be penalized merely on presumptions as solid evidence was required to prove the allegations which was missing against plaintiff---Disciplinary Committee of the Board acted under parental jurisdiction and was bound to take all precautionary measures while appointing Examiner/Head Examiner, especially when Head Examiner was found involved in malpractices that Examiner must not have been appointed for such important post---Education Board failed to convince that Disciplinary Committee was validly constituted and quorum was complete---Education Board did not take proper action against delinquents inside the Board which was essential and positive step towards cleaning the Board from black sheep and avoiding such incidents, in future---Board had only held the plaintiff as responsible, which was not just and fair---Concurrent findings of law and fact of two courts below against the Education Board that it had mishandled the matter and remained failed to produce cogent evidence to prove its stance---Only one witness was produced by the Board who had shown his total ignorance about the matter---High Court declined to interfere in concurrent findings of two courts below---Revision was dismissed in circumstances.

Sheikh Shahid Waheed for Petitioners.

Athar Ali Sheikh for Respondent.

Date of hearing: 11th July, 2011.

2011 M L D 1792

[Lahore]

Before Rauf Ahmad Sheikh and Syed Iftikhar Hussain Shah, JJ

MASOOD-UL-HASSAN KHAN through Legal Heirs and another---Appellants

Versus

IFTIKHAR ALI and 3 others---Respondents

R.F.As. Nos.31 and 43 of 2001, heard on18th May, 2011.

Civil Procedure Code (V of 1908)---

----S.2(9) & O.XX, R.5---Judgment, essential ingredients of---Scope---Judgment must contain statement of case, points/issues and decision of court thereon with reasons so as to avoid undue delay and remand of case by appellate or revisional stages---High Court deprecated practice of subordinate courts not to give findings on all issues involved in case---Principle.

Riaz Hussain Sayeed and Malik Faiz Rasool for Appellants.

Islam Ali Qureshi for Respondents.

Date of hearing: 18th May, 2011.

2011 M L D 1801

[Lahore]

Before Kh. Imtiaz Ahmad, J

MUHAMMAD SHAFI and 4 others---Petitioners

Versus

PROVINCE OF PUNJAB through DO (R), Dera Ghazi Khan and 13 others---Respondents

Civil Revision No.202 of 2007, decided on 27th April, 2011.

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

----S.53---Civil Procedure Code (V of 1908), O.VII, R. 11---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Rejection of plaint---Plaintiffs claimed to have become owners of State land for having developed same and being in its possession as occupancy tenants since long---Defendant's application under O. VII, R. 11, C.P.C., for rejection of plaint on ground that according to Revenue Record, he was real owner of suit land, while plaintiffs were recorded therein as illegal occupants---Rejection of plaint by Trial Court on ground that plaintiffs being illegal occupants were not competent to file suit under S. 42 of Specific Relief Act, 1877 against real owners/defendants----Order of Appellate Court remanding case to Trial Court for its decision on merits---Validity---Plaintiffs had claimed to have become owners of suit land through operation of law---Revenue Record established possession of plaintiffs over suit land, thus, mere mention of their names therein as illegal occupants would not negate their claim---Position of a person in possession would be stronger---Suit for declaration and permanent injunction by a person having possessory rights in suit land would be maintainable as such rights would confer on him a legal status except against true owner, if any---Under S. 53 of West Pakistan Land Revenue Act, 1967, a person aggrieved by an entry in Revenue Record and claiming possessory rights could institute a suit under S. 42 of Act, 1877---Present suit was not barred by law---High Court dismissed revision petition in circumstances.

Karam Din through L.Rs. and others v. Muhammad Idrees 2010 CLC 246 and Mst.Safia Mushtaq v. Wali Muhammad and 18 others 2010 CLC 120 ref.

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

----O. V11, R. 11---Rejection of plaint---Scope---Court for such purpose would not consider defence put by other side except contents of plaint and presuming same to be correct --­Court could reject plaint after coming to conclusion that suit was barred by law.

Capt. Dr. Abdul Wahab v. Province of Punjab and another 1986 MLD 2049 and Hawaldar Sarwar Khan through General Attorney v. Province of Sindh, Revenue Department through Deputy Commissioner, Shikarpur and 5 others 1998 CLC 382 ref.

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

----Ss. 42 & 54 -- Suit for declaration and permanent injunction---Right of a person to maintain such suit though not being an owner of suit land, but only having possessory rights---Scope---Position of a person in possession would be stronger ---Possessory rights of a person would confer on him legal status except against true owner, if any, which would be equivalent to legal character as envisaged under S. 42 of Specific Relief Act, 1877---Such person could maintain such suit ---Principles.

Karam Din through L.Rs and others v. Muhammad Idrees 2010 CLC 246 and Mst.Safia Mushtaq v. Wali Muhammad and 18 others 2010 CLC 120 ref.

Muhammad Yafis Naveed Hashmi for Petitioner.

Asmat Ullah Khan Niazi for Respondents Nos.5 and 6.

Date of hearing: 26th April, 2011.

2011 M L D 1810

[Lahore]

Before Syed Kazim Raza Shamsi, J

MUHAMMAD ARSHAD JAVED and 6 others ---Appellants

Versus

JAVED FAZIL---Respondent

S.A.O. No.128 of 2010, heard on 28th June, 2011.

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

----Ss. 13(2)(i)(6) & 15---Ejectment petition---Default in payment of rent---Several rent receipts produced on record showed that name of the landlord was not correctly written thereon---Such receipts could not, in circumstances, be treated as legal tender of rent by the tenant to landlord and could not be taken into consideration---Courts below, had rightly accepted ejectment petition holding that the default in the payment of rent was proved.

Begum Capt. Mirza Ghulam Sarwar and another v. District Judge Jehlum and others 1987 SCMR 25; Saleem Ahmad v. Addl. District Judge and others 1992 CLC 1531; Muhammad Shabbir v. Haji Ghulam Sabir 1987 CLC 1189; Mst. Bachi Bhai v. Ghulam Abbas PLD 1972 Kar. 278; Messrs Crescent Publicity Services v. S.M. Younas and others 1980 SCMR 779; Khadim Hussain v. Nisar Ahmad 2003 SCMR 1580; Haji Allah Ditta v. Mst. Shehzadi Balqees and another 1980 SCMR 41; Khawaja Ghulam Mustafa v. Mian Waqar Ahmad PLD 1980 SC 9; Malik Manzoor Ahmad v. Sardar Muhammad 1991 CLC 877 and Qari Abdul Rehman and 6 others v. Jamaluddin and another 2000 SCMR 226 rel.

Muhammad Umar Riaz for Appellant.

Muhammad Hanif Niazi for Respondent.

Date of hearing: 28th June, 2011.

2011 M L D 1814

[Lahore]

Before Syed Ijaz Hussain Shah, J

Mst. NASEEM BIBI---Petitioner

Versus

S.H.O. POLICE STATION QUTAB PUR DISTRICT MULTAN and 3 others---Respondents

Criminal Miscellaneous No.285-HB of 2011, decided on 3rd June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Recovery of minors---Petitioner, a maternal aunt of alleged minor detenus had prayed for recovery of the minors from their father who had contracted a second marriage---Stepmother having treated the minors with cruelty, their real mother had filed suit for maintenance of the minors---Father of the minors in order to counter the said suit, filed an application for his appointment as a guardian for the person of the minors---During pendency of said application, real mother of the minors having died, father of the minors succeeded in getting an ex parte order for his appointment as a guardian for the person of the minors---Minors were living quite happily with their maternal grandmother after death of their real mother, but father of the minors along with others/respondents forcibly took the minors, whereafter they were being illegally detained---Ex parte order passed in favour of the father of the minors, was implemented by snatching the minors from their maternal grandmother against whom no order had been passed qua the minors---Ex parte order, in circumstances, could not affect the merits of habeas corpus petition---After passing away of the mother of the minors, their maternal grandmother had certainly a preferential right for the custody of the minors as compared to the father---High Court in habees corpus proceedings, had to see whether the alleged detenus were being illegally or improperly detained---Alleged detenus/minors had expressed that they did not want to live with their father and stepmother; and that they wanted to live with their maternal grandmother---Minors were snatched from their maternal grandmother in the execution proceedings for an order which was not passed against her---Minors, in circumstances were being detained improperly and it would be against the welfare of the minors, if they were left at the mercy of their stepmother and against their choice of living with their maternal grandmother---Minors were set at liberty to live with their maternal grandmother.

Muhammad Naeem Ullah for Petitioner.

Mirza Muhammad Kaleem for Respondents Nos. 2 to 4.

Muhammad Ashraf, father of the minors.

Mehr Nazar Abbas Chawan, A.A.-G.

Sabir Hussain, S.-I./S.H.O.

2011 M L D 1827

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD SIDDIQUE---Appellant

Versus

PROVINCE OF PUNJAB and others---Respondents

R.S.A. No.3 of 2008/BWP, heard on 15th June, 2011.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.VII, Rr.11 & 13---Suit for specific performance of contract---Rejection of plaint---Presentation of fresh plaint---Plaint was rejected on the basis of non-payment of court-fee---Under O.VII, R.13, C.P.C. rejection of plaint on any of the grounds mentioned in O.VII, R.11, C.P.C., would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action---Decree for specific performance of the agreement to sell, would declare a right of decree-holder to have property agreed to be transferred to him---Title of the property would vest in the judgment-debtor till sale-deed was executed and registered in favour of the decree-holder.

Muhammad Ishaq v. Muhammad Siddique PLD 1975 Lah. 909; Muhammad Hanif through Legal Heirs v. Province of Punjab through District Collector, Vehari and others 2007 CLC 1309 and Subedar Sardar Khan through Legal heirs and others v. Muhammad Idrees through General Attorney and another PLD 2008 SC 591 rel.

Sh. Kareem-ud-Din for Appellant.

Raja Muhammad Iftikhar Sohail for Respondents.

Date of hearing: 15th June, 2011.

2011 M L D 1834

[Lahore]

Before Amin-ud-Din Khan, J

AKHTAR HUSSAIN---Appellant

Versus

ALLAH DITTA and others---Respondents

S.A.O. No.9 of 2008, decided on 20th June, 2011.

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

----Ss. 2(c)(i), 13 & 15---Ejectment petition---Tenant denied existence of relationship of landlord and tenant between the parties---Rent Controller framed five issues and tried the same and after full trial accepted the ejectment petition---When relationship of landlord and tenant was denied, the Rent Controller was bound to frame only one issue with regard to the existence or otherwise of the relationship of landlord and tenant between the parties---Though issue with regard to the existence or otherwise of relationship of landlord and tenant was framed but unnecessarily other issues had been framed and tried---No direct evidence was with regard to existence of tenancy was available and it was the petitioners who asserted the relationship of landlord and tenant and onus to prove that issue was on the petitioners, which they failed to discharge---Petitioners did not deny that most of the portion of premises in question had been sold through registered sale deeds to various persons and there was no other property owned by them adjacent to the property in question---Petitioners having failed to discharge onus to prove issue with regard to existence of relationship of landlord and tenant, findings recorded by both courts below were result of misinterpretation of documentary evidence on record---Both courts, in circumstances reached to a wrong conclusion---Findings recorded by both courts below, were set aside and ejectment petition was dismissed, in circumstances.

Ahmad Mansoor Chisthi for Appellant.

Muhammad Ibrahim Khan for Respondents.

2011 M L D 1844

[Lahore]

Before Muhammad Ameer Bhatti, J

MUHAMMAD ASHFAQ and another---Petitioners

Versus

SENIOR MEMBER, BOARD OF REVENUE, PUNJAB and 5 others---Respondents

Writ Petition No.9994 of 2011, decided on 24th June, 2011.

(a) West Pakistan Land Revenue Rules, 1968---

----Rr. 17 & 18---Constitution of Pakistan, Art. 199---Constitutional petition---Lambardar, appointment of---Appointment order passed by District Officer Revenue (DOR) upheld by Executive District Officer (Revenue) in appeal filed by nine candidates including petitioner---Board of Revenue set aside such order in revision petitions filed by only three candidates and remanded case to DOR for deciding matter afresh after considering comparative qualification of candidates in accordance with law---Order of DOR refusing to allow petitioner to participate in post-remand process of appointment for not being revision petitioner before Board of Revenue was upheld by EDO and Board of Revenue---Validity---Every qualified citizen had a fundamental right to contest for any vacant seat and no restriction could be imposed on his such right---Fundamental rights enshrined in the Constitution would take precedence over rule of estoppel---Board of Revenue in remand order had not limited process of appointment of Lambardar to extent of revision petitioners, but had opened doors for all eligible candidates to participate in contest irrespective of fact of having filed revision or not---High Court set aside impugned orders while directing DOR to treat petitioner at par with other contesting candidates and make such appointment afresh after considering comparative qualifications of all eligible candidates including petitioner in accordance with law and rule on subject.

(b) Lambardar---

----Vacant seat, contest for---Scope---No restriction could be imposed on a citizen to contest for such seat, if eligible to compete therefore, for same being his fundamental right.

(c) Estoppel---

----Fundamental rights enshrined in the Constitution would take precedence over rule of estoppel.

Ch. Muhammad Rafique Warriach for Petitioners.

Ms. Firdous Butt, A.A.-G. for Respondents.

Date of hearing; 13th June, 2011.

2011 M L D 1848

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD ASHRAF---Petitioner

Versus

MUHAMMAD TAHIR ISMAIL and others---Respondents

Civil Revision No.405 of 2010, decided on 26th May, 2011.

Civil Procedure Code (V of 1908)---

----O. VII, R.2, O.XIII, Rr.1, 2 & S. 151---Qanun-e-Shahadat (10 of 1984), Art.78---Suit for recovery of amount---Production of original document---Both parties produced their respective evidence in proof of their claim---Plaintiff filed application for summoning of official of NAB as court witness at the stage of rebuttal evidence---Said application was dismissed by the Trial Court, observing that plaintiff could produce certified copies of documents filed against him---Plaintiff in spite of producing the certified copies of the requisite documents in his rebuttal evidence, produced some original documents---Defendant objected for exhibiting and marking those documents in evidence of the plaintiff---Trial Court rejected the objection of the defendant and allowed said documents to be admitted in evidence---Validity---Under Art.78 of Qanun-e-Shahadat, 1984, without the proof of signature and hand-writing of person alleged to have signed or written, documents could not be taken in evidence---Production of those documents in the statement of counsel for the plaintiff, was not permissible under the law and it was sufficient to presume that the documents which had been admitted without proof, would be used against the defendant; and it would definitely prejudice his case---Impugned order passed by the Trial Court allowing the plaintiff to produce original documents without proof, was set aside with direction to the Trial Court to de-exhibit those documents and return to the plaintiff in accordance with O.XIII, C.P.C.

Malik Ashiq Muhammad for Petitioner.

Raja Muhammad Sohail Iftikhar for Respondents.

2011 M L D 1851

[Lahore]

Before Muhammad Ameer Bhatti, J

ZAHOOR-UD-DIN and 2 others---Petitioners

Versus

JANNAT BIBI and another---Respondents

Civil Revisions Nos.2165 and 2166 of 2007, decided on 24th June, 2011.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Qanun-e-Shahadat (10 of 1984), Arts. 79, 117 & 120---Declaration of title and injunction---Sale deed, proof of---Onus to prove---Failure to produce two witnesses---Each party filed a suit, respondent sought declaration of title on the basis of sale deed whereas petitioner sought recovery of possession---Both the courts below concurrently passed judgments and decrees in favour of respondent on the ground that sale deed in question was admitted document and suit filed by petitioner was dismissed---Validity---Where contents of a document were put to the executant, the construction of that document would have been proved but the contents could not be considered to have been proved by simply acceptance of document by executant---Mere admission of petitioner of sale deed in question was not tantamount to admission of entire series of acts as would give validity to the sale deed itself and it could not dispense with proof of attestation of the sale deed---Original owner of suit property did not appear before the Registrar at the time of registration of the sale deed but a commission was appointed for obtaining his signatures---Neither any commission was produced for verification of the sale deed nor any other evidence was brought on record by respondent for proving of the sale deed, thus the same had cast doubt about the validity of the sale deed---Respondent was beneficiary of the sale deed who failed to prove the document and both the courts below wrongly held that due to admission made by petitioner in another document, about the sale deed in question, there was no need for respondent to prove the sale-deed---Both the courts below had overlooked such principle of law---High Court in exercise of revisional jurisdiction set aside the judgments and decrees passed by two courts below and suit filed by respondent was dismissed and that of petitioner decreed in his favour---Revision was allowed in circumstances.

Ejaz Anwar for Petitioners.

Muhammad Akhtar Rana for Respondents.

Date of hearing: 20th June, 2011.

2011 M L D 1855

[Lahore]

Before Rauf Ahmad Sheikh, J

Mst. SHARAF ILAHI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Writ Petition No.7251 of 2002, heard on 26th May, 2011.

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

----O. XVII, R. 3---Constitution of Pakistan Art. 199---Constitutional petition---Non-production of evidence---Non-appearance of a plaintiff's witness in court due to illness of his brother---Closure of plaintiff's evidence by court---Dismissal of plaintiff's revision by revisional court---Validity---Plaintiff had produced his witnesses in court on three consecutive dates prior to relevant date, but their evidence could not be recorded for no fault of plaintiff---Trial Court on relevant date had recorded statements of three witnesses of plaintiff, but had closed his evidence after refusing to grant him adjournment for producing one missing witness, whose brother was hospitalized---Brother of such missing witness had died on next day---Plaintiff's failure to produce such missing witness was not contumacious---Despite grant of last and final opportunity to plaintiff to produce evidence on relevant date, reasonable grounds existed for granting him an adjournment for such purpose---No one could be deprived of reasonable opportunity to produce evidence by invoking penal provisions of O. XVII, R. 3, C.P.C.---Trial Court while refusing to grant adjournment for production of witness had committed material irregularity and acted in haste by ignoring principle to decide disputes of people with "Adal" and "Ihsan"---High Court set aside impugned orders and directed Trial Court to record statement of such witness and then decide suit on merits within specified time.

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

----O. XVII, R. 3---Non-production of evidence---Penal provision of O. XVII, R. 3, C.P.C., invocation of---Scope---Such provisions should be invoked with care and caution and no one should be deprived of reasonable opportunity to produce evidence.

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

----S. 115---Revision---Non-production of copies of pleadings and evidence along with revision petition---Dismissal of revision on such failure of petitioner---Scope---Revisional court could either direct petitioner to produce such documents or dispense with the same---Mere such failure would not be sufficient to dismiss revision in view of glaring irregularity, if any, committed by Trial Court.

1991 SCMR 496; 1993 CLC 1313 and PLD 1987 SC 447 rel.

(d) Constitution of Pakistan---

----Art. 199 ---Civil Procedure Code (V of 1908), S. 115---Constitutional petition against order passed by revisional court---Scope---Court or Tribunal vested with powers to decide case would be bound to decide case on merits and in accordance with law---High Court in constitutional jurisdiction could scrutinize and set aside such order, if same was wrong, against principles of natural justice or established law or passed on erroneous application of law---Principles.

PLD 1987 SC 447 rel.

Mian Mushtaq Ahmad for Petitioner.

Saghir Ahmad Bhatti for Respondents.

Date of hearing; 26th May, 2011.

2011 M L D 1859

[Lahore]

Before Muhammad Ameer Bhatti, J

JAMAAT ALI and 6 others---Appellants

Versus

BAHADUR---Respondent

Regular Second Appeal No.107 of 2000, decided on 30th June, 2011.

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

----S.21---Right of pre-emption---Waiver of right---Proof---Presence of pre-emptor at the time of bargain/registration---Pre-emptor filed suit against the land sold by his father---Vendee and his witnesses tried to prove the fact that the pre-emptor was present at the time of bargain as well as registration of sale instrument---Trial Court dismissed the suit but Lower Appellate Court decreed the same in favour of pre-emptor---Validity---From the evidence of vendee it could not be deduced that pre-emptor was present at the time of bargain or at the time of registration---Even if it was presumed that pre-emptor was present at the time of bargain and registration of document, even then from his presence it could not be derived that he waived his right of pre-emption---Overt and positive acts were necessary for the proof of participation in sale transaction but such element could not be proved through oral evidence---Even through oral evidence, whatever the vendee succeeded to prove was only the presence of pre-emptor---Mere presence of pre-emptor at the time of bargain did not constitute relinquishment of the right of pre-emption---High Court declined to interfere in the findings of Lower Appellate Court as it was not perverse or erroneous---Second appeal was dismissed in circumstances.

PLD 1986 SC 360; 1984 CLC 403; 1985 CLC 1974; PLJ 1968 BJ 5; 1985 MLD 1535; PLD 1972 SC 133; 1980 CLC 2063; PLD 1969 SC 617; 1986 CLC 2513; 1998 SCMR 473; 1996 SCMR 808 and PLD 1999 Lah. 1290 ref.

Salim Khan Chechi for Appellants.

Muhammad Ramzan Chaudhry for Respondent.

Date of hearing: 16th June, 2011.

2011 M L D 1865

[Lahore]

Before Ch. Iftikhar Hussain and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD SHEHZAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.335-B of 2011, decided on 20th January, 2011.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing narcotic drug---Bail, refused of---Previous bail application filed by accused in High Court had been withdrawn by his counsel after arguing the same at full length---Huge quantity of "charas" weighing six kilograms had been recovered from the accused---Challan had been submitted in the court---Accused was not entitled to the relief of post-arrest bail at present stage---Bail was declined to accused in circumstances.

The State through Force Commander, Anti-Narcotics Force, Rawalpindi v. Khalid Sharif 2006 SCMR 1265 rel.

Mian Jameel Akhtar for Petitioner.

A.D. Naseem, Special Prosecutor ANF for the State.

2011 M L D 1867

[Lahore]

Before Rauf Ahmad Sheikh, J

NUMAN AZAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.192 of 2010, heard on 17th February, 2011.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 83---Qanun-e-Shahadat (10 of 1984), Art. 46(1)---Qatl-e-amd---Appreciation of evidence---Deceased immediately after administration of poison to him had narrated the event to two prosecution witnesses, who had no enmity or grouse against the accused, which was relevant under Art.46(1) of the Qanun-e-Shahadat, 1984---No specific mode for making dying declaration was required under the law, which could be made verbally or in writing to any person---Investigating Officer had himself recorded the dying declaration of the deceased on his narration of the facts in the form of complaint, in which deceased had pointed out the accused as the person who had administered poison to him in a drink---According to the reports of Chemical Examiner and post-mortem, Aluminium Phosphide was detected in the blood, urine and viscera of the deceased---Strong medical evidence and the prosecution evidence had fully corroborated the dying declaration made by the deceased before his death---Accused, thus, was rightly held responsible for causing the death of the deceased by Trial Court on the basis of proper appraisal of evidence---Accused was more than 13-1/2 years old at the time of occurrence and he could be deemed to be mature enough to understand the consequences of his act, and he, therefore, was not entitled to the benefit of S.83, P.P.C.---Case was not of sudden provocation---Accused after the quarrel and patching up of the matter, had left the place of occurrence, brought the poisonous material and deceitfully administered the same to the deceased---Sentence of imprisonment for life awarded to accused was commensurate with the gravity of the offence---Appeal was dismissed in circumstances.

Majeed v. The State 2010 SCMR 55 and Farmanullah v. Qadeem Khan and another 2001 SCMR 1474 ref.

Tariq Parvez Janjua for Appellant.

Muhammad Usman, D.P.-G., for the State.

Tanveer Iqbal Khan for the Complainant.

Date of hearing: 17th February, 2011.

2011 M L D 1888

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD ARSHAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 6529-B of 2011, decided on 1st July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 337-F(v), 452 & 34---Qatl-e-amd, attempt to commit qatl-e-amd causing Hashimah and house-trespass---Bail, refusal of---Dangerous and hardened criminal---Scope---Complainant on a dozen occasions, appeared before the Trial Court along with three or four private witnesses for their examination, but their evidence could not be recorded by the Trial Court only due to non-availability of defence counsel---Detention/incarceration of accused since 10-5-2008 could be an important circumstance, but the way the trial had been handled by him or by the defence counsel, had left much to be desired---Miseries of the complainant, could not be gauged by any measure as to how he would preserve the prosecution witnesses under his wings for years so as to make sure that their statements were recorded by the Trial Court before they were done any damage---Terms used in the exceptional clause of fifth proviso of S.497, Cr.P.C., the hardened, desperate or dangerous criminal, could not be interpreted or understood independent of the mode of the occurrence or the role played by accused during the occurrence---If an accused did not think twice before he committed a gruesome or a heinous crime like offence of murder, he had to be dubbed as a dangerous or a hardened criminal, within the meaning of exceptional clause to the fifth proviso of S.497, Cr.P.C.---Case of accused fell in the said category; his bail application was dismissed, in circumstances.

Aftab Hussain Bhatti for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor-General Punjab.

Malik Nisar Ahmad Khokhar for the Complainant.

Ghulam Ali A.S.-I. with record.

2011 M L D 1894

[Lahore]

Before Muhammad Yawar Ali, J

MUHAMMAD ARIF---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1 of 2010 in Criminal Appeal No.595 of 2005, decided on 17th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.302(b)---Qatl-e-amd---Petition for suspension of sentence---Accused in his statement under S.342, Cr.P.C. had stated that the deceased tried to commit sodomy upon him and since he resisted, the deceased attacked him with a dagger, but in the scuffle which ensued, the deceased sustained an injury which ultimately caused his death---Accused had further stated that he fled from the scene of occurrence and subsequently he surrendered himself before the Police authorities---Said statement of accused did not inspire confidence---Deceased sustained a serious injury inflicted with a dagger which went deep into his body---Single injury going very deep into the body of the deceased, could not have been sustained by him, if he was grappling with accused and both of them were in very close proximity to each other---Both the eye-witnesses took the deceased in the hospital with the complainant swiftly---Eye-witnesses had no previous enmity with accused and would not have falsely deposed against him---Accused had committed a heinous offence by inflicting a serious injury with a dagger to the deceased---Bail was not to be allowed to a convicted person as a matter of right, moreso when he was guilty of having committed a heinous offence---After recording of conviction, the status of an "accused person" changed and the judgment of the Trial Court convicting him was not to be suspended in the absence of a glaring illegality or a patent error which was apparent from the record---Minor discrepancies in the prosecution evidence, could not be the basis of suspending the sentence awarded to an accused---No detailed scrutiny of evidence and only a tentative assessment of evidence was to be made---Petition was dismissed.

Muhammad Amin alias Naeem v. The State 2005 YLR 1757 distinguished.

Rafique Ahmad alias Shika v. The State 2005 PCr.LJ 193 rel.

Sh. Dilawar Hussain for Petitioner.

Ch. Muhammad Akbar, Deputy Prosecutor General, Punjab.

2011 M L D 1914

[Lahore]

Before Sagheer Ahmad Qadri, J

KHALID MEHMOOD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.918-B of 2011, decided on 15th July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.406---Criminal breach of trust---Bail, grant of---Parties entered into agreement to sell in respect of sale/purchase of land in consideration of Rs.23,76,000 out of which Rs.2,00,000 were paid by the complainant to accused as earnest money---Subsequent to the said agreement, the complainant found that land subject matter of the agreement of sale, was not in the entitlement of accused; and he demanded back earnest money and on refusal, case had been registered against accused---Amount of Rs.2,00,000 was transferred to accused as a result of the agreement of sale in respect of land, prima facie it was not entrustment, but a transaction through an agreement, the performance of which could be sought by filing the civil suit---Offence under S.406, P.P.C. being punishable upto 7 years' R.I. with fine, same, in circumstances did not fall within the prohibited clause of S.497, Cr.P.C.---Grant of bail in such like cases, was a rule and refusal an exception---Accused was admitted to bail, in circumstances.

Muhammad Rauf v. The State 2000 YLR 1911; Muhammad Irshad and others v. Amanat Ali and another 2004 SCMR 1375; Mrs.Ghazala Parveen v. Sadiq Daniel and 18 others 2010 YLR 1275; Lal Hussain v. Muhammad Akber and 2 others 1995 PCr.LJ 946 and Abdul Majid v. The State 2003 MLD 194 ref.

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

Ch. Mazhar Husain Minhas for Petitioner.

Kh. Sohail Iqbal, Deputy Prosecutor General for the State.

Khawaja Muhammad Asghar Farooq for the Complainant.

Altaf Hussain, S.-I. Police Station City, Chakwal with record.

2011 M L D 1919

[Lahore]

Before Kh.Imtiaz Ahmad and Ijaz Ahmad, JJ

ABDUL HAMEED---Petitioner

Versus

THE STATE and anther---Respondents

Criminal Revision No.451 of 2010, decided on 20th April, 2011.

Penal Code (XLV of 1860)---

----Ss. 302(b), 309, 310, 311 & 338-E [as amended by Criminal Law (Amendment) Act (I of 2005)]---Criminal Procedure Code (V of 1898), S.345(2-A) [as amended by Criminal Law (Amendment) Act (I of 2005)]---Qatl-e-amd---Compromise---Compromise having been effected between the Wallis/legal heirs of both the deceased and accused, accused moved an application under S.345(2), Cr.P.C. before the Trial Court---Wallis/legal heirs of the deceased were summoned and their statements were recorded---Trial Court did not grant the permission to compound the offence and application to compound the offence was dismissed on the ground that accused had committed qatl-e-amd of deceased out of "ghayrat"---Amendment inserted in S.338-E(1), P.P.C. and S.345, Cr.P.C. through Criminal Law (Amendment) Act, 2005, had made it obligatory that the offence committed in the name or on the pretext of "Karokari", "Sayah Kari" and similar other customs or practices, could be waived or compounded subject to such conditions as the court would deem fit to impose with the consent of the parties, having regard to the facts and circumstances of the case---Court would not have an option to impose or not to impose the conditions---Imposition of the conditions was mandatory---Mildness or severity of the conditions had to be determined with the consent of the parties having regard to the facts and circumstances of the case---Offences falling under Chapter XVI of P.P.C. and mentioned in the Schedule under S.345, Cr.P.C., even if committed in the name of "Ghayrat", "Karokari", "Sayah Kari" and similar other customs, were compoundable and could be waived---Order passed by the Trial Court refusing the composition or waiver of the offence was illegal and violative of law---Case was remanded to the Trial Court, which would pass an order regarding the composition or waiver of offence, after imposing the conditions with the consent of the parties.

Malik Muhammad Salim for Petitioner.

Muhammad Amjad Rafique, D.P.-G. for Respondents.

2011 M L D 1938

[Lahore]

Before Asad Munir, J

NAVEED MUNIR---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, LAHORE and another---Respondents

Writ Petition No.26514 of 2010, decided on 27th June, 2011.

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

----S. 7---West Pakistan Family Courts Act (XXXV of 1964), Ss. 5, 17 & Sched.---West Pakistan Family Courts Rules, 1965, R. 13---Civil Procedure Code (V of 1908), S. 12(2) & O. IX, R. 13---Constitution of Pakistan, Art. 199---Constitutional petition---Guardian of person and property of minor boy, appointment of---Contest between step-mother and cousin of minor after death of minor's father leaving behind considerable assets and a will entrusting custody of minor to his wife (minor's step-mother)---Step-mother's application under S. 12(2), C.P.C. for setting aside guardianship certificate of minor obtained by his cousin without notice to her---Dismissal of step-mother's application by Guardian Judge and withdrawal of appeal filed there-against by her---Application by step-mother under O. IX, R. 13, C.P.C., for setting aside such guardian certificate obtained by minor's cousin dismissed by Guardian Judge for being time barred and non-maintainable as she was not party to proceedings filed by cousin of minor---Guardianship certificate of person and property of minor obtained subsequently by step-mother, challenged by cousin of minor by filing application before Guardian Judge still pending---Step-mother's appeal filed against order of dismissal of her application under O. IX, R.13, C.P.C., accepted by Appellate Court remanding case to Guardian Judge for decision of such application on merits after framing issues and recording evidence---Validity---Each party had managed to obtain guardianship certificate of minor through different orders of Guardian Judge by keeping other party in dark and not impleading him/her in proceedings instituted by him/her---Two different guardians could not be appointed for one and same minor by two exclusive orders---Provisions of C.P.C., would not apply to proceedings before Guardian Judge/Family Court by virtue of S. 17 of West Pakistan Family Courts Act, 1964---Dismissal of step-mother's application under O. IX, R. 13, C.P.C. on ground of being non-maintainable would not help to resolve dispute between parties---Welfare of minor would demand appointment of one guardian---Guardian Judge could resolve such dispute by revisiting and striking down of one of two such certificates obtained by parties---Both orders of appointment of guardian of minor still under challenge could not co-exist for being mutually contradictory---Guardian Judge was bound to exercise his parental jurisdiction and inherent powers to safeguard well-being of minor---Welfare of minor must override any other consideration and could not give way to technicalities and formalities---Both parties had registered criminal cases against each other and challenged each other's guardianship certificates---Only one person either cousin or step-mother could act as guardian of minor---Conflict between parties would continue till declaration of either of them as guardian of minor---Appellate Court had rightly directed Guardian Judge to decide matter on merits---High Court dismissed constitutional petition in circumstances.

Rehmat Din and others v. Mirza Nasir Abbas and others 2007 SCMR 1560; Syed Akbar Shah and 4 others v. Syed Usman Bacha and 3 others PLD 1994 Pesh. 194 and Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 ref.

Zainab Tiwana v. Aziz Ahmad Wariach and others PLD 1967 Lah. 977; Dr. Asma Ali v. Masood Sajjad and others PLD 2011 SC 20; Ejaz Mahmood v. Mst. Humaira and another 1983 CLC 3305; and Malik Khizer Hayat Khan Tiwana v. Mst Zainab Begum PLD 1967 SC 402 rel.

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

----S. 7---Guardian of minor, appointment of---Scope---Two different guardians for one and same minor could not be appointed by two exclusive orders.

Naseem Sabir Chaudhry for Petitioner.

Malik Muhammad Ghazanfar Ali Khokhar for Respondent No.2.

2011 M L D 1947

[Lahore]

Before Sh. Najam ul Hasan and Sardar Tariq Masood, JJ

MUHAMMAD AMIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.2084 of 2005 and Murder Reference No.277 of 2006, heard on 17th January, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---F.I.R. stated that unknown persons had killed the deceased while using firearm weapons---No suspicion was shown against any one---Complainant made a supplementary statement later on while relying on the statements of prosecution witnesses, who had allegedly seen the accused along with others near the place of occurrence---Extra judicial confession was made by accused and others one month and seven days after the occurrence---Such joint extra judicial confession, was not tenable in the eyes of law---No eye-witness of the occurrence was on record---Deceased was all alone when he was done to death---No crime weapon was found near the place of occurrence and nothing was brought on record indicating the involvement of accused in the case---No one having seen the occurrence, there was no need of identification parade---Medical evidence did not show as to which kind of weapon was used---Prosecution case, in all was based on evidence of accused being the last seen near the place of occurrence---Other accused were found innocent by Investigating Officer and their names were not mentioned as accused, in the report under S.173, Cr.P.C.---Such fact also created a big dent in the prosecution case---Carbine allegedly recovered was not sent to the Fire Arms Expert to verify as to whether same was in working order---Said recovery was of no use---No crime empty was recovered from the place of occurrence---Even the statement of Doctor did not indicate that carbine was used in the occurrence---Motive had not been proved---Only evidence in the case was of extrajudicial confession against accused, which was also available against other accused persons, who were acquitted by the Trial Court---Such an evidence alone was not sufficient for conviction of accused in a case of capital charge---Prosecution having not been able to prove the guilt of accused beyond reasonable doubt, accused was entitled to benefit of doubt---While extending accused benefit of doubt, he was acquitted of the charge and was released, in circumstances.

1997 SCMR 866; 1989 SCMR 1099 and 2006 SCMR 463 ref.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Zafar Iqbal and others v. The State 2006 SCMR 463 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Rana Muhammad Arif and Aftab Ahmed for Appellants.

Shahid Bashir Ch., D.P.-G. for the State.

Asghar Ali Gill for the Complainant.

Date of hearing: 17th January, 2011.

2011 M L D 1961

[Lahore]

Before Umar Ata Bandial, J

NADEEM ELLAHI through Special Attorney---Petitioner

Versus

DEPUTY DISTRICT OFFICER (REGISTRATION)/SUB-REGISTRAR and another---Respondents

Writ Petition No.7221 of 2011, decided on 13th June, 2011.

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

----Sched. I, Arts. 35(a)(ii) & 35(b)(i)---Constitution of Pakistan, Art.199---Constitutional petition---Rent deed, registration of---Stamp duty---Determination---Advance payment of rent for 12 months, mentioned in rent deed, was considered by authorities as "money advanced" as mentioned in Art. 35 (b) (i) of schedule-I to Stamp Act, 1899, therefore, petitioner was directed to pay two per cent of the consideration amount as duty---Validity---Meaning of expression "money advanced" was distinct from advance payment of rent, therefore, order passed by authorities was against the letter and spirit of law---Authorities had ignored Art. 35 (a) (ii) of Schedule-I to Stamp Act, 1899, which catered for amount of stamp duty payable on lease agreement extending for term of one year but not more than three years---As Schedule-I of Stamp Act, 1899, did not deal with specific case of advance payment of rent under a lease, therefore, general provision of Art. 35 (a)(ii) of Schedule-I to Stamp Act, 1899, remained applicable as charging provision to transaction in question---Order passed by authorities for deposit of two per cent of consideration amount was set aside---Constitutional petition was allowed in circumstances.

Citibank v. District Registration/District Collector/Deputy Commissioner, Lahore and another 1999 MLD 110 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Alternate remedy---Question of law---Scope---Alternate remedy available to petitioner must be adequate in terms of Art. 199 of the Constitution---Case involving a question of law can primarily be interpreted by superior courts.

Messrs Shamim and Co. v. Tehsil Municipal Administration, Multan City through Nazim and 2 others 2004 YLR 366; Messrs Pioneer Cement Ltd. v. Province of the Punjab and another 2000 CLC 54; United Business Lines S.I.E. Gujranwala and another v. Government of Punjab and 5 others PLD 1997 Lah. 456 and Khadim Hussain and another v. District Council, Lyallpur and another PLD 1976 Lah. 1044 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Object---To prevent injustice caused by excessive exercise of power by public authority.

Ahsan Mehmood and Mirza Muzafar Ahmad for Petitioners.

Zaka-ur-Rehman Awan, Addl. A.G. for Respondent.

2011 M L D 1976

[Lahore]

Before Mazhar Iqbal Sidhu, J

SHAHEEN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1008 of 2009, heard on 24th June, 2011.

Penal Code (XLV of 1860)---

----Ss. 302/148/149---Qatl-e-amd---Appreciation of evidence---Prose-cution had not led any evidence about the alleged nefarious activities of accused or anybody else who were inmates of her house---Both the prosecution witnesses, had been found to have not seen the occurrence; and being kith and kin of the deceased had made false statements in the case---By virtue of natural conduct and actions of said witnesses, no prudent man could accept their presence at the place of the occurrence---Presence of said witnesses was discarded and their evidence was also disbelieved, in circumstances---Evidence of crime weapon, was always regarded as collateral and not substantive; and if the court did not believe the corroborative piece of evidence, same could not be relied upon which was discarded---Onus of proof always remained on the prosecution and if the prosecution had not discharged its duty as required by law, then it was not obligatory to accept the version of an accused and the court could not be compelled to accept the same---No doubt the dead body was found in the house of accused, but that fact alone was not sufficient to connect accused with his murder---Conviction and sentence of accused were set aside and he was acquitted of the charge and was set at liberty in circumstances.

Sayed Ali Bepari v. Nibran Mollah and others PLD 1962 SC 502 ref.

Rana Muhammad Arif for Appellant.

Ch. Saeed Akhtar Kamboh for the Complainant.

Noor Muhammad Bhatti, D.P.P. for the State.

Date of hearing: 24th June, 2011.

2011 M L D 1987

[Lahore]

Before Ijaz Ahmed, J

Messrs COCA-COLA BEVERAGES---Petitioner

Versus

CANTONMENT BOARD CHAKLALA, RAWALPINDI and others---Respondents

Writ Petitions Nos.2192 of 2007, 1728, 4430 of 2010 and 1346 of 2011, decided on 22nd June, 2011.

(a) Cantonments Act (II of 1924)---

----Ss. 61, 62, 63, 112, 116 & 117---Punjab Local Government Ordinance (XIII of 2001), S.116 & Second Sched. Part-3, Item No.6---Constitution of Pakistan, Art. 199---Constitutional petition---Imposition of fee by Cantonment Board on sign boards installed in front of shops/offices for advertisement of commercial activities and its collection from petitioners through a contractor---Validity---Using of shutter gates or sign boards on shops by petitioners for displaying name of their products or logo had no relation with any advertisement made through hoarding boards, bill boards or any other mode of advertisement---Cantonment Board under S. 60 of Cantonments Act, 1924 could impose those taxes permitted to be imposed under any enactment of any municipality of the Province---Tehsil Municipal Administration under S. 116 read with Item No. 5, Part 3 of Second Sched. of Punjab Local Government Ordinance, 2001 could levy tax or fee on advertisement other than on radio, television and bill boards---Fee would mean to defray cost of particular services rendered to a particular individual on principle of quid pro quo---Tax would be levied as a part of common burden and for public purpose---No rules had been framed under Cantonments Act, 1924 to provide for collection of fee for use of borrowed space of sign boards of shops on an internal arrangement between borrower and lender---Impugned demand could not be termed as a 'fee' in absence of providing any service or facility by Cantonment Board to petitioners for displaying name of their products and logo on their shops---Cantonment Board could not impose tax without satisfying pre-conditions of drawing proposals, fixation of liability and publication of notification---Impugned tax was not prevalent in collateral Local Councils---Contracts permissible under S.112 of the Act, were those necessary for purpose of the Act---Such purpose would include duties and discretionary functions of Cantonment Board laid down under Ss. 116 and 117 of the Act---Collection of fees and taxes could be means for ensuring accomplishment of such purposes, but not a purpose itself---Cantonment Board could not collect fees and taxes through contractor---Impugned demand was an illegality in itself and its collection through a contractor was a contempt---High Court declared impugned demand as illegal and ineffective on rights of petitioners.

Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190; Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab PLD 1977 SC 639; Qarshi Industries (Pvt.) Ltd. through Deputy Manager (Admin) v. Government of N.W.F.P through Secretary Local Government and Rural Development Department Peshawar and 10 others PLD 1998 Pesh. 26; Mst.Nargis Moeen and another v. Government of Pakistan through Secretary Defence, Islamabad and another PLD 2003 Lah. 730; Station Commander, Chaklala Cantt. v. Col. (R) Muhammad Abbas Malik 2006 CLC 1674; Cantonment Board, Lahore Cantt. through Executive Officer and 2 others v. Mst.Sultan Jahan 2007 YLR 1547; Mst.Sultan Jahan v. Cantonment Board, Lahore Cantt., through Executive Officer and 2 others 2007 YLR 1681; Arbab Contracting and Co., through Managing Partner v. Tehsil Municipal Administration Multan and 2 others 2005 MLD 1520; Clifton and Defence Traders Welfare Association through General Secretary v. President, Clifton Cantonment Board, Karachi and 4 others PLD 2003 Kar. 495 and Human Safety Foundation v. Govt. of Sindh and 11 others 2009 MLD 628 ref.

Glaxo Laboratories (Pakistan) Ltd. v. Union Council, Dulu Khurd through Chairman and 4 others 1991 CLC 354; Azad Government of the State of Jammu and Kashmir through Chief Secretary Azad Kashmir Government, Civil Secretariat Muzaffarabad v. Haji Mir Muhammad Naseer and others 1999 PLC (C.S) 1173; Shabbir Hussain v. Tehsil Municipal Administration Rahimyar Khan through Nazim and 3 others 2008 YLR 1889; Messrs Ace Quality (Pvt.) Ltd. through Chief Executive v. Tehsil Municipal Administration, Multan Saddar through Nazim and 3 others 2007 CLC 35 and Muhammad Munir Abdullah v. T.M.A. and others 2010 YLR 2543 rel.

(b) Words and phrases---

----"Fee" and "tax"---Meaning and distinction between the two stated.

Fee is meant to defray the cost of particular services rendered to a particular individual on the principle of quid pro quo. Tax is levied as a part of common burden. It is imposed for public purpose.

Mustafa Ramday for Petitioner.

Mirza Viqas Rauf and Waqar-ul-Haq Sheikh for Respondent.

2011 M L D 2004

[Lahore]

Before Mamoon Rashid Sheikh, J

NASEEM HAIDER---Petitioner

Versus

JARRAR HUSSAIN and others---Respondents

Civil Revision No.2046 of 2007, heard on 14th July, 2011.

Partition Act (IV of 1893)---

----Ss. 3 & 4---Qanun-e-Shahadat (10 of 1984), Art.114---Suit for partition--Estoppel---Local Commissioner found suit property as indivisible and recommended that property be put to sale and parties given their respective shares from the sale proceeds---When process of sale of suit property through open auction was initiated, parties arrived at a compromise and it was settled that one of the co-sharers would pay the entire sale price of the suit property to the other co-sharers in the property within three months, in consideration whereof the other co-sharers undertook to vacate the property in dispute and hand over the vacant possession to the offering co-sharer---Said co-sharer could not deposit the agreed sale amount within stipulated period of three months; but on his application, period to deposit amount was extended and he deposited the amount in the extended period---Respondents (other co-sharers) received their respective shares, while share of the petitioner was deposited in the Treasury under the order of the court---Contention of the petitioner was that compromise effected between the parties was not binding on him as the consideration was not paid by the respondent co-sharer in time; that petitioner in application under S.3 of Partition Act, 1893 had offered enhanced price to all the other share-holders; that application by respondent co-sharer for enlargement of time was wrongly accepted by the Trial Court behind the petitioner's back and that he had been condemned unheard---Validity---Compromise in question was effected between the parties as a consequence of the earlier application of the petitioner filed under Ss.3 & 4 of the Partition Act, 1893---Question of estoppel would arise in the case but counsel for the petitioner had not been able to satisfy the court on that score---Petitioner was also unable to show or point out any illegality or material irregularity in the impugned orders of the courts below---Concurrent findings of fact of the courts below against the petitioner, could not be interfered with by High Court in revision, when the petitioner appeared to be merely delaying the matter.

Firdous Begum and 6 others v. Mst. Salamat Bibi and another 2008 CLC 248 ref.

Bashir Ahmad Qureshi for Petitioner.

Ch. Muhammad Abdullah for Respondents.

Date of hearing: 14th June, 2010.

2011 M L D 10

[Peshawar]

Before Mazhar Alam Khan Miankhel and Syed Sajjad Hassan Shah, JJ

Miss Sayeda SAIRA BOKHARI---Petitioner

Versus

FEDERAL SECRETARY, MINISTRY OF HOUSING AND WORKS GOVERNMENT OF PAKISTAN and 5 others---Respondents

Writ Petition No. 2200 of 2006, decided on 30th September, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Cancellation of allotment of plot---Plot in question was allotted to the petitioner by the authorities and the petitioner had deposited requisite amount of the plot---Subsequently authorities issued a letter to the petitioner/allottee to get the refund of deposited amount---Validity---Relief claimed by the petitioner, was nothing less than the enforcement, fulfilment of contract/agreement arrived at with authorities, which was out of domain of High Court in its constitutional jurisdiction---Even otherwise petitioner being allotee of plot in question from authorities, could have many other available remedies like, specific performance, damages, and allotment of a substitute plot as offered by the authorities to the petitioner---Constitutional petition was dismissed.

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1988 SCMR 2268 ref.

Miss Neelam A Khan for Petitioner.

Sabahuddin Khattak and Muzammil Khan, D.A.G. for Respondents.

Date of hearing: 30th September, 2010.

2011 M L D 18

[Peshawar]

Before Sardar Shaukat Hayat, J

Mst. WAGMA---Applicant/Petitioner

Versus

SULEMAN and 2 others---Respondents

Cr.M. B.C.A. No.784 of 2010, decided on 20th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd and attempt to commit qatl-e-amd---Cancellation of bail, application for---Specific role of firing had been attributed to accused persons who allegedly caused the death of the deceased, coupled with other material on record tentatively connecting accused persons for commission of offence mentioned in the F.I.R.---No possibility of mala fide charge in the case existed---Application for cancellation of bail was allowed and impugned order granting bail passed by the Trial Court, was recalled/withdrawn to the extent of accused persons.

Abdul Lateef Afridi for Applicant/Petitioner.

Ghulam Mahudin Malik for Respondent.

Lal Jan Khattak, A.A.-G. for the State.

Date of hearing: 20th August, 2010.

2011 M L D 29

[Peshawar]

Before Shah Jehan Khan Yousafzai, J

ISRAR ALI and others---Petitioners

Versus

AKHTAR ALI and others---Respondents

Civil Revision No. 361 of 2007, decided on 19th February, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiffs claimed that they were in continuous possession of suit land which was sold by its owner to them---Defendants on the other hand claimed that they derived inheritance from the owner of suit property who had been continuously recorded the owner in Revenue Record and that suit land had rightly been devolved upon them---Trial Court framed issues arising from the pleadings of the parties and after recording pro and contra evidence of the parties, dismissed suit filed by the plaintiffs, which was upheld by Appellate Court---Plaintiffs having failed to discharge their burden through cogent evidence, concurrent findings of the courts below based on record could not be interfered with by the High Court in revision.

Javed A. Khan for Petitioners.

Saifullah Khalil for Respondents.

2011 M L D 45

[Peshawar]

Before Liaqat Ali Shah and Imtiaz Ali, JJ

SARDAR SHAH and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No. 158 and Murder Reference No.11 of 2009, decided on 22nd June, 2010.

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

----Ss. 302/324/109/148/149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-e-amd, attempt to commit qatl-e-amd and terrorism---Appreciation of evidence---Abandonment of injured witnesses---Effect---Injured witnesses, except the complainant had been abandoned without any valid reasons, which fact had gone a long way against the prosecution; and the Trial Court could not record conviction against accused persons qua those injured witnesses who were not examined---Both counsel for the State as well as complainant party conceded that accused persons could not have been punished for the injuries caused to those who had not appeared and charged accused persons during the trial---Conviction of sentence awarded to accused for causing injuries to the injured prosecution witnesses who were not produced during the trial, was set aside.

1991 SCMR 241; 1992 SCMR 2037; 1972 SCMR 286 and 1996 SCMR 167 and 170 rel.

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

----Ss. 7 & 19---Terrorism---Powers of Anti-Terrorism Court to take suo motu action---Judge Anti-Terrorism Court, somehow or the other came to know about the occurrence; and while taking suo motu notice directed the local Police to produce accused along with record of the case before him---No such like provision was available in Anti-Terrorism Act, 1997 to take suo motu action by the Judge Anti-Terrorism Court---Section 19 of Anti-Terrorism Act, 1997, consisted of 14 subsections, but none of those authorized the court to take such suo motu action---Judge, Anti-Terrorism Court appeared to have assumed the powers which were not available to him by Anti-Terrorism Act, 1997---Such like powers could be exercised by the High Court, that too in its constitutional jurisdiction, when it would come to the conclusion that the case was the one triable under the provisions of Anti-Terrorism Act, 1997, but the Investigating Agency for one reason or the other had not added the provisions of said Act.

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

----Ss. 302/324/109/148/149---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-e-amd, attempt to commit qatl-e-amd and terrorism---Appreciation of evidence---Except one, remaining injured were very closely related to the complainant family, but they were not produced during the trial and were abandoned as unnecessary---Said witnesses could not be said to be unnecessary---When relationship of the injured persons found mention in the statement of complainant, being injured witnesses their testimony would. have been of great worth and significance and they should have been produced---Such a situation led the court to draw an inference adverse to the prosecution in terms of Art.129(g) of Qanun-e-Shahadat, 1984---When no motive was alleged qua the deceased and injured persons and was specifically against the prosecution witness, then why none of the accused, including accused, even tried to attempt at the life of that prosecution witnesses---No doubt weakness of motive or absence of motive, per se could not be taken fatal to the prosecution case, but in the present case alleged motive could not be ignored/overlooked, because it had direct bearing on the presence of prosecution witness---None of the eye-witnesses in their court statement had stated about accused by specifically charging as to who gave blows to whom---Site plan showed that a dagger-sheath was alleged to have been recovered, which seemed to be subsequent addition---Prosecution had failed to establish its case against accused persons beyond any shadow of doubt---Conviction and sentence awarded to accused by the Trial Court was set aside and they were acquitted of the charges against them and were set free.

PLD 1984 SC 375; 2005 PCr.LJ 279; MLD 2009 54; 2007 NLR 317(sic); 1998 SCMR 1818 and 2009 SCMR 736 ref.

(d) Criminal trial---

----Abscondence of accused---When an accused would abscond, if not in every case, the abscondene was taken as a circumstance against him.

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

----Ss. 302/324/109/148/149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-e-amd, attempt to commit qatl-e-amd and terrorism---Recovery of dagger---According to recovery memo, Investigating Officer had taken into possession the dagger, which was pointed out by accused---Nothing was in memo of recovery or in sketch that dagger was blood-stained---Statement of Investigating Officer did not mention that dagger was blood-stained, whereas in the Forensic Science Laboratory's report it was found to be having stained with human blood---Where neither the statement of Investigating Officer, nor the sketch or the recovery memo shown that dagger was blood-stained, then how in the laboratory report same was found having stains of human blood---Murder Reference was answered in the negative in circumstances.

2004 PCr.LJ 813; PLD 1975 SC 556(8) and 1998 SCMR 1823 ref.

Barrister M. Zaheer ul Haq for Appellant.

M. Ishtiaq Ibrahim, A.A.-G. for the State.

Malik Ghulam Mohyuddin for the Complainant.

Date of hearing: 21st June, 2010.

2011 MLD 71

[Peshawar]

Before Mazhar Alam Khan Miankhel and Syed Sajjad Hassan Shah, JJ

ABDUL KHALIQ---Petitioner

Versus

SAFDAR and 2 others---Respondents

Writ Petitions Nos. 2057 and 2171 of 2010, decided on 5th October, 2010.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

---Ss. 6, 12, 13 & 31---West Pakistan General Clauses Act (VI of 1956), S 8---Civil Procedure Code (V of 1908), O. VII, R.11--Limitation Act (IX of 1908), S.12---Constitution of Pakistan, Art.199--Constitutional petition---Suit for pre-emption---Limitation---Rejection of plaint----Sale transaction in respect of suit property was effected through a registered sale-deed dated 11-6-2009 and pre-emption suit was filed by the plaintiff on 9-11-2009---Suit, in circumstances was filed well within the prescribed period of 120 days as provided under S.31 of North-West Frontier Province Pre-emption Act, 1987---Day (11-6-2009) on which sale transaction took place had to be excluded and count would start from the very next day, which would be the first day of said count and the day on which suit was filed would be the last day of count and that was to be included---After excluding the first day of registration of the sale-deed and including the day when the suit was filed, suit was instituted on 120th day, which was well with the prescribed period---Appellate Court in circumstances, was not justified in rejecting plaint on ground of limitation.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6, 12, 13 & 31---West Pakistan General Clauses Act (VI of 1956), S.8---Civil Procedure Code (V of 1908), O. VII, R.11---Constitution of Pakistan, Art.199---Constitutional petition---Suit for pre-emption---Limitation---Rejection of plaint---Sale transaction in respect of suit property was effected on 10-6-2009 and suit was filed on 9-10-2009---Suit, in circumstances was filed on 121st day of limitation, which was beyond prescribed period of 120 days as provided under S.31 of North-West Frontier Province Pre-emption Act, 1987---Appellate Court, in circumstances has rightly rejected plaint in that case.

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

----O. VII, R.11---Scope and application of O. VII, R.11, C.P.C.---Rejection of plaint---Provisions under R.11 of O. VII, C.P. C. could well be applied, when the matter before the court was quite clear and visible on the face of the record; and determination of the same did not require further proof of the same through recording of evidence.

Abdul Sattar Khan for Petitioner.

Abdul Zakir Tareen for Respondents.

Date of hearing: 5th October, 2010.

2011 M L D 93

[Peshawar]

Before Attaullah Khan, J

Haji MUHAMMAD ZAMAN---Applicant

Versus

THE STATE and 2 others---Respondents

Miscellaneous Bail Cancellation Application No. 331 of 2010, decided on 12th October, 2010.

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

----S. 498---Pre-arrest bail, grant of---Principles---Principles for grant of pre-arrest bail and post-arrest bail were totally different in matter of pre-arrest bail, the court was supposed to examine as to whether accused had proved mala fide on the part of the complainant or prosecution or his false involvement.

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

----Ss. 497(5) & 498---Penal Code (XLV of 1860), S.302/34---Qatl-e­-amd---Application for cancellation of pre-arrest bail---Record had shown that accused were directly charged by the complainant for committing the murder of the deceased-Occurrence was of a broad day-light with no question of mistaken. identity---Report was lodged with all reasonable promptitudes---Tentative assessment of the material brought on record, prima facie, had connected accused persons with the commission of offence---Accused were not entitled to the concession of bail---Pre-arrest bail granted to accused person, was recalled, in circumstances.

Asad Aziz for Applicant.

Sh. Iftikhar-ul-Haq for Respondents.

D.A.G. for the State.

Date of hearing: 11th October, 2010.

2011 MLD 107

[Peshawar]

Before Attaullah Khan and Sher Muhammad Khan, JJ

HABIBULLAH through legal heirs---Petitioner

Versus

Mst. RUKHSANA BIBI and 2 others---Respondents

Writ Petition No. 531 of 2009, decided on 23rd June, 2010.

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

----S. 13---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment---Default in payment of rent---Tenant denied the relationship of landlord and tenant contending that respondent/landlord was not the sole owner of the rented house---Validity---Application of the tenant to deposit the rent in the court established that he was in occupation of the house in question as tenant---Dower deed in favour of the landlady/respondent by her husband showed that she was owner of the house---Petitioner was correctly held to be tenant---Petition was dismissed accordingly.

Muhammad Waqar Alam for Petitioner.

Muhammad Waheed Anjum for Respondents.

Date of hearing: 23rd June, 2010.

2011 M L D 131

[Peshawar]

Before Muhammad Safdar Khan Sikandari, J

MEHR ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail No. 323 of 2010, decided on 20th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9-B---Penal Code (XLV of 1860), S.188---Possession of narcotics, disobedience to order duly promulgated by public servant---Bail, grant of--Further inquiry---In the absence of any independent witness, credibility of statements of Police would be determined by the Trial Court---Prosecution failed to obtain the report of Forensic Science Laboratory which would establish whether the material taken from the possession of the accused was a narcotic substance or something else---Delay in the report entitled the accused to concession of bail as his case required further inquiry---Bail was granted.

2007 MLD 1092 rel.

Sanaullah Khan Gandapur and Bahadur Khan for Petitioners.

Sanaullah Khan Shamim Gandapur, D.A.-G. for the State.

Date of hearing: 20th August, 2010.

2011 MLD138

[Peshawar]

Before Zia-ur-Rehman Khan, J

GUL ZARI KHAN---Petitioner

Versus

ZAFARULLAH---Respondent

Civil Revision No.1313 of 2010, decided on 27th September, 2010.

North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 6---Transfer of Property Act (IV of 1882), S. 52---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Pre-emption suit---Application for grant of temporary injunction to restrain attestation of sale mutation entered by vendee regarding suit property prior to filing of suit---Validity---Plaintiff except making such application neither added a plea of perpetual injunction in suit nor did express his intention to pre-empt subsequent sale nor did sought to implead subsequent vendee in suit---Valid sale could be effected orally, and mere attestation of its mutation being a formality, thus, its withholding through interim order would not serve any useful purpose in absence of subsequent vendee as party to suit---Interim injunction order would not be legally binding on a person not a party to suit---New situation could not be created with help of injunction, particularly when petitioner was not going to sustain some irreparable loss---Right or title in pre-emption suit would be acquired through substitution on basis of decree with respect to suit property---Superior right of pre-emption was yet to be proved by plaintiff---Such application was dismissed in circumstances.

Abdul Qayum through legal heirs v. Mushk-e-Alam and another 2001 SCMR 798, Muhammad Sharif and others v. Mst. Fateh Bano and others 2004 SCMR 813; Mst. Nazir Begum and 2 others v. Muhammad Tahir and others 2005 CLC 95; Muhammad Ramzan and another v. Haji Karim Bakhsh and 5 others 1988 CLC 448 and Mst. Atia Sultana v. Muhammad Siddique and 3 others 1988 MLD 1109 ref.

Muhammad Hussain V. Muhammad through legal heirs PLD 2010 SC 803; Din Muhammad v. Abrar Hussain and another PLD 2009 SC 93 and Abdul Yamin Khan v. Ashrat Ali Khan and others 2004 SCMR 1270 rel.

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

----O.XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S.53---Transfer of Property Act (IV of 1882), S.52---Temporary injunction, grant of---Scope---Such injection could be granted at initial stage in order to maintain status quo or avoid multiplicity of proceedings or preserve suit property from being wasted or further alienated.

Nasir Mehmood for Petitioner.

Hidayatullah Khattak for Respondent.

Date of hearing: 20th September, 2010.

2011 M L D 157

[Peshawar]

Before Miftah-ud-Din Khan, J

JAMSHED ALI---Petitioner

Versus

THE STATE and another-Respondents

Criminal Miscellaneous (BA) No.1228 of 2010, decided on 22nd October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.400 & 412---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Belonging to gang of dacoits, receiving stolen property in commission of dacoity and haraabah---Bail, refusal of---Deep appreciation of evidence at bail stage, was not desirable, but only tentative assessment of available facts on record had to be taken into account---Accused was nominated by complainant in his statement under S.164, Cr.P.C. for forcibly snatching away the honey from him---Recovery of snatched honey had been made from co-accused, who in his confessional statement, had charged accused, who remained fugitive from law for 6/7 months---Accused, prima facie was connected with the offence, covered by prohibited clause of S.497, Cr.P.C.---Accused was not entitled to concession of bail, in circumstances.

Sifat Ali Khan and Tufail Muhammad for Petitioner.

Eid Muhammad Khattak, Qasam Khattak and Malik Manzoor Hussain for Respondents.

Date of hearing: 22nd October, 2010.

2011 MLD 169

[Peshawar]

Before Abdul Aziz Kundi and Zia-ur-Rehman Khan, JJ

Haji INAYAT KHAN and another---Appellants

Versus

BAKHT MUNIR JAN and another---Respondents

F.A.O. No. 8 of 2010, decided on 29th September, 2010.

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

----Ss. 12 & 54---Civil Procedure Code (V of 1908), O. IX, R. 6---Limitation Act (IX of 1908), Art. 164---Suit for specific performance of contract, recovery of Rs. 5, 36, 00, 000 and permanent injunction--Issuance of summons to defendant by Trial Court without taking note of non-payment of court fee on plaint---Non-appearance of defendant---Passing of ex parte decree against defendant on 3-3-1998 without recording evidence---Defendant's application dated 25-2-2004 for setting aside ex parte decree denying to have been served in suit or have knowledge of its pendency earlier-Dismissal of application by Trial Court without recording evidence for being time-barred and not based on facts---Validity---Record did not show that summonses issued to defendant were either served upon him or returned unserved---Trial Court in its proceedings had recorded that defendant had moved an application for adjournment, but same was not available on record--Provision of O. IX, R. 6(I)(a), C.P.C., thus, would not attract to the present case---Such suit involving many disputed factual questions could not be decided without recording evidence---Defendant had no knowledge of suit and ex parte decree, thus, limitation for its setting aside would start running from date of knowledge alleged by him---Trial Court had illegally passed ex parte decree and dismissed application for its setting aside---High Court accepted appeal, set aside impugned judgments and decree with direction to Trial Court to receive court fee from plaintiff and written statement from defendant and decide suit on merits within specified time in accordance with law.

Provincial Government through Collector Kohat and another v. Shabir Hussain PLD 2005 SC 337; Shamroz Khan and another v. Muhammad Amin and others PLD 1978 SC 89; Government of N.-W.F.P. V. Messrs Hussain Mir No. Company 2010 CLC 295 ref.

2005 SCMR 609; 2005 SCMR 1108; 2006 SCMR 631; 2009 SCMR 1030; PLD 2009 Lah. 52 and 2009 CLC 759 distinguished.

(b) Administration of justice---

----Duty of court---While dealing with disputes between litigants regarding their valuable rights, court is required to apply its judicial mind and act strictly in accordance with law by avoiding short-cuts.

Qazi Zakiuddin for Appellant.

Aziz-ur-Rehman Tajik for Respondents.

Date of hearing: 29th September, 2010.

2011 MLD 181

[Peshawar]

Before Attaullah Khan and Sher Muhammad Khan, JJ

MUHAMMAD KHAN alias KHALIFA---Petitioner

Versus

HAYATULLAH KHAN and 5 others---Respondents

Writ Petition No. 229 of 2009, decided on 20th May, 2010.

Penal Code (XLV of 1860)---

----S. 332---Constitution of Pakistan, Art.199---Hurt---Constitutional petition---Petitioner/complainant assailed the order of Magistrate acquitting the accused on exculpatory report of the Investigating Officer---Validity---Arms expert's report which was in line with the prosecution case was misinterpreted by the Investigating Officer in favour of the accused---Magistrate had agreed with the report of the Investigating Officer without applying his judicial mind to the facts of the case and without any notice to the petitioner/complainant--Investigating Officer was not empowered to appreciate evidence---Usurpation of powers of Trial Court by the Investigating Officer and the Magistrate could not be upheld by any standard of judicial scrutiny---Plea of alibi was always subject to the verification, investigation and authentication by the Trial Court---Practice of releasing the accused without giving opportunity to the opposite side could not be encouraged---Magistrate, even in administrative capacity, was required to apply his own independent mind and consider all aspects of the matter---Proceedings conducted by the Investigating Officer and order passed by the Magistrate were declared to be void, without lawful authority and of no legal effect by the High Court with directions to the Superintendent of Police to entrust the investigation of the case to any other impartial Investigating Officer--Constitutional petition was accepted in circumstances.

Daraz Khan v. Muhammad Jabbar Khan PLD 2008 Pesh. 63 rel.

Abdul Latif Khan Baloch for Petitioner. Sanaullah Khan Gandapur for Respondents.

Date of hearing: 20th May, 2010.

2011 MLD 189

[Peshawar]

Before Shah Jehan Khan Yousafzai, J

MANZOOR AHMAD and another---Petitioners

Versus

KHAN MUHAMMAD and 35 others---Respondents

Civil Revision No.27 of 2008, decided on 2nd July, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Claim of the plaintiffs was that they were son and widow of deceased last owner of suit land who was common predecessor of the plaintiffs and the defendants, but legacy of deceased was mutated in the names of defendants only ignoring the plaintiffs---Suit filed by the plaintiffs had concurrently been dismissed by the Trial Court and Appellate Court-Validity-Plaintiffs' claim regarding the marriage between one of the plaintiffs and deceased landowner could not be established-Witness produced by the plaintiffs had admitted that said plaintiff was married to person other than deceased and that after death of said other person she contracted second Nikah with deceased landowner---Said witness, however had admitted that he was not present at the time of Nikah in question and he also expressed his, ignorance as to when said Nikah was performed and who was Nikah Khawan---Burden was on the plaintiffs to prove that they being son and widow of deceased were entitled to their shari share in the suit property, but they could not discharge their burden--Defendants, in rebuttal had brought sufficient evidence to establish that plaintiffs were not the heirs of their predecessor---Inheritance mutation with regard to legacy of deceased, in circumstances, was rightly devolved on the defendants who were sons of deceased with two shares each and one daughter of deceased with one share---No illegality or irregularity, misreading or non-reading of evidence was found in the concurrent findings of the courts below---Courts below having rightly non-suited the plaintiffs for the requisite relief, revision petition against said concurrent findings, was dismissed, in circumstances.

Shakeel Azam for Appellant.

Muhammad Aman Khan for Respondents.

Date of hearing: 16th April, 2010.

2011 M L D 204

[Peshawar]

Before Abdul Aziz Kundi and Imtiaz Ali, JJ

MUHAMMAD KHAN---Appellant

Versus

Mst. AZRA and another---Respondents

Criminal Appeal No. 555 and Criminal Revision No.159 of 2007, decided on 5th July, 2010.

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

----Ss. 302(b)/324/148/149---Qatl-e-amd and attempt to commit qatl-e­-amd---Appreciation of evidence---F.I.R. was promptly lodged---Mere non production of one of the brothers of complainant and injured passerby, could not be made ground for throwing away strong evidence produced by prosecution to establish the guilt of accused---When deceased was being accompanied by his wife, it could not be visualized that they had come to the spot with the intention of picking a fight with accused side---Case of prosecution stood strengthened by existence of so called cross-case which conclusively proved the presence of accused at the spot---Testimony of eye-witnesses, having stamp of injuries upon their person, whose testimony was natural and confidence-inspiring, could not be taken lightly---Minor contradictions or even exaggerations, could not take away probative force of ocular testimony, especially when such evidence was corroborated by medical evidence, motive and abscondence of all the co-accused---Guilt of accused, in circumstances, was proved through eye-witnesses' account, site plan showing presence of accused as well as injured complainant along with recovery of blood and empties from the spot, medical report, medico-legal report in respect of injured complainant---Lodging of cross F.I.R. by accused had confirmed his presence on the spot---Charge against accused having been established by the prosecution, Trial Court had rightly convicted and sentenced accused---In absence of any illegality or infirmity in the impugned judgment, same was maintained.

1996 SCMR 1411; PLD 1986 Pesh. 188; PLD 1990 Pesh, 10; 1985 SCMR 1715; 1998 SCMR 1823; 2004 SCMR 959; 2002 PCr.LJ 992; 2000 YLR 1634 and 2000 SCMR 383 ref.

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

----Ss. 302/324/148/149---Qatl-e-amd attempt to commit qatl-e-amd---Appreciation of evidence---Principle that merely because the prosecution witnesses had stamp of firearm injuries on their person would not per se tantamount to truthfulness of said witnesses, was well entrenched, but subject to qualification that such principle would apply only where testimony of such witnesses, otherwise did not ring true; and was not corroborated by .other piece of evidence---For placing reliance on such evidence, corroboration could be sought from any circumstances in the case which could satisfy the mind of the court that the witnesses had spoken the truth.

Barrister Muhammad Zahoor-ul-Haq for Appellant.

Ghulam Mohyuddin Malik for the Complainant.

Miss Surriya Jabeen for the State.

Date of hearing: 27th April, 2010.

2011 M L D 216

[Peshawar]

Before Syed Sajjad Hassan Shah, J

SALIM KHAN and others---Petitioners

Versus

UMARA KHAN---Respondent

Civil Revision No. 992 of 2005, decided on 16th June, 2010.

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

----Ss. 42 & 54---West Pakistan Land Revenue Act (XVII of 1967), S.53---Limitation Act (IX of 1908), Art.120---Plaintiffs filed suit for declaration along with perpetual injunction on the ground that they were enjoying possession of the disputed land as being ancestral property and the entries made in the revenue record were in excess of shares of the defendants which were liable to correction and further claimed that houses were ancestral and in joint possession of all the legal heirs---Defendant contested suit on the ground that the suit was hopelessly time barred---Trial Court dismissed suit of the plaintiffs---Appellate Court, on appeal, also dismissed the same---Validity---Two settlement operations had been carried out, firstly in the year 1905-06 and, thereafter, in the year 1948-49 and in the record of rights prepared at the conclusion of both the said settlements the disputed land was recorded as the ownership of the Government and in possession of the Military---Aggrieved person including the plaintiffs and defendants could file a suit for declaration to challenge entries within six years from the date of first entry, which they had not availed of, therefore, the suit was patently time barred---Claim of the plaintiffs was not supported by any evidence, therefore, they had rightly been non-suited by the courts below---Revision petition was dismissed by High Court.

Allah Dad v. Government of Pakistan and 53 others 1989 CLC 1571 and Muhammad Shah and others v. Mir Zaman and others AIR 1943 Pesh. 83 rel.

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

----Ss. 42 & 54---Suit for declaration and perpetual injunction----Plea of the plaintiffs. that admission made by the defendants in their written statement that plaintiffs had got no Daftar, however, their predecessor had sold their properties during Pashto period, after such admission the burden of proof lay on the defendants that how and when same was sold, but they had failed to discharge the same---Validity---Perusal of record revealed that the plaintiffs had produced on record Pedigree table, wherein, the full particulars of predecessors and successors had been given detail---Forefathers of the plaintiffs had sold. their share, therefore, duty never lay on the shoulder of the defendants to prove that as to how and when the property was alienated by the plaintiffs' predecessors, specially, when the sale was made---No revenue record was in existence, as the settlement operation was effected in the year 1981 to 1984, if such a situation it was difficult to prove that by whom and in whose favour the sale had been made---Petition was dismissed.?

Muhammad Asif for Petitioners.

Khalid Rehman for Respondent.

Date of hearing: 16th June, 2010.

2011 M L D 234

[Peshawar]

Before Muhammad Safdar Khan Sikandri, J

SHAH JEHAN---Applicant

Versus

ZARIF KHAN and 3 others---Respondents

Criminal Miscellaneous Bail Cancellation Application No. 402 of 2010, decided on 25th October, 2010

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.324/148/149---Attempt to commit qatl-e-amd---Cancellation of bail, application for---Delay of more than two hours in lodging the report in the hospital, had not properly been explained---Accused were alleged to be armed with firearms, but no specification of weapons carried by each accused was on the record---Site plan prepared at the pointation of prosecution witness, showed that one of accused had been attributed kalashnikov to said accused with which he fired at the complainant, but Investigating Officer did not recover any empty of the kalashnikov from the spot, while an empty of .30 bore had been recovered, which required further inquiry into the matter, because it was a case of indiscriminate firing by five accused---Such circumstances had made the case of accused one of further inquiry arguable for the purpose of bail---Accused were rightly released on bail---Once bail had been granted by the competent authority, strong and exceptional grounds were required for cancellation of the same---Order granting bail passed by the Trial Court being neither perverse nor illegal warranting interference by the High Court, application for cancellation of bail being without any substances, was dismissed, in circumstances.

2003 MLD 72; Muhammad Azhar v. Dilawar and another 2009 SCMR 1202 ref.

Saif-ur-Rehman Khan for Applicant.

Miss Naheed Akhtar for the State and Muhammad Ismail Khan Aliziai for other Respondent.

Date of hearing: 25th October, 2010.

2011 MLD 283

[Peshawar]

Before Attaullah Khan, J

ABDUL KHALIQ---Petitioner

Versus

ATEEF-UR-REHMAN and 2 others---Respondents

Criminal Miscellaneous Bail Cancellation Petition No.481 of 2010, decided on 26th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.365---Kidnapping---Cancellation of bail, application for---Principles---Judicial Magistrate though had discussed the case of co-accused, but Trial Court while maintaining the bail granting order of the Magistrate, had dilated upon the cases of both accused persons---Third accused had been granted bail and reasons prevailed therefor had been discussed---Grounds prevailed for said accused were also available to the present accused because the same role had been attributed to them---Accused was an old person of 71/72 years and also disabled, on that ground too accused was entitled to bail---No direct evidence was available against accused to connect them with the offence---Principle for grant of bail and cancellation thereof were quite different from each other; in the application for cancellation of bail, complainant was required to show misuse of concession of bail by accused, tampering with evidence or subsequent criminal pressure on the complainant, but the complainant had not been able to establish any of those ingredients---Cancellation of bail was declined.

1998 SCMR 190 ref.

Ghulam Muhammad Khan Sappal for Petitioner.

2011 M L D 349

[Peshawar]

Before Muhammad Safdar Khan Sikandri, J

SHER ALAM KHAN alias VAKIL KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Bail Application No. 370 of 2010, decided on 8th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/436/148/149---Qatl-e­-amd, mischief by fire---Bail, grant of---Further inquiry---Unexplained delay of 24 hours in lodging report by the complainant---Such delay was fatal to prosecution as deliberations and consultations on the part of complainant party could not be ruled out; and any doubt arising in the prosecution case at bail stage, would benefit the accused---Perusal of the site plan, showed that as many as 17 culprits, including accused were alleged to have opened fire at the deceased, but the deceased had sustained three inlet wounds of firearm which did not commensurate with the number of accused; nor it was certain that with whose fire-shots accused succumbed to injuries was not certain as to how and up to what degree accused shared common intention with others---Case requiring further inquiry, accused was admitted to bail, in circumstances.

2009 PCr.LJ 472; 2007 PCr.LJ 987; Riyasat Ali v. The State and another 2010 PCr.LJ 795 and Baboo and 2 others v. The State 2010 MLD 1114 ref.

Muhammad Rashid Wazir for Appellant.

Farooq Akhtar for the State.

Muhammad Ilyas Khan Marwat for the Complainant.

Date of hearing: 8th October, 2010.

2011 M L D 365

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

SAFIR KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1517 of 2010, decided on 12th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Bail, grant of---Further inquiry---Two Kg charas was allegedly recovered from accused---Case of accused was that of further inquiry while considering the quantum of recovery, as the punishment provided for the offence was always in commensurate with the quantum of recovery of contraband---Question as to whether accused would be liable to the maximum punishment provided for the offence, was a question requiring further probe---Punishment in case of proof of the guilt after trial, in circumstances, would fall under the prohibitory clause of S.497, Cr. P. C. as punishment provided in S.9(c) of Control of Narcotic Substances Act, 1997 varied according to the circumstances of the case---Court had discretion to punish accused in commensurate with the quantity of recovery---Concession of bail to accused, could be allowed unless any special circumstances appeared in any particular case, like the case of a habitual offender or previous convict etc.---Accused was released on bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

Naveed Akhtar A.A.-G. for Respondent.

Date of hearing: 12th November, 2010.

2011 MLD 381

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

AJMAL---Petitioner

Versus

MUNTAZIR SHAH and another---Respondents

Criminal Appeal No. 405 and Criminal Revision No.73 of 2010, decided on 26th July, 2010.

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

----Ss. 324 & 337-D---Attempt to commit qatl-e-amd and Jaifah---Appreciation of evidence---Story put forth by the complainant on the face of it seemed to be full of doubts, which required very careful examination---Complainant had never mentioned the presence of the two prosecution witnesses---Presence of the complainant, accused and the witnesses as shown in the site plan prepared at the instance of the complainant, would make it impossible to understand as to why the witnesses were spared by accused as the motive alleged by the complainant was very much thereagainst a prosecution witness who was brother of the complainant---Injury on the person of the complainant was never explained by the complainant to the Police as to on which part of the body, he received injury---No blood or empty was recovered by the Police from the spot---Nature of injury on the complainant was also not proved on the record as the doctor who examined the complainant was not produced in the court---When presence of the complainant and prosecution witnesses at the spot was not proved, their statement would not be worth consideration---False implication of accused and his acquitted co-accused could not be ruled out---Prosecution having failed to prove its case beyond any reasonable doubt against accused, appeal filed by accused was allowed, his conviction, sentence and fine imposed by impugned judgment of the Trial Court, was set aside; and he was acquitted of the charges levelled against him.

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

----Ss. 324 & 337-D---Attempt to commit qatl-e-amd and Jaifah---Appreciation of evidence---Absence of motive---No doubt, under the law, absence of motive could not be a ground for acquittal, but the motive once alleged and set up, that required to be proved by the prosecution.

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

----Ss. 324 & 337-D---Attempt to commit qatl-e-amd and Jaifah---Abscondence of accused---Mere abscondence of accused, in absence of any material evidence connecting him with the commission of offence, could not be made basis for conviction as abscondence alone would not establish guilt of accused, unless corroborated by other cogent evidence.

Noor Alam Khan for Appellant.

Babar Khan Yousafzai and Arshad Ali Nowsherwe for the State.

Date of hearing: 26th July, 2010.

2011 M L D 403

[Peshawar]

Before Attaullah Khan, J

QUDRATULLAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.401 of 2010, decided on 25th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 396---Qatl-e-amd, dacoity with murder---Bail, grant of---Further inquiry---Accused was not nominated in the F.I.R.---Statement of witness of last seen evidence was recorded by delay of 17 days---No ocular evidence connected the accused with the commission of offence---Case of the accused required further inquiry---No incriminating material was recovered from the possession or on pointation of the accused--Identification parade of the accused was not free of doubts---Medical evidence contradicted allegations of F.I.R.---Accused was admitted to bail.

Muhammad Ismail Alizai for Appellant.

Sanaullah Shamim D.A.-G. for Respondent.

Muhammad Hamyun Wazir for the Complainant.

Date of hearing: 25th October, 2010.

2011 M L D 466

[Peshawar]

Before Mazhar Alam Khan Miankhel and Yahya Afridi, JJ

ASFANDYAR KHAN---Petitioner

Versus

GHAZANFAR ALI and 5 others---Respondents

Writ Petition No. 1126 of 2006, decided on 20th October, 2010.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6, 13, 24, 27 & 28---Constitution of Pakistan, Art.199---Constitutional petition---Suit for pre-emption---Failure of pre-emptor to deposit 1/3rd of sale price as mentioned in registered sale-deed---Dismissal of suit---Sale consideration according to sale mutation and registered sale-deed was Rs.24,67,500 and pre-emptor who pre-empted sale, alleged sale consideration as inflated one and claimed that actual sale took place against a sale consideration of Rs.14,00,000-Plaintiff on direction of the Trial Court deposited 1/3rd of pre-emption amount according to amount of Rs.14,00,000 as was alleged by him as actual sale consideration, instead of Rs.24,67,500 which was clearly mentioned in the sale mutation---Defendant filed application for dismissal of pre-emption suit on the ground that 1/3rd of sale consideration as mentioned in the sale-deed was not deposited by the plaintiff---Trial Court dismissed said application filed by the defendant and directed the pre-emptor to deposit balance of 1/3rd amount, which was deposited by the plaintiff---Said order of Trial Court, which in substance amounted to extention of time for deposit of pre-emption money, was impugned by the defendants in revision which was allowed by Appellate Court---Validity---Sale mutation under pre-emption was well within the knowledge of the plaintiff and plaintiff was also aware of the fact that sale consideration of Rs.24,67,500 was shown in the sale mutation---Sale price which was reflected in sale-deed/sale mutation, was to be considered for deposit of 1/3rd of sale price within the period fixed by the court and not the price as alleged by the pre-emptor in his plaint---Findings of the Appellate Court in exercise of its revisional jurisdiction were well within the framework of law and in absence of any illegality or unlawful exercise of jurisdiction by the courts below, could not be interfered with by High Court while exercising jurisdiction under Art.199 of Constitution---Constitutional petition was dismissed.?

Muhammad Din v. Mehboob Khan and 3 others 1993 SCMR 2325; Haji Gul Nabi v. Mst. Sahib Jamal and 8 others 1994 SCMR 845; Jehanzeb Khan v. Muhammad Iqbal 2000 SCMR 365; Muhammad Ayub and others v. Mst. Nusrat Begum 2003 YLR 793; Malik Nasrullah v. Mst. Mumlikat Begum 2003 CLD 235 and Mst. Baram Posh Bibi v. Pir Muhammad Khan and 7 others PLD 1999 Pesh. 47 ref.

Riaz Ahmed Khan for Petitioner.

Abdul Haleem Sani for Respondents.

Date of hearing: 20th October, 2010.

2011 M L D 487

[Peshawar]

Before Syed Sajjad Hassan Shah, J

GHADEER HAIDER---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous-Bail Application No. 1650 of 2010, decided on 1st December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 21---West Pakistan Arms Ordinance (XX of 1965), S.13---Possession of narcotics and arms---Bail, grant of---Investigating Officer raided the store belonging to accused without obtaining search warrant under S.21 of Control of Narcotic Substances Act, 1997---Alleged recovery was neither made from the possession of accused nor on his pointation and was not effected in the presence of two respectable persons belonging to the same locality as required under S.103, Cr.P.C.---No statement of the test purchaser was recorded and no detail of the store and godown was provided in the recovery memo---Accused who was of tender age of about 17-1/2 years, could claim the concession of bail under Juvenile Justice System Ordinance, 2000---Accused had no previous record of involvement in such like cases---Case of accused having gone out of prohibition clause of S.497, Cr.P.C., accused was entitled to the grant of bail---Accused was released on bail, in circumstances.

2002 PCr.LJ 1429; 1998 PCr.LJ 370 and Sakina Bibi v. The State 2008 SCMR 111 rel.

Qaiser Abbas Bangash for Applicant.

Akbar Zaman Khattak for the State.

Date of hearing: 1st December, 2010.

2011 MLD 521

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

FIRDOS KHAN and others---Petitioner

Versus

ZAIN MUHAMMAD and others---Respondents

Civil Revision No. 872 of 2007; decided on 9th August, 2010.

(a) Pleadings---

---Party is duty bound to prove what he alleged in the pleadings.

(b) Shamilat Deh---

----Shamilat Deh (village common land) being joint and un-partitioned--Validity---Persons recorded in proprietary body of village would be entitled to Shamilat Deh to the extent of their respective proprietary holding in village---Any of such persons could claim possession only through partition of entire Shamilat Deh, but not otherwise---Principles.

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

----S.115---Revisional jurisdiction of High Court---Scope---High Court could not substitute its own findings on question of facts as Court of appeal being last and final Court of facts.

Jan Muhammad Khan for Plaintiff.

Sahibzada Asadullah for Respondents.

Date of hearing: 31st May, 2010.

2011 MLD 560

[Peshawar]

Before Attaullah Khan, J

Malik SUBA and 8 others---Appellants

Versus

WAPDA through Chairman WAPDA Lahore and 6 others---Respondents

R.F.A. No. 46 of 2009, decided on 26th November, 2010.

Land Acquisition Act (I of 1894)---

----S. 23---Land acquisition---Compensation, determination of---Market value of suit land fixed in award being Rs. 600 per kanal---Referee Court relying upon letter of District Officer (Revenue) fixed market value of suit land as Rs. 1500---Validity---Plaintiff through evidence of Patwari Halqa had produced one yearly average price of land in disputed village being Rs. 2497.57 per kanal---High Court enhanced market value of suit land from Rs. 1500 to Rs. 2497.57 and modified impugned judgment/decree accordingly.

Muhammad Anwar Awan for Appellants.

Amir Muhammad Khan Baloch for Respondents.

Date of hearing: 26th November, 2010.

2011 MLD 582

[Peshawar]

Before Attaullah Khan, J

AMEER ZAMAN and 5 others---Petitioners

Versus

HABIBULLAH KHAN and 2 others---Respondents

Civil Revisions Petitions Nos. 320 and 321 of 2005, decided on 5th November, 2010.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Talb-i-Muwathibat, performance of---Date, time and place of performance of such Talb not mentioned in plaint---Pre-emptor and witness of such Talb disclosed only date, but not time of its performance---Validity---Mentioning date, time and place of performance of such Talb in plaint as well as in evidence by pre-emptor was mandatory---In absence of any of such ingredients, such Talb would not be concluded to have been legally made--Pre-emptor had failed to comply with requirements of S. 13 of North-West Frontier Province Pre-emption Act, 1987---Suit was dismissed in circumstances.

2005 SCMR 329 ref.

Haq Nawaz v. Muhammad Kabir 2009 SCMR 630 and Mst. Saleem Akhtar v. Chaudhry Shaukat Ahmed 2009 SCMR 673 rel.

(b) North-West Frontier Province Pre-emption Act (I of 1987)---

----S.20---Qanun-e-Shahadat (10 of 1984), Art. 76---Pre-emption suit---Talb-i-Ishhad, notice of---Proof---Receipt of such notice denied by defendant sent to him through registered post with A/D card---Photostat copy of such notice filed along with plaint was objected to by defendant not to be admissible in evidence---Validity---Photostat copy of such notice would be sufficient to prove that Talb-i-Ishhad was performed---Such Talb was properly performed by plaintiff in circumstance.

2008 SCMR 1444 rel.

Muhammad Younas Thaheem for Appellants.

Rustam Khan Kundi for Respondents.

Date of hearing: 5th November, 2010.

2011 M L D 597

[Peshawar]

Before Sher Muhammad Khan, J

Malik GHAZI KHAN---Petitioner

Versus

AMIN KHAN and 13 others---Respondents

Civil Revision No. 71 of 2006, decided on 16th July, 2010.

Suit for damages---

----Allegation of forcible taking away of plaintiff's crop by defendant from his land falling in specific Khasra numbers---Proof---Plaintiff had to prove his ownership, possession and cultivation over suit land; and that defendant had taken away such crop on relevant date---Record showed that land falling in one of the. Khasra numbers was in joint possession of plaintiff and another person not party to suit, while land falling in the other Khasra number was exclusively owned by such person, who had neither filed suit against defendant nor appeared as witness in support of plaintiff's claim---Plaintiff had not proved quantity of such crop and its value---Nothing on record to show that defendant had taken away such crop---Plaintiff had failed to discharge such burden---Suit was dismissed in circumstances.

Abdul Qayum Qureshi for Petitioner.

Muhammad Anwar Awan for Respondents.

Date of hearing: 16th July, 2010.

2011 MLD 613

[Peshawar]

Before Miftah-ud-Din Khan, J

MUHAMMAD WAHEED and 3 others---Petitioners

Versus

S.H.O. POLICE STATION CITY MANSEHRA and 2 others-Respondents

Criminal Miscellaneous Quashment Petition No. 40 of 2010, decided on 8th December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.420, 468 & 471---Cheating, forgery and using as genuine a forged document---Quashing of F.I.R., petition for---Report submitted by S.H.O. had shown that no offence under S.420, P.P.C., was prima facie established against the petitioners---At the most, the petitioners could be proceeded against under Ss.468 and 471, Cr.P.C., provided the original receipt was available before the Police or same had been used as genuine document dishonestly and fraudulently---As the offences under Ss.468 & 471, Cr.P.C. were non-cognizable offences, for recording information of commission of a non-cognizable offence, entry should have been made in Roznamcha or Station Diary---If the Police would deem it fit to initiate investigation, then they had to proceed under S.155, Cr.P.C.; and to obtain order from Magistrate; and if any arrest was to be effected, then it could only be made after obtaining arrest warrant under S.155(3), Cr.P.C.---In the present case, the alleged forged receipt was produced by the petitioners before a court of law to be used as genuine document, then the court would make a complaint against the petitioners under S.195(3), Cr.P.C. and not the respondent/S.H. O.---F.I.R. under S.154, Cr.P.C. could not have been registered straightaway against the petitioners on the basis of report of S.H.O. in the absence of original receipt----S.H.O., in circumstances, had abused and misused the process of law by violating the clear-cut provisions of Criminal Procedure Code---S.H.O. had not followed the procedure laid down in S.155, Cr.P.C. and had straightaway registered the F.I.R. against the petitioners, resulting in causing illegal harassment; and great injustice to the petitioners---Original receipt was not available before the Police and same had not been used as genuine before any court of law---Continuation of further proceedings against the petitioners, in circumstances, was baseless and unjustified---Dispute between the parties was entirely of civil nature, which on account of ulterior motive on the part of respondent/S. H.O. to compel the petitioners to abandon their claim over the plot had been converted into criminal proceedings---Further proceedings on the basis of impugned F.I.R. would be abuse of process of law, a sheer wastage of time and cause great injustice to petitioners against which preventive measures had to be taken by the court in exercise of inherent powers in the interest of justice---In order to prevent the ends of justice from being defeated through the impugned proceedings, petition for quashment was allowed and the F.I.R. lodged against the petitioners was ordered to be quashed in exercise of powers under S.561-A, Cr.P.C.

PLD 2005 Lah. 386; 2005 YLR 1879 and 2000 SCMR 122 ref.

Iftikhar Alam Tanoli for Petitioners.

Respondent No.3 in person.

Mumtaz-ur-Rehman for the State.

Date of hearing: 8th December, 2010.

2011 M L D 626

[Peshawar]

Before Abdul Aziz Kundi and Sardar Shaukat Hayat, JJ

NAEEM KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.411 of 2009, decided on 23rd December, 2010.

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

----S. 9(c)---Trafficking of narcotics---Appreciation of evidence---Not only that the recovery of contraband charas had been proved by the prosecution through statements of the prosecution witnesses, but accused himself in his statement under S.342, Cr.P.C. had admitted the recovery of contraband narcotics---Accused being driver' of the truck carrying contraband charas, was sufficiently connected with the crime who had a conscious knowledge of the contraband charas concealed in the secret cavities of truck---Impugned judgment of conviction and sentence passed by the Trial Court against accused, was maintained, in circumstances.

Naik Muhammad and another v. State PLD 1995 SC 516; Muhammad Noor and others v. The State 2010 SCMR 927; Sherzada v. State 1993 SCMR 149; Adil Ahmad v. Deputy Collector, C&CE 1991 SCMR 1951; Rab Nawaz v. The State PLD 1994 SC 858 and Nadir Khan v. State 1988 SCMR 1899 ref.

Noor Alam Khan for Appellant.

Motiullah Baloch for the State.

Date of hearing: 23rd December, 2010.

2011 M L D 639

[Peshawar]

Before Syed Sajjad Hassan Shah, J

ZAHID JAMIL---Petitioner

Versus

Mst. SAEEDA BANO and another---Respondents

Civil Revision No. 1950 with C.M. No.2044 of 2010, decided on 2nd December, 2010.

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

----O. VI, R.17 & O. VII, R.2---Suit for recovery of amount--Amendment of plaint, application for---Application for amendment of plaint filed by the plaintiff having been granted by the Trial Court, defendants challenged said order of the Trial Court---Contention of defendants was that amendment sought by the plaintiff was mala fide and was sought to cause delay in disposal of suit in the Trial Court---Validity---Impugned order could not be recalled as there was no prohibition order passed by the court for the amendment of the plaint---No interference could be made in the impugned order---Question of mala fide, was not ascertainable from the averments made in the plaint as except the plaint, no other document was available on the record, whereby the question of mala fide could be entertained---Plaintiff had the right to apply for seeking the leave of court to amend her plaint to introduce the proposed amendment, well in accordance with law; and she in no way had infringed any provision of law---Application for amendment of plaintiff was not derogatory to the plea already taken up in the plaint, neither it would change the complexion of suit nor the ,cause of action---Amendment sought was part and parcel of the cause of action constituted on the same material pleaded by the plaintiff and would not cause prejudice to the defendants, rather, it was essentially required to effectively and conclusively decide the controversy between the parties once forever---Trial Court was fully empowered to grant leave to amend the plaint as the proposed amendment was sought at an early stage; and defendants could meet and rebut the claim of plaintiff by filing written statement and evidence in proof thereof---No prejudice would be caused to the defendants, if the proposed amendment would be introduced in the plaint---Order of amendment being lawful and not suffering from any legal flaw, was maintained.

Ghulam Haider v. Muhammad Ayub 2001 SCMR.133; M.V. Kaptan Yousuf Kalkavan v. Semco Salvage (Pvt.) Ltd., 1992 CLC 143; Muhammad Yousaf Khan v. Muhammad Aslam and another 2004 CLC 333 and Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 ref.

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

---O. VII, R.1(e)--- "Cause of action" is not based upon a single fact or circumstance, but bundle of facts would constitute cause of action---Word "cause of action"---Meaning and import.

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

----O. VII, R.1---Cause of action-Import of the word `cause of action' means that the bundle of facts pleaded by plaintiff, if traversed by the defendant, the plaintiff in order to obtain the decree in his favour was bound to prove all those facts-lithe plaintiff would have succeeded to prove even a single fact out of bundle of facts averred in the plaint, he would be declared as entitled for the decree to that extent.

(d) Words and phrases----

----Word `cause', defined and explained.

(e) Words and phrases---

----'Cause of action', defined and explained.

Cooke v. Gill, 1873 LT 8 CP 107; AIR 1949 PC 78 (86); W.W. Joshi v. State of Bombay, AIR 1959 Born. 363; 61 Born LR 829; Muhammad Khalil v. Mahbub Ali v. AIR 1949 P.C. 78; Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, (1867) 11 M.I.A. 551; 2 Sar. 259 (P.C.); Read v. Brown, (1889) 22 Q.B.D. 128; 58 L.J. Q.B. 120; Brundsen v. Humphrey, (1884) 14 Q.B.D. 141 : 54 L.J.Q.B. 476; Mst. Chandkour v. Partap Singh, (1887) 15 I.A. 156: I.L.R. 16 Cal. 98 (P.C.); Sudarasan Swain v. Jagannath Rout, AIR 1974 Orissa 190 at pp. 191-192; Salik Ram v. Ram Lakhan, 1972 (42) All; W.R. 883 at P.885; L.N. Veeri Chettiar v. Sales-tax Officer, Bombay, AIR 1971 Mad. 155 at p.160; G.W. Wilson v. Messrs. Volkart Brothers, 27 I.C. 129 at PP. 129-30: 8 S.L.R. 107; Shankar v. Daya Shankar, (1887) L.R. 15 I.A. 66; I.L.R. 15 Cal. 422 (P.C.); 5 Sar. 107: 12 Ind. Jur. 132; R. and J. 100; 5 Sar. 243; 12 Ind. Jur. 331; Parmarath Gir v. Ram Sarup Singh, 1932 A.L.J. 303 at p.305; AIR 1932 All. 487 at p.488 and 138 I.C. 269 ref.

Muhammad Siddique Haider Qureshi for Petitioner.

Date of hearing: 2nd December, 2010.

2011 MLD 679

[Peshawar]

Before Mian Fasih-ul-Mulk, J

MUHAMMAD WASEEM---Petitioner

Versus

THE STATE---Respondent

Quashment Petition No.39 of 2010, decided on 28th December, 2010.

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

----Ss. 9(c), 32 & 74---Criminal Procedure Code (V of 1898), Ss.516-A, 523-A & 561-A---Possession and trafficking narcotics---Application for superdari of vehicle allegedly used for the offence by the owner had been dismissed---Owner filed application for quashing of order of dismissal of application---Applicant who was bona fide purchaser of the vehicle for consideration had handed over the vehicle to driver for earning livelihood and was hired by the accused---Section 74 of Control of Narcotic Substances Act, 1997, related to release of vehicle temporarily on "superdari" during pendency of trial---Vehicle involved in the transportation of narcotics would not be released during trial, however, absolute bar could not be created for release of vehicle, if as per S.32 of Control of Narcotic Substances Act, 1997, it was prima facie established that owner of vehicle had no knowledge that narcotics had been transported in his vehicle---Judicial discretion could also be exercised for release of vehicle on "superdari"; in view of the principle that, if' a court could grant final relief, it also possessed inherent jurisdiction to grant temporary relief, pending proceedings before it subject to prima facie fulfilling the condition by the applicant under the law for getting relief finally from the court---Tentative assessment of record would show that applicant was prima facie a genuine owner of vehicle; and if it was handed over to him on superdari; then keeping same in seizure condition for indefinite period waiting conclusion of trial against furnishing of heavy surety bonds, but subject to production of original documents of ownership, the same would be in the interest of justice--Anti-Narcotic Force was directed to hand over the vehicle in question to the applicant on superdari, till decision of the case, subject to production of documents of his title before Investigating Officer, who would verify the ownership and submit his report to the Trial Court.

Masood-ur-Rehman Tanoli for Appellant.

Tariq Khan Kakar for Respondent.

Date of hearing: 28th December, 2010.

2011 MLD 691

[Peshawar]

Before Sher Muhammad Khan, J

MUSHTAQ AHMAD and 2 others---Petitioners

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous Bail Petition No.539 of 2010, decided on 14th January, 2011.

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, rioting armed with deadly weapons, offence committed by members of unlawful assembly---Bail, refusal of----Accused being unknown to the complainant, complainant could not name them in the F.I.R.---Statements of the prosecution witnesses were recorded on the same day by the Investigating Officer at the time of inspection of the place of occurrence---Such statements could not be treated as supplementary statements as the witnesses had not recorded any statements previously---Said statements were primary and first version of the witnesses furnished to the Investigating Officer on the first available opportunity---Father of the deceased had specifically mentioned the property dispute as motive for commission of offence---Bail was refused in circumstances.

Muhammad Anim v. The State 2007 YLR 1181; Umeed Ali v. State 2007 YLR 921; Bashir Ahmad v. The State 2004 PCr.LJ 35 and Safdar Ali v. The State 2008 PCr.LJ 129 distinguished.

Tahir Abbas. v. The State 2003 SCMR 426; Tariq Bashir v. The State PLD 1995 SC 34 and The State v. Rafique Ahmad Channa 2010 SCMR 580 ref.

Sananullah Khan Gandapur for Appellant.

Miss Naheed Akhtar for the Respondent.

Muhammad Yousaf Khan for the State.

Date of hearing: 14th January, 2011.

2011 MLD 708

[Peshawar]

Before Liaqat Ali Shah and Mazhar Alam Khan Miankhel, JJ

MAMRAIZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 416 of 2009, decided on 29th July, 2010.

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

----S. 9(c)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.4---Possession of narcotics---Appreciation of evidence---Prosecution witnesses who had no nexus with the recovery of narcotics were not able to connect any piece of alleged recovered contraband with any of the accused---None of said witnesses was able to say as to how much quantity of incriminatory articles was recovered from each of accused---Investigating Officer in his statement admitted that he had not recorded statement of any person, who was carrying on business adjacent to the market which was raided upon---Omnibus recovery without any specific evidence, could not be attributed to any one of accused and they could not be held liable for recovery effected from different cabins---Evidence on record was also deficient as to the actual recovery from each cabin---Police, though had shown a huge quantity of incriminating articles which were tested positively by Forensic Science' Laboratory but nothing of the same could be attributed to the accused persons---Convictions and sentences imposed upon accused, were set aside, they were acquitted from the charges levelled against them and were released.

Noor Alam Khan for Appellant.

Ishtiaq Ibrahim A.A.-G for the State.

Date of hearing: 29th July, 2010.

2011 M L D 725

[Peshawar]

Before Attaullah Khan, J

GUL JEHAN alias KHAN and another---Petitioners

Versus

FAIZULLAH KHAN and 3 others---Respondents

Criminal Miscellaneous Bail Petition No. 278 of 2010, decided on 11th August, 2010.

(a) 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, refusal of---Accused was directly charged for firing along with his other co-accused over the deceased who had sustained numerous multiple injuries---Medical evidence supported the case of the prosecution against said accused---Accused, in circumstances, was not entitled to the concession of bail, he was declined bail, in circumstances.

(b) 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---Case of accused was on different footings, he was charged for attempting at the life of the complainant who had sustained only one injury on his leg, while two accused were charged---Was yet to be seen at trial as to with whose fire shot the victim was hit---Accused, was admitted to bail, in circumstances.

Anwarul Haq Khan and Mirza Ali Khan for Petitioners.

Sanaullah Shamim, D.A.-G. for the State.

Ashiq Hussain Khan for the Complainant.

Date of hearing: 11th August, 2010.

2011 M L D 733

[Peshawar]

Before Attaullah Khan, J

Mst. ANEETA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No. 320 of 2010, decided on 12th August, 2010.

(a) 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---One male and three females had been charged for the commission of offence---Complainant in his supplementary statement had stated that he was told by witness that a plastic bag was taken by male accused along with one female---Witnesses had stated about a woman, but they had not named her---Association of female accused was doubtful, unless it was corroborated at the trial stage by other independent evidence---Case of females required further inquiry because none of the witnesses had charged them by name---Female accused were admitted to bail, in circumstances.

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

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, refusal of----Male accused was named by both the witnesses and complainant; he was seen carrying bag which contained the dead body of the female child---Incident was a murder of a child in a very brutal manner without any reason---Contention that said accused was not charged in the F.I.R., was repelled, because it indicated the bona fide intention of the complainant---Had his intention been mala fide, he would have named accused in F.I.R.-Such fact had gone against the accused---Bail application of said accused was rejected, in circumstances.

Saadullah Khan for Appellant.

Sanaullah Shainim D.A.-G. for the State.

Muhammad Alamgir Khan Wazir for the Complainant.

Date of hearing: 12th August, 2010.

2011 MLD 762

[Peshawar]

Before Liaqat Ali Shah and Syed Sajjad Hassan Shah, JJ

JAN MUHAMMAD---Petitioner

Versus

Mst. HUSSAN ZEILAT and another---Respondents

Writ Petition No. 3587 of 2010, decided on 3rd November, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of dower, maintenance allowance and for dissolution of marriage---Suit of the plaintiff was decreed to the extent of dissolution of marriage, but rest of the relief as prayed for by the plaintiff was declined---Contention of the defendant was that if at all the plaintiff was considered entitled for the decree .of dissolution of marriage, it could have been passed on the basis of Khula; as she had asserted in her plaint about the immense aversion against the defendant; and had also refused to live as wife with the defendant--Defendant had asserted that in such circumstances, the Trial Court was duty bound to dissolve the marriage on the basis of Khula---Contention of counsel for defendant was not legally tenable, because; the plaintiff not only sought the decree for dissolution of marriage on the ground of Khula, but she had also pleaded for dissolution of marriage on other grounds i.e. non-payment of dower, neglecting to perform marital obligations for more than 3 years; and not providing maintenance for more than 2 years; and also that the defendant had contracted a second marriage---Ground of the second marriage had been admitted by the defendant; and sufficient material was available on the record whereby the rest of the grounds had also been proved---Second marriage of the defendant was available to the plaintiff for seeking the dissolution her marriage and in such circumstances no question arose for passing a decree on the basis of Khula, as the plaintiff was entitled to claim the dissolution of marriage on such ground---Judgment and decree passed by the Trial Court, not suffering from any legal defect, muchless the jurisdictional error, were maintained, in circumstances. ?

Dr. Fakhr-ud-Din v. Mst. Kausar Takreem and another PLD 2009 Pesh. 92 and Muslim Sher v. Mst. Qudrat Bibi and another PLD 1984 Pesh. 91 ref.

Ashraf Ali Khattak for Petitioner.

Nemo for Respondent.

Date of hearing: 3rd November, 2010.

2011 M L D 773

[Peshawar]

Before Mazhar Alam Khan Miankhel and Sardar Shaukat Hayat, JJ

HAFIZUR REHMAN---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.91 and Criminal Revision No.40 of 2009, decided on 17th August, 2010.

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

----Ss. 302/324/427/34---Qatl-e-amd, attempt to commit qatl-e-amd and mischief----Appreciation of evidence---Eye-witnesses had fully explained and justified their presence at the relevant time and the presence of complainant was also proved without any shadow of doubt---Son and wife of deceased were with deceased at the time of occurrence and son of deceased was produced as prosecution witness who fully explained the incident-Non-production of wife of deceased as a witness to the same facts being unnecessary, would have no adverse effect on the case of the prosecution---Testimony of the eye-witnesses, was consistent and no contradiction or discrepancies were found which could shatter their testimony or cause any reasonable doubt about their presence at the spot---Ocular account given by the eye-witnesses was established without any reasonable doubt, in circumstances---Unexplained abscon­dence of accused spreading over the years would be a corroborative piece of evidence against accused---Accused remained absconder and kept on waiting till the other co-accused was acquitted---Motive of the offence was also proved on record---Mere relationship of deceased with prosecution witnesses, would not be a ground to disbelieve the unshattered and confidence-inspiring testimony of said eye-witnesses--Acquittal of co-accused would have no direct bearing on the merits of the case as roles attributed to said acquitted accused were totally different---Conviction and sentence recorded by the Trial Court was in accordance with the evidence and material available on record---Sane was upheld and as motive alleged being directly against the deceased, the punishment awarded to accused was in accordance with law.

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

---Ss. 302/324/427/34---Qatl-e-amd, attempt to commit qatl-e-amd and mischief-Appreciation of evidence---Abscondence of accused---Though abscondence of an accused could not be considered as sufficient to base conviction, but if other sufficient evidence was available against accused, then abscondence would also work as a corroborative piece of evidence.

M. Zahur ul Haq for Appellant.

Ghulam Mohyuddin Malik for Respondent.

Instiaq Ibrahim, A.A.-G. for the State.

Date of hearing: 17th August, 2010.

JUDGMDNT

MAZHAR ALAM KHAN MIANKHEL, J.---Through this single judgment being recorded in Criminal Appeal No.91 of 2009, we also intend to dispose of Criminal Revision No.40 of 2009.

1. The appellant herein has questioned his conviction and sentence of life 'imprisonment as ta'zir under section 302(b), P.P.C. and the amount of compensation of Rs.100,000 (one lac) under section 544-A, Cr.P.C. payable to the legal heirs of the deceased and in default, the period of two years' SI, his conviction and sentence under section 324, P.P.C. and sentenced to undergo two years' R.I. along with fine of Rs.20,000 or in default thereof to further undergo six months' S.I., his conviction and sentence under section 427, P.P.C. for the period of one year along with fine of Rs.10,000 or in default thereof to further undergo three months' S.I. recorded by learned Additional Sessions Judge, Karak vide his judgment dated 18-2-2009 in case F.I.R. No. 88 dated 19-4-2005 Police Station Karak, District Karak.

2. The deceased Gul Sahib Shah while going to his duty early in the morning accompanied by his brother Asim Iqbal, the complainant, and his wife Mst. Roz Bibi and his son Muhammad Asif, were attacked by Usmanullah and Hafizur Rehman on the command and direction of one Anwar Bayaz. Resultantly the deceased received fire-arms injuries and succumbed to his injuries atethe spot. Motive for the offence was given to be an attempted murder. All the three accused went into hiding. First of all Anwar Bayaz was arrested and then tried by the learned Sessions Judge, Karak and was acquitted on 10-4-2008. After his acquittal, the present appellant surrendered himself on 18-8-2008 who was tried by the learned Additional Sessions Judge, Karak and was convicted and sentenced as stated above.

3. Learned counsel for the appellant in support of his appeal contended that the prosecution has failed to establish case against the appellant which is an unseen occurrence and record of the case reflects that it appears to be the doing of one person for which three persons have falsely been implicated in the case. The story forwarded by the prosecution itself is not acceptable because as per version given by the complainant, the deceased was going from west to east and his left side was exposed to the accused as shown and described in the site plan of the case but the receipt of injuries on the person of the deceased would reflect otherwise because the deceased received injuries from different angles and sides. The witnesses to the occurrence being brother and son of the deceased were interested witnesses and their testimony is full of doubts which cannot be believed. Learned counsel for the appellant further submitted that the presence of the eye-witnesses at the time of occurrence also becomes doubtful and was not explained by the prosecution to satisfaction of a man of prudence.

4. As against that, Mr. Inhtiaq Ibrahim, learned Additional Advocate-General for State assisted by learned counsel for the complainant submitted that the appellant along with Usmanullah co-accused were directly charged for effective firing on the deceased and motive for the offence was fully explained, proved and supported by the record of the case. While explaining the receipt of injuries by the deceased, the learned counsel submitted that the deceased was alarmed through the "Lalkara" of co-accused Anwar Bayaz and a person after being alarmed and facing life threat cannot remain a statue, so his sudden movement and attempt to save himself from the attack, received injuries on different parts of the body and in different directions. He further submitted that the witnesses of the prosecution are consistent and. have given a true and actual account of the case which was a broad daylight occurrence and there was no chance of substitution in presence of admitted motive. The medical evidence also supports the case of the prosecution. The unexplained abscondence of the appellant is another corroborative piece of evidence against him which cannot be overlooked in the circumstances of the case. The other co-accused is still absconding.

5. Counsel for the complainant further submitted that when a case under section 302, P.P.C. is proved without any reasonable doubt, the accused is liable to the maximum punishment provided for the offence and requested for enhancement of the sentence.

6. Learned counsel for the parties were heard and record of the case was perused which would reveal that the prosecution produced eleven witnesses in support of its case. The case of the prosecution is based on ocular account given by the complainant P.W.9 and Muhammad Asif P.W.10, the son of the deceased. The other eye-witness namely Mst. Roz Bibi was abandoned by the prosecution being an unnecessary witness of the same facts. The eye-witnesses have fully explained and justified their presence at the relevant time. The deceased was a primary school teacher whereas the complainant was a high school teacher and both the schools were situated adjacent to each other and both the brothers i.e. deceased and the complainant were going to their duties. The entire evidence on the record would reveal that the deceased and complainant, both the brothers, were going to school has not been shattered or denied by the other side. This very fact appears to be correct that both the schools where both the brothers were posted, were situated adjacent to each other. So, the presence of complainant is proved without any shadow of doubt. It was their routine to go together for their duties. Whereas the son of the deceased Muhammad Asif, P.W.10 has explained his presence that he along with his mother Mst. Roz Bibi were going to participate in a marriage ceremony in village Bego Khel. Both the eye-witnesses were consistent to the fact that they were not invited in the marriage ceremony of their co-villager namely Bhai so, they did not participate in that marriage ceremony. The categoric statement of P.W.10 that he along with his mother was going to Begu Khel to participate in the marriage ceremony has again not been denied or shattered by the defence. The presence of P.W.10. at the relevant time is thus established. So, non-production of Mst. Roz Bibi as a witness to the same facts being unnecessary would have no adverse effect on the case of the prosecution. The argument of the learned counsel for the appellant that as per postmortem report, the stomach was empty and P.W.9 has stated that they take breakfast before they leave for their duties would again be of no help to the defence as there was no question about the time of breakfast as to at what time they had taken their breakfast. There was no question as to whether they had taken any breakfast or not on that day. The testimony of the eye-witnesses if considered, that is consistent and no contradictions or discrepancies are there which could shatter their testimony or cause any reasonable doubt about their presence at the spot. So, the ocular account given by the eye-witnesses is established without any reasonable doubt.

7. The statement of doctor who conducted the post, mortem examination of the deceased was recorded as P.W.6 who described the injuries on the person of the deceased which would reflect that entries of many of the injuries were on the right side whereas some were on the left side of the deceased and similarly entrance of some of the injuries from upwards to downwards and from downwards to upwards. The receipt of injuries on the person of deceased would apparently reflect that he was fired upon from different sides and angles but when the circumstances of the case are taken into consideration, then one can safely hold that while going from west to east and the accused were on the left side of the deceased, on hearing the "Lalkaia" of Anwar Bayaz co-accused, he became alert and naturally he must have tried to protect himself and might have taken an about turn. In a situation like one in hand, the natural and sudden reaction to a life threat would be to protect oneself. The different directions of the injuries can again be explained that after receiving first fatal injury, the deceased fell on the ground and then he received injuries from different directions. So, the argument of the learned counsel for the appellant that the story of the prosecution is not acceptable and the deceased was fired upon from different directions is not acceptable and would' be of no help 'to the defence.

8. 14 empties of 7.62. bore were recovered from the spot and the FSL report Exh.PX/1 confirmed that the empties C.1 to C.14 were fired from different 7.62. bore weapons would be again a circumstance which would refute the argument of the learned counsel for the appellant that circumstances of the case reveal it to be the doing of one man.

9. Though the abscondence of an accused alone cannot be considered as sufficient to base conviction but if there is other sufficient evidence against the accused, then abscondence would also work as a corroborative piece of evidence. The unexplained abscondence of the appellant spreading over the years in the circumstances would again be a corroborative piece of evidence against the appellant as the occurrence took place on 19-4-2005 and he went into hiding. He remained absconder and kept on waiting till the result of other co-accused Anwar Bayaz who was acquitted on 10-4-2008 and after his acquittal, he surrendered himself on 18-8-2008. His such abscondence spreading over the years remained unexplained which in the circumstances of the case appears to be an intentional hiding which also reflects his guilty mind, coupled with ocular evidence would be sufficient to base conviction.

10. Motive for the offence is also proved on record that a case F.I.R. No.5 dated 11-1-2004 Police Station Karak was registered under sections 324/34, P.P.C. against the deceased on the report of Anwar Bayaz, the acquitted co-accused and in that case, effective role of firing was attributed to the deceased. Where there is clear proof of motive for the crime, it lends additional support to the case of prosecution.

11. All the above stated facts and circumstances of the case would reveal that the prosecution has proved its case beyond any reasonable doubt against the appellant. Ocular evidence in the case is confidence inspiring and is supported and in line with the circumstances of the case. Mere relationship in the circumstances of the case would not be a ground to disbelieve the unshattered testimony of the eye-witnesses. Motive for the occurrence has fully been explained in the cross-examination of P.W.10. The acquittal of the other co-accused would have no direct bearing on the merits of this case because as the roles attributed to the acquitted accused and the appellant along with absconding accused are totally different. So, we without any hesitation are of the view that the conviction and sentence recorded by the learned trial Court is in accordance with the evidence and material available on the record and this very fact has also been considered by the trial Court.

2011 M L D 787

[Peshawar]

Before Abdul Samad Khan, J

ABDUL RASHID and others- --Petitioners

Versus

ABDUL GHANI and others---Respondents

Civil Revision No. 539 of 2009, decided on 19th May, 2010.

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

----S. 25---Civil Procedure Code (V of 1908), S. 9---Auction---Jurisdiction of civil court---Scope---Civil court being court of plenary jurisdiction had the authority to determine as to whether an auction or orders of the forums constituted under Evacuee Laws were with or without jurisdiction; particularly after repeal the Evacuee Laws when Settlement Authorities were no longer entities muchless legal entities---Civil Court, in circumstances, could validly assume jurisdiction to adjudicate upon such matters---In view of repeal of Evacuee Laws and otherwise, too, civil court alone could take cognizance of the matter so as to judge veracity of the order---If the vires of orders and actions of Settlement Authorities were in question, then the bar of jurisdiction contained in S.25 of Displaced Persons (Land Settlement) Act, 1958 would not operate.

Mir Afzal Malik for Petitioner.

Malik Waseem Fazal for Respondents.

Date of hearing: 19th May, 2010.

2011 M L D 797

[Peshawar]

Before Mian Fasih-ul-Mulk, J

RASHID---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 563 of 2010, decided on 20th December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.376 & 365-B/34---Abduction and rape---Bail, refusal of --Accused party had allegedly taken the abductee from one place to. another on gun point and kept her for about six months in illegal confinement and subjected her to illegal sexual intercourse---Accused had been directly charged by the abductce for commission of such heinous immoral offence---Keeping in view the bare statement of abductee in mind, there was. no possibility of false implication of accused with commission of crime of such heinous nature---Accused and his co-accused had allegedly committed rape on the person of complainant, who was hardly 17/18 years of age--Medical evidence had fully supported the prosecution version---Prima facie, accused was reasonably connected with commission of offence of moral turpitude and heinous in nature, which fell within the prohibitory clause of S.497, Cr.P.C.---Bail petition of accused, was dismissed, in circumstances.

Malik Manzoor Hussain for Petitioner.

Nauman Malik for the Complainant.

Ghulam Younis Khan for the State.

Date of hearing: 20th December, 2010.

2011 M L D 805

[Peshawar]

Before Muhammad Safdar Khan Sikandri, J

FAIZULLAH---Appellant

Versus

IMRAN ABBAS---Respondent

Regular First Appeal No. 44 of 2009, decided on 25th November, 2010.

Civil Procedure Code (V of 1908)---

---O. XXXVII, Rr. 2 & 3---Qanun-e-Shahadat (10 of 1984), Arts.17(2)(b) & 79---Suit for recovery of money on basis of promissory note and its receipt---Denial of execution of promissory note and its receipt by defendant---Scribe of promissory note and its receipt, one marginal witness of receipt and plaintiff in their depositions supported plaintiff's claim---Refusal in court of second marginal witness of receipt to depose on oath---Effect---Unwillingness of second marginal witness of receipt to depose on oath, would not affect plaintiff's claim adversely as same did not indicate that signature on receipt was bogus or he was not present at time of its execution or he was not telling lie about its scribing---Burden lay on defendant to prove that promissory note and its receipt were forged, thus, he could not take benefit from weaknesses of statements of plaintiff's witnesses---Court was not legally bound to scrutinize matter of signatures of defendant through Forensic Science Laboratory-Defendant had done nothing either to get promissory note and its receipt examined and opined by a Handwriting Expert or to place material on record for comparison of his signature---Evidence of defendant on record showed that parties had cordial relations with one another in connection with business matters as shopkeepers---Defendant had admitted his signatures on written state­ment, surety bond and power of attorney in favour of his Advocate---Signatures of defendant on promissory note and its receipt, application for leave to defend suit, surety bond and power of attorney in favour of his Advocate tallied with each other---Suit was decreed in circumstances.

2006 CLD 91; Maqsood Ali Khan v. M. Tehseen Khan 2003 YLR 1866; Hafeez Ahmad v. Sain and others 2003 SCMR 1185 and Masood Anwar v. Sabir Khan PLD 2006 Pesh. 208 ref.

Burhan Latif Khaisori for Appellant.

Muhammad Waheed Anjum and Jehanzeb Ahmad Chaughtai for Respondents.

Date of hearing: 25th November, 2010.

2011 M L D 825

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

ABDUL GHAFFAR KHAN and another---Appellants

Versus

UMAR ALI SHAH and another---Respondents

Criminal Appeal No.449 of 2010, decided on 24th December, 2010.

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

----S. 324---Attempt to commit qatl-e-amd---Scope---Act of attempt should be with such intention or knowledge and under the circumstances in which the attempt was being made---For an attempt to commit qatl-e-amd, there must be "mens rea" followed by the act of wrong doer, which if done, could cause "qatal" of the person---Mere criminal intention, in absence of an act of attempt was not sufficient to constitute an offence under S.324. P.P.C.

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

----S. 324---West Pakistan Arms Ordinance (XX of 1965), S.13---Attempt to commit qatl-e-amd and possessing unlicensed arms---Appreciation of evidence---Story put forth by the prosecution, did not reflect any such act which could amount to an attempt with an intention to commit qatl-e-amd punishable under S.324, P.P.C.---Record of the case would suggest that investigation of the case was conducted with a malice on the part of Investigating Officer--Statement of star witness, was full of material contradictions, which could hardly be believed as his presence at the relevant time became doubtful---Other eye-witness was not produced---Entire evidence in the light of site plan would make narrations of the prosecution absolutely unbelievable---Licensed rifle of accused was snatched from his daughter by the complainant, who later on came along with a concocted and baseless story---When snatching of rifles from accused persons, was not proved, then application of S.13 of West Pakistan Arms Ordinance, 1965, against accused had become a question mark---Prosecution having failed to prove its case against accused, his convic­tion and sentence, were set aside, in circumstances. [

M. Arshad Yousafzai for Appellants.

Sohibzada Asadullah for Respondents.

Hassan Mohd Shinwari for the State.

Date of hearing: 20th December, 2010.

2011 M L D 852

[Peshawar]

Before Mian Fasih-ul-Mulk, J

SHAD MUHAMMAD---Appellant

Versus

THE STATE and another---Respondents'

Criminal Appeal No.62 of 2009, decided on 28th January, 2011.

Penal Code (XLV of 1860)---

----Ss. 324/337-A(ii)/34---Attempt to commit qatl-e-amd causing Shajjah-i-Mudihah---Appreciation of evidence---Prosecution witness had stated that he saw accused persons duly armed, firing upon. the complainant, who was hit therewith on his head---Said witness did not specify as to whose fire hit the complainant---Once the complainant admitted that compromise was effected between the parties, he thereafter could not resile because the offence was compoundable and the complainant admitted receipt of amount as compensation for his injury---Prosecution witnesses were not consistent on material particulars of the case; and their statements were not confidence inspiring---According to one of the prosecution witnesses, many persons were examined, but no such statement was available on record---Best available evidence was withheld, which had compelled court to draw an adverse inference---Interested witness who was inimical towards accused, was examined, but his statement was not corroborated by any independent evidence---Impugned conviction and sentence recorded by the Trial Court against accused were set aside, he was acquitted, in circumstances.

Mehdi Zaman Khan for Appellant.

Syed Hamad Shah for the State.

Date of hearing: 28th January, 2011.

2011 MLD 865

[Peshawar]

Before Attaullah Khan, J

DILAWAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail No. 54 of 2011, decided on 28th February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.381-A/382/411/34---Theft of a car or other motor vehicle; theft after preparation made for causing death, etc., dishonestly receiving stolen property---Bail, grant of----Further inquiry---Accused having remained in Police custody for about 13 days, his confession in Police custody was not voluntary---On the basis of defects in the confessional statement; case of accused had become of further enquiry--Was still to be settled that whether the case would fall under S.382, P.P.C. or 381-A, P.P.C.---Doubt existed as to the date on which motorcycle and mobile were handed over to the complainant---Challan was completed and accused was no more required for investigation---Accused was also first offender and had no previous criminal history---Delay in lodging the F.I.R.---Accused was allowed to be released on bail, in circumstances.

2007 PCr.LJ 39 and 2001 PCr.LJ 555 ref.

Saifur Rehman Khan for Petitioner.

Sanaullah Shamim, D.A.-G. for the State.

Akhtar Saeed Khan for the Complainant.

Date of hearing: 28th February, 2011.

2011 MLD 886

[Peshawar]

Before Dost Muhammad Khan and Yahya Afridi, JJ

ABDUL HAYAT---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.493 and Criminal Revision No. 138 of 2009, decided on 9th February, 2011.

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

----Ss. 302(b) & 449---Qatl-e-amd and house-trespass---Appreciation of evidence---Benefit of doubt---Co-accused had been acquitted extending him benefit of doubt attributing role of 'Lalkara'---Role of co-accused could not be taken as a mere case of proverbial 'Lalkara', because besides the community of motive between two accused, common intention of both on the strength of the charge and the evidence, could not be sifted from one another---Motive was common to both accused, but it was disbelieved qua the acquitted co-accused which could not be tagged with accused---Alleged crime rifle was not found in working condition and serviceable by expert after due examination---Matching of the empty, in circumstances could not be carried out with the rifle as no test fire could be made through the rifle in question--Such was a strong circumstance adversely reflecting upon the bona fide of the investigation and it appeared that the crime rifle was not recovered at the instance of accused, but was planted against him---Safe transaction of empties and weapon of offence to. the laboratory, was not established---When the crime empty had not been found wedded with the rife, it was no help to the prosecution---Corroboratory evidence to that effect was of no legal worth or judicial efficacy to be relied upon---Evidence of second witness, was of no legal worth nor it was credible to be relied upon, for the reason that said witness was minor as such his mindset could be moulded by the wiser hand in the manner it liked---Such evidence could safely be discarded---Evidence of the complainant needed corroboration because she and her minor son both were disbelieved qua the acquitted co-accused---Testimony of said witnesses was not supported by any corroboratory evidence independent in nature, even with regard to accused---Same could not be relied upon---Was difficult, rather impossible to identify the culprits, who were having their back towards the complainant---Prosecution had failed to prove the guilt of accused' beyond any shadow of doubt---While extending benefit of doubt, impugned judgment of the Trial Court, was set aside, accused was acquitted and was set free.

Umar Hayat v. The State PLD 1995 SC 526; Muhammad Hanif v. The State 1992 ALD 241; Sattaro v. The State PLD 1988 Kar. 350 Karachi and Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 ref.

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

----Ss.302(b) & 449---Qatl-e-amd and house trespass---Identification of accused---Identification of culprits through fleeting looks at night time would come within the category of suspect evidence---Same would require very strong corroboration, otherwise it would not be acceptable and believable; and that too in capital offences for carrying conviction.

Muhammad Arshad v. The State PLD 1995 SC 475 and Shahzado v. The State and 8 others PLD 1977 SC 413 ref.

Khawaja Muhammad Khan Gara for Appellant.

Shafi Ullah Khan for the State and Syed Sher Badshah for the Complainant.

Date of hearing: 9th February, 2011.

2011 M L D 912

[Peshawar]

Before Attaullah Khan, J

Haji RUSTUM KHAN---Petitioner

Versus

GUL AZAM through Legal Heirs and others ---Respondents

Civil Revision No.208 of 2004, decided on 11th October, 2010.

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

----S. 54---Suit for permanent injunction---Shamilat Deh land granted by Government to Landak and Kheru-Khel Tribes ---Plaintiffs' prayer to restrain alienation of suit land by defendant not belonging to either of such tribes---Defendant claimed suit land to have been granted to his predecessor in lieu of his services as Subedar Major subject to condition laid down in Wajib-ul-Arz---Proof---Revenue Record including pedigree- table showed that defendant belonged to Baluch Tribe, which was not member of such two tribes to whom suit land had been granted by Government---Wajib-ul-Arz, showed that Government while granting suit land to such two tribes had reserved to itself right to give any portion of suit land to a person not belonging to such two tribes on condition that he had to re-claim land within a period of five years and in case of his failure to do so, ownership would revert to members of such two tribes---Nothing on record to prove possession of predecessor of defendant as owner of suit land for five years---Judgment of High Court in previous litigation between parties showed that major portion of suit land had never been cultivated by predecessor of defendant or his legal heirs while an earlier judgment of Judicial Commissioner revealed that suit land for not being owned and possessed by defendant should go to its original owners i.e. Landak and Kheru-Khel tribes---Defendant could not claim any title over suit land---Suit was decreed in circumstances.

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

----S.115---Revision---Concurrent findings by courts below---Validity---Such findings could not be set at naught by High Court without proving same to be perverse or erroneous and against record.

Abdul Rahim and another v. Mst.Jantay Bibi and others 2000 SCMR 346; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahntad v. Muhammad Siddique PLD 2002 SC 293 rel.

Muhammad Ayaz Khan Qasuria for Appellant.

Ahmed Ali Khan Marwat for Respondent.

Date of hearing: 11th October, 2010.

2011 M L D 925

[Peshawar]

Before Syed Sajjad Hassan Shah, J

WAHEED KHAN---Petitioner

Versus

ADDITIONAL CHIEF SECRETARY FATA and 4 others----Respondents

Civil Revision Petition No.417 with C.M. No.296 of 2010, decided on 31st January, 2011.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration and permanent injunction---Grant of temporary injunction, application for---Trial Court allowed application for grant of temporary injunction, but Appellate Court dismissed application---Validity---For issuing temporary injunction, all the three conventional ingredients must be fulfilled by the plaintiff---Even if one of those ingredients was found missing, injunction could not be issued in favour of the plaintiff---In the present case the plaintiff had sought that the authorities be compelled to omit the clause of tender notice so that plaintiff could be able to participate in the tender process--Issuance of such directory order would amount passing the decree in favour of the plaintiff, at premature stage of the case---Stance of the plaintiff being not supported by any provision of law, he had failed to make out the prima facie case in his favour---If the plaintiff, would not have participated in tender process, at the most, would suffer the loss recoverable in terms of money which could not be regarded as irreparable loss---Balance of convenience was also not tilted in favour of the plaintiff; as in case of restraining the bidding process, the public developmental work would be stopped and loss would be suffered by the national ex chequer on account of every day trend in price hike of the construction material---People of the area would also be deprived of the facility being provided to them by the authorities---Balance of convenience, in circumstances, did not lie in favour of the plaintiff and instead the authorities would suffer inconvenience---Plaintiff having not succeeded to make out the case for issuing temporary injunction, order of Appellate Court not suffering from any illegality or irregularity was maintained.

Shehzada Muhammad Umar Baig v. Sultan Mehmood Khan and another PLD 1970 SC 139 ref.

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

----S. 56(d)---Injunction, refusal of---Injunction under S.56(d) of Specific Relief Act, 1877 could not be issued to hamper the public work being performed by the functionaries of the public department, as would amount to restraining the smooth running of its business---Plaintiff had not shown any compelling reason seeking the issuance of injunction in his favour---Court had to see that whether all the ingredients required for issuing the injunction were co-existing or not---In case any of such ingredients was found missing, there was no other way but to refuse the same---Wisdom behind S.56(d) of Specific Relief Act, 1877 was that there was a statutory bar contained in clause (d) of S.56 of Specific Relief Act, 1877, which prohibited the grant of injunction and interference with public duties of Departments of Central or Provincial Governments---Such was a serious matter for the court's consideration whether it would be right to issue injunction to a public department which would disturb its working; and it could not do so unless compelling reasons demanded that course---Plaintiff had yet to prove his right and entitlement in the subject matter of the suit; he could not claim the issuing of proposed injunction in his favour as it was equitable and discretionary remedy---Discretion always was to be exercised in view of the norms of law and justice and in equitable manner---Order accordingly.

Umar Gul v. Abdul Manan and others PLD 1992 Pesh. 76 ref.

Muhammad Wahid Anjum for Petitioner.

Sanaullah Shamim Gandapur, D.A.-G. for Respondents.

2011 M L D 935

[Peshawar]

Before Shah Jehan Khan Yousafzai, J

NAIMAT ULLAH and 2 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1979 of 2010, decided on 7th February, 2011.

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---Further inquiry---Four accused were male members of the same family, wherein one was stated to be present in the Military Unit on the date of occurrence; and he had been placed in column No.2 of the challan---Deceased sustained a single entry wound from a very close distance of 12 feet, which could be inflicted by a single accused---Presence of the complainant and son of deceased, who posed to be the eye-witness of the occurrence, was yet to be established at the trial---Out of four accused, no body had been named for the effective firing---Complainant and son of deceased, in their statements before the Police did, not disclose the calibre of the weapon carried by accused party at the time of commission of offence---Accused though were charged for an offence carrying capital punishment falling under the restrictive part of subsection (I) of S.497, Cr.P.C., but the court had to make a tentative assessment of the prosecution case; and the plea of defence at bail stage for arriving at a conclusion as to whether reasonable grounds existed to hold that accused were reasonably connected with commission of offence---Plea of alibi raised by one of accused persons was found correct and his name was placed in column No.2 of the challan, which made the case of accused one the case of further inquiry---Accused were allowed bail, in circumstances.

1991 MLD 2564; PLD 1995 SC 34; 2003 PCr.LJ 1149; 2006 PCr.LJ 184 and 1999 PCr.LJ 403 ref.

Abdul Latif Afridi and Masoodur Rehman for Appellant.

M. Rafiq A.A.-G. for the State.

Hussain Ali for the Complainant.

Date of hearing: 3rd February, 2011.

2011 MLD 958

[Peshawar]

Before Zia-ur-Rehman Khan, J

MUHAMMAD SIRAJ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Petition No. 599 of 2010, decided on 2nd June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 21---Possessing and trafficking narcotics---Bail, grant of---Further inquiry---Arrest of accused had been effected by Assistant Sub-Inspector of concerned Police Station, whereas it was specifically mentioned in S.21 of Control of Narcotic Substances Act, 1997, that arrest without warrant would not be effected by a Police Officer below the rank of Sub-Inspector----Narcotics, as per contents of F.I.R. were concealed in the secret cavity i.e. Petrol tank; and the material collected by the prosecution, did not ipso facto show that accused had conscious knowledge, about the said concealment of narcotics---Accused was merely travelling in the car in question, without having the conscious knowledge of the narcotics; and without having any connection with the ownership of said car---Accused, in circumstances, could not be blindly held responsible for anything concealed in the secret cavity, particularly in the absence of any proof of his ownership pertaining to the said car---Prima facie there existed no material to connect accused with the commission of offence in clear cut mariner---Investigation of the case had been completed; and it would serve no useful purpose if accused was any more retained in the lock up---Accused having made out a case of further inquiry, he was admitted to bail, in circumstances.

PLD 2001 Pesh. 152; 2009 MLD 467 and 2010 YLR 245 ref.

Noor Alam Khan for Petitioner.

Muhammad Hayat for the State.

Date of hearing: 2nd June, 2010.

2011 MLD 974

[Peshawar]

Before Sher Muhammad Khan, J

Mst. BANORI---Petitioner

Versus

JAILANI---Respondent

Civil Revision No.249 of 2004, decided on 22nd November, 2010.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Notice of Talb-i-Ishhad not finding mention time and place of performing Talb-i-Muwathibat and source of information about suit sale---Plaint finding mention of source of information about suit sale, but not finding mention time and place of receiving information and witnesses present at such time---Ignorance about date, time and day of performance of Talb-i-Muwathibat expressed by plaintiff during evidence ---Contradiction in statements of witnesses of Talb-i-Ishhad regarding time of their presence in plaintiff's house---Effect---Right of pre-emption could not be activated without per­formance of Talb-i-Muwathibat in accordance with law---Performance of Talb-i-Muwathibat was more important than superior right of pre­emption---Superior right of pre-emption might exist, but would be useless unless Talb-i-Muwathibat was proved in accordance with law---Plaintiff had failed to prove performance of Talb-i-Muwathibat in accordance with law---Suit was dismissed in circumstances.

Muhammad Suleman v. Shaukat Ali 2009 SCMR 678; Fazal Din v. Muhammad Anayat 2007 SCMR 1; Mst. Saleem Akhtar v. Chaudhry Shaukat Ahmad 2009 SCMR 673 and Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs and others PLD 2007 SC 302 rel.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13(1)(a), Expln. I---Talb-i-Muwathibat---Words "immediate demand" as, used in S. 13(1)(a), Expin. I of North-West Frontier Province Pre-emption Act, 1987---Connotation stated.

Talb-i-Muwathibat means immediate demand by a pre-emptor in the sitting or meeting (majlis) in which he has come to know of the sale declaring his intention to exercise the right of pre-emption. The words "immediate demand" put limitation on the prospective pre-emptor that he must express his intention immediately.

(c) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Civil Procedure Code (V of 1908), O. VI, R. 17---Pre­emption suit---Subsequent sale of suit land by vendee---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Performance of Talb­i-Muwathibat on 24-6-1992 and sending of notice of Talb-i-Ishhad on following day---Plaintiff's application for impleading subsequent vendee in suit filed on 8-7-1992---Acceptance of such application by court on 28-7-1992---Filing of amended plaint on 19-9-1992---Amended plaint had been filed within time.

(d) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Contract Act (IX of 1872), Ss. 196 & 197---Pre-emption suit---Talb-i-Ishhad, notice of---Issuance of such notice by pre-emptor through her husband---Power of attorney in favour of husband containing powers to institute suit only, but not containing powers of performing such Talb on behalf of pre-emptor---Pre-emptor's deposition in court in support of her suit acknowledging also power of attorney given to her husband---Validity---Presumption would be that pre-emptor had ratified powers exercised by her husband---Such ratification would validate acts, omission and commission of agent for all legal purposes.

Rustam Khan Kundi for Petitioner.

Muhammad Waheed Anjum for Respondent.

Date of hearing: 22nd November, 2010.

2011 M L D 1017

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

TAZEEM AKBAR---Petitioner

Versus

THE STATE and another---Respondents

Bail Criminal Miscellaneous Application No.45 of 2011, decided on 11th March, 2011.

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

----S. 497(2)-Penal Code (XLV of 1860), Ss.302/148/149---Qatl-e­-amd---Bail, grant of---Further inquiry---Besides three persons named in the F.I.R., including accused, some 5/6 other unknown persons were also charged for giving hatchet blows to the deceased---Difference was noticed between ocular version and medical evidence---Mere presence of accused at the spot or nomination of accused in the F.I.R. without any specific role in the commission of offence, would not be sufficient to refuse bail to the accused---Involvement of accused persons with their common intention in the commission of the offence, would require further probe into their guilt by recording of evidence; and it would be the Trial Court to determine their such involvement---Case against accused, in circumstances, required further probe---Person could not be left to be rotten in the bunk beds of jail in such like accusation---If the prosecution would be successful in proving charge against accused, he could well be punished for the amount of his guilt---Case for grant of bail having been made out, accused was admitted to bail, in circumstances.

Babar Khan Yousafzai and Mahmood Hassan Khan for Petitioner.

Obaid Razzak, A.A.-G., for the State.

Mian Arshad Ian for the Complainant.

Date of hearing: 11th March, 2011.

2011 M L D 1029

[Peshawar]

Before Shah Jehan Khan Yousafzai, J

SAMIULLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos. 57 and 61 of 2011, decided on 10th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 409/419/420/468/471/ 477-A/120-B---Anti-Money Laundering Act (VII of 2010), Ss.3/4---Criminal breach of trust by public servant, cheating, forgery for purpose of cheating, using as genuine a forged document, falsification of accounts; criminal conspiracy in money laundering---Bail, refusal of---One of accused was serving in the Bank as Manager (Operation), while other one was working in the Bank as cashier---Prima facie, both the accused were reasonably connected with the commission of offence and had also been proceeded against departmentally and their services were suspended---Accused had committed mistrust and had violated the rules by making payment of a huge amount on a cheque issued through a forged signature---Offence against accused being of moral turpitude, accused did not deserve any leniency; they were reasonably charged with a heinous offence, mistrust, fraud, misrepresentation and against moral turpitude---Bail application of the accused persons was dismissed, in circumstances.

1985 SCMR 359 and PLD 1995 SC 34 ref.

Naqeeb Ahmed Takkar for Petitioner.

Muhammad Jamil Warsak, Standing Counsel for the State.

Date of hearing: 9th March, 2011.

2011 M L D 1048

[Peshawar]

Before Ejaz Afzal Khan, C. J.

ABDUL GHAFOOR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.444 of 2011, decided on 4th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.365-B/34---Kidnapping, abducting or inducing woman to compel for marriage etc.---Bail, grant of,--Further inquiry---Accused had asked for his release on bail mainly 6n the grounds that alleged abductee was his legally wedded wife; and that the previous Nikahnama appeared to be a brain child of the complainant to make out a case of abduction for marriage---Whether alleged abductee was already married or her alleged marriage was just a pretext to keep her away from her husband she married against the wishes of her family, was a question requiring further enquiry--Accused was admitted to bail, in circumstances.

Muhammad Qasim Khan Khattak for Petitioner.

Zahid Yousaf, A.A.-G. for the State.

Date of hearing: 4th April, 2011.

2011 M L D 1081

[Peshawar]

Before Mian Fasih-ul-Mulk, J

MEHANDIA---Petitioner

Versus

JUMA through L.Rs.---Respondent

Civil Revision No.14 of 2003, decided on 14th January, 2011.'

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

----S. 115 & O. XXII, Rr. 3 & 4---Revision against dead person---Impugned judgment was passed on 7-11-2002, whereagainst revision was filed on 23-1-2003---Legal heirs of deceased not impleaded by petitioner despite repeated orders of High Court---Application by legal heirs of deceased for bringing them on record filed on 20-6-2009 was accepted---Petitioner's application dated 14-1-2011 under Ss. 151 & 153, C. P.C., that legal heirs of deceased brought on record would be sufficient for all legal intents and purposes in subsequent proceedings---Validity---Non-mentioning legal heirs in revision petition could hardly be termed as a clerical error. but gross negligence and lack of diligence in pursuing same, which could not be overlooked as valuable right had accrued to respondent---Petitioner had neither made application for condonation of delay nor offered any justification for omission or inaction of not impleading legal heirs of deceased even alter repeated directions of court---Question of limitation could hardly be termed as a mere technicality---High Court dismissed revision petition in circumstances.

2003 MLD 1865; PLD 1971 SC 82; PLD 1988 Lah. 148; 1998 SCMR 1223; PLD 2009 SC 95; 2007 CLD 1301; 1987 SCMR 1145 and Mir Ghulam Abbas and others v. Hashim and others 1969 SCMR 257 ref.

2001 MLD 1964 and Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446 rel.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Art. 129(e)---Limitation Act (IX of 1908), Art. 142---Specific Relief Act (I of 1877), Ss.8, 42 & 54---Suit for declaration, possession and permanent injunction---Suit filed on 9-1-1990 challenging sale mutation attested on 20-5-1962 in defendant's favour-Validity-Burden was on plaintiff to prove his dispossession within 12 years of filing of suit---Presumption of correctness was attached to long-standing entries in Revenue Record in favour of defendant---Plaintiff had not rebutted such presumption by bringing on record any evidence---Revenue Record showed that defendant and not plaintiff remained in possession of suit land within 12 years of filing of suit---Plaintiff's failure to give date of his dispossession would make his suit time-barred---Suit was dismissed in circumstances.?

Wazir Khan and others v. Qutab Din and others PLD 2009 SC 95 rel.

(c) Limitation---

----Question of limitation could hardly be termed as a mere technicality. ?

Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446 rel.

Nisar Hussain Khan for Petitioner.

Saeed Ashraf for Respondent.

Date of hearing: 14th January, 2011.

JUDMGENT

MIAN FASIH UL-MULK, J.---This is a revision petition under section 115. C.PC. against the judgment and decree dated 7-1 1-2002 of learned Additional District Judge-1, Mansehra, whereby judgment and decree of learned Civil Judge, Balakot dated 26-1-1993 was maintained and appeal dismissed.

1. Petitioners filed a suit for declaration, possession and permanent injunction against Jumma predecessor-in-interest of respondents regarding property fully described in the heading of plaint. Defendant contested the suit and learned Civil Judge, Balakot after recording evidence and hearing parties dismissed the suit. Feeling aggrieved defendant preferred appeal which was accepted and the suit of plaintiff decreed. The respondents preferred Civil Revision before High Court. Abbottabad Bench, which was accepted and case was remanded to learned Additional District Judge for decision afresh on the ground that first appellate court did not consider the evidence nor recorded its findings or reasons on all issues for reversing the decree of trial Court which is against the mandatory requirement of Order XLI, Rule 31, C.P.C. The learned Additional District Judge-I, Mansehra after remand dismissed the appeal vide impugned judgment dated 7-11-2001, hence the instant revision petition.

2. Learned counsel for petitioners contended that impugned judgments and decrees are the result of gross misreading and non-reading of material evidence available on record, misinterpretation of law on the subject and are liable to be set aside. It was argued that issue of limitation has wrongly been decided against the petitioners on the basis of Revenue Record and the collusive mutation. Entries of mutation and Revenue Record are made for fiscal purposes only and entries of mutation neither create nor extinguish rights of parties. Learned counsel submitted that petitioners be granted decree as prayed for.

3. On the other hand learned counsel for respondents at the very outset raised three preliminary objections: firstly that revision petition is incompetent as filed against a dead person. -Secondly, petitioners did not comply with the repeated directions of this court to bring on record legal heirs of deceased respondent and thirdly that the L.Rs. of deceased respondent themselves appeared in court on 20-7-2009 and applied through their counsel for impleadment. The revision petition is, therefore, hopelessly barred by time.

4. On merits, it was argued that Jumma predecessor-in-interest of respondents purchased the suit land- through Mutation No.1098 attested on 20-5-1962 and since then till his death he remained in possession of suit property. Petitioners failed to produce any evidence to show that mutation in dispute is wrong against law and fact or is fraudulent. Petitioners have not challenged Mutation No.1098 attested on 20-5-1962 within prescribed period of limitation and hence his suit and appeal were rightly dismissed. Reliance was placed on 2003 MLD 1865, PLD 1971 SC 82, PLD 1988 Lahore 148, 2001 MLD 1964, 1998 SCMR 1223, PLD 2009 SC 95, 2007 CLD 1301 and 1987 SCMR 1145.

5. I have heard learned counsel for parties and gone through the record with their valuable assistance.

6. Admittedly, Jumma defendant died during pendency of appeal and vide order dated 19-5-2001 of learned Additional District Judge-I. Mansehra his L.Rs. were brought on record but strange enough that the instant revision petition was filed against a dead person on 23-1-2003. Petitioners being close relatives of deceased Jumma intentionally avoided mentioning of L.Rs. of deceased in the memo. of revision petition and thereafter failed to comply with the court orders dated 19-4-2006, 19-5-2006 and 31-10-2006 respectively. Ultimately L.Rs. of deceased applied through their counsel on 20-6-2009 and were brought on record.

7. Learned counsel for petitioners could not controvert the preliminary objections but vehemently argued that applicability of Order Rule 10, C.P.C. is confined only to suits and appeals and the time limitation would not be attracted in case of revision petition where the High Court may call for the record of any case which has been decided by any court subordinate to such High Court and if such subordinate court appears to have acted in the exercise of its jurisdiction illegally or with material irregularity. This argument has no substance and, therefore repelled in view provisos 2 and 3 of subsection (1) of section 115, C.P.C. wherein limitation period of 90 days has been specifically mentioned.

8. The argument of learned counsel for petitioner that the impugned judgments suffer from misreading or non-reading of evidence and the disputed mutation and Revenue Record creating or extinguishing no rights can be challenged any time and there shall be no limitation as the same are meant for fiscal purposes has also no force for the simple fact that deceased respondent purchased the suit land through mutation as back as on 20-5-1962 and was handed over the possession of suit property after its purchase. Petitioners brought suit for declaration possession and perpetual injunction on 9-1-1990. Suit has net been filed within the prescribed limitation period. Presumption of correctness is attached to long-standing entries in the Revenue Record in favour of deceased respondent, which are consistent continuous, and the petitioners could not rebut the same through any evidence. Under Article 142 of Limitation Act the burden of proving dispossession within 12 years of filing suit lies on plaintiff. His failure to give date of dispossession would make his suit time-barred when defendants have produced sufficient evidence in the shape of Revenue Record showing that they and not the plaintiff remained in possession of suit property within 12 years of filing of suit. This view is supported by a judgment reported in the case of Wazir Khan and others v. Qutab Din and others PLD 2009 SC 95.

9. Arguments were addressed on 10-1-2011 and the judgment was reserved for orders on 14-1-2011 when learned counsel for petitioner submitted an application under sections 151/153, C.P.C. It was averred in the application that once the legal heirs of original respondent Jumma were brought on record it was sufficient for all subsequent proceedings for all legal intents and purposes. This proposition of law has been settled by honourable Supreme Court in case titled "Mir Ghulam Abbas and others v. Hashim and others" reported in 1969 SCMR 257. This principle has been consistently followed since then. It was further contended that Order XXII, Rules 3 and 4, C.P.C. were amended vide Law Reforms Ordinance XII of 1972 and principle of abatement of proceedings due to non-filing of list of legal heirs was done away with. After this amendment honourable Supreme Court has consistently held that cases should be decided on merits instead of knocking out the litigants on the grounds of technicality. Any decision pronounced by the court notwithstanding death of such respondent would have the same force and effect as it had been pronounced before death of respondent had taken place. It was concluded that non-mentioning of names of L.Rs. of deceased respondent is just a clerical error while they are already impleaded in memo of appeal and that the High Court has got ample powers to correct any formal defect or error and make such orders' as may be necessary for the ends of justice.

10. In order to appreciate the arguments of learned counsel in true perspective, it would be appropriate to consider the brief facts of the case referred above. In the cited case a declaratory suit was filed: In the suit permanent injunction was also prayed. Along with the suit an. application was filed for temporary injunction but upon this application being dismissed an appeal was filed therefrom under Order XLIII, Rule 1 of the Code of Civil Procedure in the High Court of West Pakistan Karachi. This appeal was subsequently, transferred to the District Court of Hyderabad.

11. During pendency of appeal one of the original plaintiffs Mooso died on 8-12-1961. Defendant Mir Hussain Bakhsh Talpur died some time in the first week of December, 1961 and finally the plaintiff Ibrahim died on 10th of May, 1962. An application was made before the appellate Court for bringing on record the heirs of the deceased parties and the legal representatives of deceased were duly brought on record of the appellate court but no similar application was then made in the original suit.

After the disposal of appeal when the trial re-commenced in the original Court objections were raised on behalf of the defendants on the ground that the suit had abated. At this stage the plaintiffs filed an application under sections 151 and 153 of the Code of Civil Procedure for permission to amend the cause title of the plaint by substituting therein the names of the legal representatives of the deceased parties. No application was, however, made either for setting aside the abatement or for the condonation of delay.

The learned Civil Judge on the 14th of October, 1964, rejected the application on the ground that it was time-barred, and declared the whole suit as having abated, as the cause of action of all the plaintiffs was joint and the interests of the deceased parties were indivisible from those of the surviving parties. The revision in the High Court was filed against this order.

A learned Single Judge in the High Court took the view that the failure on the part of the plaintiffs to make a corresponding application for substitution in the trial Court was no doubt an omission which can be called, to be technically serious but went on to hold that in a matter in which technical omission has been made for bringing the legal. representatives on record within time the correct point of view is that latitude should be allowed to the parties.

The revision was, accordingly allowed the order of the Civil Judge was set aside and the legal representatives were directed to be brought on the record subject to the applicants (now appellants) being made liable to pay costs amounting to Rs.1.000 as a punishment for their negligence in not making the application for substitution in the trial Court also within time.

Leave was granted in this case to consider whether the substitution made in the Court of appeal during the pendency of the appeal from an interlocutory order, would not ensure also for the purposes of the suit and be sufficient to cure all defects in that behalf.

After hearing the appeal, it was observed that "in the view we have taken no question of abatement at all arises. Therefore, the question as to whether the suit abated as a whole or only partially need not be considered. This appeal is, accordingly dismissed, but as no one has appeared for the respondents there will be no order as to costs".

As such the judgment; and order of learned Single Judge of the High Court of West Pakistan Karachi Bench was upheld. The facts of the referred case as narrated are quite distinguishable and cannot be applied to the case in hand. As earlier mentioned revision petition was filed against a dead person and non-mentioning of L.Rs. of deceased respondent can hardly be termed as a clerical error but gross 1 negligence and lack of diligence in pursuing the revision petition, which cannot be overlooked as valuable right had accrued to the other side.

1. It would be advantageous to refer to the case of Sher Muhammad and 27 others v. Muhammad Mumtazul Islam through legal heirs and 6 others (2001 MLD 1964) wherein it was held that when the legal heirs of deceased respondent were not impleaded in the revision petition and application for their impleadment was made after the period of limitation for filing of petition, such act of petitioner shows gross negligence and lack of diligence in pursuing and prosecuting the Lis. High Court declined to condone such lapse as valuable right had accrued to the other side with the passage of time.

In the instant case neither any application for condonation of delay has been filed nor any justification was offered for the omission or inaction of not impleading the L.Rs. of deceased respondent even after consecutive directions of the High Court. Question of limitation can hardly be termed as a mere technicality, if any judicial precedent is II required one can refer to the case of Atta Muhammad v. Maula Bakhsh and others (2007 SCMR 1446) wherein it was observed by their Lordships in the following words:

2011 M L D 1112

[Peshawar]

Before Attaullah Khan, J

RAB NAWAZ KHAN---Petitioner

Versus

KHAN BAHADAR---Respondent

Civil Revision No.372 of 2005, decided on 21st March, 2011.

North-West Frontier Province Pre-emption Act (X of 1987)---

----S.13---Suit for pre-emption---Making of Talbs---Plaintiff had omitted to mention the exact day, month and year of information of sale of suit property---Pre-emptor was required to express his intention in the same sitting and meeting where he received information about the sale---Statement of the plaintiff regarding the time of his knowledge, had made the performance of Talb-e-Muwathibat defective and against the provisions of law---Plaintiff himself had stated that two months after the Talb-e-Muwathibat and gaining knowledge, he gave notice of Talb-e-Ishhad---Such was not within time as required by law and was defective and not in accordance with the requirements of law---Appellate Court, while rejecting the suit had drawn a correct conclusion based on evidence of the parties---In absence of any illegality, conclusion was upheld by High Court.

2009 SCMR 642; PLD 2005 Pesh. 261; PLD 1998 SC 121 and 1998 CLC 1829 ref.

Malik Muhammad Bashir for Petitioner.

Umar Farooq Khan for Respondent.

Date of hearing: 21st March, 2011.

2011 M L D 1214

[Peshawar]

Before Attaullah Khan and Syed Sajjad Hassan Shah, JJ

YASIR and 2 others---Appellants

Versus

RAQIAZ KHAN and another---Respondents

Criminal Appeal No.134 of 2004, decided on 9th February, 2011.

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

----Ss. 302(b) & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---Evidence of prosecution witnesses was in line with the F.I.R. and they corroborated the contents thereof---Eye-version of said prosecution witnesses, was straightforward and trustworthy---No enmity was pointed out or proved---Said witnesses had charged all the accused persons with firing from .30 bore pistol and kalashnikov---Despite lengthy cross-examination no contradiction or any material discrepancy was found in their evidence---Blood feud enmity between the parties was proved by statements of said two witnesses, which was supported by statement of accused recorded under S.342, Cr.P.C.---Nothing was available in cross-examination to suggest that accused were falsely implicated---Version of said two witnesses was also in line with medical evidence---Recovery of bullets effected by Investigating Officer, had supported the medical evidence---Ocular version was supported by medical evidence regarding the use of weapon and nature of injuries---No contradiction had been pointed out on behalf of accused---Eye-witnesses though were related to deceased, but said relationship was not a ground for disbelieving their statements, unless ill-will was proved---No ill-will or enmity on the part of eye-witnesses had been proved enabling them to falsely implicate accused in the case---Alleged discrepancies in the statements of eye-witnesses, which were minor, would be of no consequence, because with the lapse of time such minor discrepancies were bound to occur---If evidence of eye-witness coincided with other circumstances of the case like medical evidence and recovery of empties, then minor discrepancies were to be overlooked---Ocular evidence was straightforward, true and confidence inspiring---Such evidence found support from medical evidence as well as other circumstances, which was to be believed---F.I.R. was very promptly lodged---No time was taken by the complainant for deliberation and consultation for false implication of accused---Abscondence of accused, which was without reason, though was for a short period, would be considered against accused as circumstantial evidence---Motive as given in F.I.R., had been proved---Prosecution had succeeded to prove the case against accused on the strength of ocular evidence, corroborated by medical evidence and recoveries---Incident was a daylight occurrence and parties were known to each other---No doubt existed about the identification of accused---Conviction awarded by the Trial Court on the basis of ocular evidence was fully corroborated by independent source and needed no interference---Conviction of accused was maintained---Sentence awarded to accused would run concurrently.?

?????? 2003 YLR 753;? AIR? 1935? Pesh.? 152? and? 2005? PCr.LJ? 667 ref.

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

----Ss.302(b) & 324---Qatl-e-amd and attempt to commit Qatl-e-amd---Appreciation of evidence---Where there was solitary witness and his testimony was found trustworthy, credible and confidence inspiring, he was to be believed and conviction awarded---Capital punishment could be awarded even on the basis of circumstantial evidence, if it was sufficient to connect accused beyond any reasonable doubt---Where eye-witness charged a person with commission of offence, the court was required to firstly determine, whether he saw the occurrence;? was in position to identify the accused and he could be believed for the conviction of accused without corroboration---If it was found by the court that the charge of the witness was reasonable from the available circumstance, then in the absence of corroboration of witness, it could be believed---Corroboration of an interested witness, in such circumstances, was not always necessary through some independent source.?

?????? 2007 SCMR 518; 1999 SCMR 141; Iqbal alias Bhala v. State 1994 SCMR 1; PLD 2007 SC (AJ&K) 102 and Mehtab Khan v. The State PLD 1979 SC (AJ&K) 23 ref.

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

----Ss.302(b) & 324---Qatl-e-amd and attempt to commit Qatl-e-amd---Appreciation of evidence---Quality of evidence---Quality and not the quantity of evidence was to be considered---Single witness was sufficient for conviction, if he was truthful---Abandoning of some prosecution? witnesses? would? not? affect? the? case? of? prosecution.??

?????? 2005 PCr.LJ 667 ref.

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

----Ss.302(b) & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Complainant had filed criminal revision for enhancing sentence of accused from life imprisonment to normal penalty of death and also for increasing the compensation amount---No ground was taken by the complainant in that respect---Reason for lesser punishment awarded by the Trial Court, needing no interference, revision petition was dismissed, in circumstances.?

?????? Sultan Shaharyar Khan Marwat for Appellants.

?????? Jehanzeb Ahmad Chughtai for Respondents.

?????? Abdul Latif Khan Baloch for the Complainant.

?????? Date of hearing: 9th February, 2011.

2011 M L D 1252

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

NOOR ZAMAN---Petitioner

Versus

SHAMS-UL-HAQ and another---Respondents

Criminal Miscellaneous B.C.A. No.128 of 2011, decided on 29th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd and attempt to commit qatl-e-amd---Cancellation of bail, petition for---Cross case in which the place and time of occurrence was the same two persons had lost their lives, one on each side---Two accused in the case had been released on bail on the same grounds of cross versions---Bail in the cases of counter version, one given by the complainant and the other by opposite party, was normally granted on the ground of further enquiry as provided in S.497(2), Cr.P.C.---Considerations for grant and cancellation of bail were entirely different from each other---Once bail was granted to accused, very strong and cogent grounds were required to recall the bail granting order, like the bail granting order was patently illegal, erroneous, factually incorrect; or accused who was granted bail, had misused the concession of bail, or interfered in the course of investigation, or attempted to tamper with the prosecution evidence or threatened the witnesses or was indulged in the similar activities---Any one or more such grounds, if established on the record, the court without any hesitation could recall the concession of bail extended to accused---Court considering the bail cancellation application, could also consider any other ground which in the opinion of the court was sufficient for cancellation of bail in the peculiar circumstances of the case---Complainant in the case having failed to point out any of the said grounds, applications for cancellation of bail were dismissed, in circumstances.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845 and The State/Anti-Narcotic through Director-General v. Rafiq Ahmad Channa 2010 SCMR 580 ref.

Zia-ur-Rehman Tajik for Petitioner.

Obaid Razzak, Addl. A.G. Peshawar for the State.

Sakhi Janan for Respondent No.1.

Date of hearing: 29th April, 2011.

2011 M L D 1352

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

FAIZ UL WAHAB---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 714 of 2011, decided on 13th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497--Penal Code (XLV of 1860), Ss.302/449/34---Qatl-e-amd, house-trespass---Bail, refusal of---Accused and two co-accused, had directly been charged for the murder of a young girl, when they attacked the complainant party in their house and resultantly daughter of the complainant received firearm injuries and succumbed to the same---Accused was the real uncle of absconding co-accused, the occurrence was reported within fifteen minutes, wherein accused along with two other co-accused were nominated---Facts of the case had direct implications for the commission of offence, which could not be ruled out---Deeper appreciation of material available on the record, at bail stage could cause prejudice to the case of prosecution---Tentative assessment had made out a case for refusal of bail---Promptly lodged report was normally based on actual happening which ruled out the question of false implication---Accused, though had raised the plea of alibi, but such a plea, unless proved through cogent evidence, could not be accepted as it was and it would only be possible before the Trial Court who could then opine about its genuineness---Material available before the court was sufficient enough to prima facie establish the involvement of accused in the commission of offence---Accused, in circumstances, could not be held entitled for his release on bail---Bail application was dismissed, in circumstances.

Haji Muhammad Yousaf v. The State and another 2005 YLR 2418; Awal Rahman and another v. The State and another 2006 YLR 1693; Shakil Khan and another v. The State and another 2008 YLR 2520; Asmatullah and another v. The State 2004 PCr.LJ 2023 and Malik Muhammad Saleem and others v. Arshad Siddiq and 2 others 1997 SCMR 1829 distinguished.

Mst. Zulekha Bibi v. Abdul Samad and another 1995 PCr.LJ 1730; Siraj and another v. The State and another 2000 PCr.LJ 1220; Nawab Khan v. The State and another 2010 PCr.LJ 1463 and Muhammad Jehangir v. The State 2002 PCr.LJ 1039 ref.

Sahibzada Assadullah for Petitioner.

Ms. Shazia Naureen for Respondent No.1 the State.

Arif Rasool for the Complainant.

Date of hearing: 13th May, 2011.

2011 M L D 1399

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

Sister TERESA YOUNAS---Petitioner

Versus

WASEEM PERVEZ and another---Respondents

Criminal Miscellaneous Bail Cancellation Application No.918 of 2010, decided on 29th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.408---Criminal breach of trust by clerk or servant---Cancellation of bail, petition for---Contentions of the counsel for the petitioner/complainant were that bail granting order was illegal, perverse and against the record; that bail was granted in haste without consulting the record and that no notice of hearing was given to the complainant---Counsel for the petitioner did not refer to any other ground like misuse of the concession of bail; or tampering with the record of the case---Notice though was not given by the court to the complainant, but counsel for the State was very much there and was heard---Notice to the complainant was not the requirement of law for grant or refusal of bail, except in the cases of hurt and qatl-e-amd---Trial of accused was in progress and his involvement was required to be proved by the prosecution at the trial--If the involvement of accused was proved on the record, he could be punished according to severity of crime---Bail already granted could not be cancelled in circumstances.

Said Rehman and another v. The State and 3 others 2001 YLR 2056 rel.

Muhammad Sharif v. Shafqat Hussain and others 1999 SCMR 338; Shaikh Haji Ali Muhammad v. Muhammad Yousuf Zaman and 2 others PLD 1985 Kar. 694 and Muhammad Ashraf v. Duarriyaman and another PLD 1993 Pesh. 151 ref.

Date of hearing: 29th April, 2011.

2011 M L D 1455

[Peshawar]

Before Attaullah Khan, J

TAHIR SHAH NAWAZ---Petitioner

Versus

THE STATE and 2 others-Respondents

Criminal Miscellaneous Bail Cancellation Application No.307 of 2010, decided on 1st November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.120/115---Abetment of offence and concealing design to commit offence---Cancellation of bail, application for---Accused were charged under Ss.120/115, P.P.C.---Offence under S.115, P.P.C. was bailable, while the applicability of S.120, P.P.C. was yet to be determined at trial--No material was on record to show that accused had misused the concession of bail---Investigation in the case was complete and accused had remained associated therewith---Complainant had not challenged the bail granting to main accused who was allegedly caught hold on the spot---No ground existed for interfering in the impugned order granting bail to accused---Said order was upheld and application for cancellation of bail, was dismissed, in circumstances.

1984 SCMR 1380 and 1976 SCMR 360 rel.

Abdul Latif Khan Baloch for Petitioner.

Sanaullah Khan Gandapur for Respondent.

Muhammad Waheed Anjum D.A.-G. for the State.

Date of hearing: 1st November, 2010.

2011 M L D 1470

[Peshawar]

Before Attaullah Khan, J

SHAH ALAM KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Application No.380 of 2010, decided on 11th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, grant of---Accused was not charged by name in the F.I.R., but was nominated on the second day of occurrence in the supplementary statement of the complainant, despite the fact that previous enmity was alleged by the complainant against accused---Supplementary statement was resorted to fill up lacunae in the prosecution case---No identification parade was conducted in the case after arrest of accused enabling the complainant to identify accused---Accused was admitted to bail, in circumstances.

2009 MLD 472 ref.

Anwarul Haq for Petitioner.

Sanaullah Shamim, D.A.-G. for Respondent.

Sultan Mahmood Khan for the Complainant.

Date of hearing: 11th October, 2010.

2011 M L D 1489

[Peshawar]

Before Syed Sajjad Hassan Shah, J

CHAIRMAN, NATIONAL HIGHWAY AUTHORITY, HEAD OFFICE ISLAMABAD and 3 others---Appellants

Versus

Qari FALAKSHER---Respondent

R.F.A. No.50 of 2010, decided on 17th May, 2011.

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

----Ss. 4, 9, 11, 17-A, 18, 23 & 54---Acquisition of property---Determination of amount of compensation---Reference to Referee Court---Enhancement of amount of compensation---Six shops owned by respondent were acquired for which market value was fixed as Rs. 1,06,096/35---Referee Court had enhanced the amount from Rs.1,06,096/35 to Rs. 6,74,600/20, Acquiring Authority had filed appeal against judgment of the Referee Court---Validity---Before filing objection petition, respondent owner, moved an application to the District Co-ordination Officer for assessment of compensation of acquired shop, which application was sent to the Building Department; and according to the schedule, the Sub-Engineer assessed the cost of the structure of shop as Rs.6,74,600/20---Same amount was claimed by the respondent as the compensation of the acquired shops in his objection petition and Referee determined said amount and Acquiring Authority challenged the same in appeal---Objection of appellant/ Authority that District Co-ordination Officer could not refer the application to the Building Department with the direction to make assessment of suit property, did not hold field---Instruction contained in the Plan also provided for the application of Land Acquisition Act, 1894 for determination of market value of the property acquired for the purposes laid down in the plan---Appellant Authority in its written statement, had neither expressly, controverted, nor asserted about the structure cost of the suit shops and had produced no evidence, in absence whereof the cost of structure as claimed by the respondent/owner as assessed by Sub-Engineer according to schedule, would be considered as the cost of structure---Referee Judge, in circumstances had legally and justly fixed the same as Rs.6, 74, 630/98.

2002 SMCR 1700 ref.

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

----S. 91---Presumption as to documents produced as record of evidence---Once a document was admitted in evidence without an objection, it amounted that the same had been duly proved.

PLD 1972 Pesh. 175 ref.

Zahid Mohibullah for Appellants.

Malik Muhammad Bilal for Respondent.

Date of hearing: 17th May, 2011.

2011 M L D 1511

[Peshawar]

Before Miftah-ud-Din Khan, J

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary, Forest Department---Petitioner

Versus

DEVLI KUND FOREST and others---Respondents

C.R. No.98 of 2011, decided on 20th April, 2011.

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

----O.XLI, R.27---Production of additional evidence and fixation of court-fee before Appellate Court---Scope---Appellate Court could allow additional evidence in a case where the court from whose decree the appeal was preferred had refused to admit evidence which ought to have been admitted---Nothing was available on the record to show that the defendants had produced any evidence which had been refused to be admitted by the Trial Court---Request of the defendants for production of additional evidence, in circumstances was not covered by O.XLI, R.27, C.P.C.---Question of affixation of court fee before the Trial Court and Appellate Court having been decided by the High Court which had attained finality, defendants were not justified to re-agitate the same matter---Appellate Court below was justified to turn down the request of defendants in that connection and dismiss the application of defendants for production of additional evidence---Defendants having failed to show that Appellate Court while exercising its judicial discretion had exercised a jurisdiction not vested in it by law, or had failed to exercise a jurisdiction so vested or had acted with illegality or material irregularity while passing the impugned order, same could not be interfered with by High Court in supervisory jurisdiction---Revision petition was dismissed, in circumstances.

PLJ 1987 SC Page 265(sic) ref.

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

----O. XLI, R.27---Production of additional evidence in Appellate Court-Scope-Appellate Court could allow additional evidence in the shape of any document or witness to enable it to pronounce judgment or for any other substantial cause---Said discretionary power under the law had to be exercised judicially for securing ends of justice---Provisions of O.XLI, R.27, C.P.C. were meant to promote substantial justice and must be exercised in the interest of justice and not for the purpose of allowing the appellant to fill up lacuna in the evidence---Requirement of additional evidence, must be requirement of court after arriving at conclusion" that Judgment could not be announced without such additional documents or evidence---Petitioners in the present case wanted to examine officers as additional witnesses at appellate stage---Apparently, the necessity of producing additional evidence was not on account of discovery of any new fact which was not within the knowledge of the petitioners; it was also not the case of the petitioners that during pendency of the suit some new document had been discovered which had to be proved through the production of said witnesses---Petitioners had also not furnished any explanation as to why those witnesses who were employees of the petitioners had not been produced before the Trial Court at the relevant time---If the petitioners on account of their own negligence, inadvertence, mistaken legal advice; or any act and omission had not examined them as witness, then said lacunas could not be allowed to be filled by invoking the provisions of O.XLI, R.27, C.P.C.--Revision was dismissed.

PLD 2000 SC (AJ&K) 20; PLD 2004 SC (AJ&K) 35 and Shtamand and others v. Zahir Shah and others 2005 SCMR 348 ref.

Abbas Khan Sangeen, Deputy Advocate General for Petitioner.

Nemo for Respondents.

Date of hearing: 20th April, 2011.

2011 M L D 1529

[Peshawar]

Before Syed Sajjad Hassan Shah, J

GHULAM BIBI---Petitioner

Versus

HAMIDULLAH and 3'others---Respondents

Crl. M.B.C. No.138 of 2011, decided on 13th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.365-B---Abduction---Cancellation of bail, petition for---Alleged abductee had disclosed the names of accused persons in her statement recorded under S.164, Cr.P.C., who had participated in the alleged occurrence, but her mother, in her report, which she lodged after the delay of 10-1/2 hours did not mention said names---Record had shown that brother of alleged abductee was present in the house at the time of alleged occurrence, but he neither resisted the abduction of her sister nor immediately reported the matter to Police---Alleged abductee had not charged accused for commission of zina with her---Previous enmity existed between the parties---Case being of further inquiry, accused were legally entitled for their enlargement on bail---Requirements of cancellation of bail had not been satisfied by the complainant and was yet to be proved by the complainant that allegations levelled against accused were based on truth---Nothing was on record which could be considered as a valid and genuine ground for cancellation of the bail---No proof had been furnished so. as to give legal cover to the stance of the complainant about extending threats to her or tampering with the evidence---No record pertaining to previous involvement of accused in similar offence had been produced or alleged in the petition---Grounds for grant of bail and its cancellation, were quite different and distinct in nature---Complainant had failed to substantiate her request by means of any material on record---Impugned order was not perverse on the face of it and it had not been passed in violation of the principles for grant of bail; or was not found patently illegal, erroneous, factually incorrect or resulting in miscarriage of justice---In absence of any merit in petition for cancellation of bail, same was dismissed, in circumstances.?

The State/Anti Narcotic through Director General v. Rafiq Ahmad Channa 2010 SCMR 580 and Rabnawaz v. Gul Ahmad Khan and another 2010 PCr.LJ 905 ref.

Muhammad Waheed Anjum for Petitioner.

Khiyal Muhammad for the State.

Ghulam Hur Khan Baloch for Respondent.

Date of hearing: 13th May, 3011.

2011 M L D 1548

[Peshawar]

Before Syed Sajjad Hassan Shah, J

WAJIHA alias KHAN SHEERIN and 5 others---Petitioners

Versus

MUHAMMAD NIAZ KHAN 17 and others---Respondents

Civil Revision No.143 of 2011, decided on 16th May, 2011.

Specific Relief Act (I of 1877)---

---Ss. 54 & 55---Plaintiffs filed suit seeking a decree for perpetual and mandatory injunction against defendants in respect of suit property, restraining the defendants from raising construction---Claim of the defendants was that their possession over the suit land was as a result of family partition which took place since long---Bailiff of the court had reported that defendants had raised construction over the suit property to the roof level---Plaintiff had not filed suit at early stage of construction---When the defendants were shown owners of more than 12 marlas of the suit land, they could not be restrained from raising the construction in order to protect the negligible share of one marla of the plaintiffs in the suit property---Trial Court while accepting the affidavit, filed by the defendants permitted defendants to raise the construction on their own risk and cost; and in case of decree the construction was to be demolished and after removing the superstructure, restore the original position of the suit property---Trial Court thus protected the interest of the plaintiffs by accepting the undertaking filed by the defendants---Even otherwise plaintiffs would not sustain any irreparable loss as compared to the loss to be suffered by the defendants, as plaintiffs were the owners to the extent of one marla of land; and had not opted to seek their remedy in time---Since the defendants were in possession of the suit property and had already raised construction upto the hoof level, judgment and order passed by Appellate Court below, whereby order of the Trial Court was set aside, was not in accordance with law---Impugned order of Appellate Court was set aside and order of the Trial Court was restored by High Court.

Afsar Khan and others v. Mst. Alam Jan and others 1983 SCMR 273 and Fazal Begum and others v. Sheikh Ijaz Ahmad and others 1985 SCMR 1928 rel.

Khawaja Nawaz Khan for Petitioners.

Sardar Naeem for Respondents Nos. 1 to 5.

2011 M L D 1570

[Peshawar]

Before Attaullah Khan, J

AZAD KHAN and 31 others---Petitioners

Versus

Haji MUHAMMAD USMAN and 17 others---Respondents

Civil Revision No.131 of 2005, decided on 8th June, 2011.

Specific Relief Act (I of 1877)---

----Ss. 42, 54 & 55---Suit for declaration and permanent, mandatory injunction---Both the Trial Court and Appellate Court had concurrently decreed the suit---Claim of plaintiffs was that suit property comprised three Khasra Numbers, which were in joint ownership of the parties; and defendants without partition of the property were not entitled to raise construction on one of the three Khasra numbers---Plaintiffs in proof of their claims, had produced Patwari Halqa, examined Bailiff of the civil court as their witness---Statement of Patwari Halqa revealed that the suit property was in the joint ownership of the parties and expressed his ignorance about the private partition between the parties---Statement of Patwari Halqa, was sufficient to prove the plea of the plaintiffs about the joint ownership and non partition of the suit property---Plaintiffs had proved that suit property was in joint ownership of the parties and no private or official, partition had taken place between them---Defendants had failed to establish any illegality or gross miscarriage of justice and jurisdictional error in the impugned judgments/decrees-Petition was dismissed, in circumstances.

Noor Gul Khan for Petitioners.

Zahidul Haq for Respondents.

Date of hearing: 8th June, 2011.

2011 M L D 1613

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

QASIM SHAH---Petitioner

Versus

Mst. SHAHNAZ BEGUM and others---Respondents

Civil Revision No.60 with C.M. No.650 of 2011, decided on 24th June, 2011.

Specific Relief Act (I of 1877)---

----Ss. 8, 42 & 54---Suit for possession, declaration and permanent injunction---Suit had concurrently been decreed by the Trial Court and Appellate Court---Plaintiff' and defendant were in a marital bond and plaintiff being wife appointed defendant/her husband as her general attorney through a registered deed---Later on, marital bond between the spouses came to an end---Record was silent with regard to cancellation of power of attorney, however, sale by defendant could not be taken so lightly; and could not be considered a matter of routine, specially when the only relation of husband and wife between the two had come to an end; and the attorney by using the deed of attorney alienated/transferred the property of the principal, in the name of his brother against the sale consideration of Rs.1,065,00---Attorney under the law would require prior permission, approval and consent of the principal, when he wanted to transfer the property in the name of his close relatives---Defendant, when had lost the confidence/trust of the principal i.e. his ex-wife because of dissolution of marriage between them, was bound to prove the factum of genuineness of the sale within the knowledge and permission of the principal---Defendant failed to discharge his burden and two courts below after proper appraisal of evidence, had rightly decreed the suit of the plaintiff---Concurrent findings of the two courts below, based on proper appraisal of evidence, required interference by High Court.

Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 and Mst. Ghulam Fatima v. Muhammad Din and others 2004 SCMR 618 ref.

Hafiz Fazli Rahim for Petitioner.

2011 M L D 1626

[Peshawar]

Before Dost Muhammad Khan, J

Mst. NEELOFAR BEGUM---Petitioner

Versus

JAHANZEB KHAN and 5 others---Respondents

C.O.C. NO.145 of 2011, in C.R. No.1021 of 2010, decided on 30th May, 2011.

Administration of justice---

----When two interpretations of an order were possible, then the one carrying penal consequences, would not be adopted.

2000 MLD 1755 and PLD 1997 Kar. 579 distinguished.

Abdul Zakir Tareen for Petitioner.

2011 M L D 1662

[Peshawar]

Before Syed Sajjad Hassan Shah, J

MUHAMMAD NASIR and 3 others---Petitioners

Versus

ABDUR RASHID and another---Respondents.

Civil Revision Petition No.118 of 2007, decided on 29th April, 2011.

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

----S. 8---Suit for recovery of possession of alleged encroached area---Maintainability---Trial Court dismissed the suit and appeal filed by the plaintiffs against judgment and decree of the Trial Court had also been dismissed by the Appellate Court---Validity---Revenue record did not suggest that defendants had made any encroachment over the suit property---Material and common defects in both the reports of local commissioners, were that the building situated over the suit property had never been measured---Exact pointation of the constructed area had not been shown in both 'Aks Masawi'---For want of actual measurement and its full details, the proper area, either underneath the house or the rest of the suit property was not ascertainable---It could not be said, in circumstances with certainty that as to how much area was in possession of the plaintiffs; and if it was less than their entitlement, who had encroached upon it, as there were other contiguous owners having their constructed properties adjacent to the suit property---Description of the property was essentially to be given in the plaint to identify the same, if the property was not ascertainable from Khasra number---Plaintiffs must Have described the exact pointation of the encroached area---Plaintiffs having failed to do so in the plaint, maintainability of their suit itself had become doubtful---Cause of action was also to be established---Defendants had asserted that they had acquired title in the suit property, through registered sale deeds, but the plaintiffs had not challenged the title deeds in the plaint--Such was another defect fatal to the suit of the plaintiffs---Both courts below, after their detailed discussion on each and every factual and legal aspects of the case had returned their findings---In absence of any illegality or irregularity, much less jurisdictional error in the judgments and decrees passed by the two courts below, were maintained.

Muhammad Qasim v. Bsahir Ahmad and 2 others PLD 1991 AJ&K 1 ref.

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

----S. 117---Powers of Revenue Officers to pass order of demarcation---Revenue hierarchy had no jurisdiction to pass the order of demarcation---Collector could only direct for the demarcation of agricultural property under provisions of S.117 of West Pakistan Land Revenue Act, 1967 and the rules framed thereunder.

Nasrullah Khan for Petitioners.

Malik Muhammad Jehangir Awan for Respondents.

Date of hearing: 29th April, 2011.

2011 M L D 1709

[Peshawar]

Before Miftah-ud-Din Khan and Mian Fasih ul Mulk, JJ

MUHAMMAD SADIQ---Petitioner

Versus

IRSHAD MEHMOOD and 2 others---Respondents

Writ Petition No.684 of 2010, decided on 29th June, 2011.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Civil Procedure Code (V of 1908), O. VII, R.11---Constitution of Pakistan, Art.199---Constitutional petition---Suit for pre-emption---Rejection of plaint---Defendants submitted written statement along with application under O. VII, R.11, C.P.C. for rejection of plaint---Re visional Court below allowed application of defendants filed under O. VII, R.11, C.P.C., and rejected plaint---Validity---Plaint had clearly disclosed the cause of action, and from averments in the plaint, suit of the plaintiff was not barred by any law---After performance of required talbs against original transaction of sale, the plaintiff filed suit against said transaction---Subsequent transfer by vendee to his minor sons through gift deed would not justify rejection of plaint, as for the purpose of rejection of plaint, the averment in the plaint had to be taken into account---Revisional Court below, in circumstances, had travelled beyond the limited scope of invoking the provisions of O. VII, R.11, C.P. C. ---Impugned order of court below regarding rejection of plaint, was wrong, illegal and without lawful authority which was set aside and that of the Trial Court, restored.

2004 SCMR 1270; PLD 2010 SC 803 and PLD 2011 Pesh. 98 ref.

Muhammad Saleem Awan for Petitioner.

Muhammad Imtiaz Khan Jadoon for Respondent.

Date of hearing: 29th June, 2011.

2011 M L D 1738

[Peshawar]

Before Dost Muhammad Khan and Liaqat Ali Shah, JJ

MUKHTAR AHMAD KHAN---Petitioner

Versus

Dr. Syed SOHAIL ILTAF, SECRETARY HEALTH and another---Respondents

C.O.C. No.13 of 2010 in Writ Petition No.201 of 2007, decided on 23rd February, 2011.

Constitution of Pakistan---

----Art. 204---Application for contempt proceedings---Thirty days' time was allowed to the respondents (authorities) so that the new hospital was made fully functional for health care of the public---Counsel of respondents contended that Provincial Finance Department was not releasing certain amount and due financial approval was not accorded for making operational the hospital in question---Secretary Finance, was directed by High Court to release the entire amount due within seven days to the Health Department; and to accord the due approval for filling certain vacancies---Any unnecessary delay on the part of Finance Department would be construed as defiance of the court order---Director General Health Services would also look into the needs of the area and, if necessary, would direct the transfer of additional medical staff including specialist doctors and nursing staff to the new hospital---Petition for contempt was disposed of accordingly.

Mukhtiar Ahmad Khan for Petitioner.

Fazal Mehmood, Director General Health Service, Riaz Malik, MS and Waris Khan, Section Officer and Qaiser Rasheed, Addl: A.G. for Respondents.

2011 M L D 1770

[Peshawar]

Before Attaullah Khan, J

TAJ ALI KHAN---Petitioner

Versus

MOINULLAH KHAN and another---Respondents

Criminal Miscellaneous Bail Petition No.50 of 2011, decided on 21st February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl-e-amd---Bail, refusal of---Matter was reported to the Police after one hour and 15 minutes of occurrence and said delay was explained---Accused had been charged directly in the F.I.R. for effectively attempting at the life of the complainant---Medical report indicated that injuries were caused on the vital part of the body of the injured complainant---Ocular evidence had also connected accused with the commission of offence---Parties were not the same in the alleged cross case and said fact could not be considered at bail stage---Even otherwise every cross-case could not be a ground for grant of bail---Medical evidence had supported prosecution case---Empties had been recovered---Bail application was dismissed, in circumstances.

2005 SCMR 1402 and Nasir Muhammad Wassan's case 1992 SCMR 501 ref.

Mirza Ali Khan for Petitioner.

Sanaullah Shamim, D.A.-G. for the State.

Muhammad Yaqoob Khan for the Complainant.

Date of hearing: 21st February, 2011.

2011 M L D 1781

[Peshawar]

Before Syed Sajjad Hassan Shah, J

Syed ABRAR HUSSAIN SHAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petitions Nos.167 and 193 of 2011, decided on 3rd June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.409/420/468/477-A---Criminal breach of trust by public servant, cheating, forgery and falsification of account---Bail, refusal of---Ground of illness agitated by accused was also not worth consideration because the documents appended with the petition were insufficient and did not disclose even the nature of disease or its gravity, what to speak of his treatment in jail hospital---No certificate from doctor of the jail hospital was available to show that disease of accused could not be treated, and required treatment by Specialist Doctor outside the jail---Section 497(1), Cr.P.C. provided release of an accused on bail who was under the age of sixteen years; or any woman or any sick or infirm person but in case of accused of non-bailable offence there should be very strong reasons to believe that nature of disease demanded for special treatment, and proper care was not available in jail which would endanger the life of an accused---Bail was refused in circumstances.

Muhammad Arshad v. The State and another 1997 SCMR 1275 ref.

Sanaullah Khan Gandapur for Petitioner.

Sanaullah Khan Shmim, D.A.-G. for the State.

Muhammad Aslam Khan for the Complainant.

Date of hearing: 3rd June, 2011.

2011 M L D 1796

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

NADAR KHAN and another---Petitioners

Versus

Mst. KAMIN TAJA and others---Respondents

C.M. No.2044 with C.R. No.996 of 2010, decided on 10th June, 2011.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Gift---Plaintiff had claimed sharai share in the legacy of her father---Propositus of the parties, who owned three shares of property, by executing a deed had given two shares of said property to the sons of his predeceased sons i.e. his grandsons and in the said deed he kept third share of property for himself during his life time, and after his death same would be owned by his son who at that time was minor; and that other legal heirs of his predeceased sons would have no concern with the same---Plaintiff who was fully aware of said transaction, could not produce any evidence to suggest that her father had left any property as his legacy---Plaintiff, in circumstances, was estopped to claim said third share of property to be the legacy of her father---Word 'gift' though had not been mentioned in the deed executed by the propositus of the parties, but such alienation was a perfect gift in all its intents and purpose---Plaintiff having failed to prove that there was any legacy left open at the time of death of her propositus, courts below were not justified to decree suit filed by the plaintiff---Findings arrived at by the courts below were not only based on misreading and non-reading of evidence available on record, but same had been based against the provisions of law---Judgment and decrees of the two courts below were set aside and suit of the plaintiff, was dismissed, in circumstances.

Mst. Farida and others v. Rehmatullah and another PLD 1984 Pesh. 117 ref.

Saeed Ahmad Khan Nasar for Petitioner.

Khan Bahadur Khattak for Respondents.

Date of hearing: 10th June, 2011.

2011 M L D 1813

[Peshawar]

Before Waqar Ahmad Seth, J

KHATOON BEGUM and others---Petitioners

Versus

KHAN ZAMAN and others---Respondents\

Civil Revision No.1101 with C.M. No.948 of 2011, decided on 8th August, 2011.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession---Suit for recovery of possession of land which allegedly was encroached upon by the defendants by constructing building thereon without consent and permission of the plaintiff---Defendants who were in possession of suit land since 1993, by producing evidence had proved that suit land was given to them by original owner thereof in exchange of two properties---Suit which was filed after lapse of 17/18 years from the possession of the defendants thereon, was rightly dismissed by the Trial Court and Appellate Court---No misreading or non-reading of evidence had been pointed out nor any illegality, irregularity or jurisdictional defect had been shown by the counsel in impugned judgments of the courts below, which could justify interference by the High Court in its revisional jurisdiction---Revision was dismissed in circumstances.

S.M. Attique Shah for Petitioners.

2011 M L D 1836

[Peshawar]

Before Shah Jehan Khan Yousafzai, J

ABDUL HAMEED and others---Petitioners

Versus

ABDUL GHAFOOR and others---Respondent

Civil Revision No.1069 of 2007, decided on 11th July, 2011.

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

----Ss. 42 & 54---Transfer of Property Act (IV of 1882), Ss.122, 123 & 129---Suit for declaration and perpetual injunction---Gift---Transfer of property through gift---Plaintiffs had claimed that property left by their predecessor, was owned by them through Tamleeq Nama---Plaintiffs had alleged that inheritance mutation attested after death of their predecessor, was forged, false, wrong, fictitious, against the facts and based on collusion and was liable to be set aside; and that defendants had got no concern with the disputed property---Suit had concurrently been dismissed by the courts below---Plaintiffs who claimed that their predecessor had gifted his entire property in their favour, had, failed to establish the factum of offer, acceptance and delivery of physical possession of property in their favour by alleged donor---Plaintiffs, had also failed to establish that common predecessor of the parties (alleged donor) had so much love and affection with the plaintiffs/donees and had hatred for the deprived legal heirs---Plaintiffs having failed to prove valid gift in respect of property in question in their favour, their suit was rightly dismissed by courts below---In absence of any illegality, material irregularity, misreading or non-reading of evidence or any jurisdictional error in the concurrent findings of the two courts below, same could not be interfered with by High Court in its revisional jurisdiction.

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

----S. 115---Revisional jurisdiction---Scope---Concurrent findings itself were not sacrosanct and immune from interference by the High Court in its revisional jurisdiction---Concurrent findings, would create a presumption, but rebutable---If the findings were based on misreading or non-reading of evidence, or court had given unsound reasons, or acted without jurisdiction, High Court would interfere in the matter; and would be competent to set aside the decree-judgment based upon such concurrent findings.

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

----Ss. 123 & 129---Specific Relief Act (I of 1877), S.42---Gift---Ingredients of a valid gift---Under Islamic Law a Muslim though could make a valid gift either verbally or through execution of gift-deed; and registration of gift-deed was not essential under Ss.123 & 129 of the Transfer of Property Act, 1882, but for a valid gift the beneficiary of the (alleged) gift was charged with heavy burden to establish the three essential ingredients of the deed; offer of the donor; acceptance by the donee; and delivery of possession---Person claiming to be valid donee, would have to establish said three ingredients, failing which the beneficiary of the (alleged) gift, could not be granted any declaration of title as donee.

PLD 1989 SC 568; 2002 CLC 300; 2004 SCMR 1001 and 1668; 2005 SCMR 774 = 2005 PLC (C.S.) 737; PLD 2008 Quetta 1; 1987 SCMR 1403; 2003 CLC 110 and 2009 SCMR 623 distinguished.

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

----S. 7---Transfer of property by attorney---Transfer of property by an attorney as agent of the principal---Such action of attorney would cast a burden upon the agent much less a sale in favour of agent himself, the general attorney must take special permission from the principal while transferring his principal's property in his own name or in the name of his close fiduciary relations---Transfer by agent in favour of his (agent) own successor, or deprivation of some of the legal heirs of the principal, would require most cogent evidence for establishing a genuine transaction.

PLD 2003 SC 494; 1997 SCMR 1811; PLD 1996 Pesh. 86; 1994 SCMR 818 and 1994 CLC 1690 rel.

Muhammad Shoaib Khan for Petitioners.

Qazi M. Faisal and Shahbaz Khan for Respondents.

Date of hearing: 25th April, 2011.

2011 M L D 1874

[Peshawar]

Before Attaullah Khan, J

SHAHAB-UD-DIN and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Petition No. 80 of 2011, decided on 28th February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Explosive Substances Act (XI of 1908), S.5---West Pakistan Arms Ordinance (XX of 1965), S.13---Recovery of explosive substance and arms---Bail, grant of---Further inquiry---Site plan had shown that the hand grenades were not recovered from the room in which Police party and accused were present---Arms/ammunitions had not been recovered from direct possession of accused, but from separate room---Nothing was on record to show the possession of accused---Involvement of accused in the case required further probe and no evidence was on file to prima facie connect accused with the crime---Accused were admitted to bail, in circumstances.

Muhammad Yousaf Khan for Petitioners.

Sanaullah Shamim, D.A.-G. for the State.

Date of hearing: 28th February, 2011.

2011 M L D 1902

[Peshawar]

Before Syed Sajjad Hassan Shah, J

KHALID KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.201 of 2011, decided on 3rd June, 2011.

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---Accused though was directly charged in the F.I.R. along with his brother and father, but complainant was not eye-witness of the occurrence---Mere nomination of accused in the F.I.R. would not render accused to have any nexus with the crime---Three accused had been charged in the F.I.R. whereas the deceased sustained two injury wounds---As to which of the accused caused those injuries could not be ascertained---Recovery of blood stained earth and empties were not sufficient to link accused with commission of crime---Mere abscondence of accused, would not disentitle accused from concession of bail---Case of accused needed further inquiry into his guilt and he was entitled to the concession of bail---Accused was admitted to bail, in circumstances.

2011 SCMR 710; 2011 YLR 956; 2010 YLR 1021; 2010 YLR 1899 and Jamshed Ahmad v. The State 2003 YLR 1378 ref.

Rashidullah Khan Knudi for Petitioner.

Miss Naheed Akhtar for the State.

Muhammad Saeed Amjad for the Complainant.

Date of hearing: 3rd June, 2011.

2011 M L D 1956

[Peshawar]

Before Syed Sajjad Hassan Shah, J

Syed AMEER HUSSAIN SHAH---Petitioner

Versus

Syed DILBAR HUSSAIN SHAH and 3 others---Respondents

Writ Petition No.1 of 2007, decided on 12th July, 2011.

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

----S.12(2), O. VI, R. 4 & O. XXIII, R. 3---Ex parte decree, application for setting aside of---Pendency of two rival suits between the parties---Dismissal of applicant's suit for non-prosecution and passing of ex parte decree in respondent's suit due to non-appearance of applicant---Applicant's plea that according to oral compromise, respondent had agreed to withdraw his suit, but he did not do so, resultantly applicant's suit was dismissed for non-prosecution, whereas respondent obtained ex parte decree in his suit due to non-appearance of applicant---Validity---Judgment and decree under S. 12(2), C.P.C., could be challenged, when fraud was committed by either of parties during proceedings of suit---Nothing on record to show that respondent had committed any fraud in court during course of proceedings---Alleged oral compromise had been effected beyond limits of court---Applicant had not complied with mandatory requirement of O.VI, R.4, C.P.C., to mention particulars of alleged fraud along with dates, time and venue etc.---Respondent had denied alleged compromise, thus, applicant was bound to seek his remedy under O. XXIII, R. 3, C.P.C., by filing compromise in court and could prove its terms and conditions---Applicant instead of availing proper remedy, had filed such application on basis of same facts and circumstances---Even if alleged promise made by respondent was false, same would not fall within ambit of S. 12(2), C.P.C., as merely falsity of respondent's claim to his knowledge would not be ground for setting aside decree on ground of fraud---Such application was dismissed for being not maintainable in circumstances.

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

----S. 12(2)---Judgment/decree challenged on ground of fraud---Scope---When fraud was committed by either of parties in proceedings of suit, then court under S. 12(2), C.P.C., had jurisdiction to decide such matter---Fraud not committed in court proceedings for obtaining a judgment could not be termed as fraud within purview of S. 12(2), C.P.C.

Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710 and 2006 CLC 1018 rel.

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

----S. 12(2)---Ex parte decree, setting aside of---False promise made by plaintiff to withdraw his suit, ground of---Validity---Such promise would not fall within ambit of S. 12(2), C.P.C., as mere falsity of plaintiff's claim to his knowledge would not be ground for setting aside decree on ground of fraud.

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

----S.12(2)---Application under S.12(2), C.P.C.---Issues, framing of---Scope---Court could refuse to frame issues and record evidence, if it considered it not proper to carry on proceedings in accordance with provisions of C.P.C.

Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 rel.

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

----S. 12(2)---Limitation Act (IX of 1908), Art. 181---Ex parte decree dated 6-7-2000, setting aside of---Application under S. 12(2), C.P.C., filed on 26-5-2004---Validity---Limitation Act, 1908 did not provide any period of limitation for filing such application---Resort in such case could be made to Art. 181 of Limitation Act, 1908 providing three years from date of accrual of right to apply---Right to apply accrued to applicant on 6-7-2000, when ex parte decree was passed against him---Such application was dismissed for being time barred.

Tanveer Jamshed and another v. Raja Ghulam Haider 1992 SCMR 917; Mst. Umtul Kabir and others v. Safia Khatoon and others 1991 SCMR 1022; Muhammad Iqbal and another v. Muhammad Alamgir and others 1990 SCMR 1377; Mst. Nasra Khatoon and another v Mst. Aysha Bai and 12 others 2003 SCMR 1050 and Province of Punjab through Collector, Multan and others v. Muhammad Rashid and others 1988 MLD 2560 rel.

Muhammad Waheed Anjum for Petitioner.

Abdul Qayum Qureshi for Respondent.

Date of hearing; 12th July, 2011.

2011 M L D 1966

[Peshawar]

Before Ataullah Khan, J

AZAM KHAN---Petitioner

Versus

SHAFIE ULLAH KHAN---Respondent

Civil Revision No.417 of 2005, decided on 21st June, 2011.

North-West Frontier Province Pre-emption Act (X of 1987)--

----S.13---Qanun-e-Shahadat (10 of 1984), Art. 177---Pre-emption suit---Notice of Talb-i-Ishhad, performance of----Proof---Photostat copy of such notice exhibited in evidence in statement of its scribe and two marginal witnesses without proving same through secondary evidence---Validity---Original of such notice was supposed to be in possession of vendee, thus, pre-emptor had no option except to produce its photostat copy, which would be sufficient for proof of such Talb---Pre-emptor had proved receipt of such notice by vendee through A/D Card and evidence of postman---Suit was decreed in circumstances.

PLD 2010 Pesh. 80 rel.

Muhammad Ayaz Khan Qasuria for Petitioner.

Muhammad Yousaf Khan for Respondent.

Date of hearing: 21st June, 2011.

2011 M L D 1993

[Peshawar]

Before Syed Sajjad Hassan Shah, J

KHUSH DIL KHAN---Petitioner

Versus

Haji DILAWAR KHAN---Respondent

Civil Revision No.337 of 2006, decided on 13th July, 2011.

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

----Arts. 52 & 120---Suit for recovery of money---Details of bricks sold to defendant shown in Khata maintained by plaintiff (owner of Brick Kiln)---Plaintiff's plea that parties had made final settlement on basis of such Khata on 31-12-1998; and that two months prior to filing of suit on 2-1-2002, defendant had refused to pay outstanding amount---Validity - None of plaintiff's witnesses had supported his statement to the effect that two months prior to filing of suit, defendant had refused to pay outstanding amount---Period of limitation for filing such suit, thus, would be reckoned from 31-12-1998---Article 52 of Limitation Act, 1908 provided three years for recovery of price of goods sold/delivered, when no fixed period was agreed upon between the parties---Plaintiff had filed suit after more than four years, thus, same was time barred---Suit was dismissed in circumstances.

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

----Arts. 48 & 140---Suit for recovery of amount on basis of entries made in Plaintiff's Khata alleged to be signed by defendant---Proof---Such Khata was illegible and contained interpolations and over-writing---Entries in such Khata were neither signed nor proved by its author---Plaintiff had neither summoned defendant to confront him with his alleged signatures on such entries nor proved same by means of expert evidence---Such entries would not be considered as legal proof for awarding decree in favour of plaintiff---Suit was dismissed in circumstances.

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

----Art. 48---Evidence Act (I of 1872), S. 34---Entries in books of account---Evidentiary value---Such entries alone would not be sufficient evidence to saddle any person with liability---No person could be charged with liability only on basis of copies of such entries not duly proved---No presumption of correctness was attached to such entries as value thereof was only corroborative---Onus would lie on person placing reliance upon such entries to examine witnesses having made such entries and in whom presence payment was made and produce vouchers, receipts or cash memos to show that such entries were factually correct---Principles.

Haji Jooma Arbi and Sons v. Abdur Razzak Ltd. 1968 SCMR 516; Siri Siri Raja Lakshmi Narayan Jew and others v. The Province of East Pakistan 1969 SCMR 898; Messrs Pakistan International Airlines v. Messrs National Bank of Pakistan and another 1985 CLC 438; Akram Moquim Ansari and 3 others v. Mst. Ansari Begum and another PLD 1971 Kar. 763 and Asio African Company Ltd. v. Chaudhary Mukhtar Ahmad PLD 1968 Kar. 37 rel.

Haji Salim Jan Khan for Appellant.

Najeebullah Khan for Respondent.

Date of hearing: 13th July, 2011.

2011 M L D 23

[Quetta]

Before Mrs. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ

AURANGZEB---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 29 of 2008, decided on 29th September, 2010.

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

----S. 7(e)---Act of terrorism committed by kidnapping for ransom---Appreciation of evidence---Benefit of doubt---Firearm allegedly possessed by the accused was not recovered from him at the time of arrest nor on his disclosure or pointation later---None of the official witnesses testified to the presence of private witness on crime scene nor the prosecution explained the reason for his presence at the place of occurrence making the recovery highly doubtful---Material contradictions in the statements of witnesses were not considered by the Trial Court---Garden where abductees were allegedly kept belonged to the accused, reason to believe his presence in the garden existed unless the contrary was proved by the prosecution---Sequence of events did not appeal to prudent mind in that the accused could not be expected to release one of the abductees who later informed the Police and got them arrested---Accused, as per prosecution story, could not be believed to have attempted to escape by car when he could flee on foot as the co-accused had done---One abductee failed to identify the accused while the other was not produced in the court without assigning any reason--Investigating Officer failed to investigate the case properly and did not associate any independent witness from the locality---Prosecution could not prove the alleged offence without reasonable doubt---Benefit of doubt was exercised in favour of the accused; his appeal was accepted setting aside the conviction and sentence.

Muhammad Aslam Chisit and Muhammad Mohsin Javed for Appellants.

Sardar Ahmad Haleemi Special Prosecutor ATA for the State.

Date of hearing: 26th May, 2010.

2011 MLD 76

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

ABDUL RAZZAQ---Appellant

Versus

JAMEEL AHMED---Respondent

F.A.O. No.2 of 2009, decided on 29th September, 2010.

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

----Ss. 13(3)(a)(i), 11 & 13-A---Ejectment of tenant---Ground of default in payment of rent and bona fide personal need of landlord---Tenant denied relationship of landlord and tenant and contended that rented premises, being residential building, could not be required by the landlord for commercial use---Validity---Tenant admitted to have been in possession of the house in question as tenant; he could approach competent court to establish his title to the house as no order deciding the title of ownership could be made under West Pakistan Urban Rent Restriction Ordinance, 1959---Respondent being son of late/previous landlord had acquired the status of landlord within the meaning of S.2(c) of the West Pakistan Urban Rent Restriction Ordinance, 1959---Rented premises was a residential building, therefore, landlord was required to obtain permission from the Rent Controller in order to convert the same into non-residential building under S.11 of the West Pakistan Urban Rent Restriction Ordinance, 1959---Landlord, thus, failed to establish bona fide personal need---Tenant produced photo copies of challans showing payment of rent in the court---Landlord had failed to serve any notice upon the tenant about change of title to property resulting from death of his father/previous landlord as required by S.13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959---No question of payment of rent to him could arise in circumstances---Landlord could not prove the ground of default in payment of rent---Trial Court wrongly decided the issue---Appeal was accepted---Impugned judgment was set aside.

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

----S. 11---Application---Landlord was required to obtain permission from the Rent Controller to convert a residential building into non-residential building under S.11 of the West Pakistan Urban Rent Restriction Ordinance, 1959.

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

----S. 13-A---Notice of transfer of ownership to tenant---New owner of rented property was required to serve notice upon the tenant about transfer of ownership under S.13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959, otherwise, a tenant would not be deemed to have defaulted in payment of rent.

Manzoor Ahmed Rehmani for Appellant.

Mian Badar Munir for Respondent.

Date of hearing: 14th May, 2010.

2011 M L D 470

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

MUHAMMAD AZAM---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 80 of 2010, decided on 6th December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 540---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Power of the court to summon/recall witnesses---Trial Court dismissed petitioner's/complainant's application for, recalling the witnesses who had resiled from their statements---Validity---Section 540, Cr.P.C. vested the court with vast powers to summon, recall, re-examine and record the evidence of persons in addition to the witnesses produced and examined by the prosecution or defence at any stage of the inquiry, trial or other proceedings in order to arrive at a just decision---Trial Court failed to exercise powers vested in it---Witnesses in question were required to be confronted with their statements for fair decision of the case---Application/petition was allowed.

Muhammad Taj Muhammad Mengal for Petitioner.

Zahoor Shahwani, P.G. for the State.

2011 MLD 587

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

NASIR HAMEED and another---Petitioners

Versus

RAIS MUHAMMAD AKRAM and 10 others---Respondents

Civil Revision No.494 of 2010, decided on 6th December, 2010.

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

----S. 42---Civil Procedure Code (V of 1908), O.XIV, R.2---Suit for declaration---Issues of law and fact and limitation---Trial Court dismissed the suit for being time barred---Appellate Court accepted the appeal of plaintiffs remanding the suit to Trial Court for decision on merits after framing issues of fact and recording evidence of the parties---Validity---Where issues of both law and fact arose, court could dispose of the case by deciding the issues of law first under O.XIV, R.2, C.P.C., but mixed question of law and fact could only be decided by recording the evidence of parties---Controversies of relationship of landlord and tenant and entries in the record of rights could be decided after recording the evidence of both the parties---Limitation was also a mixed question of law and fact which could not be decided without recording the evidence---Appellate Court made the right judgment which did not suffer from any illegality warranting interference of High Court---Revision was dismissed.

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

----O. XIV, R.2---Issues of law and fact---Nature---Where issues of both law and fact arose in the same suit, the court could dispose of the case by deciding the issues of law first under O.XIV, R.2, C.P.C., but mixed question of law could only be decided by recording the evidence of the parties.

Muhammad Usman Yousafzai for Petitioners.

Nemo for Respondents.

2011 MLD 712

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

ILYAS and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.59 of 2010, decided on 3rd January, 2011.

Penal Code (XLV of 1860)---

----Ss. 392 & 34---Voluntarily causing hurt in committing robbery, acts done by several persons in furtherance of common intention---Appreciation of evidence--Benefit of doubt---Contradiction in medical and ocular evidence created doubts---Delay in recording statements of witnesses and inspection of the site was not explained by the Investigating Officer---No recovery of stolen motor-cycle or crime weapon was effected---Prosecution failed to establish that the acts of the accused constituted alleged offence---Sequence of events narrated by prosecution was not logical---Complainant could not explain the reason for his efforts for settlement after suffering injuries in robbery committed---Contradictions and discrepancies in prosecution evidence were not considered by Trial Court---Ingredients of offence under S.392 were not complete---Contradictions in statements of prosecution witnesses made its case doubtful---Benefit of doubt had to be exercised in favour of accused persons---Appeal was accepted---Accused were acquitted of the charge.

Muhammad Ayaz Swati for Appellant.

Haji Liaquat Ali for Respondent.

Date of hearing: 8th November, 2010.

2011 M L D 950

[Quetta]

Before Mrs. Syeda Tahira Safdar and Jamal Khan Mandokhail, JJ

AZIZULLAH---Applicant

Versus

THE STATE---Respondent

Criminal Transfer Application No.2 of 2010, decided on 15th March, 2011.

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

----Ss. 6, 7 & 28---Penal Code (XLV of 1860), Ss.302(b)/34 & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Terrorism---Transfer of case front court of ordinary jurisdiction to court of Special Judge, Anti-Terrorism Court---Application for---Case was sought to be transferred from the files of Sessions Judge to court of Special Judge, Anti-Terrorism Court, on the grounds that accused were absconding; that the offence had been committed on main road; that incident had created severe fear and panic in the area and that the offence was an act of terrorism and fell within the ambit of Anti-Terrorism Act, 1997---Validity---Offence alleged to have been committed by accused persons, was with the motive to kill the victims by firing with Kalashnikov---Act was committed on a highway on basis of past enmity existed between both the parties as per contents of F.I.R. ---Intended action though had caused loss of life and caused hurt, but only that fact would not constitute an offence to bring same within the purview of terrorism and it was to be established, that alleged act created any sense of insecurity in general; or even to a particular section of society; or threat or sense of fear had been created due to the same---In the present case, though one person had lost his life and other sustained serious injuries, but ingredient required for forming an offence under S.6 of Anti-Terrorism Act, 1997, which was intimidation or overawe, either the government or section of public, was missing---Application for transfer of case was dismissed, in circumstances.

PLD 2010 QTA 52; Muhammad Mushtaq v. Muhammad Ashiq PLD 2002 SC 84L 2009 SCMR 527; PLD 2009 SC 11; 2002 SCMR 1225 and PLD 2005 SC 530 ref.

Muhammad Qahir Shah for Applicant.

Nemo for the State.

2011 M L D 1208

[Quetta]

Before Muhammad Noor Meskanzai and Naeem Akhtar Afghan, JJ

ABDUL WAHID and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.50 of 2008, decided on 23rd May, 2011.

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

----S. 9(b)(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Benefit of doubt---Recovered contraband weighing 600 Kgs was in the shape of rods in 500 packets, each packet weighing 1.2 Kgs---From the recovered contraband 12 parcels weighing 10 grams each were prepared as samples for chemical examination, but the Mashirnama was silent about the fact as to from how many rods said 12 samples were drawn---Prosecution witness had also failed to show as to from how many packets or from how many rods the 12 parcels weighing 10 grams each were prepared for chemical examination---As all the packets were not opened, presumption would be that the samples were not drawn from each packet and each rod---Provisions of Control of Narcotic Substances Act, 1997, had to be construed strictly to furnish the proof like the report of the expert with regard to the recovered contraband---In the present case, the samples had not been drawn from each rod of the contraband---Held, for the safe administration of justice, it would be presumed that 12 samples weighing 10 grams each total (120 grams) were only drawn from 12 rods; and for remaining rods in absence of any sample taken out from them, it would not be possible to hold that the same were rods of charas or otherwise---Said circumstance created a reasonable doubt, which could not be ignored in dispensing justice---Rule of benefit of doubt described as a golden rule, was essentially a rule of prudence and a circumstance creating reasonable doubt in a prudent mind could not be ignored; and benefit of same was to be extended to accused---Prosecution had established its case against accused to the extent of recovery of 120 grams charas---Charge from S.9(c) of Control of Narcotic Substances Act, 1997, was altered to S.9(b) of the said Act---Accused were convicted for the period already undergone, in circumstances.

Muhammad Hashim v. The State PLD 2004 SC 856; Tariq Pervaiz v. The State 1995 SCMR 1345 and Muhammad Hashim v. The State PLD 2004 SC 856 ref.

Muhammad Qahir Shah and Najamuddin Mengal for Appellants.

Rauf Atta, Standing Counsel for Respondent.

Date of hearing: 17th May, 2011.

2011 M L D 1475

[Quetta]

Before Jamal Khan Mandokhail and Abdul Qadir Mengal, JJ

MUHAMMAD SALEEM and 2 others---Applicants

Versus

ABDUL SAMAD KHAN and 5 others---Respondents

Contempt Application No.36 of 2004, decided on 18th May, 2011.

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

----S.3---Contempt of court---Applicants had alleged that respondents had violated the order of the Supreme Court passed in a civil appeal---Supreme Court, in its order had made an observation that notification in question was not in conflict with the Rules 221 and 509 of the Pakistan Railways Establishment Code with clarification that said Rules did not debar applicants from obtaining the benefits---Order of Supreme Court did not reflect any specific direction but it was of a general nature only specifying the rights of the applicants---If the authorities which were paying the dues to the applicants pursuant to the notification had stopped the payment to the applicants, said non-payment at the best could be considered as denial of the rights of the applicants; but it did not mean that authorities had violated and disobeyed the order of the Supreme Court---Applicants had the right to approach the competent court of law having jurisdiction in the matter, in case of infringement of their right and could refer the order of the Supreme Court for guidance and assistance of the court---Order of the Supreme Court being of a general nature; and no specific direction having been given, it was neither executable nor the denial of payment to the applicants by the authorities was a violation of the order of the Supreme Court---Contempt application being not maintainable, was dismissed, in circumstances.

S.A.M. Quadri for Apps cants.

H.Shakil Ahmed for Respondents.

Chaudhary Mumtaz Yousaf, Standing Counsel.

2011 M L D 1506

[Quetta]

Before Muhammad Hashim Khan Kakar, J

ZAMIN ALI and another---Petitioners

Versus

THE STATE---Respondent

Criminal Quashment Petition No.32 of 2007, decided on 17th June, 2011.

(a) Emigration Ordinance (XVIII of 1979)---

----S. 22(b)---Constitution of Pakistan, Art.13---Criminal Procedure Code (V of 1898), Ss.403 & 561-A---General Clauses Act (X of 1897), S.26---Receiving money fraudulently for providing foreign employ­ment---Punishing the accused twice for the same offence---Petition for quashing of proceedings---Earlier, as a result of proceedings initiated by complainant, petitioners were convicted and sentenced under Ss.406 and 420, P.P.C.-Petitioners could have also been charged under S.22(b) of Emigration Ordinance, 1979 which had not been done; it would be too late to initiate fresh proceedings against the petitioners under the garb of S.22(b) of Emigration Ordinance, 1979--Under the Principles envisaged in Art.13 of the Constitution, S.403 of Criminal Procedure Code, 1898 and S.26 of General Clauses Act, 1897, a person could not be punished or put in peril twice for the same offence and no person could be punished twice for one and the same cause---Simultaneous action could be initiated, subject to certain legal exceptions, but in view of the peculiar circumstances of the case, simultaneous action could not be initiated against the petitioners, for the reasons that action against them had already been finalized and . their acquittal on account of compromise arrived at between the petitioners and complainant had attained finality---Person, once convicted or acquitted could not be tried for the same offence---Criminal charge, once having been adjudicated upon by a competent court, that adjudication was final, whether it ended in acquittal or conviction---Offence under S.22(b) of Emigration Ordinance, 1979 was a lesser one and while trying a case earlier under Ss.420, 406, 417, 419, 467, 468 & 471, P.P.C., court was competent to convict the accused under S.22(b) of Emigration Ordinance, 1979, even without framing a separate charge---Petitioners/accused in the present case, were not only subjected to criminal proceedings, but were also arrayed in civil litigation---Acquittal of the petitioners in circum­stances, had become final---Proceedings were ordered to be quashed.

(b) Emigration Ordinance (XVIII of 1979)---

----S. 22(b)---Criminal Procedure Code (V of 1898), Ss. 561-A & 417-A---Receiving money fraudulently for providing foreign employment---Quashing of proceedings, petition for---Appeal against acquittal---Acquittal carried double presumptions of innocence in favour of accused---Courts were always reluctant to interfere in an acquittal order, unless and until it was shown that the same was perverse, ridiculous and shocking; or the court had not taken into consideration any material evidence, having direct bearing on the case---In the present case beside the agony of criminal trial, the petitioners were also arrayed in civil litigation; and said longstanding litigation finally ended, when the petitioners were acquitted of the charge by High Court on the basis of compromise arrived at between the parties---Petitioners had already suffered a lot, as conceded by the Standing Counsel---Re-opening of a past and closed transaction would serve no fruitful purpose---On account of compromise effected between the parties, there was no possibility of the petitioners being convicted of any offence---Further proceedings of the case would amount to abuse of the process of law---Proceedings pending against the petitioners, were quashed, in circumstances.

Muhammad Qahir Shah for Petitioners.

Ch. Mumtaz Yousaf, Standing Counsel for the State.

Date of hearing: 19th June, 2011.

2011 M L D 1541

[Quetta]

Before Muhammad Noor Meskanzai, J

MARDMAN-E-MALEZAI TRIBE through Sohbat Khan and 3 others---Petitioners

Versus

ABDUL SADIQ and 11 others---Respondents

Civil Revision No.388 of 2007, decided on 20th June, 2011.

Civil Procedure Code (V of 1908)---

----Ss. 47 & 48---Limitation Act (IX of 1908), S. 3 & Art. 181---Execution of decree---Limitation---Scope---Plea of decree-holder was that under Art. 181 of Limitation Act, 1908, his execution application was within limitation, as S.48 C.P.C. had prescribed a period of six years---Validity---Decree-Bolder made first application 6n 16-6-2006, for execution of decree passed on 19-3-2003, so the application filed by decree-holder was after three years and three months of the decree---Application for execution of decree was filed beyond the period of three years---Provisions of S.48 C.P.C. contemplated fresh application meaning thereby any application subsequent to the first one---Application for execution so filed by decree-holder was the ever first application, therefore, applicability of S. 48 C.P.C. was beyond imagination---Appeal or proceedings instituted beyond prescribed period of limitation was liable to be dismissed as required by S. 3 of Limitation Act, 1908---Execution application filed by decree-holder was rightly dismissed by both the courts below---Revision was dismissed in circumstances.

Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778; 2007 SCMR 1929 and PLD 1985 SC 153 rel.

W.N. Kohli for Petitioners.

Amanullah Batezai for Respondents.

Date of hearing: 8th April, 2011.

2011 M L D 1636

[Quetta]

Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ

ABDUL HADI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.(S) 35 of 2009, decided on 28th July, 2011.

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

----Ss. 302(6) & 34---Qatl-e-amd---Appreciation of evidence---Common intention---Statements of two eye-witnesses who were not only independent, but were also residents of the same village, where the incident had taken place were not discrepent---Names of witnesses had been duly mentioned in the F.I.R.---Some dispute existed between the parties over the land---Accused person and deceased were close relatives and due to civil dispute, the things were simmering within the family circle, when it came to a climax as on the day of occurrence---Both the witnesses appeared to be totally disinterested witnesses and nothing smacked of any partisanship in them---F.I.R. recorded on the statement of deceased, who while in injured condition, had given the details of incident, assigning specific roles to accused person before the Police Officer in the Hospital, could be treated as dying declaration, which was fully corroborated by the other pieces of evidence---Dying declaration though was not a substantive piece of evidence, but could be used as a corroborative piece of evidence in support of ocular account furnished by the witnesses-Accused though had not caused injury to the deceased, but he brought his companion equipped with a pistol at the venue of the offence and yelled the deceased that he would not be spared---Subsequent to the incident, accused took away his companion, who was involved in the murder of the deceased---Conduct of accused was not less than complete involvement attracting S.34 of P.P.C.-Having come together and having gone together, had left no room for doubt about the common intention of all to cause the murder of deceased---Question as to who made the firing, in such a situation, would become insignificant---Once it was proved that injuries caused by any one of them, was sufficient in the ordinary course of nature to cause death; that was enough to bring the case of such accused within the ambit of S.34, P.P.C.---Accused was rightly convicted under S.302, P.P.C. read with S.34, P.P.C.

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

----Ss. 34 & 302---Qatl-e-amd---Common intention---Existence or formation of common intention within the meaning of S.34, P.P.C., was not generally susceptible of direct proof and had to be inferred from the act of accused, his conduct or other relevant circumstances of the case---Compton intention could be inferred from the entire conduct of accused and not from an individual act, which he committed on the spot.

Muhammad Aslam Chishti for Appellant.

Kamal Khan Kakar for the State.

Muhammad Sadiq Ghulam for the Complainant.

Date of hearing: 30th June, 2011.

2011 M L D 1686

[Quetta]

Before Naeem Akhtar Afghan and Muhammad Noor Meskanzai, JJ

MUHAMMAD ALI---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.90 and Murder Reference No. 20 of 2006, decided on 18th July, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Occurrence having been witnessed by prosecution witness, who happened to be real sister of accused and widow of deceased, no question of mistaken identity existed in the case at all---Said prosecution witness had attributed specific role of firing to accused resulting in death of her husband on the night of occurrence---Said witness was natural witness and had no animus for false implication of accused---Presence of the witness at the spot could not be doubted; her statement was further corroborated in material aspects with the statements of other prosecution witnesses, whose statements had not been shaken in cross­-examination---Injuries on the body of deceased had been corroborated by an independent witness of the locality---Said witness further corroborated the recovery of two empties of kalashinkov from place of incident, recovery of blood stained ,earth as well as blood stained clothes of the deceased and had supported all the recovery memos at the trial---Substitution of an accused, who was actually involved in the commission of offence under S.302, P.P.C., was a rare phenomenon particularly in an incident in which a single accused was involved by nomination in F.I.R. from the very beginning and where the parties were inter se related to each other due to close kinship---Accused produced two witnesses in defence, in support of plea of alibi, but said witnesses had not corroborated the statement of accused on oath---Evidence of the defence with regard to the plea of alibi was not consistent and confidence inspiring---Defence witnesses had not been able to put a dent in the prosecution case---Accused having failed to substantiate his plea of alibi at the trial, same was of no consequence, in circumstances of the case---No misreading or mis-appreciation of evidence was noticed, by the Trial Court, with regard to basing the conviction of accused on the solitary statement of widow of deceased and sister of accused---Prosecution throughout the trial had not alleged any motive---Lack of motive or weakness of motive was immaterial to withhold the normal penalty of death in murder case, when trustworthy evidence had brought home the guilt against accused beyond any doubt---Ocular evidence, corroborated by independent witnesses of the locality in all material aspects was trustworthy and reliable; and the prosecution had abundantly proved its case against accused---Trial Court in circumstances had rightly imposed normal penalty of death to accused---Conviction and sentence awarded to accused under S.302(b), P.P.C. by the Trial Court, were upheld, in circumstances.

Muhammad Iqbal v. The State PLD 2001 SC 222; 1995 SCMR 1789; 2001 SCMR 199; 2001 SCMR 725; 2002 SCMR 1473; Muhammad Akbar and others v. The State PLD 2004 SC Page 44 and Muhammad Amin alias Irfan v. The State 2004 SCMR 1676 rel.

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

----S.302(b)---Qatl-e-amd---Sentence---Determination of quantum of sentence of death-Lack of motive---Effect---If the prosecution had succeeded in establishing the offence, the presence of motive or no motive, would not be ground for awarding lesser punishment to accused---Lack of motive or weakness thereof was immaterial to withhold the normal penalty of death in murder case, when trustworthy evidence had squarely brought home the guilt of accused beyond any doubt.

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

----S.302(b)---Qatl-e-amd---Sentence, award of---Duty of court---Court owed duty to the legal heirs/relations of the victims and also to the society---Sentence awarded should be such which should act as deterrent to the commission of offence---Approach of the court should be dynamic; and, if the court was satisfied that the offence had been committed in the manner as alleged by the prosecution, the technicalities should be overlooked without causing any miscarriage of justice.

Miss Shabana Azeem for Appellant.

Baqir Bakhtiar for the Complainant.

Abdul Sattar Durrani, Additional P.G. for the State.

Date of hearing; 28th June, 2011.

2011 M L D 1764

[Quetta]

Before Muhammad Hashim Khan Kakar, J

GHULAM RASOOL---Applicant

Versus

THE STATE---Respondent

Criminal Bail No.(S) 36 of 2011, decided on 29th July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.365, 147 & 149---Abduction---Pre-arrest bail, grant of---Affidavit of alleged abductee annexed with bail application, had clearly shown that alleged abductee had entered into Nikah with accused in consonance with the right guaranteed under the Islamic Law---Matter, requiring consideration, pertained to the allegations, which were levelled against accused, were ulterior motives, coupled with the loss, sustained to his honour, dignity and prestige---Question of mala fides was borne out from the record; and sufficient material was available to come to the conclusion that the report had been lodged to victimize and harass accused---In case of refusal to grant pre-arrest bail to accused, he would suffer humiliation, his dignity would be lowered in the general public---Superior courts could entertain pre-arrest bail and grant relief to accused in appropriate cases, where accused established that he was prevented from approaching the lower court concerned---Even otherwise, when it appeared that accused had not committed the offence of which he was being accused, bail should not be refused or withheld, merely on technical grounds---Accused was admitted on pre-arrest bail, in circumstances.

Malik Mukhtiar Ahmed Awan v. The State 1991 SCMR 322 rel.

Ali Hassan Bugti for Applicant.

Abdul Sattar Durrani, D.P.-G. for Respondent.

2011 M L D 1788

[Quetta]

Before Jamal Khan Mandokhail and Abdul Qadir Mengal, JJ

MUSSA KALEEM---Petitioner

Versus

THE STATE---Respondent

Constitutional Petition No.392 of 2011, decided on 21st July, 2011.

(a) Pakistan Prison Rules---

----Rr. 32, 33, 34 & 198---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Constitution of Pakistan, Arts.199 & 45---Constitutional petition---Possessing narcotic---Sentence, reduction in---Special remission from President---Trial Court convicted petitioner and sentenced him to suffer 14 years' R.I.---Appellate Court, in appeal, reduced sentence of 14 years to 10 years and rest of the sentence was maintained---During pendency of appeal, President of Pakistan, awarded "Special remission" in sentences of convicted prisoners to the extent of one forth of total sentence awarded by the court---Petitioner/ convict claimed that at the time, when the remission was awarded by the President, his sentence being 14 years, he was entitled to get his one forth remission on the basis of 14 years sentence---Superintendent jail declined his request---Validity---Sentence awarded to the petitioner by the Trial Court could be considered as final, when it was not challenged in higher forum, whereas in the present case it was challenged in appeal---Final verdict of the last higher forum/Appellate Court, with its variation, if any, would be considered as sentence---Sentence had been reduced by the Appellate Court on the request of petitioner from 14 years to 10 years and the petitioner had not pressed his appeal on merits, which would mean that he had accepted the conviction awarded by the Trial Court with a variation and reduction in the quantum of sentence---Final sentence of the petitioner, in circumstances was 10 years' R.I. and not 14 years, unless varied by the higher forum---After reduction of sentence from 14 years to 10 years, sentence of 10 years having attained finality, petitioner was entitled for one forth remission on his reduced sentence of 10 years, which had attained finality---Jail authorities were justified in calculating the Special Remission on the basis of 10 years sentence instead of 14 years---Constitutional petition was dismissed.

(b) Words and phrases---

---'Sentence' defined and explained.

Muhammad Riaz Ahmed for Petitioner.

Atiq Ahmed Khan, D.P.-G. and Syed Abdul Razaq, Superintendent Central Jail Mach for the State.

Date of hearing: 7th June, 2011.

2011 M L D 1819

[Quetta]

Before Naeem Akhtar Afghan and Muhammad Noor Meskanzai, JJ

Haji ABDUL RAHIM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.119 of 2010, decided on 11th August, 2011.

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

----Ss. 9(c), 20, 21 & 29---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Possessing narcotics, prohibition of manufacturing and owning intoxicant and possessing unlicensed arms---Appreciation of evidence---Raid was conducted at odd hours of the night at about 10-15 P.M., there was no possibility of availing search warrants as emergency for the raid was mentioned in the F.I.R.---Even otherwise S.21 of Control of Narcotic Substances Act, 1997, had empowered the officer to enter, search and arrest without warrants; and S.20 of the Act being directory in nature, its non-compliance could not be considered a strong ground for holding that the trial of accused was bad in the eye of law---Prosecution witnesses had throughout remained consistent and no contradictions were noticed in their statements with regard to the recovery of opium from the Baitak in presence and possession of accused---Presumption under S.29 of Control of Narcotic Substances Act, 1997, was that unless the contrary was proved, accused would be considered to have committed offence under the Act in respect of contraband---Accused, in the present case, had failed to rebut said presumption---Defence, during the trial was wavering and was not consistent in its plea---Objection of the counsel for accused on the analysis report was also vague as the report was issued by Federal Government Analyst, who had received sealed parcel of suspected material---Charge against accused was not defective as urged by accused and no error or illegality was found in the same---Accused had failed to substantiate his plea that he had any dispute/quarrel with or had enmity with Officer of Anti-Narcotic Force---Defence plea proved to be sham and baseless and there was no possibility of false implication or foisting the contraband---Prosecution, in circumstances, had proved its case against accused up to the hilt with regard to recovery of 15.500 Kgs opium---Conviction awarded to accused by the Trial Court was based on proper appreciation of evidence on record and no reason existed to interfere in the same.

2001 SCMR 36 rel.

2009 PCr.LJ 1270 and 2002 MLD 1198 distinguished.

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

----S. 221---Charge---Object---Object of the charge was to enable accused to know the precise accusation against him, which he was required to meet before evidence was adduced by the prosecution against him.

Muhammad Riaz Ahmed for Appellant.

Shaukat Rakhshani, Spl: Prosecutor A.N.F. for Respondent.

Date of hearing: 9th August, 2011.

2011 M L D 1982

[Quetta]

Before Muhammad Noor Meskanzai, J

Haji KHAIR BAKHSH and 5 others---Petitioners

Versus

ALLAH DAD and 5 others---Respondents

Civil Revision No.459 of 2007, decided on 19th August, 2011.

Civil Procedure Code (V of 1908)---

----O. XXI, R. 32---Execution of decree for permanent injunction restraining defendant from interfering in water channel of decree-holder---Undertaking given by judgment debtor before High Court in first round of litigation not to interfere in smooth running of such channel and its utilization---Order of Executing Court in second execution application directing judgment debtor to furnish surety in sum of Rs. 50,000 for not violating such decree---Dismissal of judgment debtor's appeal by Appellate Court---Judgment debtor's plea that Executing Court had no jurisdiction to pass the impugned order---Validity---Contents of revision petition would show that judgment debtor was bent upon interfering with such channel---Executing Court had also observed that judgment debtor was interfering with such channel---Judgment debtor was neither ready to honour such decree nor had any grace for such undertaking given before High Court---Difficulties of a litigant would start after passing of a decree in his favour---Each and every interference with such channel would amount to breach of surety bond and provide a genuine ground for its forfeiture---Decree holder in case of recurring cause of action would have right to ask for fresh surety, if surety already provided stood liable to be forfeited on proof of its violation---High Court dismissed revision petition in circumstances.

Muhammad Aslam for Petitioners.

Mumtaz Hussain Baqri for Respondents.

Date of hearing: 22nd July, 2011.